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Health & safety update

Mike Elliker reports on the failed ECHR challenge to s 40 of the Health and Safety at Work Act, which places the burden of proof on the defendant

17 January 2003

The more assiduous readers of the annual Health & Safety update (or at least those with the memory of an elephant) will recall mention, in (2000) 144 SJ 777-8, 18 August, of the possibility that the provisions of s 40 of the Health & Safety at Work Act 1974 (HSWA) would be challenged under Art 6(2) ECHR (presumption of innocence). That challenge has now taken place. The decision of the Court of Appeal in Davies v Health & Safety Executive [2002] EWCA Crim 2949 represents a significant milestone in the development of health and safety law. Background Sections 2 and 3 HSWA impose obligations on employers and the self employed to ensure, so far as reasonably practicable, the health and safety of their employees and members of the public who might be expected to be affected by their activities. Although the duty is a high one, it is not absolute and is subject to the ameliorating factor of ‘reasonable practicability’. No employer is required to give an absolute gu...

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