Highways England, which is responsible for the rollout of smart motorways, has earlier this month been referred by a coroner to the Crown Prosecution Service for the CPS to consider whether corporate manslaughter charges may be appropriate.
The case involved a woman who was killed on the M1. She had got out of a broken-down car and was awaiting help when another vehicle collided with her car, causing it to hit and kill her. The coroner was told that 16 minutes had passed between the car breaking down and the crash. Another 6 minutes elapsed before warning signs were displayed.
These time periods were one of the factors behind the referral to the CPS. Another factor was that the coroner said that "nobody has responsibility for monitoring cameras".
There have been many deaths on smart motorways and coroners have highlighted issues in previous cases. Organisations such as the AA have also raised serious concerns about them. The Government considers smart motorways to be generally at least as safe as conventional motorways but Transport Secretary Grant Shapps admits there is "more we can do to raise the bar" on safety.
The Corporate Manslaughter and Homicide Act 2007 created the corporate manslaughter offence but it applies only to the most serious corporate failings which result in death. It is necessary to prove a gross breach of a company's duty of care. Factors to be taken into account include:
- the company's ways of managing the activity involved;
- overall approach to risk and health and safety issues; and
- staff selection, training and supervision
Liability rests on an evaluation of the failings of the company as a whole. But the failings of senior management must form a substantial element of the breach; a company will not be liable if the failings involved occurred solely at a junior level.
The new offence is broader than the previous law, under which it was necessary to establish that a person who was the "controlling mind" of a company was personally responsible for the offence. The practical effect of the old law was largely to limit the scope of the offence to one-person companies and it was not a valuable tool against larger companies with sophisticated management systems.
The prosecution must demonstrate that the company's breach of duty made more than a minimal contribution to the death. The penalty for corporate manslaughter is a fine for the company.
Between 2008 (when the new law took effect) and 2020, there were fewer than 30 convictions for corporate manslaughter, and most of these involved small companies where failings on the part of senior management were very clear. Establishing liability on the part of a large company with complex management structures and reporting lines remains difficult.
The offence may nevertheless be of value in terms of encouraging a greater safety culture and the fear of the fines and reputational damage which a conviction could bring may reduce any temptation to cut corners in the first place. But critics would argue that large companies can hide behind their elaborate internal governance machinery and see the risk of a corporate manslaughter charge as being merely theoretical.
The CPS's approach to the Highways England case will be extremely interesting. The bodies keep piling up on smart motorways and at multiple inquests coroners have expressed serious concerns. Many drivers will have noticed that the emergency refuge areas, in lieu of the hard shoulder, are short and narrow, and the pattern of skidmarks would suggest that extreme braking manoeuvres are often necessary to leave the fast-flowing traffic and escape into the refuge bays.
YouGov polling data from January 2021 shows that 64% of drivers said that smart motorways were less than safe than motorways with hard shoulders; only 7% thought that smart motorways were safer (the rest had no opinion). Of course, public surveys carry no legal weight but it is at least noteworthy that a smart motorway scheme has been rolled out at considerable cost to the taxpayer (and great inconvenience in terms of roadworks) but yet only 7% of drivers think that they are safer than the previous system.
Some critics might wonder whether so many billions have been spent on the smart motorway revolution that Highways England would be embarrassed to admit that the programme is inherently dangerous and needs to be materially improved or even scrapped altogether. Many drivers would regard the abolition of smart motorways as one U-turn which should be permitted by the Highway Code.
Given the complexity of the corporate manslaughter offence, it may be unlikely that Highways England will be charged, let alone convicted, in this case. But the investigation puts the issue of smart motorways under the microscope as never before and, if nothing else, this will concentrate minds at Highways England and in the Government.
The legal and business worlds will watch developments with interest. As corporate manslaughter issues gain more prominence, could your company find itself in the spotlight next? And are you ready?
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.