3rd REPORT OF 2015–16: 'BEYOND ENDURANCE? MILITARY EXERCISES AND THE DUTY OF CARE' [1st DEFENCE SUB-COMMITTEE REPORT OF 2015–16]

MoD must be subject to Corporate Manslaughter charges

Defence Committee Press Notice – 24 April 2016

The Defence Committee publishes its Third Report, Beyond endurance? Military exercises and the duty of care, which calls for the Ministry of Defence (MoD) to be subject to charges under the Corporate Manslaughter charges without exemption.

The findings are the result of an in-depth inquiry by the Defence Sub-Committee.

Report key findings

The Report finds that it is wrong for the MoD and Armed Forces to have exemptions under the Corporate Manslaughter and Homicide Act 2007 in situations where they have been penalised by Crown Censure for serious failings in hazardous training and selection events.

Background

Between 1 January 2000 and 20 February 2016, 135 Armed Forces personnel died whilst on training and exercise. Since January 2000 there have been 11 Crown Censures: the highest penalty that can be issued to the MoD by the Health and Safety Executive.

At present, the MoD and Armed Forces have exemptions where they cannot be prosecuted under the Corporate Manslaughter and Homicide Act 2007. While strongly endorsing the existing exemption for military operations, the Sub-Committee says that this must change in relation to hazardous training and selection events and the current complete exemption for Specialist Military Units.

Balance between training and reducing risk

While the report found no systemic failings in the policies for managing risk during training and selection events, it argues that the MoD has not always got the correct balance between adequate training and reducing risk. This has resulted in life-changing injuries and deaths in training and selection events.

Level of acceptable risk

The level of acceptable risk will vary with the desired training outcomes. While Specialist Military Units will 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 report argues that training should remain rigorous because it is important for troops to be properly prepared for armed conflict.

Concept of 'training in'

The Sub-Committee was impressed by the training seen at the Commando Training Centre in Lympstone. In particular with the practical application of the concept of 'training in' every Marine rather than adopting the older and rather more familiar adage of 'selecting out' those who don't immediately make the grade. In this toughest of training environments it was clear that there was a good relationship between trainers and trainees, that facilities for medical and rehabilitation care were excellent and accessible, and that the newly-adopted Duty Holder Concept was fully integrated into their processes.

Accountability

A key focus of the Report has been on the accountability measures which can be used from Service Inquiries to coroner-led investigations and inquests.

Defence Safety Authority and Duty Holder Concept

The MoD is moving in the right direction. Evidence of this can be found in the creation of the Defence Safety Authority in 2015 which has, among other things, responsibility for the conduct of independent service inquiries into safety-related fatalities and the roll out of the Duty Holder Concept. The Sub-Committee was impressed by the evidence provided by witnesses to the inquiry and wish to thank everyone who provided assistance in its deliberations.

Chair's comments

Chair of the Sub-Committee, Mrs Madeleine Moon MP, says:

"In general the Armed Forces take very seriously the risks associated with the way it trains for war fighting. But there have been a small number of serious yet avoidable failings in training safety and risk assessment which need to be addressed. So where a Crown Censure has been issued, it should be possible to prosecute the MoD. The lives of serving personnel are worth no less than those of civilians and those responsible for their deaths must be equally liable under the law."

On accountability measures

"While it is important that the MoD and the Armed Services are accountable for all accidents and fatalities it is equally important that they are publicly seen to be so. The families and friends of those who have died whilst on training and selection events need to have confidence that that lessons have been learned for the future."

[To read the full report, click here.]

[For this inquiry, the Chairman of the Defence Sub-Committee was Mrs Madeleine Moon MP. The members of the Sub-Committee were Richard Benyon MP, James Gray MP, and Johnny Mercer MP. While the Report was published as the 3rd Report of the Defence Committee, it was the work of the Sub-Committee and reflected their views. It was not amended by the Defence Committee.]

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REPORT SUMMARY

Military training is inherently hazardous. It is not possible completely to remove all risks, but we believe it is possible to manage these in such a way as to reduce the incidence of accidents and fatalities. Between 1 January 2000 and 20 February 2016, 135 Armed Forces personnel have died whilst on training and exercise: 24 from the Royal Navy and Royal Marines, 89 from the Army and 22 from the Royal Air Force. Every death is a tragedy and we think that that steps should be taken to drive down these numbers.

While we have found no systemic failings, the Ministry of Defence (MoD) has not always got the correct balance between adequate training and reducing risk, resulting in life-changing injuries and deaths in training and selection events. We believe the MoD and the Armed Forces take their “Duty of Care” responsibilities seriously. However, some members of the public do not. The MoD must take appropriate action to change this perception and reassure the public. Not to do so will continue to undermine confidence in the Armed Forces.

The level of acceptable risk will vary with the desired training outcomes. While Specialist Military Units will 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. Of the total number of fatalities, 55 of these occurred overseas where current practice is for such deaths to be investigated by the Service Police and local police authorities. Arrangements must be made to allow the Health and Safety Executive (HSE) to carry out such investigations to ensure that death in training is treated the same, wherever it may occur.

There are a range of not very well known internal mechanisms and sanctions which can be used to hold the MoD, the Armed Forces, and individuals within them, to account for failings in the supervision of the safety of training events. However, it is essential that the MoD and the Armed Forces are seen to be accountable. There have been no civilian prosecutions, and since the establishment of the Service Prosecuting Authority in 2010, only seven Service prosecutions relating to training, exercises and selection events. While we accept that decisions on prosecutions are not a matter for the MoD, we recommend that the MoD conduct an analysis of whether Service Law is fit for the purpose of holding people accountable for training supervision.

Over the period of our investigation there have been 11 Crown Censures: the highest penalty that can be issued to the MoD by the HSE. However, at present the MoD and Armed Forces have exemptions where they cannot be prosecuted under the Corporate Manslaughter and Homicide Act 2007. This must change. Where a Crown Censure has been issued, it should be made possible to prosecute the MoD. The lives of serving personnel are worth no less than those of civilians and those responsible for their deaths must be equally liable under the law.