Ford and Warren  recently successfully defended an owner of a transport business who had been prosecuted for involuntary manslaughter following a road traffic accident in which a pedestrian died.

Every operator of HGVs should remind themselves of their duties, and the risks they face every day should they fail to discharge those duties. This is especially important as the government seems committed to making such prosecutions more common place, by introducing the offence of corporate killing - a term which should make even the most thick skinned weak at the knees.

If current commentary is correct, which is likely, then rather than having to prove that someone who is the "brains of the company" was grossly negligent as to their duties, which was the significant cause of the death; under the likely criteria for proving corporate killing, it is likely to be more akin to a prosecution for a breach under the Health & Safety At Work Act.

What is the difference?

It is likely that for a company to be guilty of corporate killing that there will be no need for an individual to be identified as is the current requirement for corporate manslaughter. Put simply, if there is a management failure which causes death and the failure constitutes conduct falling far below that which could reasonably be expected this could result in a prosecution.

The offence of involuntary manslaughter will remain, even if a new offence of corporate killing is introduced. It is important, therefore, to know what the current position is.

What is Involuntary manslaughter?

Involuntary Manslaughter is where an individual kills, as a result of some blameworthy act on their part but, without actually intending to cause death or serious injury.

Corporate Manslaughter is such that the company cannot be convicted of manslaughter unless the individual known as "the brains of the company" or "the directing mind" has shown himself to have been guilty of manslaughter. If there is insufficient evidence to convict him then the company cannot be convicted.

Corporate Manslaughter has proved difficult to prove particularly with larger companies and corporations because of the difficulty in identifying that individual who may be responsible and who may have the appropriate knowledge of events.

How do you identify the one individual who is the "controlling mind" who unlawfully caused the death?

Where you have a small company under the control of the sole owner and/or sole director of the company then its not too difficult to identify the "controlling mind". In those cases if there were such evidence then that person could then be prosecuted as an individual as well as the company. With the larger companies there seems to be the perception by the public that they are immune from prosecution.

The vast majority of operators of heavy goods vehicles will fall into the category of the small operator whereby, because of their size, they can be caught by the existing law. They are not large impersonal organisations where the "controlling mind" cannot be clearly identified.

In order to be successful against the individual what currently must be proved?

There is great difficulty for the courts to give adequate directions to juries. What is the right test?

The Judicial Studies Board produce assistance to judges on what direction they should be giving to juries in relation to all manner of offences but, with involuntary manslaughter, because the circumstances to which the charges apply are so varied, it is felt unwise to attempt to categorise or detail specimen directions, so the basic law is put to the jury such that they have to be "sure" that the prosecution have proved that:

• The defendant has a duty of care to the third party.
• There has been breach of that duty.
• The breach has caused death and was negligent.
• The negligence was the significant cause of the death.
• The negligence was so gross that any jury must regard it as criminal.

With the operators of heavy goods vehicles it is clear to see that they have a duty to not only their workforce but also the wider public as their vehicles are on the road every day and present a potential risk.

Their duty is clearly set out in the terms of the Operator's Licence undertakings given under that licence.

There would be a breach of duty if they failed to comply with their undertakings in particular the undertaking to ensure that vehicles are kept fit and serviceable.

If there was a breach of that duty and as a result of that breach there was a death and that breach was a result of their negligence then that part of the criteria would be satisfied.

For example, in the particular circumstances of any accident which may have been the result of a mechanical failure it has to be established clearly that the accident was due to the operator's negligence and that the defect was a significant cause of the death.

Having established a cause due to negligence, then the jury have to decide whether or not that negligence was so gross as to amount to being a criminal act.

The prosecution have to establish each criteria. If they fail on any one of those criteria then a defendant is acquitted. The onus on proving any case is on the prosecution. It is not up to the defendant to prove himself innocent. The jury has to be "sure" and this makes prosecutions for manslaughter very difficult.

What conduct amounts to "gross negligence" ?

Conduct which might amount to gross negligence and would be demonstrating indifference to an obvious risk might include:

• The operator who has no system of checking drivers' records or the owner driver who fails to keep records.
• The owner who keeps false records or the operator who encourages drivers to keep false records.

Remember a tired driver is the equivalent to a drunk driver!

Likewise conduct which indicates an actual foresight of a risk but with a determining mind to run it may include:

• The driver reports a defect in a brake or a tyre on his daily check and the operator tells him to drive on.
• The driver contacts his employers and advises them that his hours are up and the delivery can't be made. The response from the operator is "do your best and get tipped"

These breaches can be demonstrated in cases involving transport companies:

Bowles Transport.

Two people died in a 7 car pile up on the M25. The lorry driver fell asleep after working long hours. The company had procedures for checking drivers' hours and even issued warnings to its drivers and the jury decided that the system was so lax that this amounted to gross negligence. Suspended prison sentences imposed against two of its directors.

Jackson Transport(Ossett) Ltd

An employee died whilst cleaning a tanker. A Yorkshire transport company and director were convicted of manslaughter when a young employee had received no training or supervision or been issued with the correct equipment A prison sentence was imposed on the sole director

What are the penalties?

The penalties for manslaughter are difficult to predict. The maximum penalty is an unlimited fine and imprisonment, or both but it is clear that penalties can range between 2 to 7 years imprisonment for the individual.

Why is there a need to have a new offence of corporate killing?

The public are concerned that large companies have been found to be seriously at fault but could not be prosecuted for manslaughter even if such faults resulted in death.

The public demands change and has done so since 1977 but as yet reform legislation has not yet reached the statute books. The public perception is that the larger corporate companies can escape liability for death.

In order to successfully prosecute a company for Corporate Manslaughter there needs to be fault through the "controlling mind of one of its agents, who either does an act or fails to do an act which fulfils the prerequisite of the crime of manslaughter".

To satisfy public pressure it is likely that a new offence of "corporate killing" will eventually reach the statute books

It is likely that the criteria required for Corporate Manslaughter will change for the new offence of "Corporate Killing" so it is, in effect, more akin to a prosecution for a breach under the Health & Safety at Work Act with similar financial penalties being imposed but with the stigma of manslaughter.

What can an operator do to safeguard his liberty and livelihood?

Road haulage operators feel very vulnerable and paranoid about the possibility of a manslaughter prosecution resulting in imprisonment and, particularly with the small operator, potential financial ruin.

Quite simply, operators of heavy goods vehicles must comply with the undertakings given to the Traffic Commissioner and if the operator complies by putting in effective systems to ensure compliance and takes steps to make sure those systems work, then there is a good chance that the building blocks necessary to avoid a manslaughter prosecution will be in situ.

In addition compliance with other statutory and regulatory obligations should provide a shield against prosecution but, if those systems fail, then such failure in the systems could be used against the operator.

Transport companies, because of the nature of their business, are particularly vulnerable. The highest standards of operations must be achieved.

Operators of heavy goods vehicles should remind themselves of the undertakings given to the Traffic Commissioner. Those undertakings are to make proper arrangements so that:

• the rules on drivers' hours and tachographs are observed and proper records kept;
  vehicles and trailers are not overloaded;
• vehicles will operate within the speed limits;
• vehicles and trailers including hired vehicles and trailers are kept fit and serviceable;
• drivers report promptly any defects or symptoms of defects that could prevent the safe operation of vehicles and/or trailers, and that any defects are promptly recorded in writing; and
• records are kept (for 15 months) of all safety inspections, routine, maintenance and repairs for vehicles and trailers and these are made available on request.

The operator can be at risk if he fails to comply with his undertakings and instead of appearing before the Traffic Commissioner for consideration of regulatory action the operator could be before the Crown Court facing manslaughter charges. The consequences of which are far more serious.

Have you, the Operator, got systems to ensure compliance and have you taken steps to make sure the systems work?

Ask the question: How do I know my systems are being complied with?
If the answer is "I don't" then there is a potential risk. You need to take immediate action to remedy the problem.

All too often we represent operators at public inquiry who either don't have a system or if they do it hasn't been effective in complying with the undertakings such that vehicle prohibitions have been imposed. Vehicles have not been inspected on time or at all, drivers have breached their hours, vehicles have been overloaded, vehicles have been speeding and drivers have not been checking and reporting defects. Such failings form the necessary evidence to prosecute for manslaughter.

This briefing is to form the basis of a series of awareness articles on the topic. We hope that on the next occasion we can deal with the "new" bill on corporate killing and its consequences for the industry.

Remember that prevention is better than the cure. If any operator wants advice on the effectiveness of their existing systems or is considering putting systems in we are here to help now .

Watch this space!

Article by Gary Hodgson Partner at Ford & Warren