In 2013, Harry Whitlam, an 11-year-old boy from Leeds, was killed as a result of being crushed by a slurry trailer. The driver was found to be almost three times over the legal alcohol limit yet he could not be prosecuted under the Road Traffic Act for driving under the influence of alcohol as the accident happened on private land.
Harry’s family were forced to wait for justice. Eventually the Health and Safety Executive stepped in and prosecuted the driver for ’Failing to ensure the safety of persons other than employees’, contrary to section 3(2) of the Health and Safety at Work Act 1974. It took over three years to secure this conviction.
The two offences carry very different sentences. Had the driver been prosecuted under drink-driving laws his likely sentence would have been 6 years (the crime attracts a maximum penalty of 14 years imprisonment). Instead, on 13 December 2016 he was sentenced to just 16 months and two weeks. If the accident had not happened at work, then there would have been no repercussions for the driver.
Following the inquest into Harry’s death in August 2015 where Switalskis Solicitors represented the family, their team has been supporting Pam Whitlam, Harry’s mother, with her campaign to change the drink-driving laws in her son’s name. Support from local MP Alec Shelbrooke was secured and the matter received national recognition when it was brought to the adjournment debate in the House of Commons on 13 July 2017. Transport minister John Hayes stated ’we should aspire to do more, we must do more to prevent future accidents […] I will consider how we might address this, including the possibility of legislative reform’. John Hayes acknowledged the complexities involved in reforming the dangerous driving legislation but that this was not a reason to do nothing.
I believe that that this was the right decision, the current laws are archaic and the rationale behind it being to avoid infringement of people’s liberty on private land. This ‘loophole’ seemingly protects the interests of those lucky enough to own a large quantity of land.
Most offences that take place on private land can be prosecuted by the CPS, for example: assault, sexual offences, murder and theft. Any offence except those which stipulate that it has to take place in a public place. Those include some (but not all) public order offences – most notably, it is possible to prosecute a person for Affray under the Public Order Act, even if that offence took place in someone’s house.
Whilst a driver can’t be prosecuted for dangerous driving under the Road Traffic Act if the offence took place on private land, a prosecution can still be brought under the Offences Against the Persons Act 1861 (section 35) for ‘Wanton or Furious Driving’, which carries a maximum two year prison sentence.
You can also be prosecuted for having a vehicle without insurance on private property if you haven’t registered it as being kept off the road (SORN).
For these reasons it seems absurd that you can get in a motor vehicle knowingly over the legal drink-drive limit, putting your life and the lives of others in danger, and escape prosecution.
Aside from this, the disparity between the criminal sentencing guidelines and the Health and Safety’s sentencing guidelines is enormous. It is inconceivable that you can be caught drunk in charge of a vehicle on one side of the fence and have no charges brought against you, yet you could be on the other side of the fence and receive up to 14 years imprisonment.
There is also a huge disparity between the consequences for companies and individuals under the Health and Safety sentencing guidelines. Large organisations could be fined up to four million pounds whereas individuals will receive a maximum of a two-year prison sentence.
Unfortunately, as these matters are prosecuted privately there are very few statistics. Despite the lack of statistics, media coverage of similar incidents suggests that the excuse ’you can’t prosecute me, I’m on private land’ is used repeatedly, which causes one to wonder whether drink-driving on private land has become cultural.
It’s hard to dispute the inconsistency between the sentencing powers under the Road Traffic Act and the Health and Safety at Work Act for drink-drivers and I hope that both the Road Traffic Act and the Health and Safety sentencing guidelines are reviewed and updated.
Whether you are on public or private land, there is no excuse for recklessly getting behind the wheel of a vehicle whilst under the influence of alcohol, putting the lives of others at risk. The law needs to change to save others from going through the pain that Harry’s family has gone through due to this outdated legal anomaly.
Amy Clowrey is a solicitor at Switalskis Solicitors