A lorry driver has been jailed for 10 years after looking at his mobile moments before ploughing into traffic at 50mph. A woman and three children were killed.

A dash-cam showed the driver viewed his phone for several seconds. The court heard he was so distracted he barely looked at the road for nearly a kilometre before shunting a stationary car. The judge said he “might as well have had his eyes closed”.

In a dark irony, the driver had only an hour earlier signed an agreement with his employer stating “I will never use a hand-held mobile phone or hands-free kit whilst driving.”

The deceased’s family said the outcome should remind us all of our responsibilities when driving.

Health & Safety sentencing questioned
Regulatory defence lawyer Simon Joyston-Bechal of Turnstone Law believes this motoring offence is important when looking at sentencing in Health & Safety cases.

He raises the question whether punishment should be linked mainly to the risk of harm or the actual harm caused.

Risk Versus Harm
Mr Joyston-Bechal said that before the introduction of new sentencing guidelines in February “Health & Safety cases were punished predominantly on the basis of the outcome – the more serious the injury, the greater the penalty. The sentencing guidelines drastically changed this approach with a predominant focus on the harm risked by the wrong-doing and only an incremental increase in sentence if there was a bad actual outcome.”

He reasons “That explains why the recent Alton Towers case attracted a £5million fine which was not drastically bigger than the £1.8million fine given to G4S for poorly managed water systems in the absence of any proven Legionella illness having been caused by their breach. The logic of the sentencing guidelines is that the G4S failure risked killing many people, so it is in the same league as the Alton Towers case.”

Controversy
Mr Joyston-Bechal goes on to stir the pot by commenting “If you think that balance is correct then you may struggle to justify the 10 year jail sentence.” He asks:

• Can you justify why you should not be sent to jail if you have on occasions looked at your mobile phone whilst driving but have just been lucky enough to avoid an accident?
• Should you now report yourself to the Police and ask to face the same punishment as this lorry driver reduced perhaps from the 10 years of his sentence to 8 years for you because you didn’t actually injure anyone or even crash the last time you looked at your phone?

Mr Joyston-Bechal believes the answer lies in society’s understanding that “quite rightly” sees the outcome as central to offending in such unintentional risk-based crimes. He says this explains why the lorry driver gets 10 years and others caught using mobiles only get points on their licence.

However, Joyston-Bechal reasons that if this explanation is right, and he believes it is, then the new Health & Safety sentencing guidelines wrongly pay “little heed” to the outcome and “mostly” focus on the harm risked.

Do you agree?
Some might take issue with Joyston-Bechal’s argument.

Health & Safety offences are concerned with a failure to manage Health & Safety risks. By way of counter-argument it might therefore be reasonably asked:

• Why shouldn’t the offence mostly be in creating a risk of harm?
• Isn’t requiring proof the offence actually caused harm akin to shutting the stable door after the horse has bolted?

Back at you Joyston-Bechal!

Contact Ellis Whittam for a sensible explanation of Health & Safety law.