Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500 Corporate Manslaughter & Health & Safety Considerations

Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500

Corporate Manslaughter & Health & Safety Considerations in Driver/Rider

Offender Retraining Schemes

Stuart Gemmel

Driving Services/Drivetech


Objectives Highlight relevant content of new Corporate

Manslaughter & Corporate Homicide Act 2007 Consider suitable risk identification, assessment

& control measures for Driver/Rider Offender retraining schemes


Corporate Manslaughter and Corporate Homicide Act 2007

Effective April 2008 Changes requirement to prove individual gross negligence

by the ‘controlling mind’

Most prosecutions failed due to inability to identify the ‘controlling mind’ – only 7 successful prosecutions were achieved under the old legislation – all small companies



New legislation prosecutes the organisation

Reflects changes in society’s attitudes toward corporate accountability



Key features – the offence:(1) An organisation to which this section applies is guilty of

an offence if the way in which its activities are managed or organised -

(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care

owed by the organisation to the deceased.



Key features – the offence:The organisation will only be guilty if the way in

which its activities are managed or organised by senior management is a substantial element in the breach of D.O.C.



What does ‘senior management’ mean? Significant role in decision making

or Plays a substantial part in how the organisations activities are

managed or organisedor

Plays a significant role in the actual managing or organising of the whole or a substantial part of those activities.



Gross Breach of Duty of Care:Conduct falls far below what can reasonably be

expected of an organisation in the circumstances



Relevant duty of care (applicable key considerations re WRRS)

A duty owed to employees or other persons working for the organisation A duty owed as occupier of premises A duty owed in connection with supply of goods or services The use or keeping by the organisation of any plant, vehicle or other

thing A duty owed to a person for whose safety the organisation is responsible



Factors the jury must consider - Failure to comply with H&S legislation

The jury may also consider – Extent to which evidence shows; attitudes, policies, systems or accepted

practices that may have encouraged failure/produced tolerance Have regard to H&S guidance re the breach – guidance means code,

guidance, manual or similar publication issued by relevant authority


Health & Safety at Work & Driving

Applicable Primary Legislation: Health & Safety at Work Etc Act 1974 Management of Health & Safety at Work Regs 1999 Provision & Use of Work Equipment Regs 1998

Of course other legislation may apply as well depending upon activities, it’s the provider’s & sub-contractors joint responsibility to identify this and ensure compliance, seeking qualified advice where necessary


Health & Safety at Work & Driving

Risk Identification & Assessment By sub-contracting delivery providers cannot transfer responsibility Providers (and their sub-contractors) must be able to demonstrate suitable &

sufficient risk evaluation and management processes for their activities This should consider:

Equipment (vehicles, electrical equipment etc)Environment (premises, location, changeover points)People (competence evaluation, disabilities, interaction with others)

It should not be assumed that sub-contractors have the knowledge regarding HaSaW law as it applies to their activities re delivery of courses


Risk Assessment & Control – Suitable & Sufficient?

Management: Has a risk assessment process been applied to cover all activities? Has it been recorded? Have controls been implemented where necessary? Are collisions reported and investigated? Are reviews carried out regularly? Are the above recorded and demonstrable?



Sub-Contractors (inc Trainers): Is competency relevant to activity assessed? Are trainers aware of duty of care and HaSaW responsibilities re delivery

of the service on your behalf? Is sufficient guidance provided to sub-contractors re providers

expectations and policies? Are compliance reviews carried out regularly on sub-contractors? Are the above recorded and demonstrable?



Vehicles:Can you demonstrate: Vehicles assessed re suitability for purpose? Maintenance and condition monitored? Records maintained re above?



Journey: Policy re driver management including changeovers?Policy re conducting training in adverse weather

conditions? Personal safety matters?Defined procedures in the event of a collision?


Health & Safety at Work & DrivingEnforcement: No active policing/enforcement policy by the HSE! HSE look to the Police to inform them of any identified corporate contributory factors

that may have contributed to a crash (guidance in RDIM) Road Traffic related legislation takes precedence Experience has shown that most cases referred to the HSE by Police are not acted upon

with the HSE referring the case back to Police The above would suggest the risk of prosecution is low, but should not be discounted.


To Summarise

Are you comfortable that you would stand scrutiny against the legal issues highlighted? How easy would it be for you to demonstrate your Health & Safety law compliance

including risk management procedures to the enforcement authorities? If in doubt, consult your organisation’s Health & Safety practitioner/s

Thank you


Documents

Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500 Corporate Manslaughter & Health & Safety Considerations