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David Janway Davies v Health and Safety Executive [2002] EWCA Crim 2949

 

The 'reverse burden' and the presumption of innocence.

The Court in Davies was asked to consider whether the 'reverse burden' of proof created by s.40 of the Health and Safety at Work Act 1974 was compatible with the presumption of innocence enshrined in Article 6 (2) of the European Convention on Human Rights. In effect, the Court held that;

  • Duty holders choose to engage in their activities, are in charge of them and accept the accompanying regulatory regime;
  • That regime requires them to ensure a state of affairs, a certain standard of safety;
  • It is not unfair to ask those who create or control risk to explain why it was not reasonably practicable to do more than was done to avoid it;
  • The facts needed should be within their knowledge (sometimes, the facts will be within their knowledge alone);
  • The way in which it can be shown that everything that was reasonably practicable to do was done is flexible, it is not restricted;
  • Parliament also appears to have considered when s.40 is justified and when it is not (it applies to sections 2-6 but not to 7 or 37).

 

Consequently, ‘the imposition of a legal burden of proof is justified, necessary and proportionate’.