Hi HJYR

What you don't usually see in HSE press releases is any information about any plea bargains that have taken place before a conviction (on occasions even during a trial).

So, HSE might institute a case alleging breach of HSWA Section 2(1) and perhaps 3(1) along with a charge under the Management Regs (for risk assessment) and may be more as well.

Then, perhaps HSE sit down with the defence who offer to plead guilty to the charge under Section 2(1) if other charges are dropped.

There is also the issue that HSE may sometimes see weaknesses in the scope of subsidiary legislation. If you look at the current and historic prosecutions databases by "Advanced Search" for BREACHES at www.hse.gov.uk/prosecutions you will find VERY few cases under the Construction (Design and Management) Regulations against Clients, and fewer still against Designers and Principal Designers (or the predecessors to the PD).

But in recent years HSE has used HSWA Section 3(1) against Clients at least as often as it has prosecuted this duty holder under CDM. However it is difficult to establish numbers due to the lack of narrative on most cases on the HSE prosecutions database.

There is also the problem that sometimes what HSE say in its press releases may not match what the defendant has actually pleaded guilty to!

As example, I was defence expert witness in a case following a fatality where someone had fallen. The Judge ordered a Joint Experts' Report meaning that prosecution and defence experts sit down to do a report setting out areas of agreement and disagreement.

In this case, we agreed that we had seen the training certificate for the victim and that the relevant training would include a half day module on the use of fall arrest equipment. We also agreed that the method statement for the work being done was substantially sound*. We agreed that it was impossible to say how far the victim had fallen.

*Nobody will ever agree on what constitutes the perfect method statement [particularly when they have the benefit of hindsight after an incident]! "Substantially sound" was our compromise form of wording.

So far, so good. Guilty plea but on a scale of guilt, not that guilty and the penalty imposed reflected that. But in the subsequent press release HSE asserted that the risk assessment was inadequate, the deceased had not been trained, had not been trained in the use of fall arrest and that they had fallen 16-18m [it was probably about half that - quite enough to kill] - there is no practical yet effective recourse if HSE publish something so misleading.

YJHR – I think a lot still goes back to the days when fines were higher for HASAW than regulations. Peter gives a good explanation, but a lot also depends on the inspector and the case.

The last case I took before leaving my inspector role was against a small electrical contractor who managed to give a young (under18) apprentice and 2 electric shocks due to poor planning, The lad needed a small skin graft on his hand.

It was clear we were not going to get a big fine as the company was entering administration so after discussion with his solicitor we dropped some of the offences and he pleaded guilty to reg 19 of the management regs – which I felt was the most important message to get out to other employers. It did not really seem in “the public interest” to fight the other potential charges in court.