Case No: 2001/05561 X5
Neutral Citation No.:  [2002] EWCA Crim 2949
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
HIS HONOUR JUDGE PRICE Q.C.
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Date: Wednesday 18TH December 2002
Before :

LORD JUSTICE TUCKEY
MR.  JUSTICE DOUGLAS BROWN
and 
HIS HONOUR JUDGE GORDON

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Between :

	DAVID JANWAY DAVIES	Appellant	
	
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HEALTH and SAFETY EXECUTIVE	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr. W. L. WILLIAMS Q.C. and Mr. B. THOMAS (instructed by Hutchinson Morris & LC Thomas) for the Appelant
Oba NSUGBE Q.C.  and Bernard THOROGOOD (instructed by DLA Solicitors) for the Respondent

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Judgment

Lord Justice  Tuckey: 

1.	Once again this court has to consider whether a reverse burden of proof provision in a statute creating offences is compatible with the presumption of innocence enshrined in Article 6 (2) of the ECHR.   The statute in question is the Health and Safety at Work Act 1974.  The combined effect of sections 3 (1) and 33 (1) of the Act make it an offence for an employer to fail to discharge
the duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
Section 40 says that in any proceedings for an  offence
consisting of a failure to comply with a duty … to do something ….. so far as is reasonably practicable …. it shall be for the accused to prove ….. that it was not reasonably practicable to do more than was in fact done to satisfy the duty…..
2.	The appellant, David Janway Davies, was convicted on 7th September 2001 of an offence under these statutory provisions in the Swansea Crown Court.  He was fined £15,000 and ordered to pay £22,544,32p prosecution costs.  Following a submission made at the close of the prosecution case the judge (H.H. Judge Price Q.C.) ruled that section 40 was compatible with the Convention and therefore directed the jury that there was a legal (persuasive) burden on the appellant to prove (on the balance of probability) that it was not reasonably practicable for him to do more than he had in fact done.  The appellant appeals this point with the leave of the full court, contending that section 40 is only compatible if it is read down so as to impose an evidential burden.  The appeal is of  importance because it affects prosecutions for a number of  offences under the Act and there are conflicting decisions at Crown Court level.  The full court also gave leave to argue a discreet point about misdirection in the  summing up.
The facts
3.	The facts giving rise to the prosecution were not really in dispute.  The appellant ran a plant hire firm from a yard and workshop near Neath.  He had three employees and employed three self-employed subcontractors, one of whom was Mr Gardner.  On 25th January 2000 Mr Gardner returned to the yard at about 3.30 p.m. and asked the appellant if there was any further work for him to do.  The appellant was in the workshop working on a Volvo dumper truck.  He told Mr Gardner that he should go home and then shouted to an employee, Mr Ralph, who was in the yard, to bring a JCB down into the workshop and park it tight up to the dumper.  Mr Ralph reversed the JCB with its lights flashing down into the open workshop but as he approached the truck he had to retract the machine’s rear arm which left him with very little visibility to the rear.  Unfortunately Mr Gardner was crushed between the two vehicles and sustained fatal injuries.  Mr Ralph did not see Mr Gardner before the accident.  The appellant had resumed working in the cab of the truck.  Sometime before the accident he noticed that Mr Gardner had not left the workshop but did not see the accident itself.
4.	A Health and Safety Executive witness produced a leaflet entitled “Reversing Vehicles”.  This said that nearly a quarter of all deaths involving vehicles at work occur while the vehicle is reversing and that most happen at low speeds and could be prevented by taking some simple safety precautions.  These included the use of a banksman to ensure safe reversing.  The appellant and Mr Ralph said that they had never used a banksman and did not consider that one was required.  The defence case was that by telling Mr Gardner to go home before the accident, by shouting an instruction to Mr Ralph which Mr Gardner should have been able to hear and by relying on the noise and lights of the JCB to alert Mr Gardner to the danger, the appellant had done all that was reasonably practicable.  The Crown submitted he had not.  He had not ensured that Mr Gardner was safely out of the way before returning to work on the truck  and could have guided the JCB back himself.
Construction
5.	In some cases where a statute provides for a reverse burden of proof the court first has to consider as a matter of construction whether the burden is legal  (persuasive) or merely evidential.  No such issue arises in this case.  The language of the statute, “it shall be for the accused to prove”, clearly imposes a legal burden.  
6.	Equally the authorities show that if it is necessary to achieve compatibility by reading such clear language down so as to provide simply for an evidential burden, the court should do so.
7.	The only issue of construction in this case is whether the section 40 defence relates to an ingredient of the offence created by sections 3 and 33.  If it does not, some cases suggest that there is no infringement of the presumption of innocence (see the discussion about this at paras. 23 – 25 in Sliney v London Borough of Havering 2002 EWCA Crim. 2558).  Mr Nsugbe Q.C. for the Crown submits that this is the case here.  The Crown must prove that it is the defendant who owes the duty to the person or persons concerned and that he has conducted his undertaking so as to expose them to a risk to their health or safety, but once they have done so the offence is proved unless the defendant establishes the section 40 defence.  In other words reasonable practicability is not an essential ingredient of the offence.  
8.	We do not accept this submission.  The duty cast on the defendant is a “duty…. to ensure as far as is reasonably practicable”.  It is a breach of this qualified duty which gives rise to the offence.  Mr Nsugbe had to concede that but for section 40 it would be for the Crown to negative reasonable practicability.  This makes the point against him.
Compatibility
Discussion
9.	This construction of the statute means that section 40 does make some inroad into the presumption of innocence.  It does not follow however that it is incompatible with the Convention.  As the ECtHR said in Salabiaku v France (1988) 13 EHRR 379 at para. 28
Presumptions of fact or law operate in every legal system.  Clearly the Convention does not prohibit such presumptions in principle.  It does however require the contracting States to remain within certain limits in this respect as regards criminal law …. Article 6 (2) does not therefore regard presumptions of fact or law provided for in the criminal law with indifference.  It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.
It is worth adding at this point that in the field of health and safety the E.E.C. accept that it is possible to impose absolute duties on employers.  Thus Article 5.1 of Council Directive 89/391/EEC requires member states to provide that:
The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
Member states may, but are not required: 
…. to provide for the exclusion or the limitation of employers responsibility where occurrences are due to unusual and unforeseeable circumstances beyond the employers control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.
10.	The approach to be adopted when considering whether the provision in question is within reasonable limits has been considered by the courts in this country in a number of cases.  The concern is not that the defendant must disprove an element of the offence, but that he may be convicted while a reasonable doubt exists.  In other words in this case the jury might not have been sure that it was reasonably practicable for the appellant to do more, but convicted him because he had not satisfied them that he could not have done more.  It is therefore for the State to justify such an inroad into the presumption of innocence which should not be greater than is necessary, justified and proportionate.  The court has to consider whether a fair balance has been struck between the fundamental right of the individual and the general interests of the community, paying due regard to the choice which the legislature has made when striking that balance, particularly where social or economic policy is involved.  
11.	These are broad questions which our courts have so far not had to answer in the context of legislation like the 1974 Act.  In R v Kebeline (2000) 2 AC 326 at p. 386 Lord Hope accepted that in considering where the balance lies it was useful to consider the following questions:  (1)   What does the prosecution have to prove in order to transfer the onus to the defence? (2)   What is the  burden on the accused?   Does it relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or  to which he readily has access?  (3) What is the nature of the threat faced by society which the provision is designed to combat?
12.	We have already given some consideration to the first question.  It is convenient to consider the third question next.  In Kebeline the court was concerned with anti-terrorist legislation but in any case the context and purpose of the legislation is obviously very important.  
13.	The 1974 Act followed the Robens Report (1972, Cmd 5034).  This report recommended legislation which set goals for duty  holders to encourage them to be safety conscious so as to prevent accidents, rather than purely prescriptive measures.  Thus section 1 of the Act says that its provisions shall have effect with a view to securing the health, safety and welfare of persons at work and protecting persons other than persons at work against risks to health or safety.  There then follow what are now four sections under the heading General Duties including section 3.  The others are section 2 (duties of employers to employees), section 4 (duties of persons concerned with premises) and section 6 (duties of manufacturers).  Like section 3 each of these sections imposes a duty to ensure a state of affairs so far as is reasonably practicable and is subject to the section 40 defence.  Section 7 however, which requires every employee to take reasonable care for himself and others, is not subject to section 40 although section 33 (1)(a) makes it an offence to fail to discharge any of the duties laid down by sections 2 to 7.  A person guilty of such an offence is liable on summary conviction to a fine not exceeding £20,000 and on indictment to an unlimited fine.
14.	The Act sets up a Health and Safety Commission made up of representatives of the interested parties who are to further its purposes by assisting, encouraging, advising and providing information on safety matters and a Health and Safety Executive to enforce its provisions (sections 10 to 18).  For the purpose of providing practical guidance with respect to any of the provisions in sections 2 to 7  the Commission may approve and issue  codes of practice after consultation with interested parties (section 16).  Such codes of practice, the equivalent of industry standards, may be used in criminal proceedings in accordance with section 17.
15.	The first point to be noted about the legislation is that it is regulatory rather than prescriptive.  This is important in the balancing exercise.  Lord Clyde in R v Lambert (2002) 2 AC 545 at para. 154, having said that the statutory provision in question (section 28 of  The Misuse of Drugs Act 1971) could not be justified because the offence carried a sentence of life imprisonment, continued 
A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest.  The requirement to have a licence in order to carry on certain kinds of activity is an obvious example.  The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls.  These kinds of cases may properly be seen as not truly criminal.  Many may be relatively trivial and only involve a monetary penalty.  Many may carry with them no real social disgrace or infamy.
16.	The reasons for the distinction between truly criminal and regulatory offences were spelt out cogently by Cory J. in the Canadian Supreme Court in R v Wholesale Travel Group (1991) 3 SCR 154.  He expressed the rationale for the distinction as follows:
The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, common consumers and motorists to name but a few) from the potentially adverse affects of otherwise lawful activity.  Regulatory legislation involves the shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests.  While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.
It follows that regulatory offences and crimes embody different  concepts of fault.  Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime.  The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault.  Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care.
This distinction could be justified by what he called the licensing argument:
….. while in the criminal context the essential question to be determined is whether the accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is by virtue of the licensing argument, assumed to have made the choice to engage in the regulated activity….. those who choose to participate in regulated activities have in doing so placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility…. Those persons who enter a regulated field are in the best position to control the harm which may result and they should therefore be held responsible for it.
and the vulnerability justification:
Regulatory legislation is essential to the operation of our complex industrial society:  it plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves.  The extent and importance of that role has increased continuously since the outset of the Industrial Revolution.  Before effective workplace legislation was enacted  labourers – including children - worked unconscionably long hours in dangerous and unhealthy surroundings that evoke visions of  Dante's Inferno.  It was regulatory legislation with its enforcement provisions which brought to an end the shameful situation that existed in mines, factories and workshops in the nineteenth century.
This analysis led him to conclude that the legislation in question which required the defendant to prove that he had exercised due diligence to prevent false and misleading advertising  was not incompatible with the presumption of innocence in the Canadian Charter saying:
Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot therefore be convicted where there is a reasonable doubt as to guilt.  This is not so with regulatory offences, where  conviction will lie if the accused has failed to meet the standard of care required.  Thus the question is not whether the accused has exercised some care but whether the degree of care exercised was sufficient to meet the standard imposed.  If the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance probabilities that they took reasonable precautions to avoid the harm which  actually resulted.  In the regulatory context there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society. 
17.	We are conscious of the difference of approach by the Canadian Supreme Court to their Charter to that of courts in this and other jurisdictions (see Attorney General v Lee Kwong-Kut (1993) AC 951 at p. 970B – 973A),  but we find Cory J’s analysis convincing and extremely helpful.
18.	The next point to be derived from the Act is that there is no risk of imprisonment for any of the offences created by sections 2 to 7 and 33 (1)(a) of the Act.  Mr Williams Q.C. for the appellant argued that this was not a particularly potent factor because conviction for Health and Safety Act offences did carry moral condemnation and opprobrium.  It was the Health and Safety Commission’s policy “to raise the courts awareness of the gravity of health and safety offences and the full extent of their sentencing powers” and to give publicity to convictions to deter others.  Publicity of this kind would be very damaging to the offender’s business and general reputation.  
19.	We do not doubt what Mr Williams says.  Enforcement and the deterrent effect of conviction undoubtedly do play an important part in the regulatory regime.  Nevertheless the fact remains that an offender does not face the risk of imprisonment for the offences in question.  This is undoubtedly an important factor in deciding whether Parliament has struck the right balance in this legislation.
20.	Other points arising from the Act are that the relevant offences are not concerned with the defendant’s state of mind.  His intent is irrelevant.  The Act makes him responsible for a state of affairs - in this case risk to the health and safety of Mr Gardner - and requires him to satisfy the court that he has done what is reasonably practicable to avoid it.  The defence is therefore  flexible.  
21.	This brings us back to the second of Lord Hope’s questions (defendants knowledge) around which most of the appellant’s argument centred.  Mr Williams took us first to section 20 (2) of the Act which confers powers on inspectors appointed by the enforcing authority (Health and Safety Executive or local authority).  These include powers to enter premises (a) and to direct that they be left undisturbed (e), to require persons to give relevant information in answer to questions (j), to take copies of documents (k), and any other power which is necessary for the purpose for carrying into effect the statutory provisions for which the enforcing authority is responsible (m).  Mr Williams says that inspectors could not have greater powers.  By using these powers the enforcing authority is in a position to acquire all the information it needs for the purpose of a prosecution so it is not reliant on what the defendant may volunteer in his defence statement (if the case is tried on indictment) or at trial.  The reality, Mr Williams says, is that the information it acquires under these powers enables the enforcing authority to decide whether or not to prosecute.  It will know before it makes this decision whether the defendant is saying that he did what was reasonably practicable and why and will obtain evidence, usually expert evidence, to rebut this if it can.  If it cannot it will not prosecute but if it does the prosecution will fail; if it can it has not been at any disadvantage by not knowing from the outset when and what the defendant has done to avoid the risk.  A reverse legal burden of proof is therefore unnecessary.  An evidential burden which requires the defendant to raise the defence before the prosecution have to disprove it is all that is required.
22.	We do not think the matter is as simple as this.  Inspectors do have wide powers but they are not as extensive as those for example given to the police under PACE.  Inspectors are not specifically given the power of forced entry, although they may be accompanied by a police officer who will have the power of arrest for obstruction of the Inspector in the execution of his duty (section 20 (2) (b)), and, more importantly, do not have the power to search for and seize documents.  It is likely that following an incident which might give rise to a prosecution all the information about when and what steps have been taken will be known to the defendant and unknown to the enforcing authority.  It may be that in simple cases  the authority will be able to acquire all that information before any decision to prosecute is made.  But this may not be so, even in simple cases, because in practice the authority will have been reliant to a large extent on what information the defendant chooses to provide.  It will almost certainly not be so in more complex cases where the activity in question of the duty holder involves state of the art technology or highly sophisticated and complicated processes.  Here in reality the defendant will be and remain the only person who really knows when and what he has done to avoid the risk in question.  Mr Williams rightly accepted that the question we have to decide is not dependant upon the facts of each case:  either section 40 is compatible in all cases or none.  There is however a further consideration.  Lord Hope’s second question is not specifically  directed to the state of the prosecutor’s knowledge of the facts in question but to whether they will be difficult for the defendant to prove or relate to something within his knowledge.  The facts giving a defendant a section 40 defence will at least be within his knowledge and therefore will not be difficult for him to prove.
Conclusion
23.	We have concluded that the imposition of a legal burden of proof in section 40 of the Act is justified, necessary and proportionate for the reasons which we set out below which take account of the  various points  we have discussed above.
24.	First the Act is regulatory and its purpose is to protect the health and safety of those affected by the activities referred to in sections 2 to 6.  The need for such regulation is amply demonstrated by the statistics with which we have been supplied.  These show that fatal injuries reported to the U.K. enforcing authorities by industry are running at an average of about 700 a year and non-fatal major injuries at nearly 200,000 a year.  Following a survey in 1995/6 the Office of  Statistics put the financial costs of accidents at work in the U.K. at between £14.5 and £18.1 billion.  The Act’s purpose is therefore both social and economic.  
25.	The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it.  They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it.  This regulatory regime imposes a continuing duty to ensure a state of affairs, a safety standard.  Where the enforcing authority can show that this has not been achieved it is not unjustifiable or unfair to ask the duty holder who has either created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it.
26.	Before any question of reverse onus arises the prosecution must prove that the defendant owes the duty (in the case of section 3 to the person affected by the conduct of his undertaking) and that the safety standard (in the case of section 3 exposure to risk to health or safety) has been breached.  Proof of these matters is not a formality.  There may be real issues about whether the defendant owes the relevant duty or whether in fact the safety standard has been breached, for example where the cause of an accident is unknown or debateable.  But once the prosecution have proved these matters the defence has to be raised and established by the defendant.  The defence itself is flexible because it does not restrict the way in which the defendant can show that he has done what is reasonably practicable.
27.	The reverse onus only applies to breach of the duties laid down by sections 2 to 6 of the Act.  It does not apply to section 7,  so there is no reverse onus of proof where it is alleged that an employee has breached his duty.  The same applies to section 37 where a company’s officers may be convicted if the company has committed an offence and they are proved to have consented, connived or contributed to it by neglect.  This suggests that Parliament must have considered when a reverse onus was justified and when it was not.  Due regard must be paid to its choice.
28.	The facts relied on in support of the defence should not be difficult to prove because they will be within the knowledge of the defendant.  Whether the defendant should have done more will be judged objectively.
29.	If all the defendant had to do was raise the defence to require the prosecution to disprove it, the focus of the statutory scheme would be changed.  The trial would become focused on what it was the enforcing authority was saying should have been done rather than on what the defendant had done or ought to have  done which is what Parliament intended.
30.	In complicated, and therefore potentially the most serious cases, the prosecution might face considerable difficulties in assuming this burden of proof where the only relevant expertise was with the defendant or even its state of the art supplier or licensor abroad.  In such cases therefore enforcement might become impossible if the defendant only had an evidential burden.
31.	Last but not least the defendant in cases where the reverse burden of proof applies does not face imprisonment.  The offence involves failure to comply with an objective standard.  The consequences of such failure may be newsworthy in some cases but the moral obloquy is not the same as that involved in truly criminal offences.  The statistics we have been provided with show that only about 15% of those prosecuted under sections 2 to 6 of the Act are individuals.  The rest are companies. 
32.	For these reasons we think the judge reached the right conclusion in this case.  The reverse legal burden of proof contained in section 40 of the Act is compatible with the ECHR.  The appellant’s conviction on this basis was not therefore unsafe.  
Misdirection
33.	We now turn to ground 4.5 where a misdirection in the summing up is alleged.  Section 40 in full reads in this way: 
in any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something as far as it is practicable or so far as is reasonably practicable or to use the best means to do something that shall be for the accused to prove (as the case may be) that was not practicable or not reasonably practicable to do more than in fact was done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.  

34.	A clear distinction is drawn between what is “practicable”, “reasonably practicable” and “no better practicable means”.  “Practicable” and “no better practicable means” do not appear in sections 2, 3, 4 and 6 all of which employ the phrase “reasonably practicable”.  The other tests appear subordinate legislation.  Throughout the summing up the learned judge referred to “reasonably practicable” and on the second page of the summing up he said: 
you will have to decide what was and was not reasonably practicable in the particular situations that existed here.  

35.	Again, on page 7 having set out the basic matters the prosecution had to prove, namely that the appellant was an employer conducting an undertaking and that there were persons not in his employment who might be affected by his business operations, the judge continued: 
thirdly it must be proved that the defendant failed to ensure so far as was reasonably practicable that Mr Gardner was not exposed to risks to his health or safety as a result of the defendant’s business operation and this is one of the core issues for you to decide.  

36.	Then when he came to deal with the reverse burden in section 40, the judge on page 9 said this:
The law stipulates that in such circumstances it shall be for the defendant to prove that it was not practicable, or was not reasonably practicable to do more than in fact was done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement. 

37.	 It is clear, therefore, that the judge unwittingly incorporated into his direction all the circumstances contemplated by section 40 and not just the reasonably practicable concept.  Then at page 18 he returns to the duty on the appellant to ensure that his vehicles were operated in a safe manner and continued:
The question for you is this: did he fail to ensure that so far as was reasonably practicable?  As a result, was Mr Gardner exposed to a risk to his safety?  In other words was he exposed to the possibility of danger to his safety?  If he was, then has the defendant established that it was probably not practicable or reasonably practicable to do more than he did or that there were no better practicable means for him to carry out that duty.  

38.	Again, the judge has incorporated in his direction the whole of the section 40 considerations.  Then for several sentences he continued with directions on what he had already described as the core issue for the jury:
Was it reasonably practicable for him to check to find out if Mr Gardner had heard him giving his instructions to Mr Ralph to reverse tight up?  Was it reasonably practicable for him to look up and check to find out where Mr Gardner was at the critical time?  Was it reasonably practicable for him to keep watch on the rear of the JCB and the Volvo truck during the reversing manoeuvre rather than burying his head into the Volvo cab with the fuses?  Well now, those are the central questions for you to answer.

It would have been better if the judge had finished at that point, but he continued: 
On the other hand was there no better practicable means to ensure that there was no such risk other than telling Mr Gardner firstly to go home, secondly shouting out instructions to Mr Ralph to reverse up and thirdly the fact that the vehicle, the JCB, will be making quite a bit of noise as it was reversing making it obvious what was happening? – particularly bearing in mind that Mr Gardner had been on a safety course in the past.  Well those are for you to evaluate here.  

Shortly before the end of his summing up, the judge returned to directions which referred only to reasonable practicability.

39.	Mr Williams submitted and he is clearly right that the judge was in error in referring to “practicable” and “no better practicable means” alongside his direction as to reasonable practicability.  He submitted that as one of these flawed directions came towards the end of the summing up the jury will be likely to have had that uppermost in their minds when they retired.  The incorporation of these unnecessary parts of the section could only have served to confuse the jury and accordingly the conviction must be regarded as unsafe.
40.	Clearly the judge was in error in those passages in directing the jury as he did.  In our view however, taking all the circumstances into account this jury could have been left in no doubt as to what the proper approach should be.  Firstly, both counsel addressed the jury at length, concentrating only on reasonable practicability.  Secondly, it is clear from the summing up that the jury had in front of them the copies of the indictment where only the words “reasonably practicable” are used.  Thirdly, although there are the short passages to which we have referred, the summing up was dominated by use of the words “reasonably practicable” and it is apparent from the passages that we have cited that in relation to the basic facts of the case for both prosecution and defence the only test being given to the jury was that of reasonably practicability.  Fourthly, it is to be noted that this slip on the judges part entirely escaped the attention of two experienced counsel and it is in the highest degree unlikely that this jury who retired for only one hour before delivering their verdict would have been in any way mislead or confused.  In our view this undoubted error by the judge does not render this conviction unsafe.
Conclusion
41.	This appeal against conviction is dismissed.
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LORD JUSTICE TUCKEY:  We have the short question of costs to deal with.
MR WILLIAMS:  My Lord, I am not sure in what sequence we should deal with it.  I have given your Associate a certified question which I would ask your Lordships to consider certifying.  This case raises a question of general public importance and I have drafted a question.
LORD JUSTICE TUCKEY:  You only have one copy?
MR WILLIAMS:  I am very sorry, my Lord, I am afraid I did it quickly.  My Lord, the form of the question is taken identically, so far as it can be, from the wording used in one of the other appeal cases. 
LORD JUSTICE TUCKEY:  It is a perfectly reasonable question, looking at it superficially, and it is not entirely unexpected.
MR WILLIAMS:  My Lord, very briefly in support of it I think twice in your Lordships' judgment you refer to the importance of this decision, and clearly this is the first decision dealing with legislation of this kind and in my respectful submission that does distinguish it from the other Court of Appeal decisions. 
LORD JUSTICE TUCKEY:  In Longmore LJ's case I think they certified and the House declined.
MR WILLIAMS:  That is as I believe it, my Lord, yes. 
LORD JUSTICE TUCKEY:  We will consider that in a moment.
Mr Nsugbe, you have an application for costs?
MR NSUGBE:  My Lord, yes.  I do not know whether your Lordships want to hear me on the question of certification? 
LORD JUSTICE TUCKEY:  What do you say?
MR NSUGBE:  My Lord, I say that it is not the first case of its kind in that sense because of course we have‑‑‑ 
LORD JUSTICE TUCKEY:  We probably do not need to hear you on that.  You are happy with the form of the question but you say we should not give leave.
MR NSUGBE:  No, my Lord. 
LORD JUSTICE TUCKEY:  What about costs?  I am absolutely staggered at what it is that you are seeking.  I have to say I only looked at it this morning and I nearly fell off my chair, but perhaps that was an intemperate reaction.
MR NSUGBE:  My Lord. 
LORD JUSTICE TUCKEY:  This is a point of very considerable importance to the Health and Safety Act in which no expense has been spared.  Why should Mr Williams have to pay anything for your success?
MR NSUGBE:  Well, my Lord, it was a very important question so far as the Health and Safety Executive are concerned. 
LORD JUSTICE TUCKEY:  It was bound to come from someone, and it had already come from somewhere else.
MR NSUGBE:  My Lord, yes.  But in this case my Lord the appellant, who for some period of time was privately funded, took the point of appeal and was not successful and in normal circumstances my Lord we would be entitled to ask for our costs. 
LORD JUSTICE TUCKEY:  You would be entitled to ask for them, whether you get them is another matter.
MR NSUGBE:  My Lord, I can see that. 
MR JUSTICE DOUGLAS BROWN:  What proportion of cases in this court are unsuccessful appellants ordered to pay costs to the Crown.  Do you know?  I suggest it is minute.
MR NSUGBE:  I think in the case of legally aided unsuccessful appellants it is minute, but in the case of appellants who are funded by other means, and certainly for the larger part of this appeal they were, then the question is a more live one.  That is what I would submit.  The costs that have been expended have been in the thorough research of an important point of principle. 
LORD JUSTICE TUCKEY:  No one doubts it is an important point from the Health and Safety Act point of view.  Anyway, I think we have the drift of your submissions.
MR NSUGBE:  Can I add one point.  I am sure your Lordships have had a view about costs.  Can I add one point.  There was a time certainly when there was some discussion I think about whether the appeal would continue and we had thought that at one stage the appeal would be withdrawn.  It was continued with in July.  In those circumstances, my Lord, I do say that you can consider if not all the costs you can consider payment of a part of the costs by the appellant. 
LORD JUSTICE TUCKEY:  Thank you very much. 
Mr Williams, we need not trouble you about the application that is made against you, but we have a duty to make what is now called an RCDO.  You probably know that the Special Investigation Unit of the Legal Services Commission have made an investigation into your client's means.  I do not know if you have seen the document? 
MR WILLIAMS:  I did not know they had done that, my Lord, no. 
LORD JUSTICE TUCKEY:  It is showing the total net assets of £95,000‑odd, with a borrowing value (whatever that may be), that seems to be assessed on an arbitrary percentage of 67 per cent of £46,000; the accounts of the business show an income of £34,517 per annum; your client has got some mortgage payments; he has two children and so on.  I think that is the sort of broad shape of it, and we, I think, were minded to make an order for him to contribute to his costs of the appeal.  Can you tell us, has he paid the fine and the costs? 
MR WILLIAMS:  My Lord, he has not.  That is outstanding pending these proceedings. 
LORD JUSTICE TUCKEY:  That is what I thought.  Have you any suggestion to make, or do you want us to take a figure out of the air? 
MR JUSTICE DOUGLAS BROWN:  Was he funding it himself? 
MR WILLIAMS:  I think I should be entirely clear with your Lordships.  At the trial below he had the benefit of an insurance policy so they founded his own legal expenses, but of course did not fund ‑ they will not pay the fine or the costs, so he has to meet that out of his own pocket, assuming that this is the end of the road for him.  So far as this appeal is concerned, initially the insurers were also prepared to fund his side of the costs, but, and this is how my learned friend's reference to the appeal may be being withdrawn, once Mr Davies realised because we had to explain it to him because the HSE made their position clear, that they would seek an order for costs against him should he fail, he was not minded to pursue the appeal and so on legal advice he made an application for legal aid which would have assisted him in resisting applications for costs should it be granted and so that is the factual circumstance in which we now find ourselves.
LORD JUSTICE TUCKEY:  Right.
MR WILLIAMS:  But one way or another the insurers would never have been in a position to indemnify him against the other side's costs below, and so forth.
LORD JUSTICE TUCKEY:  I follow that.
MR WILLIAMS:  I can only invite you to do what you regard as just, given the information you have.  I have no better information, my Lord. 
LORD JUSTICE TUCKEY:  Thank you very much. 
JUDGE GORDON:  If we do make an order, is he going to have to pay it, or will the insurance company pay it?
MR WILLIAMS:  My Lord, I should be entirely open with you.  My instructing solicitor will seek to persuade the insurer to indemnify him, but I do not think there is a legal obligation that they should seek do so, so I think your Lordship should assume that it is at least possible that he will pay and not the insurer.  Again we will seek to persuade them, of that your Lordship should have no doubt about. 
LORD JUSTICE TUCKEY:  Can you help us at all, Mr Williams, perhaps from previous experience, what are the costs that you are likely to have to pay, or the legal aid costs likely to be?
MR WILLIAMS:  It is a guess, my Lord, but if we took the ballpark figure of somewhere between £30,000 and £40,000 that would be the absolute maximum.  But that is a guess.  It involves two counsel and my instructing solicitors effectively from last July.
LORD JUSTICE TUCKEY:  We have three things to deal with.  First of all, we are prepared to certify the question which has been put before us which is whether section 40 of the Health and Safety at Work Act 1974 construed in accordance with section 3 of the Human Rights Act 1998 imposes upon a defendant a persuasive or evidential burden when he has been prosecuted under sections 2 to 6 of that Act, but we do not give leave to go to the House of Lords; it is for them to decide whether they are willing to consider a further case on this question of reverse onus, they having considered the question in another context before.
The Health and Safety Executive make an application for costs before the appellant became legally aided.  They do so in the sum of over £50,000.  That application is refused.  We do not think, although they have been successful, that it would be reasonable to expect this appellant to bear costs of that or indeed any order in this case.  This was obviously a matter which the Health and Safety Executive have considerable interest in.  To that end they instructed two leading counsel, I think I am right in saying, and a Professor to advise them on the European Directive and so on and so forth.  That was all no doubt money well spent in the wider interests, but it is not a cost which we think it would be fair for this appellant to have to bear.
So far as his own costs are concerned, this court has to consider whether to make a Recovery of Defence Costs Order.  We do so without a great deal of information but conscious of the fact that the appellant still has to pay the fine and costs which total nearly £40,000 which the Crown Court ordered him to pay.  We think he should nevertheless, from the financial information we have got, make some contribution towards his costs in this court and we assess that contribution in the sum of £5,000.
MR WILLIAMS:  My Lord, I just ask for the following directions.  First of all that in the event that a petition is presented to the House of Lords, my Lord I think we have 14 days from today, would your Lordship stay the fine and the costs imposed until either that period has elapsed or the House of Lords has decided whether to grant permission to appeal and if they do grant it until the appeal is heard?
LORD JUSTICE TUCKEY:  I am not sure that we have power but if we do we will stay it.  If not we can stay our own order.  If we have the power to stay the order of the court below we will do it.
MR WILLIAMS:  My Lord, I only ask. 
LORD JUSTICE TUCKEY:  You are, I suspect, at the mercy of the Crown Court but I suspect that if you tell them what is happening if they have not gone for you yet they are not going to go for you whilst that is happening.
MR WILLIAMS:  Finally, I think it is for your Lordships' court to consider whether to extend legal aid for the presentation of the petition.  That is, as I understand, the House of Lords rules on this which my instructing solicitor downloaded for my benefit.  I have to make an application for legal aid for the presentation of a petition and it is obviously for your Lordships to consider whether that should be granted or not.
LORD JUSTICE TUCKEY:  Mr Williams, if we do have the power, and I must say none of us have come across this before, we will grant you legal aid for that purpose.
MR WILLIAMS:  My Lord, thank you.