What does Corporate Manslaughter have to do with me?

Guest blog by Philip Jones, Capital Law LLP.

In my profession as a litigation and disputes lawyer, a lot of my work involves damage limitation. All too often my phone rings when a problem has become critical where intensive (and often expensive) action is required to resolve it. In many cases however, there are identifiable steps that could (or indeed should) have been taken at an earlier stage, which would have avoided or limited the damage that has been caused.

It is of course very easy for me to share these words of wisdom with my clients whilst wistfully shaking my head in admonition as I clean up the mess. It is a sad fact of life that things can and do go wrong and even with the best will in the world there will always be matters that cannot be avoided. The real frustration arises where the opposite is true and where we could have helped if only someone had asked.

With these thoughts in mind I need to say a big thank you to the Wales Audit Office for asking me and my colleagues Mark Littlejohns and Donna Merrick to present to the plenary session of its Fleet Management Shared Learning Seminar that took place to a packed audience at Cathedral Road in Cardiff on 9th October 2013. It was a real opportunity for us to be involved in sharing our knowledge before things go wrong rather than when its too late.

I must confess that as I arrived and saw the details of the training sessions that were to follow our presentation I hoped that we wouldn’t send too many people to sleep with the “boring legal stuff”! With driving simulators and cutting edge practical guidance abounding, I had my doubts!

Following the Auditor General’s very kind introduction and with notes in hand I stood at the lectern took a deep breath and…well, if you were there you know the rest.

For those of you who couldn’t make it and are reading this blog I wouldn’t want you to miss out too much. The topic I chose was the Corporate Manslaughter Act – Five Years On.  Whilst I don’t propose to repeat the whole text or the rather questionable acting of myself and my colleagues in the role-play section (no Welsh BAFTA’s for us!) I have given some thought to the key messages that I hope that those in attendance took with them after we had finished.

It really doesn’t seem like five years since the Act came into force. To us lawyers it was a fresh approach to what had seemed to be an insoluble problem of apportioning blame and responsibility to companies and organisations for deaths that had arisen from gross failings in managing their affairs in a safe manner.

Prior to the Act, it had always been difficult to allocate responsibility unless it could be shown that there had been a “controlling mind” at the root cause. Whilst consistent with the way the law had been approached historically it meant that larger organisations with many layers of management escaped prosecution because you could not show where the “buck stopped”.

Capital Law yn y seminar fflyd / Capital Law in the fleet management seminar

The Act turned this approach on its head and rather than concentrating on what had happened it asked the question why had it been allowed to happen. In other words it imposed a duty on the management to ensure that it had policies and procedures in place that aimed to prevent work related fatalities – a classic prevention rather than cure situation.

As with any new legislation those responsible for enforcing the Act have carefully considered the new powers and have so far only prosecuted a few cases. However do not let this deceive you as the signs are that the level of investigations under the Act and the likely prosecutions are increasing year on year on and rather than being a rarity the likelihood is that we will see a gradual and relentless increase.

With this in mind the key message is do not be complacent. It is the nature of life that just when you don’t expect it, things will go wrong. There is no magic potion that will stop that. All you can do is to make sure that you have done as much as you can to prevent such tragedies because if the unthinkable happens, your organisation (public or private) will be put under the microscope and if management of risk comes up short do not expect any easy ride.

There are plenty of sources of advice and seminars such as the Wales Audit Office have organised are invaluable. With such guidance and with a rigorous and vigilant approach you should be ok.

My final comment is obvious. Look at the procedures not just from a compliance viewpoint but also from the other end of the spectrum. This is not about ticking boxes but about saving lives and you can and will make a real difference to a safer working environment.

Enough from me – I have some lines to learn for the Wales Audit Office North Wales Fleet Management Seminar in Llanrwst on 9th January 2014 – with a little luck we still have an outside chance of that BAFTA!

Philip Jones

Capital Law LLP

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