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Directors in the headlights as driverless technology moves closer

13 December 2018
Regulatory Compliance
Responding to a recent written parliamentary question, the government spokesperson Baroness Buscombe has outlined that existing health and safety law will apply to artificial intelligence and machine learning software. This, combined with the announcement that the government will ban the sale of all new petrol and diesel vehicles in the UK from 2040 (2032 in Scotland), means that designers and manufacturers of vehicles will have to sit up and take note. As manufacturers diversify into driverless technology, they need to be aware that they could now face substantial fines and even imprisonment if their technology causes harm.

The government published 'The Pathway to Driverless Cars' (PTDC) in February 2015 (you can read this here). This concluded that we have one of the most welcoming regulatory environments for the development of driverless technology and, in a bid to cement the UK's place as a haven for the development of this technology, the UK's testing regime is one of the more lenient in the world. Those wishing to test their designs would not be limited to test tracks and they need not obtain specific permits or any form of surety bond. Along with the £250 million of investment that the government had pledged for autonomous vehicles, it is hardly surprising that at least 18 companies are now investing billions into developing this technology.

The Regulators and Regulations

Prior to this it was the Information Commissioner's Office and the Centre for Data Ethics and Innovation that regulated artificial intelligence and machine learning software. The Health and Safety Executive ('HSE') will now join their ranks despite criticism that they may not be able to properly understand the complex technology. There are also doubts as to whether the industry's own tests will be comprehensive enough to uncover any issues, which therefore begs the question whether the HSE is expert enough to meaningfully scrutinise those tests for rigour,"

Anyone operating in this area should ensure that they follow the PTDC Code of Practice published in July 2015. This gives guidance for companies wishing to test driverless vehicles and failure to follow this would be an indicator of potential negligence and/or culpability. There is no specific framework to deal with incidents involving automated vehicles so it will be a case of waiting to see how the  Crown prosecutes such matters and more importantly, how the courts approach sentencing of these offences.

Increase in Director Prosecutions

Section 37 of the Health and Safety at Work etc. Act 1974 provides that where an offence is proved to have been committed with the "consent or connivance" or "neglect" of any director, that they shall be guilty in their personal capacity and can be punished accordingly. It therefore follows, that the directors of already well established companies that are currently making and testing driverless technology in the UK, such as Ford and Jaguar Land Rover,  could now face imprisonment and/or multimillion pound fines.

We already know that the current number of prosecutions against directors for health and safety offences continues to increase. In 2014, approximately 24 directors were successfully prosecuted under section 37; that number increased in 2017 by 67% to 40. Of the 40 successful prosecutions in 2017, 17 of these received an immediate custodial sentence.

For your ordinary health and safety offence, a director or similar officer is often too far removed for the prosecution to be able to successfully prove that the offence was committed with consent or connivance, or was attributed to neglect. However, given that the driverless car industry is a new and developing one, it is likely that directors will be heavily involved in the design and production of such cars. Should any potential breach of health and safety legislation and its' associated regulations arise, the prospect of a successful prosecution may prove to be greater than it is in other comparable sectors.

It goes without saying that health and safety legislation has never previously been applied to artificial intelligence and machine learning and so it remains a very grey area until the provisions are played out in Court. Watch this space for further updates as we undoubtedly move into a driverless car and AI world.

If you require any further information, please contact Jack Trowsdale (Jack.Trowsdale@dwf.law)

Further Reading