LEGISLATION UPDATE

Negligent firms to face new corporate killing law

Companies whose gross negligence leads to the death of employees or members of the public will be prosecuted under the soon-to-beintroduced law of corporate manslaughter and corporate homicide.

The long-awaited tough new legislation, which is now making its way through Parliament and is expected to reach the statute book towards the end of 2007, will see companies found guilty having to pay unlimited fines. However, the proposed legislation falls short of prosecuting individual managers and directors as had been expected.

An organisation will be guilty of the new offence if someone has been killed as a result of the gross failure of an organisation’s senior managers for example to:

• Ensure safe working practices for their employees (for example, that staff are properly trained and equipment is safe).
  
  
• Maintain the safety of their premises (for example, ensuring that lifts are properly maintained and fire precautions taken)

It will also cover organisations providing goods and services to members of the public, the construction, use or maintenance of infrastructure or vehicles, or when operating commercially. The new offence, says the Home Office, will be clearly linked to the standards required under existing health and safety laws. In addition to guilty companies facing an unlimited fine, the Bill also gives the courts power to impose a remedial order which can already be imposed for health and safety offences and require the company to address the cause of the fatality.

“The longawaited tough new legislation will see companies found guilty having to pay unlimited fines”

In announcing the proposed new law Home Office Minister Gerry Sutcliffe said: “The UK has a very strong health and safety record. This is not about changing standards or imposing extra burdens on business but supporting well-managed companies by targeting those who are cutting costs and taking unjustified risks with people’s safety. “For too long the law has made it extremely difficult to bring to justice large companies whose management failure has resulted in death.”

There has been public dismay at the inability of prosecutors to successfully prosecute organisations and senior management for corporate manslaughter following major tragedies, such as the sinking of the Herald of Free Enterprise almost 20 years ago and, more recently, a spate of rail crashes.

Mr Sutcliffe said: “Publication of the Corporate Manslaughter and Corporate Homicide Bill shows the government’s commitment to bringing forward a criminal offence so that companies who have dismally failed to pay proper attention to people’s health and safety are bought to justice.” Under current law a company can only be convicted of corporate manslaughter if there is enough evidence to find a single senior person guilty. That, said the Home Office, did not reflect the reality of modern corporate life and, to date, only seven small organisations have been convicted.

The proposed new criminal offence is aimed at addressing that key deficit by enabling the courts to consider the overall picture of how an organisation’s activities are managed by its senior managers, rather than focusing on the actions of one individual. The offence will look at the overall management of an activity within an organisation. It will not be possible to prosecute a company where the failings are found to be at junior management levels.

The government says it will look to refine that definition during the Bill’s Parliamentary passage, to see if a better way of achieving this can be found. The Bill also takes the unprecedented step of lifting Crown immunity for the first time. Crown bodies such as government departments, as well as other public sector organisations including police forces, will be on an equal footing with the private sector when carrying out similar activities.

In Scotland, the new offence will be called corporate homicide, but the Transport & General Workers’ Union says the proposals do not go far enough. Union bosses are now campaigning to get a new Scottishspecific offence introduced of corporate killing through recklessness.

The union wants “gross negligence by senior managers” replaced by “management recklessness”, specific individuals within management to face prosecution and a range of penalties available to courts.

• See David Faithful’s opinion and case studies

 

Mandatory daytime running lights moves a step closer for UK drivers

Motorists in the UK may be forced to drive all day with their lights on under European Union plans to make daytime running lights mandatory.

The plan has been on the EU’s agenda for a number of years and it claims that up to 2,000 lives a year will be saved because cars will be more conspicuous to vulnerable road users such as pedestrians and cyclists. The EU says that 14 of the 25 member states already require drivers to use daytime running lights and it wants all countries, including Britain, to make the measure compulsory by 2010 (RoadSafe: summer 2006).

The UK government has consistently been against the measure and Transport Minister Stephen Ladyman reiterated those concerns during an autumn debate in Parliament on the Road Safety Bill. He said that such a move could result in an increase in motorcycle deaths. Motorcyclists, he said, tended to use their headlamps during the day to mark them out in traffic.

“Motorists in the UK may be forced to drive all day with their lights on under European Union plans”

Dr Ladyman said: “Because motorcycles use daytime running lights, they have greater visibility than they would do if everyone used such lights. Given that one of the most serious problems that we face in this country is to bring down sharply the stubborn rate of motorcyclist fatalities, we cannot afford to compromise an important safety concern for motorcyclists.”

But the minister added that he had been unable to persuade his counterparts in other countries to vote against the Commission’s proposal. He added: “I am increasingly pessimistic. The tide is running against me. A number of powerful states believe that it is a good idea. I believe that they think that it is a panacea and an easy solution to which their public will not object and which will help to reduce their casualty statistics.

“I do not think that it will reduce their casualty statistics, but it will affect our casualty statistics. I will continue to fight the good fight, but I cannot promise that I will win.” The government is also concerned that daytime running lights will increase fuel consumption and exhaust emissions.

• See vulnerable road users feature

 

EU insists on “blind spot mirrors” for commercial vehicles

Commercial vehicles of more than 3.5 tonnes must be fitted with “blind spot mirrors” to reduce the number of collisions particularly involving cyclists and motorcyclists.

The European Union directive, which must be voted on by the governments of member states, means that thousands of commercial vehicles already on the road will have to be retrospectively fitted with the mirrors at an average cost to operators of €100-€150 per vehicle.

New commercial vehicles of more than 3.5 tonnes have to be equipped with blind spot mirrors from next year under a 2003 EU directive. In passing the directive on retrofitting existing heavy vehicles with blind spot mirrors, the EU estimated that 1,200 more lives could be saved until 2020. Every year around 400 road users lose their lives in accidents, because lorry drivers fail to notice them when taking a right turn.

In a statement announcing the measure, the EU said: “Where due to specific circumstances heavy vehicles can only be retrofitted at much higher costs, the proposed directive allows for flexibility; inspection authorities can accept exceptional alternative solutions in order to prevent distortion of competition in the haulage market.”

 

New laws on child car restraints and seatbelt use to cut casualty rates

New child car restraint laws which could save up to 2,000 child casualties per year were introduced in September.

Road Safety Minister Stephen Ladyman said: “Now, parents will have to make sure that with very few exceptions children up to 4’ 5” in height use the relevant child car seats or boosters in cars, vans and other goods vehicles. I expect that the police will seek to educate as well as enforce, but ultimately parents face being fined if they don’t comply with the new rules.

The penalties for not using a seatbelt or child restraint remain at a £30 fixed penalty notice or a maximum fine of £500 if a case goes to court.

The changes mean that:

• All children under three years old must use the correct child seat when travelling in any car or goods vehicle (except in the rear of a taxi if a child seat is not available).
  
  
• Children aged over three years and under 12 must use the correct child seat/booster seat/ booster cushion when travelling in cars or goods vehicles until they reach about 4’ 5” (135 cms). Few exceptions are permitted.
  
  
• Taller children and all those aged 12 and over need to use adult belts.
  
  
• Rear-facing baby seats must not be used in seats with an active frontal airbag.
  
  
• There are some specific practical exemptions for taxis, emergency vehicles, and (for children aged three and over) journeys over a short distance in an unexpected necessity.
  
  
• In minibuses, buses and coaches, seated passengers aged 14 years and above must use seatbelts where they are fitted. The government says it will consult on further regulations to be made as soon as possible requiring children under 14 years to use seatbelts in these vehicles.

In the future, further regulations will be introduced so that:

• Where seatbelts are provided, the number of people carried in the rear of cars and goods vehicles may not exceed the number of seats available fitted with seatbelts or child restraints (to apply from May 2009).
  
  
• Modern UN ECE Regulation 44.03 (or later) type-approved child restraints must be used from May 2008. Most restraints in use already meet this standard.

Dr Ladyman added: “Children are not small adults. Making sure that they keep using child seats/boosters until they are 4’ 5” in height will mean that they are properly secured for their own safety. Children who have grown out of child seats still need to use booster seats or booster cushions until they are big enough to graduate to seatbelts. “Most people make sure that children use some kind of restraint, but it is important to use the right one for the size of the child and to take the time to fit it properly.”

 

Traffic authorities to review local speed limits

Speeding is rarely out of the headlines and in a bid to reduce casualty rates the Department for Transport (DfT) has ordered a comprehensive review of speed limits on all A and B roads.

The move comes as the government is set to introduce a graduated penalty system for speeding, where the number of penalty points incurred more closely reflects the severity of the offence.

“Realistic and consistent speed limits help to keep traffic moving freely and safely”

The speed limit guidance issued to local authorities by the DfT is designed to promote greater clarity and consistency and covers the setting of all local speed limits on single and dual carriageway roads where drivers should adopt a different speed to the national limit. The three national car speed limits 30mph on street-lit roads, 60mph on single carriageways and 70mph on dual carriageways and motorways will not be changed, but local councils are being asked to set local limits where they consider the national limit to be inappropriate. Changes should be implemented by 2011.

Transport Minister Stephen Ladyman says: “Realistic and consistent speed limits help to keep traffic moving freely and safely. Our new guidance encourages lowering speed limits where the evidence warrants it, but equally traffic authorities should consider increasing limits if it can be done safely. “The guidance also encourages traffic authorities to set limits that reflect the road environment and characteristic, and which drivers will instinctively understand.”

Meanwhile, the House of Commons all-party Environmental Audit Committee in its report “Reducing Carbon Emissions from Transport” did not directly call for a cut in the 70mph motorway speed limit but did, at the very least, demand proper “policing” of it both to help improve safety and reduce vehicle emissions as fuel efficiency decreases markedly at higher speeds.

“Proper enforcement of the legal speed limit would be a trivial incursion on personal liberty”

The report said: “We understand the government’s reluctance to lower the motorway speed limit, or rigorously enforce the current 70mph limit, given the likely public controversy such a policy would provoke.

“However, compared to the potential danger which this could help to avert, proper enforcement of the legal speed limit would be a trivial incursion on personal liberty. “Beyond its direct impact, a new policy on speed limits would help to raise awareness of the reality of climate change, and of the need for everyone to take action on it.”

 

Government launches “sat nav” safety consultation

The Department for Transport has launched a consultation on satellite navigation to ensure that the invehicle devices do not pose a safety risk through driver distraction and that their routing strategies do not encourage the use of “rat runs” or give ill-advised or illegal instructions to users.

Route guidance, in particular satellite navigation devices, is becoming increasingly widespread in the vehicle market. There are currently over four million “sat nav” systems in use on UK roads. As the use of satellite navigation becomes more common, there is, says the government, a need to update legislation, which was developed in 1989-1990, requiring system providers to apply for a licence prior to marketing the technology.

The intention of the review, says the Department, is not to restrict industry but, rather, to ensure that safety and traffic management are considered appropriately in the design of systems on the market. Route guidance devices are currently subject to licensing provisions of the 1989 Road Traffic (Driver Licensing and Information Systems) Act and 1990 Driver Information Systems (Exemption) Order.

The 1989 Act states that “no person shall operate a driver information system in relation to public roads in England or Wales or Scotland unless authorised to do so by a licence granted to him by the Secretary of State”. The 1990 exemption order limits the need for a licence to either those systems that require use of roadside infrastructure and/or dynamic route guidance systems. All operators of route guidance systems falling within the definitions are therefore required by law to obtain a licence from the Department before marketing their devices.

The government says that a review of the legislation is required on many grounds and particularly highlights the fact that numerous devices are now available; it has become difficult to define a “system operator” as it is now common practice to have many different companies contributing elements to a single device; and that there is no rationale on safety grounds and little on routeing grounds for a distinction between the scrutiny of static and dynamic in-vehicle navigation devices.

Options highlighted in the consultation document to modify the existing licensing regime are:

• Do nothing; leave the legislation and the licensing regime as it stands;
  
  
• Extend the licensing regime to cover all static and dynamic devices;
  
  
• Fully deregulate; completely remove the licensing regime, which is the option favoured by the Department;
  
  
• Partially deregulate; remove the licensing regime except for systems requiring use of the roadside infrastructure, and introduce non-regulatory mechanisms to encourage self-regulation.

The consultation runs until 9 January 2007. The consultation document entitled “Review of In-Vehicle Information Systems Legislation” is available at: Website: www.dft.gov.uk/roads/ivisconsultation

 

The Road Safety Bill

The Road Safety Bill has now gained royal assent, but it is likely to be many months before some of the law changes come into effect.

The long-awaited wide-ranging Act gives the government far-reaching powers to introduce tough new penalties for a number of offences. However, a Department for Transport spokesman said the government would need to consult with both Parliament and the public on the detail of each proposal and then use secondary legislation to invoke the new range of penalties.

Therefore, although there may be little opposition to plans to increase penalties for the use of handheld mobile phones and introduce graduated speeding fines, it will be 2007 before the measures are likely to kick-in.

Aimed at improving road safety and cutting the toll of deaths and injuries in road crashes, measures set for introduction include:

• Increasing the penalty for use of a hand-held mobile phone while driving from a £30 fine to a £60 fine and three penalty points is likely to be introduced in spring 2007.
  
  
• Flexible speeding fines with reduced penalties for drivers caught just above the speed limit and higher penalties for motorists signficantly above it. Consultation on the details of how this will work will be launched soon.
  
  
• Nationwide speed awareness courses as an alternative to a £60 fixed penalty speeding fine.
  
  
• The creation of a new offence of causing death by careless driving, with a penalty of up to five years’ imprisonment.
  
  
• The creation of a new offence of causing death when driving while unlicensed, disqualified or uninsured, with a penalty of up to two years’ imprisonment.
  
  
• Rehabilitation schemes with support for so-called alcolocks for drink-drivers.
  
  
• The legalisation of GPS-based speed camera locators and the outlawing of all other types of speed camera detectors and jammers.
  
  
• Tackling fatigue-related accidents by piloting “Frenchstyle” motorway picnic areas.

“The flexible points system is being seen as an attempt to diffuse anger among some drivers over the use of speed cameras”

The flexible speeding fine plan would see a reduced penalty (two points) for motorists not far above the speed limit and a higher penalty (six points) for those who are significantly above it. However, the speed/points thresholds have yet to be announced. The flexible points system is being seen as an attempt to diffuse anger among some drivers over the use of speed cameras and ensure that thousands of motorists are not banned from the roads for relatively minor infringements.

At the moment, drivers breaking the speed limit receive three points on their licence regardless of the gravity of an offence. Anybody who accumulates 12 points, or commits four speeding offences within three years, suffers an automatic ban.

Over the following pages we examine measures that companies should take to stop drivers from speeding and eliminate the use of hand-held mobile phones while on the move.

 

 

 

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