I don't think they should be targeting us at all (beyond the provision of guidance documents and so on) but the senior managers of businesses.

The HSE has made some efforts like this in the past.  I remember one occasion when they sent round an email urging business leaders to attend some form of workshop they were running.  The admin person who received the email didn't however forward it to anyone whose job title began with the letter C, but just to me, as it was health and safety so I was the person who might be interested.  It's this level of lack of interest and engagement that I think needs to be addressed.

safetyman

If a case goes to prosecution the duty is on the defendant to prove on the balance of probabilities that they did all that was "reasonably practicable" (when that is the test).

That is a huge mountain for a defendant to climb (particularly when there has been an incident and hindsight bias comes into play) and in sharp contrast to the rest of the case where it is for the prosecution to prove all elements "beyond reasonable doubt".

I suppose it mist have been about 20 years ago that the concept of a "Newton Hearing" arrived and I can't remember whether one party in the case or the Judge was called Newton.

Anyway this can happen when the defendant makes the decision to plead guilty but the basis of plea is far removed from what the prosecution is assserting so you have a mini trial whic his about deciding HOW guilty on a scale of "only a tiny bit guilty" to "they broke every rule in the book"!

I've been in the witness box in two Newton Hearings as a defence expert - in both cases the subsequent HSE press release largely ignored the evidence that was heard in Court AND what had been agreed in "Joint Experts's Reports".

What happens is that the Judge directs that the opposing experts should get together and decide what they agree on and what they disagree on. Then produce a report setting out those agreements and disagreements. That is then submitted to Court and forms part of the evidence.

So, if for example the Joint Experts' Report said "We agreed that the Method Statement was substantially sound" (You are NEVER going to get two people to agree that is perfect!!), it comes as a bit of a surprise when the subsequent press release says that the risk assessment and method statement was inadequate!!!

In one of these cases, the death resulted from a person being run over by a vehicle. Without going into detail in the public domain, the evidence was clear that the deceased + 1 had attempted to do a task whilst said vehicle was stationary, which task they completed. Then the vehicle was moved to a location about 12m outside the building where that task had been done. At some point later the vehicle returned to the building and the accident happened - no direct witnesses.

So, if the press release then comes up with "he was run over when doing that task", you know that HSE has made it up despite evidence to the contrary. 

...and this case when it came to the issue of "reasonably practicable" was always going to be substantially detemined by deciding what level of separation between vehicles and pedestrians is appropriate. Industry guidance endorsed by HSE said 3.5m. 

The evidence given by witnesses was that the actual separation when doing tasks was MUCH more than 3.5m.

At one point when I was in the witness box, the Judge surprised me with the question "If anything there was too MUCH room?" Needless to say the industry guidance did NOT set a MAXIMUM separation distance (and there isn't much point in doing so when the intention is to ensure a MINIMUM).

As for the robust bit, I think that sometimes HSE gets a bit complacent, simply as it is not up to them to spell out what they think would have been reasonably practicable.

Noting Kate's point, when I worked for HSE and we found a problem we used to try and help the duty holder with suggestions as to potential improvements.

"The following dangerous parts of machinery were not securely fenced:

(a) the inrunning nip between X and Y - a fixed guard should be provided.

(b)......"

....and there would be a reference to BS5304 and a caveat to say that the duty holder could do something that would be equally effective in relation to each of the items on the list.

Now, of course, sometimes the Inspector doesn't have an answer to hand but at the very least I think that it is incumbent on them to come up with some ideas.

I got called in to help with a fatal accident investigation where the mechanism of failure was far from clear, and almost certainly not the one the Inspector had jumped for - the physics didn't work. The Inspector served an Improvement Notice and the duty holder asked for guidance on what would constitute compliance. "That's up to you" - NOT good enough!

I have a feeling that H&S has lost its way. Going back to basics, the Health and Safety at Work Act   is fundamentally sound. I don’t think many H&S professionals would like to go back to the old system where the government listed a series of Does and Don’t’s and as long as you ticked those boxes you were covered. As long as an accident was not down to a breach of a specific regulation, the employer was in the clear. I can see why this system was attractive to some employers. The Act placed the onus on employers both identifying risks at work and coming up with the solutions to those risks. I cannot imaging us funding a system of public H&S consultants who’s job is to go around the country and do people’s risk assessments for them.   

Nevertheless,  in the past H&S inspectors were happy enough to provide advice and tried to avoid coming across as the H&S police. But that level of engagement now seems to have gone due to cuts in the numbers of inspectors and the need for the inspections to be self funding ie  FFI.  This ironically has been largely driven by people who see themselves as “business friendly”.

There has also been a growth in “elf and Safety”, with people (including organisations purporting to represent the occupational health and safety sector) trying to expand our remit into subjects like employee well being and   supply chain ethics. The most egregious recent example being the government’s insistence that everybody create a “risk assessment” covid despite it being public health issue and there being no legal requirement to produce such a piece of paper.