Although they are generally pleased with my change of heart there is still a great deal of publicity surrounding this area and, dare I say, a healthy amount of scaremongering.
One must always try as a lawyer to put the law in perspective and apply it to real-life, rather than hypothetical, situations. To do otherwise is at best misleading.
Hypothetically, all fleet managers are at risk of an ‘old-style’ corporate manslaughter prosecution. In reality, however, the prospect of this occurring is remote.
The introduction of the new offence of corporate manslaughter, which is likely to be on the statute books by next year, is designed to penalise companies or other corporate entities for management failures that have led to a breakdown in the health and safety process within that organisation leading to ‘gross negligence manslaughter’.
The key here is that the offence will target the organisation – that is to say, senior management such as the chief executive officer, managing director or company directors. It is not designed to target middle or junior managers who are not involved in the active management of the organisation itself.
Although in my experience fleet managers are a highly professional and experienced bunch, they do not – some would say regrettably – have an influence over the direction of the organisation itself.
But why does this then excuse fleet managers from the risk of an old-style personal prosecution? There were two very interesting developments this year both involving unsuccessful corporate manslaughter prosecutions. The first involved a local authority architect, Gillian Beckingham, who was prosecuted for both corporate manslaughter and breaches of health and safety legislation.
The case involved an outbreak of Legionnaire’s Disease resulting in seven deaths, which occurred due to an oversight in an air conditioning system maintenance agreement for which her department was responsible.
In this case, Beckingham was convicted of health and safety breaches but the jury failed to reach a verdict on the corporate manslaughter charge.
What this did additionally highlight is the obligations and potential liability under maintenance contracts, something that I have been previously addressing with the leasing and daily contract market in light of the recent Mainline, Excel and Land Rover cases.
The second case was the prosecution of managers, as well as their employers, involved in the maintenance of the railway track at Hatfield. Recently, the corporate manslaughter charges were dismissed against all concerned but Network Rail and Balfour Beatty were convicted of breaches of health and safety legislation and will face a substantial fine.
What the court has inadvertently established is a pecking order in respect of these types of offence. It would now be a brave prosecutor indeed if they decided to take on a fleet manager. On the other hand, if it could be shown that the organisation was lax in its management of work-related road safety and there were obvious management failures, then it would be the senior company officer facing the police questioning and the possible prosecutions. Certainly, the common theme is that the company would face prosecution for breaches of health and safety legislation at least.
I often ask fleet managers what would be the outcome if the police paid a surprise visit to the organisation armed with the investigation of road death manual. How would the MD react to intensive questioning about the fleet’s health and safety policy? The consensus of opinion is ‘not very well’ – it is this sort of lack of management failure that will warrant further investigation by the police whether you are seen to be managing the risk or not.
So I can say with a degree of confidence that fleet managers are not likely to be the future targets. Having said this, however, this assumes you are actually doing something positive in terms of managing the fleet risk – at the very least having drawn a ‘line in the sand’ to work out where you are in terms of risk, and putting steps in place to manage it.
Failure to do so could have a significant financial impact on the company as even without the new Corporate Manslaughter law, breaches of health and safety legislation can lead to fines in the millions rather than the thousands.
But having said this, the risk is still small. If you have a health and safety culture in place, you probably have as much chance of winning the lottery as facing a prosecution.'