EGS Ltd, R. v

Under section 3(1) of the Health and Safety at Work etc Act 1974, the prosecution must prove that non-employees were exposed to a material risk to health or safety. It need not identify particular acts or omissions, prove causation, or prove that the risk was foreseeable. A material risk is one which is more than trivial or fanciful. Where injury has occurred, the facts may establish a prima facie breach, leaving the defendant to establish the statutory defence of reasonable practicability.

Whether the evidence establishes a material risk will ordinarily be for the jury. A court must not withdraw a charge on the basis of a due-diligence defence before the defendant has advanced and evidenced it.

EGS Ltd, which installed the electrical operating components of entrance gates at a newly built block of flats, faced health and safety charges following the death of a nine-year-old child. The child reached through a gap beside a gate, pressed an internal pedestrian egress button, and was fatally crushed as the gate opened.

At the close of the prosecution case, HH Judge Harrow at Bournemouth Crown Court upheld EGS's submission of no case to answer on two counts. Count 3 alleged a breach of section 3(1) of the Health and Safety at Work etc Act 1974. Count 4 alleged supply of machinery contrary to the Supply of Machinery (Safety) Regulations 1992.

The prosecution appealed against the withdrawal of those counts. The central issues were the elements of the section 3(1) offence and whether the judge could reject a statutory due-diligence defence before it had been advanced by EGS.

1. Appeal allowed. The court set aside the rulings withdrawing counts 3 and 4 and ordered that proceedings on those counts might be resumed.

2. On count 3, the judge had misdirected himself about section 3(1) of the Health and Safety at Work etc Act 1974. Applying R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73, the offence is concerned with the statutory result: non-employees must not be exposed to risks to health or safety, so far as reasonably practicable. The prosecution did not have to identify particular acts or omissions, prove that EGS caused the death, or prove that the risk was appreciable or foreseeable.

3. A risk for this purpose must be material, meaning more than trivial or fanciful. Whether a risk meets that threshold is a question of fact and degree, normally for the jury. The fatal accident and the accessible egress button created a prima facie case that EGS had exposed persons outside its employment to a material risk. The defendant could then seek to establish the section 40 defence of reasonable practicability.

4. On count 4, the judge wrongly withdrew the charge because the prosecution had not adduced evidence to rebut the defence under regulation 31(1) of the Supply of Machinery (Safety) Regulations 1992. The burden of proving that all reasonable steps and due diligence had been exercised lay on EGS. The defence had neither been properly particularised nor advanced in evidence, so it was impermissible to prejudge its prospects at the close of the Crown's case.

5. The court also observed that an indictment under regulation 12 should identify the particular essential health and safety requirements alleged to have been breached. In cases involving injury or death under section 3(1), the prosecution should not routinely overload the case with technical evidence of regulatory or standards breaches where the facts themselves establish a prima facie case and no section 40 defence has been properly notified. Complex Crown Court health and safety prosecutions should be actively managed from an early stage.

• Court of Appeal (Criminal Division): Allowed the prosecution's appeal against the withdrawal of counts 3 and 4 and ordered that proceedings on those counts might be resumed.
• Bournemouth Crown Court: HH Judge Harrow had accepted EGS's submission of no case to answer on counts 3 and 4 at the close of the prosecution case.