‘Policy’ prevents prosecution of Frys for charity cyclists’ deaths

Land's End, Toby and Andrew's departure point. Photo flckr: credit IIzsmith
Two cyclists were killed by a HGV driver falling asleep at the wheel. His employer regularly sent him out to drive exhausted after working double shifts. The Health and Safety Executive has declined to prosecute the employer because this does not fit its ‘policy’ and ‘another authority’ could do so - The Prosecutors' Policy that lets Frys Limited go free.

Charity cyclist tragedy

CTC has reported on the tragic deaths of Andrew McMenigall and Toby Wallace previously within our Road Justice Campaign. They were just 40 miles into a charity ride from Land's End to John O'Groats in July 2013 when they were killed near Newquay as HGV driver Robert Palmer drove into them after falling asleep at the wheel.

Palmer pleaded guilty at Truro Crown Court in September 2014 and was given a prison sentence of eight-and-a-half years for causing their deaths by dangerous driving and a separate offence of dangerous driving seven weeks later when, again in the course of his employment, he drove into the rear of another vehicle. 

Palmer worked for Frys Logistics Limited (Frys) who regularly allowed him to drive while exhausted after working consecutive shifts, repairing vehicles in their yard followed by a shift driving a HGV, ignoring the risks posed by sleepy drivers.

Frys' licence revoked

Last month, the Traffic Commissioner Sarah Bell revoked the HGV operator's licence for Frys, saying it put profit before the law with a lack of regard to the rules which contributed to the deaths of Andrew and Toby 29 months ago. She added that this was by far the worst case she had seen since starting as a Traffic Commissioner in 2007.

Revoking the licence as from midnight tonight (Wednesday 23 December) she also disqualified Transport Manager Mark Darren Fry, the sole director of Frys, from acting as a Transport Manager for 10 years, and both Frys and Mark Fry from holding an operator's licence or being involved in the management of HGVs for the same period, describing this as "the longest period of disqualification (she) had imposed by far" as a Commissioner.

Prosecuting the employer

The missing part of the enforcement package in this and many similar cases is the failure to prosecute the employer and, 29 months on, neither the Health and Safety Executive (HSE) nor the police have commenced any prosecution of Frys or Mark Fry.

CTC wrote to the Chief Constable of Devon and Cornwall and the HSE regarding their failure to prosecute, referring to other cases which are difficult to distinguish from this where employers have been convicted either of manslaughter or Health and Safety Act offences after ignoring the issue of driver tiredness. We now have their responses.

Devon and Cornwall Police

CTC wrote to the police rather than the Crown Prosecution Service (CPS) because Fleet News reported in May 2015 that a spokesman for the police had said that 'following a review of the case we can confirm that there will be no further action'. The same report also quotes the CPS saying that 'it was a police decision to take no further action'.

The police responded last month confirming that they undertook a thorough investigation to consider whether there were potential manslaughter or corporate manslaughter offences committed by Frys or Mark Fry, but that it was a CPS decision in January this year that the 'threshold test' had not been met. Not what Fleet News was reporting in May.

The police also confirmed that they met with the HSE in January and provided them with a summary of their evidence, but that a short time later the HSE decided that it was 'not within their protocols for prosecution'.

Health and Safety Executive   

When CTC wrote to the HSE, providing a copy of our correspondence to the police, we referred them to the HSE's jurisdiction to prosecute offences under the Health and Safety at Work Act 1974 (HSWA), section 3 of which provides a general duty on employers to conduct their business in such a way as to ensure, as far as reasonably practicable, that members of the public who may be affected thereby are not exposed to risks to their health and safety.   

A copy of the police response to CTC was also forwarded to the HSE, who replied earlier this month confirming that although Andrew and Toby died in July 2013 they had no involvement in the investigation into their deaths, and did not become 'aware of this incident' until November 2014, subsequently meeting with the police in January 2015. The reason why there was no prior liaison between the prosecuting agencies into two deaths caused in the course of a driver's employment is still unknown.

The HSE confirmed that in January they 'agreed to consider whether this was an incident (they) should investigate based on information provided to (them) by the Police and CPS', suggesting that the HSE undertook no independent investigation but merely reviewed the evidence the police obtained investigating potential manslaughter charges rather than a HSWA prosecution.  

Explaining its decision not to prosecute, the HSE has explained that:

  1. As a regulator they have developed policies to guide them as to when to investigate.
  2. They have these policies so they can decide which incidents to investigate with regard to their priorities and available resources.
  3. It is not their policy to seek to enforce Health and Safety at Work legislation where public safety is adequately protected by more specific and detailed law enforced by another authority.
  4. In relation to road traffic incidents, their policy is to focus on specific work activities (referencing hedge cutting and refuse collection), and vehicles moving in and out of work premises.
  5. They do not normally investigate incidents relating to driving hours because the Driver and Vehicle Standards Agency (DVSA) has the expertise to do this.
  6. The reported case we referred them to concerning the successful prosecution of another company under the HSWA, in similar circumstances, preceded these policies.
  7. There was nothing to prevent the CPS bringing a HSWA prosecution.
  8. For those reasons they decided this was not an incident they should investigate.

Without commenting on each point above, CTC would suggest that the death of two members of the public, on a public road, caused by a driver whose employer both knew and directed his activities in terms of hours worked and driving while exhausted, should be a HSE priority.

Driver and Vehicle Standards Agency (DVSA)  

The HSE says that the DVSA has the expertise and should deal with any prosecution which involves drivers' hours. CTC wrote to DVSA earlier this year, to enquire whether any action was being taken either by DVSA or the Traffic Commissioner regarding Frys' licence. Their response in July was that we would have to contact the police, as 'any action DVSA may have considered was put on hold at their (police) request during their investigations', and that 'any action (DVSA) may have considered was statute (time) barred' .   

Crown Prosecution Service

Having been informed by the DVSA that the police told them to put their investigation on hold and their powers were now statute barred; by the police that it was a CPS decision that the 'threshold test' for a manslaughter prosecution was not met; and by the HSE that this case did not fit their policy, that DVSA were the experts on driver hours and CPS could always bring a HSWA prosecution if they wanted to, CTC has now written to the CPS pointing out that:

  1. When the HSE indicates that it does not seek to enforce HSWA legislation where public safety is 'adequately protected' by another authority, the public might question whether they were adequately protected here.
  2. In relation to the DVSA's role this is not a 'tachograph' case, but one where an employer knowingly and systematically sent out a driver in an HGV after he had worked shifts in their garage, the consequences of which were both predictable and fatal.

CTC has also asked the CPS whether it will now:

  1. Liaise with the DVSA and consider the evidence obtained this year by the DVSA (after CPS declined to prosecute), which was presented to the Traffic Commissioner in November when Frys' licence was revoked.
  2. Liaise with the DVSA and the HSE to consider whether one agency should pursue a HSWA prosecution if a manslaughter prosecution is not being pursued.

Coroners' Court

Regardless of any criminal prosecution, it is open to the Coroner at an inquest to consider whether there are work practices and regulatory issues regarding driver hours, double shifts and tired drivers which warrant the Coroner issuing a Prevention of Future Deaths Report (PFDR), designed to enable changes to be implemented to prevent future deaths.

Press reports from May suggested that following a pre-inquest hearing at Truro Coroners' Court, the Cornwall Coroner was due to make a decision about whether to hold a full inquest within the next few weeks. When no inquest had taken place by October, CTC wrote to the Coroner Dr Emma Carlyon, referring to our correspondence to both the HSE and the police, and to CTC's concerns regarding HGV operator safety issues. 

Dr Carlyon has not replied to this or subsequent correspondence sent two weeks ago referring to the Traffic Commissioner's findings and the potential need for a PFDR, hence CTC is not aware of whether or not she intends to hold a full inquest, and if so when.

CIRAS and Prevention of Future Deaths

Frys employed a significant number of people. Mark Fry was sending at least one of his drivers out to work after working in the firm's garage. CTC does not know whether any of the other drivers, mechanics or employees knew about this, whether the practice extended to other drivers, whether these questions have ever been asked of other employees past and present, or whether any employee who was aware this was occurring would have been prepared to disclose this confidentially if afforded a means of doing so. It is perhaps not unreasonable to speculate that such employees may not have wanted to approach Mark Fry directly.

Last week, CTC reported on the Confidential Incident Reporting and Analysis System (CIRAS), which has been in operation throughout the rail industry since 1999 and is being extended to London bus drivers in January. This will enable bus drivers to raise safety concerns regarding their employers' practices or those of other employees both independently and confidentially with CIRAS. There is a concerted campaign led by Tom Kearney to extend this scheme to HGVs.

If Dr Carlyon was to hold a full inquest into Toby and Andrew's deaths, in addition to any findings in this specific case, she could also consider whether a PFDR might include asking CIRAS, representatives of the haulage industry and other interested parties about the mechanics and benefits of extending CIRAS to HGV operators. If one of Frys' employees knew what was happening, a confidential reporting route to an external organisation might just have highlighted an obviously dangerous working practice.

No joined up investigation, enforcement and regulation

CTC is concerned that the chronology of events outlined within this report suggests a collective failure of those tasked with investigatory, enforcement and regulatory functions to communicate, work together and address road safety issues, particularly regarding the responsibility of employers not just for their employed drivers, but for the public on the roads.

CTC will continue to highlight this issue, and this particular case, and now awaits the promised response from the CPS in the New Year.