Innocent Until Proven Guilty: EXCEPT in Health and Safety Cases!

Do you have an ex-partner you’d like to go back in time and ‘straighten a few things out’ with? Well, today’s your lucky day, because I just happen to own a time capsule! Climb in and join me for a few minutes as we whizz back to July 1992…

We’re standing silently at the top of the stairs in my old house, right behind my ex-husband. He hasn’t seen you or I. We’ve got a once-in-a-lifetime chance of a ‘free push’.

Seeing red, I go to shove him with my hip. Frankly, he would have deserved it. But in the nick of time, you hold me back and look at me, shocked. “Moira, you should know better!” you whisper, urgently.

It’s a good thing you were with me you see, because I would have pushed him down the stairs! Which of course, is a crime. Even when they deserve it.

(I wouldn't wish it on him of course, far from it. My lovely other half at the moment will not walk down the stairs in front of me after hearing this story!)

But imagine for a moment that I did push my ex down the stairs. How does the Crown Prosecution Service prove beyond reasonable doubt that I pushed him? After all, it was just the two of us in the house (plus you, who nobody knows about). How are they going to prove it?

There were no cameras. We didn’t have a nanny cam or anything inside the house. We didn’t argue or routinely bang furniture around. If I use my hips and BOOM down he goes, how are they going to prove it? (He has to die, of course. Otherwise, there's a bit of a problem.)

Even if a curtain-twitching neighbour calls in and tells the police he heard an argument once, lots of people shout and argue. So there’s still no evidence beyond reasonable doubt.

Except in a health and safety case...

Unfortunately, ‘innocent until proven guilty’ doesn’t apply to health and safety breaches. Health and Safety Law doesn't work that way around. It's so difficult to prove health and safety offences that the Health and Safety at Work etc Act 1974 (section 40) says you are guilty until you prove your innocence.

So all the Crown Prosecution Service has to do is prove that you probably did it and then you've got to prove that you probably didn't. The burden of proof sits with you.

Now in health and safety law, you're a bit restricted as to your defences to prove that you probably didn't. Your only allowable defences are:

1. You've got to prove that it was either not reasonably foreseeable
2. That you did everything that a reasonable employer or person would have done to prevent that from happening.

There are no other arguments - and ignorance is no defence!

So if you were (hypothetically) to commit a heinous crime against your ex-partner, you are innocent until proven guilty in the eyes of the law. But for health and safety offences this isn’t the case, you are guilty until proven innocent.

So do watch yourself! Or more importantly, watch your team members on the stairs.

We’ll come back to ‘reasonably foreseeable’ next time, as clearly some people have better (or different) levels of foresight than others.

Moira

P.S. For health and safety training, including on-site IOSH and NEBOSH courses, head to www.safety-now.co.uk. There’s never a dull second – and that’s a promise!

P.P.S. For the record, I'm not advocating that you push your other half down the stairs. That’s pretty much the opposite of my training!