Company escapes charge after driver kills cyclists


No further action will be taken against a company that employed a driver who fell asleep at the wheel and killed two charity cyclists.

During the trial of Robert Palmer, evidence emerged of serious health and safety failings at Frys Logistics, with legal experts suggesting the employer could be charged with corporate manslaughter.

However, a Devon and Cornwall Police spokesman told Fleet News: “Following a review of the case, we can confirm there will be no further action.”

The Crown Prosecution Service (CPS) told Fleet News that “it was a police decision to take no further action”. The police declined to explain why they had decided not to prosecute.

The decision has left legal and road safety experts baffled, and the families of the deceased pushing for a full inquest to help establish the facts.

Andrew McMenigall, 47, and Toby Wallace, 36, had just embarked on a 960-mile bike ride for charity when they were hit and killed by a truck being driven by Palmer on the A30 near Newquay in July, 2013.

The families believe that there are contributing factors which may explain how the crash occurred, such as why Palmer fell asleep, why he worked an amount of hours in a certain period of time that exceeded the legal limit, and why he worked in the yard at Frys Logistics in the daylight hours before he was starting his night shift.

At a recent pre-inquest hearing held at Truro Coroners’ Court, it was also argued by a lawyer representing the families that a full hearing could help prevent future deaths.

However, Devon and Cornwall Police say that the relevant facts have already been established.

Bryan Hancock, civilian investigator with the Serious Collisions Investigation Unit with Devon and Cornwall Police, told the hearing that the questions of when, where and how McMenigall and Wallace died in relation to the collision itself had already been answered in court during criminal proceedings against Palmer.

A full inquest, unlike a criminal trial, would not try to establish whether anyone was responsible for the deaths, but witnesses such as the employer would be compelled to attend and face questions from the families.

In addition, a jury would be called to decide the facts of the case and reach a verdict, because the deaths resulted from an accident at work, which could make clear whether the death was caused by a specific failure or neglect.

The decision on whether to hold a full inquest lies with Cornwall coroner Dr Emma Carlyon, who has yet to make a ruling. 

At Palmer’s trial, Truro Crown Court heard that he worked for long hours, driving in the evenings and then carrying out mechanical work for the Launceston-based company during the day.

However, after the crash, which occurred at 8.30am on July 2, 2013, he told police that, having finished an identical shift the previous day, he had gone home and slept until 6.30pm.

Investigations revealed he had, in fact, been working on maintenance at the Frys Logistics depot until 3pm, before returning home for a few hours’ sleep.

Between 5pm on June 30 and 6am on July 1, Palmer had also sent more than 150 text messages.

In one exchange about his lack of sleep, Palmer said: “I’ve survived so far.” On the morning of July 1, he texted: “Just leaving home, going back to yard.”

Later, he texted: “Worked till 3pm, had about three hours’ kip. Now back on Lidl run.”

Prosecutor Philip Lee said: “Far from being home and sleeping, he was going back to work. This defendant was habitually working a day shift in the yard and night-time driving shifts.”

The prosecution said Palmer, who was jailed for eight-and-a-half years after pleading guilty to causing death by dangerous driving and a further charge of dangerous driving, had also altered his tachograph to cover up his lack of sleep.

HGV and LGV drivers are subject to the European driver’s hours and tachograph regulations, and the Working Time Directive, which impose strict limits on the amount of time a driver can work. 

The rules would have prohibited Palmer from carrying out vehicle maintenance work for his employer during the day if he was driving at night.

Work-related road safety expert Edward Handley says he is baffled by the decision and frustrated at the authorities’ unwillingness to give their reasoning.  

He said: “It is almost unbelievable that the police and CPS did not follow up with a case against the employer, either for manslaughter, if an individual ‘controlling mind’ could be identified, or corporate manslaughter, if it was not possible to lay the blame at the feet of an individual.

“It is also very worrying that the police have indicated that they are not going to give their reasons. They should be forced to do so because, unless and until they do, we can only speculate, and when speculating it is easy to assume the worst.”

Handley, a former TRL (Transport Research Laboratory) consultant and owner of Work Related Road Safety (WRRS) Solutions, says that includes whether the case was “investigated or prepared in such an incompetent manner that a conviction was unlikely or perhaps, even worse, that there is no consistency in the application of the law and that the consequences do not depend on the severity of the negligence involved, but on where the collision occurs and which force investigates it”.

Handley’s surprise at the lack of any formal charges being laid against the employer stem from a similar case relating to MJ Graves International.

Handley says that one of its drivers had worked an illegal 20-hour shift when he crashed into a broken-down car on the A12 in Essex, killing a motorist. 

He explained: “The driver, who apparently had little time for ‘quality sleep’, was jailed for four years and the transport manager, Martin Graves, who should have been controlling his drivers and preventing them from breaking the law, was also jailed for four years. This case clearly shows that managers and directors can be investigated and prosecuted if they fail in their duties.”

Philip Somarakis, a partner at Gordon Dadds Solicitors and board member of ACFO, told Fleet News that the CPS must consider two tests in determining whether to being charges: evidential and public interest.

“The CPS has determined there was insufficient evidence to provide a realistic prospect of conviction," he said.

“In the context of corporate manslaughter, the prosecution must prove that the way in which the company’s activities were organised or managed caused the death of the deceased and that it amounted to a gross breach of a relevant duty of care the company owed to the deceased.”

The company would have owed a duty of care under Section 3 of the Health and Safety at Work Act (HSWA), which aims to ensure that the employer conducted its undertaking, so far as is reasonably practicable, without exposing other persons to such risks.

“In short, this means the company was expected to have taken reasonable steps to prevent the risk of drivers falling asleep at the wheel,” continued Somarakis.

He also pointed to a number of other legal requirements, such as Drivers’ Hours Rules, which impose more specific duties on the company and the driver over and above their general health and safety duty.

However, Somarakis told Fleet News: “It is difficult to see how the prosecution could not have established a relevant duty of care and that the actions of the employer company caused the death of the deceased.”

The focus of the investigation would have been on the company’s management of its health and safety policies and procedures. It would also have been on whether any failures were to be regarded as a gross breach of the company’s duty of care.

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  • D Roberts - 05/05/2015 14:47

    So if we aren't told the circumstances which helped the decision not to take any further action, how do we know for sure the parameters of abiding by the law. What we read looks like a very cut and dry case so it is a confusing message to employers on how far they go on "duty of care". Apparently it is okay not to go far enough. Clarity and consistency is needed but it has been left that any similar accidents could result in a different outcome depending on who is looking at the case rather than the factual information which stands quite strongly against the driver.

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  • Dave Holladay - 28/06/2015 22:35

    Would be useful to compare notes on this You are presumably noting that Mark Fry was disciplined following a PI in January 2015, for his own driving activity exceeding drivers hours limits under s.26 GVLO Act relating to offences uncovered for the period prior to the fatal crash, and the fact that prior to the crash, Frys Logistics had only held an O Licence for 2 years, with a very explicit undertaking that Arthur Charles Fry, who had had his licence revoked and lost his repute in May 2010 would have no connection in operating the new company, after he was initially listed as transport manager in the application for an operators licence for Frys Logistics in ... May 2010. It took 14 months to approve the application including 2 scheduled PI hearings. A further detail that possibly has an intersting significance, is that in August 2013, a month after the fatal crash, Frys Logistics applied for a change of operating base, which was granted without comment in October 2013. No news on the inquest despite the Cornwall Coroner committing to advise of a decision within 14 days - on 24 March 2015. Here's the detail It looks very bad when it takes 2 years for the Traffic Commissioner to be prompted to investigate the operator, especially when the bodyswerve moves appear to have been set up already. Surely there should be an automatic notification and record made in A&D that an operator has provided the vehicle and driver involved in a fatal crash, and the Commissioner can note that they will be reviewing information provided by the Police and other agencies, to determine whether the operator needs to answer for their role in the crash ensureing that both vehicle and driver are fit for purpose and operated legally. It might even be that a 28 day period provides sufficient time to do this

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