The government has rejected proposals that would have stripped the Ministry of Defence of its Crown immunity and given prosecutors the option of charging the MoD with corporate manslaughter if personnel are killed during training.
The Defence Select Committee released a report in April recommending that the military exemption in the Corporate Manslaughter and Corporate Homicide Act be reversed, allowing the MoD to be charged as a corporate body.
But in its official response, published on 6 July, the government has said that the current regulatory arrangements and the possibility of making civil claims for compensations over a breach of duty of care, “provide a strong system both for discouraging failure by the MoD and for learning lessons where things go wrong”.
The government said when there has been a fatality on a training exercise, the MoD always implements corrective measures identified by the HSE and treats Crown censures “as a matter of the utmost seriousness”.
“It is not therefore clear how the proposed amendments to the [Corporate Manslaughter] Act, which would only take effect once MoD has been subject to a Crown censure, would result in any tangible improvement to the safety of military training,” the response says.
It goes on to say that: “While a gross failure by an individual carrying out training and resulting in death can feasibly be assessed, it would be extremely difficult, perhaps impossible, to apply the concept of manslaughter (even in its very special form under the 2007 Act) to the role of the senior management of the MoD.”
Crown bodies – government departments or bodies formed by statute – cannot be prosecuted for breaching health and safety law. However, they must still abide by the law and the HSE continues to investigate any failings.
Madeleine Moon, a member of the Defence Select Committee and chair of the subcommittee that was convened to produce the report, called Beyond endurance? Military exercises and the duty of care, said she was “disappointed” that the government rejected its “modest proposals”.
“We continue to believe that these proposals would have improved accountability in these matters. This is not the end of our interest and we intend to pursue these matters with the MoD in the coming months,” she added.
The defence subcommittee was established in September 2015 over concerns about the number of fatalities during training exercises. Between 1 January 2000 and 20 February 2016, 135 armed forces personnel died on training and exercise, rather than on operations. Of these, 115 were regular personnel and 20 were reservists.
The committee wanted to examine whether effective processes existed for learning lessons from the accidents and whether there the suitable levels of accountability and sanction.
Following an investigation, if the HSE feels that there would have been, but for immunity, a realistic prospect of conviction, it will seek to apply a Crown censure.
Since January 2000, the HSE has served the MoD with 11 Crown censures. The most recent relates to the deaths of three reservists who died on the SAS selection march in the Brecon Beacons on 13 July 2013.
A clause in the Corporate Manslaughter Act states that, in general, Crown bodies do not have immunity from prosecution under the Act. However, a further clause says that hazardous military training is exempt.