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Jean-Yves Gilg

Editor, Solicitors Journal

Crown censure is not enough to prevent MoD failings

Crown censure is not enough to prevent MoD failings


As long as it enjoys Crown immunity, the ministry has no reason to learn its lessons and will continue to take a cavalier attitude to health and safety, argues Clare Stevens

On 13 July 2013, set to be the hottest day of the year, 78 regular and reserve soldiers were participating in a Special Forces selection test march on the Brecon Beacons, South Wales. The candidates had to navigate to five checkpoints across approximately 30km of arduous terrain within a time limit of eight hours and 48 minutes, requiring a minimum speed of 3km per hour. They were carrying Bergens (military rucksacks) weighing approximately 49lbs, a dummy rifle, food, and water. At staggered start times, the candidates set off on their individual routes. Among them were reservists Corporal James Dunsby, Lance Corporal Craig Roberts, and Lance Corporal Edward Maher.

Unlike their lead regiment, the Signals Regiment, the reservists had not done any build-up marches. All candidates were to be monitored by tracker devices but these were known to be inadequate and not fit for purpose. The forecast showed temperatures soaring as high as 29 to 30°C but there was no attempt to access a wet-bulb globe thermometer level for the area or identify the heat stress index (both of which monitor the effects of environmental conditions on human health).

It soon became apparent that there was insufficient water available at checkpoints. Indeed, two of the five checkpoints had no water at all. At 11am, there was the first possible withdrawal from the march due to heat illness. At 12.14pm, 12.46pm, and 2.26pm three soldiers were withdrawn due to heat illness. Nevertheless, the march continued.

Between 12.40pm and 1.00pm, Cpl Dunsby was seen by another soldier who described him as lethargic and confused. He was, however, still able to pass through checkpoint two at 2.51pm without being stopped. This was despite the three confirmed and one possible withdrawal for heat illness. LCpl Roberts and LCpl Maher passed through their last checkpoints at 1.14pm and 1.22pm respectively. Subsequently, LCpl Maher became static at 2.16pm, LCpl Roberts at 2.55pm, and Cpl Dunsby at approximately 3.17pm. The fact they were static was not noticed by those monitoring the tracker system.

LCpl Roberts was found by another soldier at 3.30pm but he did not receive medical assistance until 4.50pm. The command vehicle noticed LCpl Maher was static at 4.10pm and he was found at 4.45pm, although the air ambulance did not arrive until 5.30pm. The command vehicle noticed Cpl Dunsby was static at 4.35pm but sent soldiers to an incorrect grid reference; he was found at 4.58pm but did not receive medical assistance until 5.15pm. Civilian paramedics and mountain rescue services had not been put on notice that the exercise was taking place. The three soldiers tragically died from the effects of hyperthermia.

The risk of climatic (hot and cold) injuries is well known in the military, and the Ministry of Defence (MoD) first published its own guidance and policy on how to prevent such injuries in 2003. None of those responsible for the planning or command of the Brecon Beacons march (or their superiors) were aware of the guidance. Following the incident, investigations were commenced by Dyfed-Powys Police, the Health and Safety Executive (HSE), HM Coroner for Birmingham and Solihull, and the MoD.

The Crown Prosecution Service concluded in March 2015 that no charges would be brought against the individuals responsible for planning and in command of the exercise.

Systemic failures

The article 2 inquest commenced on 1 June 2015. The MoD was represented by a publicly funded
QC and junior; the families received no public funding for legal representation.

After hearing almost four weeks of evidence, the coroner delivered a narrative verdict. She concluded, among other things, that the risk assessment for the test had been inadequate. There had been a failure to incorporate the weather conditions into it; to carry out a dynamic risk assessment given the conditions on the day or as events unfolded; or to consider the actual water requirements in light of the weather.

There was a failure to follow the MoD's own guidance, which mandated a dynamic risk assessment be carried out upon there being a single case of heat illness and consideration be given to stopping the activity. Had this happened at the point of any of the four withdrawals, the candidates would have been stopped at their next checkpoint and the deceased would have all survived. There was a failure by the MoD to train staff in charge of test week on how to undertake risk assessments, a failure to implement an adequate medical plan, and no plan to allow for prompt evacuation of casualties. In short, there were systemic failures in the planning, training, and organisation of the march. Furthermore, the coroner concluded that there was a delay in providing medical treatment and the deaths were contributed to by neglect.

Following the inquest, the HSE completed its investigation. It concluded that the exercise 'went so wrong' because of the failure to prevent, control, and mitigate the well-known risk of heat illness, and that there were systemic failings not attributable to any individuals but to the MoD as an organisation. The MoD had not complied with its duty under section 2(1) of the Health and Safety at Work etc. Act 1974 and exposed the candidates to preventable but material risk. The HSE was satisfied that there would be sufficient evidence to provide a realistic prospect of conviction of the MoD in civilian courts.

Crown censure

So, how has the MoD been held accountable? The short answer is that it hasn't. The MoD has long enjoyed Crown immunity from prosecution under HSE legislation. As a consequence, the maximum penalty it can receive, regardless of what it does, is a Crown censure. This is effectively an administrative procedure, which took place, in this case, in March 2016. It is a very short process which concludes with the HSE stating that it formally censures the MoD. It becomes a matter of public record, but that is all.

Between 1 January 2000 and 18 July 2015, the HSE has carried out 190 investigations into defence-related activities; 36 related to training, exercise, and selection activities, of which 23 involved fatalities. Fifteen Crown Censures were issued, ten of which related to training, exercise, and selection activities. Imagine this were your local factory owner: with a record like that, would they still be trading? The system of Crown censures does not work, and for years my firm has been calling for the MoD to be stripped of its immunity. With no accountability, there is no reason to change, and it is clear from the MoD's own record that it is entirely resistant to reform. Take climatic injuries as an example: the MoD has known about the risk for decades, yet, despite its own guidance declaring them to be preventable injuries, 6 per cent of all new claims received by the MoD in 2014/15 related to cold injuries. How can it be said the MoD learns its lessons?

Corporate immunity

Not only does the MoD enjoy Crown immunity under health and safety legislation, but there are also exemptions under the Corporate Manslaughter and Homicide Act 2007. As the Brecon Beacons exercise involved Special Forces, the MoD cannot be prosecuted under the Act. When questioned recently by the Defence Select Committee, Humphrey Morrison, head of legislation at the MoD, explained that the reason the exemption exists is to preserve security of information and that Special Forces' activities should not be 'subject to public scrutiny in the criminal courts in respect of a corporate liability'.

Understandable, you might say - except that individuals within Special Forces can still be prosecuted, and indeed the commanders of this exercise were initially facing charges of gross negligence manslaughter. Had they been prosecuted, a full examination of Special Forces' activities would have been required, which completely contradicts the need to avoid public scrutiny. There is therefore absolutely no justification, in my opinion, for the MoD's corporate immunity. Recently, the Defence Select Committee agreed.It is clear to me, having represented servicemen and women and their bereaved families for many years, that the MoD has a cavalier attitude to health and safety, in particular risk assessment, and that when things go wrong it looks to blame individuals within the organisation rather than examine the organisation itself. The Brecon Beacons case is a tragic example of its failure to learn from previous lessons and was an entirely foreseeable and avoidable incident.

There are concerns about softening training, the need to be operationally ready, and for training to be realistic. I accept that, and agree that all risks cannot be totally eliminated, but none of the controls that should have been in place on 13 July 2013 would have reduced the effectiveness of the training - but they would have saved three lives. SJ

Clare Stevens is a director at Hilary Meredith Solicitors Ltd and represented the father of Cpl James Dunsby at the inquest