Drink-driving loophole means this boy’s killer won’t face court
Twice legal limit farm worker was on private land as tractor hit 11-year-old
A MOTHER has called for a change to the law after a drunk driver who killed her son could not be prosecuted because he struck on private land.
Harry Whitlam was hit by 50-yearold Gary Green’s tractor at tourist attraction Swithens Farm near Leeds, and died hours later.
The driver was arrested and found to have more than twice the legal limit of alcohol in his blood. But police were unable to charge him as drink-driving laws apply only to public roads.
After an inquest jury returned a narrative verdict, his mother Pamela, 48, said the ‘ legal anomaly’ must be changed.
Outside court yesterday, farm owner Ian Broadhead said he did not think the fact his employee was over the alcohol limit had made ‘the slightest bit of difference’.
He said his ‘heart went out to the family’ but added that ‘accidents happen – and I’m a big believer in fate’.
The two-day inquest heard Mr Green had been drinking until 2am on August 9, 2013, before going to work on the farm, where he had been an employee for 30 years.
Harry, who helped feed animals on the farm while his mother worked as a cook, is believed to have walked out of a barn and been hit by Mr Green reversing a tractor and trailer.
A police traffic collision expert said the boy would have been visible in the driver’s mirrors for ‘three to four seconds’ but would have been in a blind spot at the moment of impact.
A breathalyser test at the scene showed Mr Green had 90 micrograms of alcohol in 100ml of breath. The legal limit is 35 micrograms.
He was not at the inquest in Leeds on medical grounds. But in a statement read to the hearing he admitted drinking four pints in a pub after work the previous day, before ‘some cans’ of beer while watching television until 2am.
He said he did not have anything to drink between waking up and driving the tractor.
Detective Sergeant Ben kemp told the inquest that during a police interview, Mr Green said: ‘Nobody should be down there [on that area of the farm]. I don’t know where he came from. I just didn’t know he was there.’
DS kemp said he smelt alcohol on Mr Green’s breath at the scene, but added: ‘Offences under the Road Traffic Act can only be on a public road.
‘The police worked with the CPS and they determined the incident had not happened on a public road and were unable to prosecute Mr Green.’
Mr Broadhead said the driver had ‘appeared to be just his normal self’ on the morning of the tragedy, adding: ‘I don’t believe that he was drunk.’
The jury’s verdict read: ‘For reasons unclear and whilst unsupervised, Harry entered the working area of the farm and was struck by a tractor and slurry trailer. The driver of the tractor provided a positive breath test at the scene.’
Coroner kevin McLaughlin told Harry’s family: ‘You have suffered an immense tragedy and I extend my sympathies. I hope you remember the happy times Harry spent at the farm and not the gruesome events we have heard here today.’
A statement read by the family’s solicitor said: ‘It has been extremely distressing for the family to hear the evidence. In particular, the fact the driver was over twice the legal limit … Plus, that Harry was there to be seen, had the appropriate observations been made.
‘It is a legal anomaly that because the accident took place on private property there can be no criminal prosecution arising from Harry’s death.
‘ The family believe there should be a change in the law … we hope the evidence heard will be considered as part of the ongoing [Health and Safety Executive] investigation into the case.’
The lawyer added that Harry was ‘never happier than when he was around the animals he loved’. The law states a motorist can be prosecuted for drink-driving only if they are on a road accessible to the public. Swithens Farm is private and the part where the incident happened was not open to the public.
‘Unable to prosecute’