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  • July 15th, 2015

HSE S3 Prosecution – Client Acquitted


HSE Section 3 Prosecution

Our client prosecuted under Section 3(2) of the Health and Safety at Work Act 1974. The case involved a tragic case involving a man who died as a result of being trapped inside an industrial oven. He was cleaning inside of the oven, when another employee, without noticing he was in it, shut the door and turned the oven on. There was nothing inside to allow him to stop the oven and release himself, and as a result he died.

What is Section 3?

S3(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

Section 3 of the Health and Safety at Work etc. Act 1974 places an undertaking on a person in such a way as to ensure, as far as is reasonably practicable, that persons other than themselves or employees are not exposed to risks to their health and safety.

Why was our client charged if he wasn’t the one who shut the door?

Our client was prosecuted as a result of his involvement as an electrical consultant to the company that commissioned the design of the oven.

Our client did not instruct us before he was interviewed and as a result was interviewed without legal representation. He was charged with an offence that could have resulted in a custodial sentence. The company he was working for was also charged with corporate manslaughter and convicted after trial.

What did MJP solicitors do?

After reviewing the evidence thoroughly, we decided that we should prepare and submit an argument of ‘no case to answer’.

We based our submission on the fact that the Prosecution were alleging that there were Health and Safety Regulations and our client owed a duty of care. In fact, our careful analysis of the law indicated that our client was not a duty holder under those regulations, and so the law that the Prosecution relied upon was flawed.

It was possible for us to point out that he would not have been prosecuted for breach of any regulations or standards that were referred to by experts both in the evidence and in the interviews.

In summary, as there was no duty under the regulations, a duty could not be imposed in law and the prosecution should not have presented their case on that basis.

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What is ‘no case to answer’?

No case to answer is a submission in front of the Judge and without the presence of a jury that the case should be dismissed and the defendants acquitted without having to present any evidence for their defence. A submission like this is usually made when there isn’t enough reliable evidence to go before a jury and so the defence shouldn’t have to present their case.

What was the result?

We were successful in our submission and our client was acquitted. Despite the result, our client was understandably upset about the events and his treatment by the authorities.

What should I do if I am charged with something?

Obtain expert legal advice:

Do not merely co-operate when you are requested to attend an interview. Seek expert advice before you attend. Whether this is with the Police, Health and Safety Inspectors, Trading Standards or any other authority.

NB: Just because you have legal representation does not mean that you have something to hide and cannot be used against you.

Had legal representation been obtained at the outset, it might have been possible to resolve matters in the Police Station rather than having the expense and the pressurised environment of a Crown Court trial.

There is an element of judgement with hindsight in most HSE prosecutions, and this case is just one example where expert legal advice should be obtained from the outset.

If you are contemplating attending an interview with HSE, call our office on 0333 011 0515 and ask for Dominic McNabb. Alternativly you can send MJP an enquiry through our contact page.

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