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Stuart Gemmel Driving Services/Drivetech

Corporate Manslaughter & Health & Safety Considerations in Driver/Rider Offender Retraining Schemes. Stuart Gemmel Driving Services/Drivetech. Objectives. Highlight relevant content of new Corporate Manslaughter & Corporate Homicide Act 2007

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Stuart Gemmel Driving Services/Drivetech

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  1. 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

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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 organised or • 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

  8. Corporate Manslaughter and Corporate Homicide Act 2007 Gross Breach of Duty of Care: • Conduct falls far belowwhat 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

  9. 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

  10. Corporate Manslaughter and Corporate Homicide Act 2007 Factors the jury must consider - • Failure to comply withH&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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. Health & Safety at Work & Driving Enforcement: • 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

  18. 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 Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500

  19. Driving Services UK Limited. The Old Barn, Ledsham Village, Cheshire, CH66 ONE. Tel : 0151 347 4500

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