A leading lawyer has indicated that even if fleet failures are identified in a large organisation following a fatal crash, there is unlikely to be prosecution under the Corporate Manslaughter Act (CMA).

Solicitor advocate, Mark Scoggins who successfully defended corporate manslaughter cases under the previous law, said fleet managers should “not be complacent, but also not be worried” about the CMA.

Key to a successful prosecution under the Act, which came into force in April 2008, is proving failings by senior management that contributed to a fatality.

Scoggins said a fleet manager may well not be considered to be a senior manager.

“Fleet managers help run part of a business, they do not run the business,” he said. “And only failings by senior management as defined by the Act can result in a corporate manslaughter conviction.

“If you are doing what you should already be doing, then you have nothing to worry about,” he said. “This new law does not impose any additional duties on you.”

However, small businesses where the fleet manager may also be a board director could be more likely to be considered for prosecution, although even in this scenario, it is unlikely.

“You should be able to show you have as a fleet manager taken a personal, visible, close interest in safety matters, combined with firm action when needed,” advises Scoggins, who was involved in the successful defence of Balfour Beatty which was charged with corporate manslaughter following the Hatfield train crash.

To be convicted, a corporation’s safety failings must be “very serious indeed: the Act uses the term ‘gross’ failings, far below that which is reasonably expected,” he said.

In addition, prosecutors considering which cases to bring are also “highly unlikely to prosecute borderline cases,” said Scoggins.

“They will tend to go only for those where there is a clear and protracted pattern of disregard for safety and a culture, fostered or tolerated by senior management, in which safety comes a long way behind profit if indeed it features at all in the way the company does business.”

Scoggins’ advice has been borne out by a recent crash in which a company car driver was killed just 10 days after the Corporate Manslaughter Act came into force.

Despite being prepared for a rigorous police investigation, the driver’s line manager, who wishes to remain anonymous, explains what happened.

“I prepared all the information – service records, maintenance, licence checks, etc.” he said. “But when the police called they spent about 20 minutes asking general questions and that was it. They never even asked to see any vehicle records.”

The crash happened on the M8 in Scotland. It was investigated by the Lothian and Borders Police Force.

“They didn’t ask any questions about his work schedule or routine. I even offered to bring all the relevant documents to the police but they didn’t want them.

“I expected a lot more – I thought they would look at the records to make sure tyres were checked and maintained. We carry out quarterly inspections of all our vehicles as well as physical checks of licences so we knew everything was in order. We even have a driver policy for things like mobile phone use. But they never asked to see any of it.”

However, a Lothian and Borders Police spokesman said the force had investigated the maintenance records directly with the franchised dealer. He also said: “There were no grounds for investigating under the new Act.”

Are you doing all you can?

Despite the apparent reluctance to investigate or prosecute, fleet managers should still ensure they fulfil their duty of care responsibilities.

The Institute of Directors and the HSE have published a guide – INDG417 Leading Health and Safety at Work – which outlines recommended good practice for company directors in overseeing safety in their businesses. Following this guide will help toward compliance with legislation and help protect your drivers. It can be downloaded for free from www.hse.gov.uk/pubns/indg417.pdf

 Will I go to jail?

The HSE states that:

"The CMA offence is concerned with corporate liability and does not apply to directors or other individuals who have a senior role in the company or organisation.

However, existing health and safety offences and gross negligence manslaughter will continue to apply to individuals.

Prosecutions against individuals will continue to be taken where there is sufficient evidence and it is in the public interest to do so."