AH Ltd & Anor, R. v

Section 40 of the Health and Safety at Work Act 1974 places a legal burden on an accused to prove that it was not reasonably practicable to do more than was done to satisfy a qualified safety duty. That reverse burden is compatible with the presumption of innocence and is not disproportionate. The Court of Appeal was bound by the House of Lords’ clear approval of that conclusion. The availability of a custodial sentence did not alter the position, because that increase in penalty had already occurred when the House of Lords gave its approval.

A resident of a nursing home died after suffering serious scalding injuries during a bath. The company operating the home and one of its directors faced charges under sections 3, 33 and 37 of the Health and Safety at Work Act 1974.

At a preparatory hearing, Thornton J ruled that section 40 imposed a legal, rather than merely evidential, burden on the accused to prove reasonable practicability. The defendants sought leave to appeal that ruling. The central issue was whether the Court of Appeal could reconsider the conclusion in R v Davies that section 40 imposes a proportionate legal reverse burden.

1. Permission to appeal was refused. Thornton J’s ruling was unarguably correct.

2. Section 40 of the Health and Safety at Work Act 1974 expressly places on an accused the legal burden of proving that it was not reasonably practicable to do more than was in fact done to satisfy the relevant duty. The Court of Appeal’s decision in R v Davies [2003] ICR 586 had so held.

3. The House of Lords, through Lord Hope in R v Chargot [2009] 1 WLR 1, clearly approved Davies. Although that approval might have been obiter in the limited sense that the certified question differed from the present issue, it was binding on the Court of Appeal. It was therefore not open to either the trial judge or the Court of Appeal to hold that Davies was wrongly decided.

4. The legal reverse burden imposed by section 40 was not disproportionate. The later introduction of a maximum two-year custodial sentence for an individual defendant did not assist the director: that penalty was already available when the House of Lords approved Davies.

5. It was unnecessary to consider whether, absent R v Chargot, R v Davies could have been treated as decided per incuriam or whether the Court of Appeal could depart from its own earlier authority.

• Court of Appeal (Criminal Division) — refused the defendants permission to appeal from the preparatory ruling: [2021] EWCA Crim 359.

• Central Criminal Court — Thornton J, at a preparatory hearing, ruled on 5 February 2021 that section 40 of the Health and Safety at Work Act 1974 imposed a legal burden on the accused to prove reasonable practicability.