R v Chargot Limited (t/a Contract Services) and others

The court considered the scope of the general duties imposed by Part I of the Health and Safety at Work etc Act 1974, in particular sections 2(1) and 3(1), and the operation of section 40 which places on the defendant the burden of proving what is "reasonably practicable". The court held that sections 2(1) and 3(1) prescribe a result to be achieved (the safety of employees and protection of others from risks arising from an undertaking) and that the prosecution need prove that the statutory result was not achieved rather than identify every particular act or omission alleged to have caused it. Once the prosecution establishes that result a prima facie case is made and the reverse burden under section 40 requires the defendant to show on the balance of probabilities that it was not reasonably practicable to do more. Section 37 requires proof of the corporate offence and then of the officer's consent, connivance or neglect; the required state of mind may be inferred from the officer's position and involvement. The court dismissed the appeals against conviction and sentence, holding that the particulars and jury directions in the trial were not unfair in the circumstances.

This was an appeal by Chargot Limited, Ruttle Contracting Limited and an officer, arising from the fatal workplace accident on 10 January 2003 when an employee, Shaun Riley, was killed after a dumper truck overturned at a farm site. The appellants were convicted at first instance of offences under the Health and Safety at Work etc Act 1974: Chargot Limited under section 2(1), Ruttle Contracting Limited under section 3(1), and the officer under section 37. They were fined and appealed against conviction and sentence. The Court of Appeal dismissed the appeals and certified three points of law of general public importance relating to whether the prosecution must identify specific acts or omissions or whether proof of a state of affairs giving rise to risk is sufficient under sections 2, 3 and 37.

Nature of the claim: criminal prosecution under Part I of the Health and Safety at Work etc Act 1974 seeking conviction for breaches of duties under sections 2 and 3 and for officer liability under section 37.

Issues framed:

• whether, in prosecutions under sections 2(1) and 3(1), the prosecution must identify and prove specific acts or omissions, or whether proof that the statutory result was not achieved (a state of affairs giving rise to a material risk) suffices;
• whether, for an offence under section 37, the prosecution need do more than prove the corporate offence to establish the officer's consent, connivance or neglect;
• what particulars and jury directions are required to afford fair notice to defendants.

Court’s reasoning and conclusions: the court analysed the purpose and structure of Part I, the Robens origins of the Act, and authorities applying a result-based approach. It concluded that sections 2(1) and 3(1) prescribe results to be achieved and that proof of a state of affairs giving rise to a real (material) risk establishes a prima facie breach, leaving the defendant to satisfy the reverse burden in section 40 on the balance of probabilities. The court emphasised the fair notice principle in prosecution practice: where the prosecution chooses to identify particular failings it must give particulars, but those particulars are not ingredients of the offence under sections 2 and 3. For section 37 the prosecution must first prove the corporate offence and then prove the officer's state of mind (consent, connivance or neglect), which may be inferred from the officer's role and involvement. Applying these principles to the facts, the court concluded the appellants had fair notice, there was a prima facie case established by the fatal accident, and the jury had been properly directed; the appeals were dismissed.

Appeal dismissed. The House of Lords held that sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 are result-based duties: the prosecution need prove that the statutory result was not achieved (a state of affairs giving rise to a material risk) rather than every specific act or omission. Once a prima facie breach is established the reverse burden under section 40 requires the defendant to prove on the balance of probabilities that it was not reasonably practicable to do more. For section 37 the body corporate's offence must be proved first and then the officer's conduct or state of mind (consent, connivance or neglect) must be established and may be inferred from his role. The particulars and jury directions in the trial were held sufficient and the convictions were upheld.

Convictions at first instance (trial) in 2006. Leave to appeal granted; Court of Appeal (Criminal Division) dismissed the appeals on 13 December 2007 [2007] EWCA Crim 3032. Appeal to the House of Lords denied; this judgment [2008] UKHL 73 (10 December 2008).