Rank: Forum user 
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I am currently concluding my Nebosh Diploma whereas a certain prosecution has caught my attention so I thought I query the IOSH community for clarification.
In a nutshell the driver of a forklift truck was injured whilst carrying out a lift.
Evidently, the driver was hurt via the load swinging and entering the cab where he was struck.
The judge ruled that the employer contravened Section 2(1) of the Health and Safety Act 1974 and therefore prosecuted under this provision
The HSE inspector after the hearing commented “Had the company taken basic steps such as providing suitable training so those undertaking the lift were in a more informed position to assess and then adequately manage the risks, this incident would have been avoided.”
My question is why wasn’t the employer also convicted on the grounds of Regulation 9(1) the Provision and use of Work Equipment 1998 i.e. in the absence of suitable training
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Rank: Super forum user 
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Were they prosecuted for it and acquitted, or were they not prosecuted? If they weren't prosecuted for it, that would explain why they weren't convicted of it!
There's not much point in prosecuting for the regulation breach here if you can get them under section 2.
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Rank: Super forum user 
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When considering a prosecution there are often a number of charges that could be brought - that doesn't mean they all should be.
For quite a while there was(is?) a view amongst some that the more charges you initially lay then the more you can drop as part of plea bargaining.
That's not a view I personally ascribe to.
A charge under the Act is all encompassing and can include a discussion of the Regulations and their requirements in support of demonstrating the failure of the duty of care. Frankly, if the ultimate sentence is the same, why the need for separate informations to be laid? With the recent changes in magistrates powers and regulatory fines, there really is no practical difference now and a charge under the Act alone is simpler.
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Rank: Forum user
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The employer in question pleaded guilty to the offence, therefore, I would assume, the Act takes virtue over regulations when presented with a guilty plea like Kate says if they can get them under section 2, incidentally does the Act attract a heftier punishment than regulations?
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Rank: Super forum user
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Under Health and Safety law a person can often be prosecuted for more than one offence, but usually when they are sentenced any extra sentences are often not taken into account. So there will not be 5 times a £10 00 fine or whatever, unless the separate offences are particularly egregious (I have to use that word). So the HSE tend to go for the most general offence ie Section 2 of the Health and Safety at Work Act, which is also the easiest to prove and not waste effort on going after other offences.
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Rank: Forum user
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The Act is the `go to` item when the HSE prosecute. As others have said specific regulations can also be used but it is easier and less onerous to bring about prosecutions and convictions under the Act. Using specific regulations and thereby prosecuting under potentially a plethora of items can allow a `good` lawyer to exact a `wriggle out` for their client. Just have a look at all the HSE prosecutions and you will invariably see that HASAWA is always used. I do note however that prosecutions brought for asbestos related offences do also (nearly always) refer to breaches under the Control of Asbestos Regulations.
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Rank: Super forum user
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The charges come before the plea...not after. Kind of need to know what you're pleading about.
Unlimited fine basically now available for offences under both.
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Rank: Forum user
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The Act is not the 'go to' prosecution for HSE - we were trained to use whichever legislation is most appropriate to the facts of the case. Fines are now the same I think, so it makes no difference (not that this was a consideration under the EMM) If you fall through fragile roof, I'd sy you re s likely to be chraged under those regs (nd there could be couple of choices there) or under S2 (or 3 if the building is occupied or subbie is involved) - so there is plenty of freedom
I worked in Scotland, so the PF selected the charges to take forward, and in the report we'd give recomendations, often regs AND the Act - sometimes one or other was taken forward, sometimes more than one.
Of course, some inspectors prefer to put charges under the act, but I always found regs easier to prove, as you could be more 'focused'
Al
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Rank: Forum user
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Sorry, to add in response to one point above, the investigation would not be shorter by focussing on the Act - all reasonable lines of enquiry would be explored, not simply 'Can I prove a S.2 charge? Good, that's enough' - the purpose of the investigtion is broader than that.
Tht said, if there is dupliction of the same basic failings between various charges, some may be left out, as you can't be prosecuted twice for the same offence.
Al
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Rank: Super forum user
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I always found the Regs easier to prove anyway....there is, after all, no defence - unlike the Act.
When the Regs says 'you must do this' and you haven't...that's pretty black and white. The Act gives room for arguing.
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Rank: Forum user
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appointing a lawyer gives room for arguing........
Al
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Rank: Super forum user
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