Families have reacted with anger after it emerged National Highways will not face corporate manslaughter charges over two fatal crashes on smart motorways.
South Yorkshire Police investigated the circumstances into the road deaths of Nargis Begum, 62, and Jason Mercer and Alexandru Murgeanu, aged 44 and 22 respectively, following coroners’ concerns about the lack of a hard shoulder.
But after taking advice from the CPS, police chiefs ruled they are unable to bring charges against National Highways, previously named Highways England.
This is because under the Corporate Manslaughter and Corporate Homicide Act 2007, it emerged National Highways does not owe its road users a ‘relevant duty of care’.
Mr Mercer’s wife, Claire Mercer, who has campaigned for National Highways to be investigated over the crash, said the news was ‘very upsetting’.
She told media: ‘I don’t understand how they can say Highways England don’t have a duty of care to motorists. How do you justify that?
‘They build the roads, they supply the roads.’
Nargis Begum (pictured with her husband Mohammed), 62, from Sheffield, died on a stretch of the M1 in South Yorkshire, near Woodhall Services, in September 2018
The grandmother had exited the car and was waiting for help when another vehicle collided with the Nissan which crashed into her. Pictured: A stretch of smart motorway on the M3, in Surrey
Jason Mercer’s wife Claire (pictured together) has mounted a prominent campaign against smart motorways, arguing that he would not have died if there had been a hard shoulder
Lawyers representing Mrs Mercer and Mrs Begum’s families have said they will continue their fight in the civil courts.
Helen Smith, a specialist smart motorways lawyer at Irwin Mitchell, said: ‘Claire and Nargis’s family as well as many others continue to have serious concerns about smart motorways and their safety.
‘We keep on hearing worrying first-hand stories of how people are being seriously injured or killed on smart motorways while the independent report we commissioned through road safety experts also highlighted grave concerns.’
Claire Mercer (pictured) has mounted a high-profile campaign to close down smart motorways since her husband Jason was killed on a smart motorway on the M1 in June 2019
Mr Mercer (pictured with wife Claire) and Alexandru had pulled over to the roadside as much as they could but the lane was not closed to traffic and they were struck by a lorry
Awful toll of roads where drivers who break down have no escape
Mrs Begum, 62, was being driven on the M1 by husband Mohammed Bashir, 67. They left their Nissan Qashqai to wait for help but another car hit the vehicle, sending it into her.
A pre-inquest review hearing in December was told that warning signs on the motorway had not been activated in time to stop drivers entering the lane where the couple had broken down.
A coroner referred Highways England to the Crown Prosecution Service.
The eight-year-old was killed on the M6 in Birmingham in 2018 after his family’s car became stranded on a hard shoulder being used as a live lane.
At the inquest into the youngster’s death, coroner Emma Brown expressed concerns about the ‘risk to life from the loss of the hard shoulder’.
After the inquest his mother Meera, from Leicester, said that without changes, she believes smart motorways ‘still continue to pose threats to lives on a daily basis’.
SEVIM AND AYSE USTUN
Sevim Ustun, 49, and mother-in-law Ayse Ustun, 68, died after their family car broke down on the M25 in Essex in 2018 and was struck by a lorry.
Overhead gantry signs did not close the lane or warn of a broken down vehicle. A ten-year-old girl also suffered life-changing injuries. Police were urged to prosecute Highways England for corporate manslaughter.
The retired engineer, 83, was killed after pulling up when his car had tyre problems on the M1 in north Derbyshire in 2019.
His Volkswagen Crafter van came to a halt in the first lane of the motorway, formerly the hard shoulder. It was hit by a Ford Ka, which was then struck by a coach.
His widow Sally said: ‘If there had been a hard shoulder, my husband would still be alive.’
Nargis Begum, 62, was the passenger in a Nissan Qashqai which broke down on a stretch of the M1 in South Yorkshire which had no hard shoulder in September 2018.
She exited the vehicle, driven by her husband Mohammed Bashir, 67, and awaited help on the side of the ‘all lane running’ motorway.
Tragically, another car crashed into the Qashqai, which then ploughed into the grandmother-of-nine from Sheffield.
Doncaster coroner Nicola Mundy referred National Highways, then known as Highways England, to the CPS to consider if corporate manslaughter charges were appropriate in relation to the death of grandmother Ms Begum.
A month before the pre-inquest review into Mrs Begum’s death, a different coroner had also concluded that smart motorways ‘present an ongoing risk of future deaths’.
Sheffield coroner David Urpeth said the primary cause of death of Jason Mercer, 44, and Alexandru Murgeanu, 22, on a different stretch of the M1 in June 2019, was the careless driving of lorry driver Prezemyslaw Szuba, who ploughed into their vehicles as they stood stationary in lane one following a minor shunt.
Recording a conclusion of unlawful killing, Mr Urpeth said: ‘I find, as a finding of fact, it is clear a lack of hard shoulder contributed to this tragedy.’
But South Yorkshire Police stated the investigation had ended, after looking into both cases.
Temporary Assistant Chief Constable Sarah Poolman said: ‘Following concerns expressed by senior coroner Nicola Mundy at the pre-inquest review into the death of Mrs Nargis Begum, the force launched a “scoping exercise” to ascertain whether there is a reasonable suspicion that Highways England may have committed the criminal offence of corporate manslaughter.
‘Within our terms of reference, we also included the incident which led to the deaths of Mr Jason Mercer and Mr Alexandru Murgeanu.
‘As part of our work, we sought specialist advice from the Crown Prosecution Service (CPS).
‘Having considered the CPS advice, we have concluded that in the circumstances, Highways England cannot be held liable for the offence of corporate manslaughter.
‘This is because, in legal terms, the organisation did not owe road users a ‘relevant duty of care’ under the terms set out in the Corporate Manslaughter and Corporate Homicide Act 2007. For this reason, I have brought the police investigation into this offence to an end.’
She added: ‘I regret that South Yorkshire Police is unable to provide all the answers that families and campaigners are looking for. However, I can assure them that a thorough and comprehensive report comprising our findings and all of the materials we have gathered during our scoping exercise is now being completed.
Mr Mercer (left), 44, and Alexandru Murgeanu (right), 22, died when a lorry ploughed into their stationary vehicles on the M1 near Sheffield on June 7 last year
There are currently more than 20 sections of ‘smart motorways’ on seven different motorways
‘This report will be provided to Ms Mundy before Mrs Begum’s inquest is resumed. It can also be made available to the Government and Highways England, with a view that its contents may help inform further inquiries into smart motorways via other avenues in the future.’
Lawyer Ms Smith added: ‘While we thank the police and Crown Prosecution Service for their thorough investigation the families we represent are obviously disappointed by the decision.
‘However, this doesn’t mean their quest for meaningful change is over. We’ll continue to support families and are determined to provide them with the answers they deserve through the civil courts.’
What is a smart motorway, what are the benefits and are they safe?
Smart motorways have led to safety concerns, but highways bosses insist they are an effective way of boosting capacity. Here the PA news agency answers 12 key questions about the roads:
What is a smart motorway?
Smart motorways involve various methods to manage the flow of traffic, including variable speed limits and using the hard shoulder as a live running lane.
How many are there?
Motorways with sections where the hard shoulder has been removed include the M1, M4, M5, M6, M25 and M62.
The RAC says the smart motorway network will cover around 500 miles this year, with an additional 300 miles planned by 2025.
Projects under construction include the M4 between Junctions 3 and 12, and the M1 between Junctions 13 and 16.
What are the benefits?
They are designed to increase capacity without the more disruptive and costly process of widening carriageways.
Are smart motorways safe?
Concerns have been raised about incidents where vehicles stopped in traffic are hit from behind.
But Highways England insists they are ‘at least as safe as, or safer than, the conventional motorways they replaced’.
What does the data show?
An ‘evidence stocktake’ published by Transport Secretary Grant Shapps in March stated that the risk of a collision between moving vehicles is lower on smart motorways than conventional motorways, but the chance of a crash involving a moving vehicle and a stationary vehicle is higher when the hard shoulder is removed.
BBC Panorama found that at least 38 people have died on stretches of smart motorways in the past five years.
What was the result of this report?
An 18-point action plan included installing more places to stop in an emergency and faster roll-out of a radar-based system to detect broken-down vehicles.
What happens if I break down on a smart motorway without a hard shoulder?
Drivers are advised to pull into an emergency refuge area (ERA) if possible.
How frequent are they?
They were initially up to 2.5km (1.6 miles) apart, but for smart motorways designed from this year, they are no more than 1.6km (one mile) apart.
What if I can’t reach an ERA or leave my vehicle safely?
If you come to a standstill in a live lane, call 999, switch on your hazard warning lights and stay in your vehicle with your seat belt on.
What happens next?
Once Highways England is alerted to a stopped vehicle in a live lane, overhead gantries will display a red X to indicate the lane is closed.
Are smart motorways used in other European countries?
The vast majority of motorway-style roads in Europe have a permanent emergency lane.
What do drivers think about them?
An AA poll of 15,000 motorists suggested only one in 10 drivers feel safer on smart motorways without a hard shoulder than traditional motorways.
Plans for 11 smart motorways are AXED amid safety fears over ‘death trap’ roads without a hard shoulder that have been blamed for 24 deaths and scores of accidents
By David Churchill, Transport Correspondent for the Daily Mail
Ministers halted the rollout of 120 miles of smart motorway last month as safety fears about the ‘death trap’ roads continued to grow after 24 deaths and scores of accidents.
Transport Secretary Grant Shapps also said £390million would be spent on building 150 extra emergency laybys so drivers whose vehicles have broken down don’t have to stop in live traffic.
It will boost the number of laybys on smart motorways by about 50 per cent and mean they are no more than a mile apart.
Currently they are up to 1.5 miles apart, which motoring groups warn is unsafe.
The development is a victory for the Daily Mail, which has campaigned for better safety on the controversial roads.
The decision follows a recommendation by the Commons Transport Select Committee which said there was not enough safety and economic data to justify continuing with the project.
In a November 2 report, the committee described the Government’s decision in March 2020 that all future smart motorways would be all-lane-running versions as ‘premature’.
Concerns have been raised following fatal incidents involving broken-down vehicles being hit from behind due to a lack of a hard shoulder.
The Government has pledged to improve safety on existing all-lane-running motorways, but relatives of people who have died on the roads have urged ministers to go further by reinstating the hard shoulder.
Mr Shapps said he was adopting the report’s recommendations in full.
Projects planned for the M3, M40, M62 and M25 will be put on hold and others already underway will continue until complete.
Technology used to spot stranded cars will also be tested more rigorously.
Mr Shapps said: ‘While our initial data shows that smart motorways are among the safest roads in the UK, it’s crucial that we go further to ensure people feel safer using them.
‘Pausing schemes yet to start construction and making multimillion-pound improvements to existing schemes will give drivers confidence and provide the data we need to inform our next steps.’
The conversion of seven dynamic hard shoulder motorways, where the hard shoulder is open at busy times, to all-lane-running motorways is also being paused, while alternative ways of operating them are being examined.
But despite halting the construction of 120 miles of ‘all-lane-running’ (ALR) smart motorway – in which the hard shoulder is replaced with a lane in permanent use, a further 100 miles will go ahead because these stretches are more than 50 per cent complete and it was deemed safer to finish them.
The 120 miles will be paused until April 2024 so five years of safety data can be collected from more than 200 miles of schemes before a decision is made on whether it is safe to roll out new ALR roads.
The delayed schemes are made up of stretches totalling 60 miles on each carriageway.
Mr Shapps also agreed to consider letting the Office of Rail and Road sign off all new roads on health and safety grounds.
The watchdog will also review radar technology meant to detect vehicles marooned in live lanes within 20 seconds. Officials claim it isn’t effective.
He will also re-evaluate dynamic hard shoulder and controlled motorways. The former have a hard shoulder used as a live line intermittently, while the latter retain a hard shoulder but use variable speed limits.
AA president Edmund King said: ‘At last we have a Transport Secretary who has taken a positive and pragmatic approach.’
But he added: ‘The AA view remains that controlled motorways with a hard shoulder are the safest option.’
Nicholas Lyes, RAC head of roads policy, said the decision was ‘an unqualified victory for drivers’.
Claire Mercer, who blames smart motorways for her husband’s death, hailed it as a positive move, but said all motorways should have a hard shoulder.
Her husband Jason, 44, died in June 2019 when a lorry hit him on the M1 where the hard shoulder had been turned into a live lane.
Mr Mercer and delivery driver Alexandru Murgeanu, 22, were involved in a shunt, and were struck and killed when they stopped to exchange details.
Mrs Mercer, 45, said: ‘The undercover report the Daily Mail did was a massive stepping stone in the campaign and proved… these roads really are as dangerous as we said they were.’
While today’s report does not go as far as she would like, she added: ‘At least it will save lives.’
She called the Government announcement a ‘sticking plaster’ and a missed opportunity, adding: ‘They’d take lots more steps a lot more quickly if it was their loved ones that were being killed or maimed.’