Taken from Fleet News – 10th June 2013
Five years after the Corporate Manslaughter and Homicide Act came into effect, there have been only three successful prosecutions, none of which were related to fleets. Despite the fact just a few companies have fallen foul of the law, fleets are being warned now is not the time for complacency. The latest Government figures show that in the 12 months to September, 2012, 1,770 people were killed on UK roads. Experts suggest one in three fatalities involved somebody driving for work equating to nearly 600 employees in one year.
Greater understanding of the law
The road risk policies of hundreds of businesses will have been scrutinised as a result. Police and prosecutors are gaining a greater understanding of the law and many more cases are in the pipeline. The Crown Prosecution Service (CPS) told Fleet News that so far it has charged six organisations with the new offence. Two of those prosecutions resulted in convictions. Four remain live and a third case was successfully dealt with by the Public Prosecution Service for Northern Ireland.
In addition to those four ongoing cases, it confirmed 42 cases are currently ‘flagged’ as corporate manslaughter. These are being considered by the CPS Special Crime Division. This means either the investigation has been referred to the CPS Special Crime Division for “early advice” or a full file of evidence has been submitted to the CPS to decide the charges. Malcolm McHaffie, deputy head of the special crime unit, said: “The volume of these cases is increasing. These are, however complex cases which can take some time for us to consider and may result in prosecutions for offences other than under the Corporate Manslaughter Act.” The CPS could not confirm whether any of the cases currently under consideration involved somebody driving for work.
Out of Court Settlements
Legal experts claim that a number of fleet-related cases that might’ve resulted in corporate manslaughter charges have been settled out of court. Companies involved have sought to keep their brands out of the headlines. Many fleets have introduced and strengthened existing road risk policies. But Philip Somarakis, head of the motoring offences team at Davenport Lyons, remains concerned. “Whether they are being enforced is another matter,” he said.
“Sadly, there is no doubt that many organisations don’t have fleet managers and don’t have any policies in place. They are at the same risk of a work-related road death as before.”
Late last year, a TRL report funded by the Metropolitan Police Service and ACPO suggested companies were falling behind in the management of work-related road risk compared to general health and safety in the workplace. They called for a national standard to be introduced. The report also suggested that not all companies realise driving for work is part of workplace health and safety legislation.
Somarakis said that the likelihood of an organisation being prosecuted as a result of a work-related road death depended “on the training and attitude of the police at the investigation stage”.
Another factor is companies do not have to record work-related road deaths as part of their RIDDOR (Reporting of Injuries, Disease and Dangerous Occurrences Regulations) requirements. The Government is currently consulting on the future of the RIDDOR and the BVRLA, among others, is calling for road accidents to be brought into scope.
While no case has yet been heard involving the death of an employee driving for work, fleet safety professionals can learn a great deal from the most recent prosecution. Lion Steel was fined £485,000 and ordered to pay £84,000 in costs following the death of a worker. Steven Berry, 45, fell through a fragile roof light while working on its site in Manchester in May 2008. David Wright, a partner at legal firm Kennedys told Fleet News that there are several issues in the Lion Steel’s case which could prove helpful.
He said: “The first is to be very careful about one’s response to guidance and warnings provided by the HSE and other regulators, as well as to that given by safety consultants and insurers. When sentencing in the Lion Steel case, the judge noted the knowledge at senior management level of a letter from the HSE which suggested warning notices should be considered for the roof.
“Had the company responded actively to that suggestion, by fitting signs or explaining why an alternative course would be appropriate, that particular ‘gun’ could have been rendered non-smoking,” said Wright.
Confusion and Uncertainty
Its inaction was clearly an issue. The case also provided an insight into the roles and responsibilities of directors and senior managers. “This was an issue which in the absence of clear company job descriptions and budgetary authorities led to much wrangling in court,” said Wright. “If there is confusion and uncertainty in this area then the chances of a wide-ranging prosecution are likely to be higher.”
Finally, there was evidence in the case of different standards of safety being applied at the company’s two sites. That was the difference; a weakness in the company’s defence. Consistency and adherence to group standards would have improved both the company’s and the directors’ positions,” said Wright.