R v Chargot Limited (t/a Contract Services) and others (Appellants) (On appeal from the Court of Appeal Criminal Division)

Sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 prescribe results, rather than particular means of achieving them. The prosecution must prove a material risk and the failure to achieve the statutory result. It need not prove specific acts or omissions as ingredients of the offence.

Once a prima facie breach is established, section 40 places on the defendant the legal burden of proving, on the balance of probabilities, that it was not reasonably practicable to do more. Fair notice may require particulars of the relevant risk or alleged failures, but those particulars do not become ingredients requiring jury unanimity. An officer is liable under section 37 only where the corporate offence occurred with that officer’s consent or connivance, or was attributable to neglect.

An employee of Chargot Ltd died after a dumper truck overturned while he was moving spoil on a construction site. The precise cause of the accident was never established. Chargot Ltd was convicted of breaching section 2(1) of the Health and Safety at Work etc Act 1974. Ruttle Contracting Ltd, the principal contractor, was convicted under section 3(1), and its managing director was convicted under section 37.

The Court of Appeal dismissed their appeals in [2007] EWCA Crim 3032; [2008] ICR 517. It held that the prosecution could establish a prima facie breach by proving a risk arising from the state of affairs at work, without identifying particular acts or omissions.

The certified questions asked what the prosecution must prove under sections 2, 3 and 37, whether section 40’s reverse legal burden was proportionate, and what particulars and jury directions fairness required.

1. Appeals unanimously dismissed. Lord Hope delivered the leading speech. Lord Hoffmann, Lord Scott, Lord Brown and Lord Neuberger agreed. The convictions of all three appellants were upheld.

2. Per Lord Hope, sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974 prescribe the result which an employer must achieve or prevent. Section 2 requires the employer to ensure employees’ health and safety at work. Section 3 requires the undertaking to be conducted so that affected non-employees are not exposed to health and safety risks. The prosecution need not identify and prove particular acts or omissions as ingredients of either offence. Once failure to achieve the prescribed result is proved, a prima facie breach arises and section 40 places on the defendant the burden of establishing reasonable practicability.

3. The relevant risk must be material, rather than trivial or fanciful. It is a risk which a reasonable person would appreciate and take steps to guard against. Injury at work will ordinarily demonstrate prima facie failure where the necessary connection exists between the work or undertaking and the accident. The prosecution need not establish the accident’s precise cause merely because it is unknown or disputed.

4. Prosecution practice remains governed by fair notice. The prosecution must identify the particular risk. Where no injury has occurred, it may have to identify and prove the respects in which the statutory result was not achieved. Even after an injury, section 3 may require proof of how the injured person was liable to be affected by the undertaking. If the prosecution relies on identified defects or failures, fairness may require their inclusion in the particulars. Those failures remain evidence rather than ingredients of the sections 2 and 3 offences.

5. Per Lord Hope and Lord Brown, the jury need only agree that the prescribed result was not achieved. It need not agree upon every evidential allegation describing how the employer failed. The unanimity direction applicable where particular means constitute an ingredient does not apply to prosecutions under sections 2 and 3. Section 7 differs because a breach of the employee’s duty to take reasonable care must be specified and proved.

6. Per Lord Hope, section 40 imposes a legal burden on the defendant, but that burden is justified, necessary and proportionate. Duty holders voluntarily control work or commercial activities and possess the means to explain what precautions were reasonably practicable. Increased penalties did not alter that conclusion.

7. Section 37 first requires proof of a corporate offence. The prosecution must then prove that the offence occurred with the officer’s consent or connivance, or was attributable to neglect. These mental elements may be inferred. The officer’s management functions, proximity to the work, direction or control, and whether the circumstances should have put the officer on inquiry are highly relevant.

1. House of Lords: The House unanimously dismissed the appeals and upheld the convictions: [2008] UKHL 73.
2. Court of Appeal, Criminal Division: The court dismissed appeals against conviction and sentence: [2007] EWCA Crim 3032; [2008] ICR 517.
3. Trial court: A jury convicted both companies and the managing director of offences under sections 2, 3 and 37 of the Health and Safety at Work etc Act 1974. Fines and costs orders were imposed.