Some of our Crime and Regulatory team had the opportunity to present a mock trial at the Global Fleet Champions Fleet Safety Conference on the 22 May 2019. A full report of the event can be found here.
The mock trial involved the prosecution of the fictional John Doe who was charged with causing death by dangerous driving and a charge of causing death by careless driving in the alternative. Whilst the company (Wood Signs Ltd) were not a defendant in our scenario, the delegates of the conference, acting as our jury, were understandably very interested to know if any criminal action could have been taken against Mr Doe’s fleet manager and/or the company. This was because interwoven in our facts were the following:
- Mr Doe was driving within the cause of his employment;
- At the time of the fatal collision, Mr Doe was on a hands-free call with his fleet manager, who was providing instructions regarding the job, which the prosecution claimed led to a distraction of some 12 seconds and failure by Mr Doe to otherwise avoid the collision;
- The job came at the end of a very long week for Mr Doe and he was instructed to attend just as he was clocking off. He felt compelled by his fleet manager and his employers to attend and was provided with a financial incentive by way of a bonus for agreeing to complete the job as overtime; and
- Mr Doe had little understanding of the company’s policy in relation to mobile phone use and had not received any adequate training.
I hope to be able to explain in this blog the key principles which would determine whether the fleet manager, the company and the directors would face any criminal liability arising out of the facts of this case.
Wood Signs Ltd (the Company)
The Health and Safety at Work Act 1974 establishes various duties on a company in respect of ensuring the health and safety, including in relation to its employees (section 2) and also to those not in the company’s employment, but who may be affected by the company’s or its employees’ actions (section 3).
Furthermore, every employer is required to conduct an assessment of the health and safety risks of employees and to others who may be affected by their work activities and to periodically review this risk assessment to ensure it remains valid (The Management of Health and Safety at Work Regulations 1999).
Therefore, the company is obliged to consider and manage the risks to and presented by employees on the road during the course of the employees work to other road users and pedestrians.
In the case of John Doe, the Health and Safety Executive (HSE) and the Police would take into account when investigating the circumstances surrounding the collision whether the company had provided Mr Doe with clear guidance on use of his mobile phone and whether the company had prohibited, facilitated or even encouraged Mr Doe’s use of a hands-free kit whilst driving.
Any evidence that the company had breached their duties under the Health and Safety legislation would amount to the commission of a criminal offence by the Company. Moreover, if there was evidence that serious management failures resulted in a gross breach of a duty care owed to the deceased, the Company would be at risk of being prosecuted for corporate manslaughter (Corporate Manslaughter and Corporate Homicide Act 2007).
An in-depth analysis of the corporate manslaughter offence is beyond the scope of this blog but it is suffice to say that only 22 prosecutions have led to convictions between 2011 to 2017 for this offence. Whilst this may infer that the likelihood of a corporate manslaughter charge being brought against Wood Signs Ltd is low, importantly, existing health and safety offences and gross negligence manslaughter will continue to apply and the corporate entity would remain under significant scrutiny from the HSE and Police for any breaches.
The Fleet Manager and the Directors
An offence of corporate manslaughter cannot be alleged of an individual (or director) and therefore consideration will be given to any health and safety offences and possible gross negligence manslaughter for each respectively.
As with corporate manslaughter, gross negligence manslaughter is a very complex area. The critical ingredients of the offence are that there must be a “breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission”.
In our case scenario, there is potential for the directors of the company or the fleet manager to be prosecuted for this offence, however, a recent Court of Appeal decision (R v Kuddas  EWCA Crim 837) to quash the conviction for gross negligence manslaughter of a restaurateur on the basis of his lack of knowledge is the latest example of the difficulties that beset the prosecution in securing convictions of individuals for gross negligent manslaughter.
Whilst this may, therefore, be of limited application to the fleet manager or the directors, nevertheless, convictions for health and safety offences are still possible.
In the event the company can be proved to have committed the offence under section 3 of the Health and Safety at Work Act 1974, then the Prosecution may also charge the directors and/or the fleet manager if there is sufficient evidence to prove that the company committed the section 3 offence with the consent, connivance or neglect of the director/manager (section 37 of the same Act).
The fleet manager could also be at risk of prosecution even if the company can’t be proved to have committed the offence. If there is sufficient evidence to prove (1) that the fleet manager was employed; (2) and ‘at work’ in the course of his employment; (3) did not take reasonable care for someone’s health and safety (including his own); and (4) did not co-operate with his employer so far as was necessary to enable his employer to comply with a statutory duty or requirement then the fleet manager could also find himself charged with an offence contrary to section 7 of the Health and Safety at Work Act 1974.
As you will see from the above, a corporate entity’s or individual’s liability is intrinsically linked to their health and safety obligations. The HSE advises that “companies and organisations should keep their health and safety management systems under review, in particular, the way in which their activities are managed or organised by senior management”. This is fundamental and not only should proper health and safety policies be put in place (such as a road risk policy) but they should be effective, regularly reviewed and enforced.
In relation to directors, the HSE, in conjunction with the Institute of Directors, has published guidance on responsibilities for health and safety and this can be found here: – ‘Leading health and safety at work: leadership actions for directors and board members’. Ultimately, directors and managers are responsible for their actions and the Courts can and will hold them accountable accordingly.
Finally, in relation to Mr Doe and Wood Signs Ltd, following the collision you would expect the company to fundamentally review their health and safety systems, including their road risk / mobile phone use policies to ensure as far as possible, that this doesn’t happen again. An unheeded warning from the Police or HSE is a significant aggravating feature should a further breach or incident arise and will dramatically increase the risk of the company and individuals being prosecuted.
For more information in relation to the above, please contact our team on 01908 202150/01223 411421 or at firstname.lastname@example.org