The recent decision of the Court of Appeal in the cases of Tangerine Confectionery Limited and Veolia ES (UK) Limited v R  EWCA Crim 2015 is further confirmation that the prosecution bears a low evidential burden of proof in health and safety cases.
The facts were straightforward. In one of the cases an employee who worked at a sweet factory was killed when he became trapped in a machine whilst stopping it. In the other an employee was killed collecting litter on the verge of a dual carriageway. The defendants were prosecuted under section 2 of the Health and Safety at Work etc Act 1974 ("the Act") and, in addition, in the second case under section 3 of the Act. In both cases the Crown alleged the defendant had caused the accident.
A number of issues were considered by the Court of Appeal including:
- Is the Crown required to prove the offence caused the injury? and
- What, if anything, is the relevance of foreseeability of an injury or an accident which has in fact happened?
Causation of injury
Section 2 of the Act provides:
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".
Section 3 provides:
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety".
The Court of Appeal confirmed that for an offence under sections 2 or 3 it is not necessary for the prosecution to establish that the defendant caused the injury. This is because the focus of the statutory duty owed under those sections is upon the avoidance of the creation of a risk of injury and, therefore, the offence is committed without the need to establish that an injury, in fact, resulted.
As Hughes LJ stated:
"The offence lies in the failure to ensure safety so far as is reasonably practicable, i.e. in exposure to risk of injury, not in the doing of actual injury. Causation of the injury is not an ingredient of either offence".
Foreseeability of injury
In R v Chargot  UK HL 73 the House of Lords held that the prosecution has the initial burden of proof to establish that the alleged risk is material, that is to say one that any reasonable person would appreciate and take steps to guard against. Once that is established the burden of proof switches to the defendant to establish it took all steps, so far as is reasonably practicable, to ensure safety.
It has been established by previous case law that foreseeability is relevant to the question of what was reasonably practicable and, as such, is relevant in determining what the defendant has to establish. The question in this case was whether it was also relevant to the prosecution's side of the equation in establishing a material risk? The defence argued it was and relied upon the recent decision of the Supreme Court in Barker v Quantum Clothing  UK SC 17. In that case the Supreme Court held, in the context of a civil claim for personal injury arising from alleged industrial deafness, that foreseeability was relevant in assessing risk or lack of safety.
The Court of Appeal held foreseeability of risk was relevant to the question whether the alleged risk is material and that is a question the jury has to determine in deciding whether or not the prosecution has discharged its burden of proof. However, the Court held that did not mean that the Crown had to prove that the accident which actually occurred was foreseeable. The Court said that logically if the prosecution does not have to prove the defendant caused the accident to establish the offence, it cannot be relevant for the prosecution to have to establish the accident was foreseeable. To require the prosecution to establish foreseeability of the accident would convert sections 2 and 3 of the Act into ones creating offences of a failure to take reasonable care to avoid a specific incident.
The decision is consistent with the recent line of authority following Chargot including R v EGS Limited  EWCA 1942. The position reached therefore is that the prosecution is only required to establish a material risk existed. The prosecution can seek to do this by pointing to the fact of the incident itself. Whilst the Court emphasised that the fact of the incident does not prove by itself there was a material risk, it accepted "of course, it may be very strong evidence". Once evidence of a material risk is established the burden of proof switches to the defendant.
In many cases the prosecution chooses to take an extra step and allege the defendant caused the injury. The argument is that it helps to put the issues into a real context otherwise the jury would have to consider the concept of risk in a vacuum. Secondly, it enables the Judge to consider causation which becomes relevant if the defendant is convicted and the Judge has to determine sentence.
The practical difficulty with the decision, however, is that it places an onerous burden upon the jury. It assumes the jury readily distinguishes that their role is to determine whether there was a material risk and, if so, whether or not the defendant took all steps, so far as is reasonably practicable, to avoid that material risk; rather than deciding whether or not the defendant caused the actual accident. The Court, however, considered that this issue is adequately addressed by the Judge giving a direction to the jury:
"The Judge ought ordinarily to tell the jury that the issue is not whether the defendant did or did not cause the death but whether the offence was committed...He will normally warn the jury that in deciding that issue it should avoid being over influenced by the fact of a death".
The danger is that understandably the jury will focus on the often tragic facts of the accident itself. It is often pure chance whether or not a risk which arises results in serious personal injury or death but it is envisaged that it must be difficult for a jury to put aside the fact of a serious injury or death in determining the defendant's innocence or guilt in relation to the creation of a risk. Inevitably, we suggest, the consequence of what has in fact happened colours the analysis.