For so many employers, the initial reaction of a health & safety prosecution is hard to get over. "We don't deserve this" they say. "We protect our employees, we're a reliable firm, we do everything by the letter." When the reality hits, it's a horrible truth. Think of yourself in that position: Confronting an Health and Safety Executive (HSE) prosecution? In that case, you are now a 2nd class person.
As you wait on a stiff bench in a court reception room, awaiting for your go, next to supposed thieves and frauds, bear in mind this: they will receive the first-rate service, the right to rely on antique legal entitlements but you, truthful, conscientious working manager, shall not. The most obvious legal right - the benefit of the doubt - is a stark example.
If a police officer stumbles upon you, say, in a backstreet, stained blade in hand with a dead person in front of you, you still have that fundamental right. To condemn, the prosecution have to attest the case beyond reasonable doubt. The evidence may be crushing but you still retain the right to put the case before a jury, to raise a doubt and ask: "Are you certain it was not an accident?"
Occasionally in such situations, the jury won't be certain. Surprise acquittals are not very common. Where HSE prosecutions are concerned, bad things really do come in threes.
To begin with, for the worst violations, all the accuser has to do is demonstrate a 'risk'. Commonly, this is not difficult to achieve due to the accident - where there is an accident there is a risk. After that, it is left to you to prove you took all steps which were 'reasonably practicable'. Though it is usually much easier to see steps that could have avoided the accident after the event - to make the appropriate action with the help of hindsight - it would be more difficult to plan for all probable outcomes before hand.
The trial will give certain attention to foresee ability: it could be said that if a risk was not predictable or if it was far-fetched it would not have been reasonably practicable to take steps to stop it.
Yet, this is still seen by the help of hindsight. To question "should you have predicted the tree falling?" when the tree has fallen down (commonly recounted in every facet and is unpleasant for the victim in the room) is the opposite question to "is the tree going to fall down?" in theory prior to the occurrence taking place.
The next struggle is that you're attempting to prove a negative. It helps to display the positives but it does not verify a negative. It helps to show the positives but it does not attest that you did not and should not have done more. The multiples of things you might have done is never ending.
Lastly, there is the extent of the prosecution: the narrow subject of an accident is only the beginning. In numerous cases, whilst the only reason an HSE inspector has been looking through your method statements and risk assessments in excruciating detail is because there's been a severe incident, that will not stop the inspector pulling out each and every unconnected failing he can uncover in your practices. Why? Because at times, any violation will do.
The objective of the prosecution may be that a certain breach has caused an accident but absolutely every single breach will be attained in front of the HSE prosecution firing line. There is not a need to prove causation. After the verdict in the 'R - v - Tangerine' case, the prosecution can put the details of an accident in front of the jury as no more than a specimen of what can go awry. A series of minor breaches takes on an entire new significance against the backdrop of a severe accident. The exact legal question - "Did the defendant fail to avoid exposure to risk?" - is just the start of the story.
The conclusion - is it possible to fight off a case from the HSE? Well, it's possible but extremely hard. The only hope is to do all you can to prevent an investigation from the HSE - monitor and resolve risk, train employees in up to date safety courses, invest, monitor worker competencies - and above all be able to hastily act and find legal guidance from the start. Quick advice provides you with the most successful chance. Failure to do so means little hope.
As you wait on a stiff bench in a court reception room, awaiting for your go, next to supposed thieves and frauds, bear in mind this: they will receive the first-rate service, the right to rely on antique legal entitlements but you, truthful, conscientious working manager, shall not. The most obvious legal right - the benefit of the doubt - is a stark example.
If a police officer stumbles upon you, say, in a backstreet, stained blade in hand with a dead person in front of you, you still have that fundamental right. To condemn, the prosecution have to attest the case beyond reasonable doubt. The evidence may be crushing but you still retain the right to put the case before a jury, to raise a doubt and ask: "Are you certain it was not an accident?"
Occasionally in such situations, the jury won't be certain. Surprise acquittals are not very common. Where HSE prosecutions are concerned, bad things really do come in threes.
To begin with, for the worst violations, all the accuser has to do is demonstrate a 'risk'. Commonly, this is not difficult to achieve due to the accident - where there is an accident there is a risk. After that, it is left to you to prove you took all steps which were 'reasonably practicable'. Though it is usually much easier to see steps that could have avoided the accident after the event - to make the appropriate action with the help of hindsight - it would be more difficult to plan for all probable outcomes before hand.
The trial will give certain attention to foresee ability: it could be said that if a risk was not predictable or if it was far-fetched it would not have been reasonably practicable to take steps to stop it.
Yet, this is still seen by the help of hindsight. To question "should you have predicted the tree falling?" when the tree has fallen down (commonly recounted in every facet and is unpleasant for the victim in the room) is the opposite question to "is the tree going to fall down?" in theory prior to the occurrence taking place.
The next struggle is that you're attempting to prove a negative. It helps to display the positives but it does not verify a negative. It helps to show the positives but it does not attest that you did not and should not have done more. The multiples of things you might have done is never ending.
Lastly, there is the extent of the prosecution: the narrow subject of an accident is only the beginning. In numerous cases, whilst the only reason an HSE inspector has been looking through your method statements and risk assessments in excruciating detail is because there's been a severe incident, that will not stop the inspector pulling out each and every unconnected failing he can uncover in your practices. Why? Because at times, any violation will do.
The objective of the prosecution may be that a certain breach has caused an accident but absolutely every single breach will be attained in front of the HSE prosecution firing line. There is not a need to prove causation. After the verdict in the 'R - v - Tangerine' case, the prosecution can put the details of an accident in front of the jury as no more than a specimen of what can go awry. A series of minor breaches takes on an entire new significance against the backdrop of a severe accident. The exact legal question - "Did the defendant fail to avoid exposure to risk?" - is just the start of the story.
The conclusion - is it possible to fight off a case from the HSE? Well, it's possible but extremely hard. The only hope is to do all you can to prevent an investigation from the HSE - monitor and resolve risk, train employees in up to date safety courses, invest, monitor worker competencies - and above all be able to hastily act and find legal guidance from the start. Quick advice provides you with the most successful chance. Failure to do so means little hope.
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