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June 2013 - Fleets warned against complacency over Corporate Manslaughter

 
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.
 
However, 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 a single 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) has so far 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.
 
However, in addition to those four ongoing cases, it confirmed 42 cases are currently ‘flagged’ as corporate manslaughter and 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, how-ever, 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.
 
However, legal experts claim that a number of fleet-related cases that might have resulted in corporate manslaughter charges have been settled out of court as the companies involved sought to keep their brands out of the headlines.
 
Many fleets have introduced and strengthened existing road risk policies. However, whether they are being enforced is another matter. There is no doubt that many organisations, especially smaller 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 the Association of Chief Police Officers suggested companies were falling behind in the management of work-related road risk compared to general health and safety in the workplace, and 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. The likelihood of an organisation being prosecuted as a result of a work-related road death depends to some degree 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.
 
But, 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.
 

£485,000 fine following death

Lion Steel was fined £485,000 and ordered to pay £84,000 in prosecution costs following the death of one of its workers. Steven Berry, 45, fell through a fragile roof light while working on its site in Hyde Manchester in May, 2008.
 
There are several issues in the Lion Steel’s case which could prove helpful. 
 
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.
 
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. 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 and the difference was a weakness in the company’s defence. Consistency and adherence to group standards would have improved both the company’s and the directors’ positions.
 
However, while this latest case may give some guidance, grey areas – such as the precise meaning of senior management – remain. These will be clarified in time and it will not be long before the Act’s relatively slow adoption by prosecutors is turned around.

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