Media Release on behalf of Switalskis Solicitors.
Background
Whitlam’s Law seeks to end the anomaly that drink-driving laws apply only to vehicles driven on public, not private land. It follows the tragic case of the death of 11 year old Harry Whitlam, who was killed on the morning of 9th August 2013 when he was struck by a slurry trailer being reversed by a tractor that was being driven by Gary Green who was over the legal drink-drive limit.
Harry’s mum, Pamela Whitlam is spearheading the campaign with Switalskis Solicitors who represented her at the Inquest and the subsequent civil and HSE legal action. More recently her local MP, Alec Shelbrooke [Conservative MP for Elmet and Rothwell] has taken the campaign to Parliament.
Houses of Commons, Adjournment Debate, 13th July 2017: Prosecution of driving offences on private land
Summary of speech by Alec Shelbrooke MP
Alec began by outlining the tragic circumstances of the accident and that the CPS were unable to bring a criminal prosecution for ‘causing death whist driving under the influence of alcohol’ (Section 3 of the Road Traffic Act 1988) because the accident occurred on private, not public land. He explained that the barriers between the private and public areas of the farm where the accident took place were not defined.
Therefore, the only punishment available was for the Health & Safety Executive to prosecute 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. This was despite the fact that Green was double the legal drinkdrive limit. The situation was further compounded by the fact that the family had to wait some 17 months before the HSE could prosecute him.
Alex stated, “This makes it sound like it was nothing more than a tragic accident; the truth is Gary Green was drunk, and having drunk such a huge quantity he knowingly and willingly took control of heavy machinery and killed a young boy.”
He then went on to explain the disparity in the sentences, emphasising that had Green been prosecuted under the Road Traffic Act, in addition to his custodial sentence he would have also likely received an unlimited fine, 2 year driving ban and extended test. This disparity is “unjust and at odds with society that widely condemns such behaviour.” Alec explained that whilst the police did thoroughly investigate the accident circumstances, the case didn’t pass the test for gross negligence manslaughter. Whitlam’s Law calls for parity of esteem.
Alec ran through other examples of drink drivers found in the mainstream media, including a 2012 case involving a priest, Canon Peter Maguire, who 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.
He also explained how some law firms are using Harry’s death as an example of how prosecution can be escaped by using this ‘legal loophole’. Alec closed with the following quotes:
BRAKE: “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.”
Pamela Whitlam: “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.”
Summary of response by the Rt Hon John Hayes, CBE, MP – Minister of State at the Department from Transport
Hayes began, “I am the father of 2 young boys. I respond to this debate not only as a minister of the crown but also in that capacity too.”
He explained that in 2016 there were 31 deaths due to being struck by a moving vehicle whilst at work and that this makes it the leading cause of worker fatalities. Hayes gave other examples of motor vehicles being driven on private land such as; motor racing, construction sites and airports. He expressed that all of those kind of drivers, “have a of a duty of care not from being employees, not from being drivers but quite straightforwardly from being human beings with a responsibility and a duty of care to their fellows and that can never be greater than when one thinks of children […] that can never be greater than when talking about vulnerable people.”
It was then explained that not all private land is a work place and that a farm is a prime example. For those reasons there is a need “to think more widely than HSE legislation as it applies to work.”
In Dec 2015 John Hayes predecessor published the British Road Safety Statement. Whilst this related to the highway, Hayes argued that the principles can be applied off highway just as reasonably and effectively, and that we would do well to adopt this kind of safe systems approach.
He went on to state that it was, “Not straight forward to adjust the existing law to improve vehicle operational safety, yet the statistics tell us that we should aspire to do more, we must aspire to do more.”
Hayes also said that he was conscious of how the law may appear. “The penalty for an illegal action depends where it happened, doesn’t seem reasonable does it, particularly when it seems not to have regard to the equal severity of effects.”
The Minister of State for the Department of Transport confirmed that he would consider “how we might address including the possibility of future legislative reform” acknowledging the complexity of it, but that this was not a reason to do nothing.
Alec asked that Pam and her solicitor attend a meeting with him to be able to give first-hand experience of how the law may be developed and put forward. Hayes stated that he would be “honoured and delighted to meet them.”
Hayes finished with a quote from the poet John Donne “Any man’s death diminishes me, because I am involved in mankind.”
What next?
Parliament returns after the summer recess on 4 th September 2017. As a result of John Hayes MP expressing his willingness to meet with Alec Shelbrooke MP and Pamela Whitlam, Alec will submit a formal request for a meeting. This meeting is likely to be in Whitehall around late October/ early November.
Once the date of the meeting has been confirmed, we will contact you again with a view to arranging media interviews.
