Defence committee addresses MoD corporate manslaughter

A groundbreaking report published by the Defence Select Committee has stated that it is wrong for the Ministry of Defence and the armed forces to be exempt from corporate manslaughter charges when personnel have died or sustained serious injury on training exercises and selection events.

Risks to service personnel

Although the report, titled Beyond Endurance? Military exercise and the duty of care, found no systemic failings in the policies for managing risk during training and selection events, it was argued that the MoD does not always strike the correct balance between stimulating a sufficiently dangerous exercise to make training effective and considering the risk to participants.

This failing sometimes resulted in life-changing injuries and deaths during training. The report found that some of these incidents amounted to health and safety breaches that should lead to prosecution under the Health and Safety at Work etc. Act 1974.

The Act is meant to cover all employees, including those in the armed forces and lays down wide-ranging duties on employers to protect the 'health, safety and welfare' at work of all their employees, so far as is reasonable practicable.

MoD exemption

Under the Corporate Manslaughter and Homicide Act 2007, however, the MoD remains exempt from criminal prosecution through its Crown immunity, because although there is no Crown exemption from the Health and Safety Act as such, the Crown cannot be prosecuted for breaches of the law.

Instead there are administrative arrangements in place by which Crown bodies may be censured in respect of offences which would have led to a prosecution.

This censure mechanism means that where the Health & Safety Executive (HSE) finds evidence of the Crown body's failure to comply with health and safety law - sufficient to provide a conviction - it may administer a Crown censure to formally record its decision.

Since 1st January 2000, 135 armed forces personnel have died whilst on training and exercise, and the HSE has issued 11 Crown censures to the Ministry of Defence.

Calls for changes to be made

Whilst endorsing the existing exemption for military operations - as members of the armed forces accept that being killed or injured in a wartime situation is a risk associated with their employment - the sub-committee says this attitude must change in relation to service personnel being injured or killed on manoeuvres or during training.

The report argues that training should remain demanding as it is important that troops are properly prepared for armed conflict. However the level of risk needs to vary according to the desired training outcomes. Where specialist military units, such as the Marines, need more rigorous training and selection events because they are required to do "exceptional things", this should be coupled with more stringent risk assessments and preparations.

The Committee's report recommends that in future the MoD should be subject to corporate prosecution where a Crown censure has been or would be issued.

Accountability is considered in the report to be a key issue. The report also focuses on the measures that can be used to establish responsibility, from service inquiries to coroner-led investigations and inquests.

The Committee's was welcomed by lawyers specialising in military accidents and personal injury, who have campaigned for the recommended changes for some time.

One solicitor argued, "It is a fact that more men and women die whilst training for war than in war - and this cannot be acceptable on any front. We acknowledge that training has to be realistic but not to the point of death. There is, and always has been a lack of understanding in the military from the top, that systems have to be in place to reduce death and injury whilst training."