Network Rail Infrastructure, R. v

MR JUSTICE ANDREW SMITH: Network Rail Infrastructure Limited, ("Network Rail"), the infrastructure controller of the railway network, are appealing against a fine imposed upon them on 26 October 2009 for an offence against section 3 of the Health and Safety at Work Act 1974. They were fined £666,667.00 and also ordered to pay £50,000 towards prosecution costs.

The proceedings against the appellant and other corporations and individuals resulted from an accident at about 4 am on 28 September 2004, when Martin Oates and David Pennington, two workers employed by VG Clements Ltd as the crew of a rail delivery train, were killed on a railway near Hednesford in the West Midlands. They were working on a rail replacement programme. They were hit by a road rail vehicle, which has been described as like a JCB on wheels. It was being driven by David Jones, who was working with John Brady. They both worked for subcontractors who had been engaged by Carillion Construction Limited ("Carillion"). Carillion had been appointed in April 2004 by Network Rail to be the principal contractor under the West Midlands Renewal Contract, which included the works at Hednesford.

The accident happened when long welded sections of rail and sleepers were being delivered by a rail delivery train. This was done overnight so as not to interfere with train movements during the day. The contractors engaged by the National Delivery Service of Network Rail to operate the rail delivery trains were VG Clements Ltd.

On 22 September 2004 representatives of Carillion and VG Clements attended the site to plan the operation. As far as the rails were concerned, the plan was that 20 of the 23 should be unloaded in pairs along the length of the existing track, but because of a foot crossing this could not be done with the last three. These three therefore had to be unloaded alongside other new rails, and this was to be done by making two reversing movements, or "set backs", to return to where new rail lengths had already been dropped. Each set back was to be what is described as "single length". There was nothing unusual about set backs in the course of delivery operations. Nothing was said on that occasion on 22 September about road rail vehicles being used to assist with the delivery of the rail lengths. No Network Rail representative was present at that site meeting on 22 September, and although there was a meeting on 23rd September 2004 between Carillion and Network Rail, this discussed the arrangements for delivery and not the risks associated with the operation.

Carillion were required to produce a method statement for the works in the specific area, setting out how they would carry out the renewal work, which statement was designed to minimise associated risk. They were required to submit it to Network Rail’s Integrated Management Risk Team. The method statement for the delivery operation was submitted on 27 September 2004 and the Integrated Management Risk Team approved it.

On 28 September 2004 the rail delivery train came to the site with the rail lengths and wagons loaded with the sleepers. The train and sleeper wagons were separated. The rail delivery train was pulled to position by a locomotive and the job of unloading sections of rail on the track began. A road rail vehicle was used when necessary precisely to position the rails which had been unloaded.

When it came to delivering the last three rails the decision was taken by Mr Wayne Brigden, who was employed by Carillion and was the supervisor of David Jones and John Brady, that there should not be two separate "single length set backs", but that the rail delivery train should reverse over the distance of one double-length set back. The train therefore reversed almost 500 yards and passed the road rail vehicle on which David Jones and John Brady were working and which was assisting with positioning the rails. This meant that the road rail vehicle also had to be reversed. It was in the course of this manoeuvre that the fatalities occurred. The road rail vehicle was reversed at excessive speed and without proper lights. Proper procedures were not used, in particular John Brady was not walking along with the vehicle in contact with David Jones, the driver, but was on the vehicle as it reversed. Mr Oates and Mr Pennington had been taught that during the operation when the rail delivery train was dropping its rails it was safe to be on the adjacent track away from the drop. It would have been if there had been no road rail vehicle, or if it had remained behind the delivery train, or if it had not needed to reverse past it. As it was the road rail vehicle was using the same adjacent track in which Mr Oates and Mr Pennington were standing and reversed into them.

Charges under the 1974 Act were brought against John Brady, David Jones and Wayne Brigden and they were convicted of failing to take reasonable care of the health and safety of themselves or others in breach of section 7(1) of the Act. Wayne Brigden was fined £3,000. John Brady and David Jones were fined £750, but the sentencing judge made clear that, but for their means, he would have imposed a fine of £3,000. VG Clements faced charges under sections 2 and 3 of the 1974 Act but were acquitted. Carillion pleaded guilty to offences under the same sections, that is to say failing to offences of failing to ensure the health and safety of their employees and failing to ensure the safety of persons not in their employment who may be affected by the conduct of their undertaking. They were fined £444,444.00 and ordered to pay £50,000 in costs.

In his sentencing remarks the judge, who conducted the trial of those defendants who had pleaded not guilty, concluded that the failures of Mr Jones and Mr Brady represented a flagrant breach of what was required of them and Mr Brigden was at fault in that he did not give properly precise instructions; he had not intended the road rail vehicle to reverse when it did and as it did, but he was misunderstood. However, the judge also concluded that all three were responsible decent men and would not have countenanced doing something which they knew offended a rule, such as a prohibition on moving the road rail vehicle within an envelope, or safety zone, if such a rule had been in place. He went on to say that the road rail vehicle was out of position and needed to be reversed because there was "no single mind controlling safety" with regard to the rail delivery train operations, and this failure was the immediate responsibility of Carillion, who were in control of the site and had ordered and planned the work. The result was a failure to plan for the risk that arose when a rail delivery train and a road rail vehicle operated together, although for Carillion at least this was common practice.

As for Network Rail, the judge said that although Carillion used the two vehicles together, Network Rail had planned and prepared for rail delivery trains to operate "as a stand-alone procedure" and therefore they did not foresee the rail delivery train working in conjunction with another vehicle. The judge described this as "a potentially safety fault line between the practice and the theory". He said that:

The criticisms made of Network Rail include these. Firstly, it was the responsibility of their Integrated Management Risk Team to ensure that method statements were robust and effective on the ground. However, those approving the statements were out of touch with what was happening on the ground. They did not know partly because they had not made site visits which enabled them to learn, or at least had not made sufficient and appropriate site visits to learn, that Carillion and maybe other contractors were using road rail vehicles for such operations as this. To our mind, this criticism goes to the heart of what went wrong in this case. If the procedures were to work, those carrying them out had to understand what was actually being done by the contractors, otherwise the paper exercise would never have been enough.

Secondly, the appellant's National Delivery Service were responsible for ensuring that a generic method statement for the operation of rail delivery trains was distributed to contractors such as Carillion. Apparently it was left to VG Clements to distribute it and Carillion were not provided with a copy. Carillion were not provided with any statement clearly setting out how the rail delivery trains worked or that they were to be worked in isolation from other vehicles.

Thirdly, neither the National Delivery Service nor VG Clements was provided with Carillion's method statement, which referred to rail delivery trains and road rail vehicles working together.

Fourthly, although in January 2004 the need was recognised to educate contractors about rail delivery operations, nothing effective was done about this.

Carillion, for their part, did not make it clear in their method statement, or on 22 September 2004 to VG Clements, that a road rail vehicle would be used to assist in positioning the rail lengths. They were also criticised for confusion about the status of the zone of operations and about who exercised the role of controller of site safety.

In determining the levels of fine imposed upon Carillion and Network Rail, the judge accepted that both had pleaded guilty and fully co-operated in the investigation, that Network Rail had taken prompt action to remedy the safety issues identified and that this was not a case in which the general public, in contradiction to members of the workforce, were put at risk. Neither company had taken a calculated risk over safety. On the contrary, both were responsible concerns who put safety at the forefront of their operations but failed to see the risk that proved to be fatal.

Network Rail put forward four grounds of appeal: (1) that the judge was wrong to conclude that Network Rail's offence caused the deaths of Mr Oates and Mr Pennington, or at least failed to give proper weight to the fact that the immediate cause of the accident was the negligence of others; (2) that the judge misassessed Network's Rail culpability in relation to that of others who breached the 1974 Act; (3) that the judge did not give proper weight to the fact that Network Rail is the recipient of public funds and not a dividend company, if indeed he had any regard to that at all; and (4) that the fine was manifestly excessive.

We are unable to find any fault with the reasoning of the judge with regard to the cause of the fatalities. First, he recognised the failings of Mr Jones and Mr Brady, but he was entitled after a trial to conclude that they would not have breached a clear rule prohibiting the movement of their vehicle. It is said that in other ways they failed in what was required of them, but the judge, having heard the evidence, was entitled to make the finding that he did.

Secondly, Network Rail rely upon evidence of "a massively strict rule" that a rail delivery vehicle and a road rail vehicle should not be moved in the work site at the same time, but the judge made no finding as to whether that was correct, and there was indeed evidence to the contrary. What is clear is that no such rule was reflected in the method statement that Network Rail approved or laid down in writing by Network Rail.

Thirdly, Network Rail criticise the judge on the basis that he was not entitled to conclude beyond reasonable doubt that a safety zone around the rail delivery train would have been observed and that the deaths would have been prevented. We are not swayed by this criticism. In cases of this kind the important question is whether, but for the offence, the risk of accident such as occurred would have been reduced, and this is, as we understand his sentencing observations, the focus of the judge's concern. This enquiry does not depend upon findings about what was the or a direct cause of the accident, nor indeed upon a finding about whether the accident would have occurred even if Network Rail had fulfilled their statutory responsibilities. Of course it is relevant when assessing the seriousness of an offence to have regard to harm caused, but it is also relevant to consider what harm might foreseeably have been caused by it: section 143(1) of the Criminal Justice Act 2003.

As for the second ground of appeal, Network Rail complains both that their fine was very much more than those imposed on the individual defendants and about the assessment of their culpability in relation to that of Carillion.

We do not consider that a comparison with the faults of the individuals is useful in a case such as this. Of course health and safety offences can be committed both by organisations and individuals, but where the individual is an ordinary employee of ordinary means, such a comparison is unreal. Indeed, the definitive guideline issued by the Sentencing Guidelines Council on corporate manslaughter and health and safety offences causing death observes that even between organisations the size of the operation is relevant: see paragraph 14. The real thrust of this ground of appeal, to our mind, is the judge's assessment that Carillion were less culpable than Network Rail. This criticism is based upon the judge's conclusion that Carillion were to an extent "out of the loop" with regard to the operation of rail delivery trains. Network Rail criticise this on the basis that Carillion had been provided with the generic method statements of VG Clements Ltd and these were clear and explained the drop to be made by the rail delivery train on 28 September 2004. Furthermore, it is observed that Carillion were familiar with the operation of delivery trains from their experience of working with VG Clements Ltd on other sites and the dangers that led to the accident should, it is said, have been obvious.

We do not consider that this criticism engages with the judge's reasoning. He was concerned that there was a lack of understanding between those on the ground and Network Rail's overall responsibility for rail delivery train operations. It was Network Rail's failure to realise that a road rail vehicle might be working alongside the rail delivery train that led them to assess the operation of the rail delivery train on the basis that it was working in isolation. Admittedly the method statements submitted to Carillion to Network Rail on the afternoon of 27 September 2004 did not make clear that road rail vehicles were to be used, although this was mentioned somewhat obliquely, but this does not meet the judge's point. His concern was that, in view of their overall responsibility for rail delivery train operations, Network Rail should have been alert to the possibility of a road rail vehicle being used even if the method statement submitted by Carillion did not make it clear whether or not the use was actually planned. It is possible that the assessment of relative culpability was somewhat kinder to Carillion than to Network Rail, but we are unable to conclude that it was an assessment which the sentencing judge was not entitled to make.

We come to the third ground of appeal, that Network Rail are in receipt of public funds. What should be taken into account, to our mind, is precisely not so much the source of the appellant's funding, as whether the provision of services to the public will be affected by the financial consequences of the fine. That is how the matter is put in the definitive guideline (see paragraph 19.5) and the guideline reflects the approach that had been adopted by the courts in, for example, Milford Haven Port Authority [2000] 2 Cr App R 423 at page 433. This is not a matter to which the judge specifically referred in his sentencing remarks. It was, however, a point made clearly by the appellants in their submissions before him and we cannot believe that he overlooked it. It might be that he did not give it great weight on the facts of this case, but then again there is no evidence that the consequences of the fine that was imposed will significantly affect the provision of public services.

We come to the general submission that the level of fine in this case was manifestly excessive. The definitive guideline, which was issued after the sentencing hearing in this case in February 2010, recognises that where offences against the Health and Safety at Work Act 1974 cause death, the appropriate fine "will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more". It is submitted on behalf of the appellant that consideration of the authorities indicates that whilst there is no tariff, in case of breaches of the Act which result in death, a starting point of up to £500,000 may be appropriate and that here, given the early plea of Network Rail, the judge must have taken a starting point of at least £1 million, notwithstanding the mitigation considerations that he identified. It is said that this was simply too high.

It is indeed high when considered in the light of cases previously considered by this court. However, this was a case in which the failings were significant and was a case concerned with the deaths of two workers. The sentence was severe, but in our judgment not so severe that we should reduce it on appeal. Accordingly, the appeal is dismissed.