Why experts are a good idea in the defence of Health and Safety prosecutions

Why experts are a good idea in the defence of Health and Safety prosecutions



Written by

Susan Dearden Dr Richard Brown


The Health and Safety Executive (HSE) is one of the health and safety regulators in England and Wales. HSE performance data[1] for the period 2022 to 2023, suggests they:

  • carried out more than 16,800 investigations.
  • served approximately 6,000 improvement notices.
  • served approximately 2000 prohibition notices.
  • completed 216 criminal prosecutions with a 94% conviction rate.

Through fees for intervention which are now levied at £166 per hour per inspector when health and safety breaches are identified, and costs paid by defendants on conviction, the HSE raised £90million in the same period.

The fact is, that whether it is the HSE or a local authority or a specific industry regulator who is enforcing, there is a lot of enforcement going on and a typical prosecution which alleges breach of the statutory duty to take reasonably practicable steps to ensure the health and safety of employees or others affected by your business (whether or not there has been an accident), can be very difficult to defend, not least because of the wide subjective drafting of the duty.

Were you aware that when such duties are alleged to have been breached, far from it being the prosecutor’s role to prove that you have failed to take reasonably practicable steps to prevent the hazard and manage the risk, the burden of proof is by law switched to you to prove that you in fact took reasonably practicable steps to avoid the breach of duty?

Ways of proving reasonably practicable steps were taken include regularly reviewed risk assessments which demonstrate:

– knowledge and understanding of the hazards created by your business;

– the likelihood of risk and harm to anyone those hazards create, and

– effective controls applying the Hierarchy of Control, which gives priority to the elimination of risk where reasonably possible, and where PPE is the last resort ‘needs must’ protection implemented.

Even with such evidence, having an independent expert who can identify what hazards they would have expected to have been identified and how they would have expected those risks to be managed, can be powerful evidence which can:

  • cause a regulator to think again about whether or not enforcement measures are proportionate or realistic.
  • support an appeal against an enforcement notice.
  • support a defence to prosecution.
  • mitigate an offence; or
  • give context to and reduce assessments by the Court of culpability and likelihood of harm which are key to sentencing decisions.

Finch experts are experienced practitioners in their respective fields, trained in their duties to the Court and in giving written and oral evidence.


1 HSE Annual Report and Accounts 2022/23

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