No corporate manslaughter charge for employer of double fatality driver

A company that employed a driver who fell asleep at the wheel and killed two charity cyclists will not face corporate manslaughter charges.

However, Frys Logistics has received a formal warning from the traffic commissioner for vehicle maintenance issues, which were reported at the time of the incident. 

During the trial of Robert Palmer, evidence emerged of serious health and safety failings at Frys Logistics, with legal experts suggesting the employer could be charged with corporate manslaughter.

However, a Devon and Cornwall Police spokesman told Commercial Fleet: “Following a review of the case, we can confirm there will be no further action.”

The Crown Prosecution Service (CPS) told Commercial Fleet that “it was a police decision to take no further action”. The police declined to explain why they had decided not to prosecute.

The Traffic Commissioner for the West of England would not confirm whether its investigations were in connection with the double fatality and as a result of the court case.

A spokesperson for the Office of the traffic commissioner (OTC), told Commercial Fleet: “The operator’s licence held by Frys Logistics was called to a public inquiry before the commissioner, Sarah Bell, following unsatisfactory maintenance investigations by the Driver and Vehicle Standards Agency in 2013 and 2014.

“At the conclusion of the inquiry, Bell recorded a formal warning against the operator’s licence and undertakings relating to additional training for the director and transport managers, the nomination of a second transport manager and financial standing.”

However, it is the decision not to prosecute Frys Logistics for health and safety failings which has left legal and road safety experts baffled, and the families of the deceased pushing for a full inquest to help establish the facts of the case.

Andrew McMenigall, 47, and Toby Wallace, 36, had just embarked on a 960-mile bike ride for charity when they were hit and killed by a truck being driven by Palmer on the A30 near Newquay in July, 2013.

The families believe there are contributing factors which may explain how the crash occurred, such as why Palmer fell asleep, why he worked an amount of hours in a certain period of time that exceeded the legal limit, and why he worked in the yard at Frys Logistics in the daylight hours before he started his night shift.

At a recent pre-inquest hearing held at Truro Coroners’ Court, it was also argued by a lawyer representing  the families that a full hearing could help prevent  future deaths.

However, Devon and Cornwall Police say that the relevant facts have already been established.

A full inquest, unlike a criminal trial, would not try to establish whether anyone was responsible for the deaths, but witnesses such as the employer would be compelled to attend and face questions from the families.

In addition, a jury would be called to decide the facts of the case and reach a verdict, because the deaths resulted from an accident at work, which could make clear whether the death was caused by a specific failure or neglect.

The decision on whether to hold a full inquest lies with Cornwall coroner Dr Emma Carlyon, who has yet to make a ruling.

At Palmer’s trial, Truro Crown Court heard that he worked for long hours, driving in the evenings and then carrying out mechanical work for the Launceston-based company during the day.

However, after the crash, which occurred at 8.30am on July 2, 2013, he told police that, having finished an identical shift the previous day, he had gone home and slept until 6.30pm.

Investigations revealed he had, in fact, been working on maintenance at the Frys Logistics depot until 3pm, before returning home for a few hours’ sleep. Between 5pm on June 30 and 6am on July 1, Palmer had also sent more than 150 text messages.

In one exchange about his lack of sleep, Palmer said: “I’ve survived so far.” On the morning of July 1, he texted: “Just leaving home, going back to yard.” Later, he texted: “Worked till 3pm, had about three hours’ kip. Now back on Lidl run.”

Prosecutor Philip Lee said: “Far from being home and sleeping, he was going back to work. This defendant was habitually working a day shift in the yard and night-time driving shifts.”

The prosecution said Palmer, who was jailed for eight-and-a-half years after pleading guilty to causing death by dangerous driving and a further charge of dangerous driving, had also altered his tachograph to cover up his lack of sleep.

HGV and LGV drivers are subject to the European driver’s hours and tachograph regulations, and the Working Time Directive, which impose strict limits on the amount of time a driver can work. The rules would have prohibited Palmer from carrying out vehicle maintenance work for his employer during the day if he was driving at night.

Work-related road safety expert Edward Handley says he is baffled by the decision and frustrated at the authorities’ unwillingness to give their reasoning. He said: “It is almost unbelievable that the police and CPS did not follow up with a case against the employer, either for manslaughter, if an individual ‘controlling mind’ could be identified, or corporate manslaughter, if it was not possible to lay the blame at the feet of an individual.

“It is also very worrying that the police have indicated that they are not going to give their reasons. They should be forced to do so because, unless and until they do, we can only speculate, and when speculating it is easy to assume the worst.”

Handley, a former TRL (Transport Research Laboratory) consultant and owner of Work Related Road Safety (WRRS) Solutions, says that includes whether the case was “investigated or prepared in such an incompetent manner that a conviction was unlikely or perhaps, even worse, that there is no consistency in the application of the law and that the consequences do not depend on the severity of the negligence involved, but on where the collision occurs and which force investigates it”.

Handley’s surprise at the lack of any formal charges being laid against the employer stem from a similar case relating to MJ Graves International.

Handley says that one of its drivers had worked an illegal 20-hour shift when he crashed into a broken-down car on the A12 in Essex, killing a motorist.

He explained: “The driver, who apparently had little time for ‘quality sleep’, was jailed for four years and the transport manager, Martin Graves, who should have been controlling his drivers and preventing them from breaking the law, was also jailed for four years. This case clearly shows that managers and directors can be investigated and prosecuted if they fail in their duties.”

The company would have owed a duty of care under Section 3 of the Health and Safety at Work Act, which aims to ensure that the employer conducted its undertaking, so far as is reasonably practicable, without exposing other persons to such risks.

Philip Somarakis, a partner at Gordon Dadds Solicitors, said: “In short, this means the company was expected to have taken reasonable steps to prevent the risk of drivers falling asleep at the wheel. It is difficult to see how the prosecution could not have established that the actions of the employer caused the deaths.”