driving services uk limited. the old barn, ledsham village, cheshire, ch66 one. tel : 0151 347 4500...
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Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter & Health & Safety Considerations in Driver/Rider
Offender Retraining Schemes
Stuart Gemmel
Driving Services/Drivetech
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Objectives Highlight relevant content of new Corporate
Manslaughter & Corporate Homicide Act 2007 Consider suitable risk identification, assessment
& control measures for Driver/Rider Offender retraining schemes
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Effective April 2008 Changes requirement to prove individual gross negligence
by the ‘controlling mind’
Most prosecutions failed due to inability to identify the ‘controlling mind’ – only 7 successful prosecutions were achieved under the old legislation – all small companies
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
New legislation prosecutes the organisation
Reflects changes in society’s attitudes toward corporate accountability
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Key features – the offence:(1) An organisation to which this section applies is guilty of
an offence if the way in which its activities are managed or organised -
(a) causes a person’s death, and(b) amounts to a gross breach of a relevant duty of care
owed by the organisation to the deceased.
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Key features – the offence:The organisation will only be guilty if the way in
which its activities are managed or organised by senior management is a substantial element in the breach of D.O.C.
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
What does ‘senior management’ mean? Significant role in decision making
or Plays a substantial part in how the organisations activities are
managed or organisedor
Plays a significant role in the actual managing or organising of the whole or a substantial part of those activities.
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Gross Breach of Duty of Care:Conduct falls far below what can reasonably be
expected of an organisation in the circumstances
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Relevant duty of care (applicable key considerations re WRRS)
A duty owed to employees or other persons working for the organisation A duty owed as occupier of premises A duty owed in connection with supply of goods or services The use or keeping by the organisation of any plant, vehicle or other
thing A duty owed to a person for whose safety the organisation is responsible
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Corporate Manslaughter and Corporate Homicide Act 2007
Factors the jury must consider - Failure to comply with H&S legislation
The jury may also consider – Extent to which evidence shows; attitudes, policies, systems or accepted
practices that may have encouraged failure/produced tolerance Have regard to H&S guidance re the breach – guidance means code,
guidance, manual or similar publication issued by relevant authority
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Health & Safety at Work & Driving
Applicable Primary Legislation: Health & Safety at Work Etc Act 1974 Management of Health & Safety at Work Regs 1999 Provision & Use of Work Equipment Regs 1998
Of course other legislation may apply as well depending upon activities, it’s the provider’s & sub-contractors joint responsibility to identify this and ensure compliance, seeking qualified advice where necessary
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Health & Safety at Work & Driving
Risk Identification & Assessment By sub-contracting delivery providers cannot transfer responsibility Providers (and their sub-contractors) must be able to demonstrate suitable &
sufficient risk evaluation and management processes for their activities This should consider:
Equipment (vehicles, electrical equipment etc)Environment (premises, location, changeover points)People (competence evaluation, disabilities, interaction with others)
It should not be assumed that sub-contractors have the knowledge regarding HaSaW law as it applies to their activities re delivery of courses
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Risk Assessment & Control – Suitable & Sufficient?
Management: Has a risk assessment process been applied to cover all activities? Has it been recorded? Have controls been implemented where necessary? Are collisions reported and investigated? Are reviews carried out regularly? Are the above recorded and demonstrable?
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Risk Assessment & Control – Suitable & Sufficient?
Sub-Contractors (inc Trainers): Is competency relevant to activity assessed? Are trainers aware of duty of care and HaSaW responsibilities re delivery
of the service on your behalf? Is sufficient guidance provided to sub-contractors re providers
expectations and policies? Are compliance reviews carried out regularly on sub-contractors? Are the above recorded and demonstrable?
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Risk Assessment & Control – Suitable & Sufficient?
Vehicles:Can you demonstrate: Vehicles assessed re suitability for purpose? Maintenance and condition monitored? Records maintained re above?
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Risk Assessment & Control – Suitable & Sufficient?
Journey: Policy re driver management including changeovers?Policy re conducting training in adverse weather
conditions? Personal safety matters?Defined procedures in the event of a collision?
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
Health & Safety at Work & DrivingEnforcement: No active policing/enforcement policy by the HSE! HSE look to the Police to inform them of any identified corporate contributory factors
that may have contributed to a crash (guidance in RDIM) Road Traffic related legislation takes precedence Experience has shown that most cases referred to the HSE by Police are not acted upon
with the HSE referring the case back to Police The above would suggest the risk of prosecution is low, but should not be discounted.
Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500
To Summarise
Are you comfortable that you would stand scrutiny against the legal issues highlighted? How easy would it be for you to demonstrate your Health & Safety law compliance
including risk management procedures to the enforcement authorities? If in doubt, consult your organisation’s Health & Safety practitioner/s
Thank you