Beware ‘dirty tricks’ after incidents, say law specialists

Fleet managers need to be aware of “dirty tricks” that could occur during an accident investigation Adrian Mansbridge, of legal firm Pinsent Mason, told delegates at the Future Fleet Forum, organised by Local Authority Plant and Vehicles.

He said: “We’ve had cases where the family liaison officer, who is supposed to be impartial, brought the family to the site on the day they know the interview is being done with the deceased’s belongings to create an emotional reaction.”

In the event of a fatality or serious injury involving a company car driver it will be the police interviewing the fleet manager or company representative. However, if the incident is on site then HSE will be the investigating authority, fatality or otherwise, unless the police are investigating under suspicion of corporate manslaughter.

Mansbridge and his colleague Jonathan Cowlan conducted a mock PACE (Police and Criminal Evidence Act 1984) interview at the event to show fleet operators what a formal interview is like.

The scenario involved a local authority refuse collection vehicle colliding with a pedestrian when reversing out of a residential cul-de-sac, causing serious injuries that could have been fatal.

The senior fleet manager was then invited for a PACE interview as numerous Health and Safety at Work Act offences were under investigation.

At the start of the mock interview the fleet manager elected not to take legal advice and the inspector agreed, telling him “you don’t need to worry about anything here”, before going on to take the interview through stages.

“At no point did he appreciate the significance of the admissions he was making until the culmination of the interview,” Mansbridge said.

“If you’re ever in an interview, my first piece of advice to you would be to have a lawyer. Regulatory, white collar crime is the type of lawyer you’re looking for, certainly for a corporate defendant.”

In the scenario, the fleet manager only had limited  pre-interview disclosure of documents but he should have asked for ‘full disclosure’ if possible, to “avoid making comments contrary to documentary evidence”, according to Mansbridge.

Fleet managers should also be wary of sending emails in the aftermath of an accident.

Cowlan said: “It’s dead easy to say something like ‘Fred what’s going on? This is just like the incident we had two months ago’.”

Cowlan warned fleet managers to avoid waiving legal privilege. In the mock interview the fleet manager gave the inspector the right to see a document which had been sent to the company’s lawyer and would have been protected by legal privilege.

He advised fleet managers to be clear what offences are under suspicion and to take time to answer each question during the interview.

“Don’t get caught in the headlights,” he said. “Keep calm – don’t get aggressive or confrontational, it doesn’t help.”

The inspector should not ask leading questions and/or multiple questions, which can confuse the interviewee, but in practice this often happens, according to Mansbridge.

“Quite a few of the questions in that interview were asking the fleet manager to agree to what the inspector was inferring,” Cowlan said. “It’s very easy to say ‘yes’ and then say things you can’t backtrack on.”

Another technique is to leave silence so that the interviewee feels uncomfortable and thinks they had “better say something”, Cowlan said.

He advised fleet managers not to fill the gap and avoid guesswork.

“If that is a fleet director’s question there is nothing wrong with saying ‘you’ll need to speak to the fleet director about that’. But people do tend to guess. They’re under pressure, they think they’ve got to answer that question,” he said.

It can also be tempting to answer ‘no comment’ but Mansbridge warned: “You’ve got to remember the inferences that may be drawn if you don’t say things in that interview.”

He favours a prepared written statement “if someone  has even the slightest discomfort about speaking in an  interview”.

“Answering questions is risky,” he said. “Only answer questions if you have a really thorough understanding of the incident, background and your own systems.”

Fleet managers should also be aware that the interview room should have adequate heat, light and ventilation, there is no requirement to stand and they are entitled to breaks.

PACE does not apply in Scotland, and Cowlan advised companies operating in England, Wales, Northern Ireland and Scotland to understand the different rights and procedures for each.