Ireland: Defending A Health & Safety Prosecution - A Lighter Burden

The decision of the Irish Court of Criminal Appeal (CCA) in DPP v PJ Carey (Contractors) Limited (18th October, 2011) represents a positive development for companies defending prosecutions for serious health and safety offences in Ireland. The case sets down several principles which operate where the prosecution fail to submit sufficient evidence to the court to prove that there has been a breach of relevant health and safety legislation.

The jury in the case found the defendant, PJ Carey (Contractors) Limited,  guilty under Section 6.1 of the Safety, Health and Welfare at Work Act 1989 of failing to provide a system of work that was planned, organised, performed and maintained so as to be, as far as reasonably practicable, safe and without a risk to health.  The case concerned a fatality which occurred at a site which the defendant operated. An employee of the defendant entered an open trench which subsequently collapsed, killing him.  Upon conviction the defendant appealed.

Justice Hardiman, giving the judgment of the CCA, stated that the prosecution established that the "golden rule" on the defendant's site was that no person should enter an unprotected trench. The deceased had recently received a stern reprimand for entering such a trench and received a specific warning on the day of the incident in question. Furthermore, the judge noted that the state did not retain an expert witness to comment on the system of work. The only independent expert heard at trial said that there was a strong health and safety ethos on-site and the system of work was as far as reasonably practicable safe and without risk. The prosecution did not provide any witnesses to dispute this view.

The prosecution tried to argue that the doctrine of res ipsa loquitor , i.e. the facts speak for themselves, applied. This argument means that since the employee died in an open trench that fact, in and of itself, was sufficient proof of there not being a safe system of work in place. However, Hardiman J rejected the argument, saying that the mere fact that an employee died could never support a serious criminal conviction.

The prosecution also attempted to rely on Section 50 of the Safety, Health and Welfare at Work Act 1989, now re-enacted in Section 81 of the Safety, Health and Welfare at Work Act 2005. This section reverses the burden of proof in health and safety cases such that:

However, Hardiman J had a number of issues about the prosecution's reliance on this section. He explained that this section created a reverse burden of proof, albeit an evidential one as opposed to a legal burden. Such a burden, the judge explained, could be discharged by proving the existence of a reasonable doubt.  Hardiman J concluded his judgment by stating his view that Section 50 will not apply until the prosecution establishes a prima facie case that a system of work was unsafe.

Comment

The decision of the CCA sets down some principles that will assist companies defending health & safety prosecutions.

1. The prosecution cannot rely on the doctrine of res ipsa loquitor to affix criminal liability. This makes the burden on the prosecutions more onerous. They are obligated to actively prove the case against the defendant. By way of example, the prosecution cannot simply state that a fatality means that a system of work is unsafe.  It must be shown that elements of the work system are unsafe or incomplete.

2. A failure by the prosecution to make out a prima facie case, that is to say a case which can stand on its own, will prevent the operation of Section 50 of the 2005 Act, once again making the prosecution's task more difficult. For example, in PJ Carey the prosecution's evidence was wholly favourable to the defence and consistent with their innocence. In that situation, no prima facie prosecution case can be said to have been made out.

3. In the event that Section 50 is applicable, a conviction can be avoided by simply establishing a reasonable doubt. This is of significant benefit to defendant companies because it is a much lower threshold than if the burden placed on them were a legal or substantive one.

The case of DPP v SIAC Construction Ltd. and Ferrovial Agroman (Ireland) Ltd. (Trim Circuit Court, Unreported 9th March 2012) is an example of PJ Carey's application. The case arose out of the death of a subcontractor's employee during the construction of the M3 Motorway in September, 2008. Justice Fullam followed the reasoning in PJ Carey and came to the conclusion that the prosecution failed to make out a prima facie case.  Fullam J drew attention to the fact that there was no expert criticism of the two defendants' systems of work and there was insufficient evidence for other elements of the prosecution's case. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.