Driving Offences: Private Land

Alec Shelbrooke Excerpts

Thursday 13th July 2017 Commons Chamber

[Alec Shelbrooke (Elmet and Rothwell) (Con)]

On 9 August 2013, a terrible, tragic and preventable accident took place at Swithens farm in my constituency. Eleven-year-old Harry Whitlam died from injuries he sustained after being struck by a reversing farm vehicle. The driver of that vehicle was over twice the legal drink-drive limit, but the Crown Prosecution Service did not bring a prosecution as the accident was deemed to have occurred on private, not public, land.

Harry and his mum, Pamela, live in the constituency of my hon. Friend the Member for Morley and Outwood (Andrea Jenkyns), who is on maternity leave and very much regrets that she cannot be here today. Pamela worked in the café kitchen of the working farm, which, like many other farms, has diversified and become a visitor attraction.

Areas of the farm are designated as both private and public, but, at the time of the accident, the boundaries of those areas were not clearly defined. Indeed, the police investigation was clear about the lack of separation between public and private areas. It said:

“Upon approaching the scene from Swithens Lane, there was no signage or other barrier that would restrict public access to the scene, or inform a person entering from that direction that they are in a non-public area of the farm.”

Harry was a regular visitor to the farm, especially during the school holidays when his mum was working there. He regularly assisted the farmhands with their work, particularly in the petting farm and collecting eggs from the chickens. He was a familiar face and well known to the farm staff. There was another young boy, a friend of Harry’s, who helped out in just the same way.

On the morning of the accident, Harry arrived first thing at the farm with his mum. He was keen to meet up with his friend and also lend a hand with building a new wall to help house some new meerkats. He went off for a short while, returning to the café accompanied by one of his farmhand friends and ordered breakfast from his mum that they planned to collect a little later.

Approximately 15 minutes later, the accident occurred. Harry was in the farmyard when he was hit by a slurry trailer being reversed by a tractor. He was badly crushed by one of the large trailer tyres. The Yorkshire air ambulance flew Harry to Leeds General Infirmary, but, despite the best efforts of medical staff, he tragically died from his injuries.

The investigation revealed that Harry had been walking across the back of the slurry trailer from right to left when he was struck. He had gained access to this working area of the farm by a route that was not in any way cordoned off from the public. Indeed, there are public rights of way across the “private” area. There is no evidence that Harry was running, and evidence presented by PC Martin Ward, a collision investigator, confirmed that the view from the cab “was good” and that

“Harry was there to be seen”.

He concluded that Harry would have been in the sight of the driver for “quite a long time” and that it was “a very low impact speed”.

Owing to the anomaly in the law that this debate seeks to address with “Whitlam’s law”, the driver, Mr Gary Green, despite being over twice the drink-drive limit, was only prosecuted under the Health and Safety at Work etc. Act 1974. As such, the family had to wait some 17 months before the Health and Safety Executive was able to prosecute him for failing to ensure the safety of persons and other employees, contrary to section 3(2) of the 1974 Act.

This makes it sound as though it was nothing more than a tragic accident. The truth is that Gary Green was drunk, and having drunk such a huge quantity of alcohol, he knowingly and willingly took control of heavy machinery and killed a young boy, when all investigations show that if he had been alert he would have stopped his vehicle as Harry was in plain sight.

As this was only an HSE prosecution, Green was sentenced to just 16 months and two weeks in prison. If he had been prosecuted under section 3 of the Road Traffic Act 1988, causing death by careless driving while under the influence of drink or drugs, the maximum penalty would have been 14 years’ imprisonment. In addition, there is scope for an unlimited fine, a minimum two-year driving ban and a requirement to pass an extended driving test before the offender can drive legally again. The CPS advise that it is probable that had Green been prosecuted under the Road Traffic Act, he would have received a sentence of about six years.

The disparity in the sentencing for the same offence—driving while under the influence of alcohol—is unjust and at odds with a society that widely condemns such behaviour. The CPS reported that it was unable to bring a prosecution as the accident happened on private land; questions have been asked about whether the CPS was instructed to advise an investigation and whether it considered a manslaughter charge. I have been advised that the police thoroughly investigated the matter and manslaughter charges were considered, but, according to the CPS, the case did not pass the test for gross negligence manslaughter.

What I have called Whitlam’s law seeks to make this analysis irrelevant by calling for parity of esteem. There is much confusion, and contradictory prosecutions around the country. In 2010, David John Arthur, 62, tried to convince Truro magistrates that he was not guilty of drink-driving because he was caught in a Tesco Extra supermarket carpark, claiming it was private property and the law did not apply. He was convicted. In 2012, Lisa Docktray, 41, drove from her friend’s caravan to her own at Presthaven Sands holiday park, Gronant. She had an alcohol reading of 102 micrograms compared with the legal limit of 35, and believed she could drive because it was private land. She was found guilty. But in 2012, a priest, Canon Peter Maguire, was double the drink drive limit when he collided with a vehicle in a carpark. His defence was that the carpark was private land and therefore he could not be prosecuted. He was found not guilty on these grounds.

There are law firms that boast of getting around our laws and getting people off. I struggled over whether to name and shame them in the Chamber, but I fear that would only give them free advertising. They seek blatantly to disobey the law and then look for legal loopholes to get away with it. I think the majority of Members would have rightful contempt for these so-called practitioners of law. The road safety charity Brake has said:

“As a road safety charity we know only too well the devastation and suffering caused by drink driving. A drunk driver in charge of a vehicle, of any type, is a lethal combination. Whether this takes place on public or private land ought to be irrelevant”.

The time has come to say that parity of esteem must exist for road traffic prosecutions as it does if someone kills a person in their own home or on the street. Whitlam’s law is about changing the Road Traffic Act so that offences prescribed by it that are committed on private land are classed as criminal offences and are actionable by the police, particularly the offence of driving while under the influence of alcohol or drugs, regardless of where that vehicle might be. Whitlam’s law will prevent other families from having to go through Pamela’s trauma of losing her only son and then being told that a prosecution for death by drink-driving could not be brought.

You may remember, Madam Deputy Speaker, that a few years ago you were in the Chair when I brought another case to the House—that of a young boy who, a day before his 20th birthday, was killed by a drink driver. How often do people have to come to this Chamber to try to do something about our drink-driving laws and ensure that people are properly prosecuted and that justice is meted out? That would at least bring closure to the family. I ask any parent in this Chamber how they would feel if their only child, their only son, was killed and the immediate reaction was, “We cannot prosecute” even though the driver was drunk and all the investigations showed that he had plenty of time to see the young boy, it was at low-impact speed and the boy was there to be seen?

Harry Whitlam is dead because of a drink-driver, and it shames us all that the driver cannot be prosecuted because of a loophole in the law that some solicitors will exploit to get people off for what is a crime.

I close with a simple but heartbreaking statement from Pamela:

“I believe there should be no distinction between private or public land if someone is found to be in charge of a motor vehicle whilst under the influence.

By driving in this state they not only endanger the lives of others, but also put their own lives at risk.

It is a sad fact that some law firms pride themselves in exploiting this legal loophole, using it to get drivers acquitted of drink driving offences.”

It is even more distressing to me when they quote my son’s death as an example of how they can ‘beat’ the system.”

--- Later in debate ---

[Mr Hayes]

Accidents in residential settings are just as tragic as those elsewhere, so when considering whether to formulate dangerous driving legislation for private land, we certainly need to think more widely than the health and safety legislation as it applies to work. Although we should recognise that the highway is a different environment from private land, we should not lose sight of the similarities. In seeking to address the toll of deaths and injuries from road traffic accidents, the World Bank has been advocating that all countries adopt what is known as a safe systems approach to reducing national road casualties.

In December 2015, my predecessor as a Minister in the Department, my hon. Friend the Member for Harrogate and Knaresborough (Andrew Jones), published the “British Road Safety Statement”, which, among other policies, set out what we are doing in this country to support the safe systems approach. While this obviously related to the highway, the principles can be applied off the highway just as reasonably and effectively.

A safe systems approach recognises that

“We can never entirely eradicate road collisions because there will always be some degree of human error; when collisions do occur the human body is inherently vulnerable to death or injury; and because of this, we should manage our infrastructure, vehicles and speeds to reduce crash energies”

to levels that do not lead to human injury or death.

In considering how to address the tragedy of off-road vehicle accidents, we would do well to adopt a safe systems approach. This is not to say that the solutions will be the same as those applied to the highway, but the aim of saving lives is the same. All this indicates that it is not straightforward to adjust the existing law to improve vehicle operational safety. Yet, the statistics tell us that we should, and must, aspire to do more to prevent future accidents. Legislation is not the only tool. For example, the Health and Safety Executive already works with trade bodies, including the National Farmers Union, to develop good practice relating to handling farm vehicles. This includes off-road specific factors such as working on uneven ground, steep gradients and using on-board machinery. Those things would not be covered by road traffic regulations, even if they were to apply.

I am conscious of how the law may appear, when the penalty for an illegal action depends on where it happens—that does not seem reasonable, does it?—particularly when it seems not to have regard to the equal severity of its effects. So, I am pleased to tell the House and my hon. Friend that I will consider how we might address the matter, including the possibility of future legislative reform. That may sound like a blithe, easy commitment to be delivered by a future Government. However, it is important that we get the reform right, and that we do not rush and make errors in how we frame that kind of legislation. It is more complicated than it first seems for some of the reasons that I have set out, but that is not a reason to do nothing. To that end, I invite my hon. Friend to come to my Department to meet me and my officials and talk through how we might proceed.

[Alec Shelbrooke]

I am most grateful to hear what my right hon. Friend says, and it will come as a great relief to Pamela and her family that this has been taken so seriously. May I ask whether I could bring Pamela and her solicitor so that they can give their first-hand experience and talk about how this law may be developed?

[Mr Hayes]

I would be honoured and delighted to meet them, so of course the answer is yes.

I have a reputation for quoting poets, and I usually do so in a light-hearted or jocular fashion, as the Speaker mentioned recently. But sometimes poetry can be applied to the most difficult circumstances, and the poet John Donne said this:

“any man’s death diminishes me, because I am involved in mankind”.

We are all poorer for an untimely loss of the kind my hon. Friend has raised in the House. Of course we are poorer, and of course we hurt when we lose a relative, a friend or a colleague, but we are diminished by any loss, and the tragic loss my hon. Friend described will have moved the hearts, as I said at the outset, of everyone in this Chamber, and of many beyond it who have heard this debate.

I say again that I am grateful to my hon. Friend for raising the issue of off-road vehicle offences. As I have said in reply to the debate, how we respond will depend on the joint working of a large number of bodies within Government. I am not able today to say exactly how the law will change, but given the short time from the point when this debate was announced, doing otherwise would have indicated that we had not thought this through properly. The implications of any such move will be planned carefully and considered, and we will proceed with certainty as a result of that deliberation. But I tell Members this: we will proceed with the firm intention that tragedies such as Harry Whitlam’s might be prevented in the future.

Question put and agreed to.