Are you safe from prosecution?
Issue: Winter 2008
In October last year, a family of six died when a lorry crashed into their car on the M6 motorway. This tragic accident was front page news and shocked the nation. It resulted in the 46-year old lorry driver being arrested and eventually charged with six separate counts of Causing Death by Dangerous Driving, each carrying up to 14 years imprisonment.
By Sean Joyce
The full circumstances have yet to be disclosed by Cheshire Police but it once again brings sharply into focus the responsibility assumed by anyone who takes the wheel of a vehicle and the corporate responsibility that extends to employees using vehicles for work.
Standard police procedures will inevitably mean that the driver’s mobile phone records will be seized for evidence of distractions, as will his tachograph charts with factors such as speed, rests periods and overall driving hours being analysed. Efforts may be made to reconstruct the vehicle’s load and the scene will be scrutinised for telltale signs such as skid marks and other physical and forensic evidence providing useful clues as to the cause of the accident. The operator of the vehicle would ordinarily receive an unannounced visit from the police and/or VOSA and its safety inspection and preventative maintenance systems put under the spotlight.
In addition to prosecuting the driver, consideration will be given to reporting the operator to the Traffic Commissioner for regulatory action in relation to the operator’s licence but also the possibility arises of a prosecution being brought against the employer for manslaughter offences. Gross negligence manslaughter prosecution may be brought against sole traders and individual directors, although this is often difficult to prove in practice. However, a corporate manslaughter prosecution may be brought against a company, which is now much more likely to lead to a conviction.
The M6 crash is a tragic reminder to all professional drivers and commercial vehicle operators of the responsibilities that come with putting a commercial vehicle on the road. The new offence of corporate manslaughter came into force on 6th April 2008 and the offence is committed if the way in which an organisation’s activities are managed or organised:
● causes a person’s death, and
● amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The key legal obligations for organisations involved in freight transport include:
● Drivers Hours’ Regulations and Working Time Directive (protects drivers and road users against fatigue).
● Driver licensing regulations.
● Road Traffic Acts.
● Provision and Use of Work and Equipment Regulations (adequate training).
● Operator licensing system.
● Health & Safety at Work Act.
● Management of Health & Safety at Work Act.
● Carriage of Dangerous Goods legislation.
● Special Types General Order (abnormal loads).
● Construction and Use Regulations.
● Testing and Plating regulations.
● Lifting Operations and Lifting Equipment Regulations.
● Workplace transport safety.
● Control of Substances Hazardous to Health Regulations.
The jury will consider whether there has been non-compliance with any health and safety legislation that relates to the alleged breach, the seriousness of that failing and how much of a risk of death it posed. It will look at the extent to which there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged or produced a tolerance to the failure. Having a safe system in place may not be good enough if it is allowed to be routinely ignored.
Those responsible for ensuring that the organisation’s activities are managed appropriately include any individual playing a significant role in the making of decisions about how the whole, or a substantial part of the business are managed or organised. This can include, for example, the transport manager of a smaller depot.
The penalties following a conviction include:
● an unlimited fine, with guideline sentences suggesting fines of 10% of annual turnover;
● a remedial order to make the organisation take specified steps to remedy the breach; and
● a publicity order to ‘name and shame’ the company involved.
So, can you sleep soundly at night knowing that you company’s policies and procedures are safe enough to protect you and your company from a prosecution?
The key steps to avoiding the problem are:
● understand your duty of care obligations at a senior management level;
● ensure you have satisfactory arrangements in place – particularly, include a high level review of strategic approach, responsibilities, reporting structures and policies;
● ensure your organisation is complying with these arrangements – that attitudes, policies and arrangements are actually being followed through all the way to grass roots level; and
● implement any necessary changes and set a date for the next review.
An audit should be carried out by someone who is independent and who can report failures without fear or favour. The irony is that smaller organisations are often more transparent and at greater risk of prosecution.
● Sean Joyce is a partner at North West law firm Stephensons Solicitors LLP. He has recently launched a new service for road transport users called Carry on Driving, which offers free initial legal help to businesses and individuals who are facing a prosecution.
For further information, contact Sean at Stephensons Solicitors LLP on Tel: 01942 777777, E-mail: saj@stephensons.co.uk or visit: www.stephensons.co.uk/carryondriving
Published: 22/12/2008
