Lin & Ors, R (on the application of) v Secretary of State for Transport

LORD JUSTICE MOSES: The claimants are the parents of Chia Hsin Lin. She was a journalist and died when only 29. She was killed in the Potters Bar rail crash on 10 May 2002. Seven were killed in all when a train from King's Cross was derailed. Many others were injured. The claimants challenge the decision of the Secretary of State on 8 December 2005, declining to hold a public inquiry.

This application, made with leave of the single judge, is - so I was told - supported by other members of the bereaved families and others who were injured, some of them severely. The Secretary of State, the Office of Rail Regulator ("ORR") and the Health and Safety Executive ("HSE") oppose the application. Importantly Jarvis Rail Ltd ("Jarvis"), the contractor with contractual responsibilities of inspection and maintenance of the permanent way, adopted what they describe as a neutral stance. Others involved, but not formally joined as interested parties, assisted me particularly in the nature of the inquest they expect will take place towards the beginning of next year.

The wish of the bereaved relatives to have a public inquiry into the full circumstances leading to the tragic deaths of members of their families is wholly understandable. The Potters Bar crash followed the Southall rail crash in 1997, the Ladbroke Grove rail crash in 1999, the Uff Report into Southall of February 2000 and both parts of Lord Cullen's inquiry in June and September 2001. That there should be a third crash so soon after must seem to them not only insufferable but inexcusable. They write:

"In the past year, all of our lives have been tormented. My heart has been broken. I am numb with grief. My skies have turned grey.

When the young die before the old it is considered one of life's greatest tragedies.

With a bright future full of potential, my vibrant happy daughter travelled to your country full of hope but was soon met with sadness and was lost. She returned to us as ash.

The outcome of both the unfortunate China Airlines crash and the train disaster in Alishan (reported on the international news), which occurred in my country in the last year, were resolved with fairness and justice within six months. In my heart, I thought England was a cultured, civilised, democratic country where human rights were taken for granted and a country which upheld social justice. I have been proved wrong."

Thus the parents who are the claimants in this case.

Nina Kark, well known as Nina Bawden, writes to the solicitors for the claimants:

"This is to say that I fervently support the application for a judicial review of the decision not to hold a public inquiry into the rail crash at Potters Bar (words omitted ..... )

I consider it a disgrace that a public inquiry has not been held into this major disaster. It is an insult to the seven people who were killed, to the seventy others who were badly injured and to those who are bereaved. That Mr and Mrs Lin, whose daughters were guests in our country, should have to bring this action makes me doubly ashamed of the standards apparently prevailing here."

These bereaved find it difficult to accept that there should be public inquiries into other rail disasters but not this one which affected them so brutally. They find the delay inexplicable and are frustrated at the stance of Jarvis which denies the facts which earlier investigations purport to have established. They fear that the inquest will not be capable of examining the facts and failures which an inquiry could identify. This is unsurprising in the light of a statement dated 6 December 2005 from the Coroner for Hertfordshire setting out his understanding of the inadequacy of any inquest he might hold.

However, it is important to recall at the outset three features of the background: first, that there have been a number of reports into the Potters Bar crash. The first Health and Safety Executive Report was published four days after the crash on 14 May 2002. The second Health and Safety Executive Report was published by an investigation board on 4 July 2002. The third Health and Safety Report, still an interim report, was published by the Investigation Board on 29 May 2003. The third interim report made both general and specific recommendations, but no final report will be prepared until after the inquest.

On 12 April 2005 the Rail Safety and Standards Board issued its own report in accordance with the requirement of a Railways Group Standard (GO/RT 3473) although the existence of the report, the findings of which were consistent with those of the HSE, did not form any part of the reasons for the Secretary of State's decision. There have been investigations by the British Transport Police in conjunction with the HSE. It was announced in October 2005 that the Crown Prosecution Service ("CPS") had taken the view that there was insufficient evidence to prosecute for manslaughter but there still remains the question of prosecutions under the Health and Safety at Work Act.

Following the preliminary recommendations of the HSE, a Prior Role Inquiry team investigated the HSE and HM Rail Inspectors' ("HMRI") roles in relation to the immediate and underlying causes of the Potters Bar crash. Its report, conducted by a team which was separate from those considering the other inquiries, was considered in the third HSE interim report but it was not disclosed to the claimants until recently.

There have been, since Potters Bar, substantial changes to the structure of the railway system and those responsible for running it. In particular control of the infrastructure passed from Railtrack to Network Rail in October 2000. By a process completed in summer 2004, Jarvis has ceased to be the maintenance contractor and Network Rail has taken back in -house all maintenance contracts. Railway Safety Ltd, which between 2000 and October 2002 had undertaken the setting of Group Standards formerly undertaken by Railtrack's Safety and Standards Directorate, became part of the Network Rail Group in October 2002 and this responsibility was, in April 2003, taken over by the Railway and Safety Standards Board ("RSSB"), implementing a recommendation of Lord Cullen.

From 1 April 2006 the safety functions of the Health and Safety Commission and the Health and Safety Executive have been transferred to the Office of Rail Regulator.

Moreover, in January 2004 a fundamental review of the rail industry was announced by the Secretary of State and a White Paper on the future of rail published in July 2004. There followed the Railways Act 2005, changing the regulatory structure and seeking to improve safety. The HSE commissioned a consultancy firm, W S Atkins, to review the progress of implementations and recommendations made in the second and third HSE reports into Potters Bar. This reported, at least on an interim basis, on 17 May 2005. While it will be necessary to consider in a little more detail some of the recommendations made, it must be acknowledged at the outset that that part of the national railway systems relevant to the circumstances which caused the crash has changed dramatically since Potters Bar.

The third feature I should note is that Potters Bar is by no means unique in not being followed by a public inquiry. There have been 19 train accidents causing death since 1988 - the Clapham disaster; only two have been subject to public inquiries. There have been no public inquiries following Hatfield in October 2000; Great Heck, Selby in February 2001; Tebay in February 2004 and Ufton Nervet in November 2004.

It has been announced that the renewed inquest, due to take place in the early part of 2007, will be conducted by a High Court Judge Mr Justice Sullivan, acting as a deputy coroner. Accordingly, this application has to be considered in the context of previous inquiries which have made recommendations which themselves have been monitored, a substantial change in the structure of the administration of the railway system in relation to safety and the future renewed hearing of an inquest.

The essential submission of the claimants is that the Secretary of State is required, in order to comply with Article 2 of the European Convention on Human Rights, to hold a public inquiry; the renewed inquest will not fulfil that obligation. The response of the Secretary of State is that Article 2 does not oblige him to order a public inquiry and that whatever the content of the obligation under that Article, a combination of past inquiry and the future hearing of the inquest will fulfil the obligations under that Article, however widely they are drawn.

These arguments pose questions relating to the scope of the obligation of investigation derived from the obligation of the state to protect life under Article 2, and the application of the duties imposed by Section 6 of the Human Rights Act 1998 to those undertaking regulatory inspection and maintenance of the railway. The dispute between the parties requires identification of the nature and extent of the obligation of investigation under Article 2 and the extent to which, once the limitations of that duty have been discovered, the renewed inquest will fulfil that duty.

Before examining the extent to which it is necessary to resolve such questions, it is important to recall the terms of the decision not to order an inquiry and the reasons for that decision. They are to be found in a letter of the Secretary of State dated 8 December 2005:

"Summary

After careful consideration the Secretary of State has taken the decision that there should not be a public inquiry into this rail accident because the Article 2 ECHR investigative duty either has been or, once the inquest into the deaths has taken place, will be satisfied to the extent required in this case. Nor, on general policy grounds and having regard to the facts and matters set out below, does he believe that it is necessary or appropriate to hold such an inquiry.

If fresh evidence emerges at the inquest or if a full inquest is not held as expected or the final report of the Health and Safety Executive ("HSE") changes materially from the third interim report the Secretary of State will reconsider if in those circumstances further investigation and/or a public inquiry might be necessary.

Reasons

The Secretary of State has noted:

1)

that there have been several investigations into the accident already, most notably by the HSE and by the British Transport Police ("BTP"), and

2)

that the coroner intends to hold a full inquest and that this will take place as soon as the necessary arrangements can be put in place. The Secretary of State has agreed to fund the coroner's costs if necessary.

The BTP carried out an investigation into the causes of the accident and produced papers for consideration by the Crown Prosecution Service ("CPS") as to whether there was a case for a manslaughter or corporate manslaughter charge. As you are aware, in October 2005 (and having called for and considered further evidence) the CPS announced that there was insufficient evidence to bring charges for manslaughter. The BTP report has not and will not be published, in accordance with police practice.

The HSE has also investigated the accident and has produced interim reports with recommendations in order to avoid a similar accident in the future. An Investigation Board was appointed under section 14 (2) (a) of the Health and Safety at Work etc Act 1974.

The terms of reference of the Investigation Board required it in relation to this accident to:

• ensure a thorough HSE investigation to establish its direct and root causes;

• identify any matters requiring immediate attention to further rail safety;

• examine HSE's role in regulating safety on the railways prior to the accident;

• consider it in the light of other recent railway incidents and any recommendations arising from their investigations; and

• make recommendations for future action.

The Secretary of State has reviewed the third interim report from the Investigation Board, it being the most recent¹, and is satisfied -

1)

from that review that the HSE report is internally consistent, rational and sustainable on its face, and

2)

in the light of that review and the decision of the CPS, there remain no material unanswered questions, to the extent that answers appear possible, for a public inquiry to address.

The Secretary of State is satisfied from information supplied by the HSE that the public - including the bereaved and injured - were afforded a number of opportunities to participate in the investigation.

The Secretary of State is satisfied appropriate action has been taken in respect of all of those recommendations, including in particular those directed to Network Rail.

The Secretary of State notes that the bereaved will be entitled to participate in the inquest in accordance with the Coroners Rules 1984 and may apply for exceptional funding for legal representation at the inquest.

Conclusion

For the reasons set out above the Secretary of State has decided not to hold a public inquiry into this rail accident. In coming to this conclusion the Secretary of State has taken into account the arguments advanced in the outline grounds for judicial review dated 6 October.

¹You will be aware that a final report will only be published after the conclusion of the coroner's inquest and the outcome of any prosecutions."

There are two important features of that reasoning. First, the decision not to order an inquiry has been made on the basis that the Secretary of State believes there will be what he describes as a "full inquest". This reasoning has been amplified by Mr Burrows in a full witness statement. He is the Director of the Rail Technical Profession Directorate at the Department of Transport. He records the history of the opening of the inquest and refers to the statement of the coroner for the relevant area, the District of West Hertfordshire, as it then was. In a statement dated 6 December 2005 the coroner made a statement, the purpose of which was to outline some of the difficulties he foresaw in resuming an inquest into a tragedy of the magnitude of Potters Bar with, as he put it, so many issues and requiring thought as to future recommendations. He identified problems in relation to advanced disclosure: the difficulty of compelling requests or directions, and the difficulties in making recommendations following the inquest.

The response of the Secretary of State, repeated in oral argument by Miss Carss -Frisk QC on behalf of the Secretary of State, is to seek to allay those anxieties. In particular Mr Burrows sets out the coroner's concerns and responds to them by pointing out that a High Court Judge has been appointed, that those concerned can be compelled to produce documents by witness summons, that there is no distinction as to the question of civil or criminal liability between inquiries and inquests and drawing attention to the power of the coroner to make a report under Rule 43. In that response I should in particular note the reference, to which I shall return, by Mr Burrows on behalf of the Secretary of State to the case of Middleton and to the expectation that there will be sufficient representation to meet the Article 2 obligation of effective family participation.

The second feature of the decision letter to which I wish to call attention is the Secretary of State's view that there have been a number of opportunities to the bereaved and injured to participate in the previous HSE investigations. This belief, it appears from Mr Burrows' statement, stems from a number of meetings he describes between the British Transport Police, the HSE and some of the bereaved.

In order to assess the claimant's contention that the renewed hearing of the inquest will not satisfy the Secretary of State's duty under Article 2, it is necessary to consider the principles which apply to inquests where Article 2 is engaged. The paradigm case is where there is a death in custody; it is demonstrated by R (Middleton v West Somerset Coroner) [2004] 2 AC 182 which concerned the suicide of a long -term prisoner in custody. It was, as Lord Bingham pointed out, concerned not with the conduct of an investigation but rather the culmination of such an investigation and the nature of the verdict which an inquest jury would be entitled to reach to satisfy the requirements of Article 2. Compliance with the Article 2 obligation on the state to initiate an investigation could be achieved in the manner he describes between paragraphs 36 and 38 (pages 202 to 203 of that report).

The case of R (Amin v Secretary of State for the Home Department [2004] 1 AC 653, heard the year before, concerned the state's duty to investigate which could only be satisfied, in the absence of an inquest, by instigating an independent public inquiry. In that case, where a young prisoner was murdered by his cell mate, there was no inquest, a decision described by Lord Bingham as very unfortunate since, as he put it, a properly conducted inquest could discharge the state's investigative obligation: (see paragraph 33, page 672).

It is important to focus on the nature of the obligation to investigate to which the House of Lords was referring in both Amin and Middleton. It is insufficient merely to refer to the obligation to investigate under Article 2 since that says nothing about the extent of investigation required. Only by identifying with precision the nature of the obligation can the scope of the investigation be discerned. The jurisprudence of Strasbourg and our courts illustrate a scale in which the most intense investigation and the greatest participation of next of kin are required in cases where agents of the state bear potential responsibility for loss of life (Middleton affords an example, as does R (Khan v Secretary of State for Health) [2004] 1 WLR, 971, paragraph 62). In such cases Article 2 requires the state to initiate an investigation. Even where the state is obliged to initiate an investigation, the intensity of such an investigation will vary according to the subject matter.

At the other end of the scale, where, for example, a death has occurred to a patient in a state hospital, arguably due to the negligence of a member of staff, Article 2 requires a practical and effective system for investigation but not an investigation initiated by the state although the system may include such an investigation: see R (Taskoushis v North London Coroner) [2006] 1 WLR 461, at paragraph 38 and 105 to 106.

Confusion seems to have arisen because the scale covers such a wide range of cases in relation to which it may be asserted "Article 2 is engaged" or "an investigative duty arises under Article 2". But such an assertion has such lack of particularity as to deprive it of any utility. It provides no guide to what is required. Moreover, it is of central importance in this case to recall that even if Article 2 imposes an obligation on the state to initiate its own investigation, that obligation may be satisfied by the use of an inquest: (see Amin at paragraph 33 and Middleton at paragraphs 35 to 38).

Since the terms of Section 8 of the Coroners Act 1988 will require an inquest, even where there is not even an arguable case of responsibility of any state agent for the death, there frequently arises an issue for a coroner to resolve as to whether he is required to hold an inquest which fully complies with the requirements of a state -instigated investigation, which may be called a Middleton or enhanced inquest, or not. The problem will not be resolved merely by answering that "Article 2 is engaged" since the very existence of the Coroners Act fulfils the broad requirements of that Article, namely that a state can only properly protect its citizens by establishing a system for investigation and the allocation of responsibility in the criminal or civil courts. The problem will be resolved if the test propounded by Lord Bingham in Middleton is applied, namely (1) may there have been a violation of the state's substantial substantive obligation not to take life without justification? Or (2) may there have been a violation of the state's substantive obligation to establish a framework of laws, precautions, procedures or means of enforcement designed to the greatest extent practicable to protect life?

If the answer to either question is yes, and state agents may be implicated, then the inquest must satisfy the full requirements of a state -instituted investigation as explained by Lord Bingham between paragraphs 35 to 38 of Middleton.

The requirements of such an investigation, put into effect through the medium of an inquest, are flexible but must seek to achieve the aims identified in Khan , namely to minimise the risk of future like deaths, give the beginnings of justice to the bereaved and to assuage the anxieties of the public: (see page 989 E). There is no want of authority that in circumstances where inquiry instituted by the state is required by Article 2, it must be independent, effective, in other words establish the cause of death or those responsible, reasonably prompt, have a sufficient element of public scrutiny so that its results may secure accountability in practice and the next of kin must be involved to the extent necessary to safeguard their legitimate interests: (see in Jordan v United Kingdom [2003] 37 EHRR 2, paragraphs 105 to 109, and Amin at paragraph 32).

Moreover, fulfilment of the obligation under Article 2 to conduct a state -instituted investigation may be achieved by a combination of processes, not merely the inquest but also procedures, for example, for establishing criminal or civil liability: (see Taskoushis at paragraph 105 and R (D v Secretary of State for the Home Department) [2006] EWCA Civ 143, paragraph 23).

I have received valuable assistance from counsel - particularly those appearing for Network Rail (Mr Popat), the RSSB (Mr Eastman) and for West Anglia Railways (Mr Fletcher -Wood) - as to what really happens in an inquest where it is argued that the inquest must fulfil the state's obligation under Article 2 to initiate an investigation, by holding an enhanced or Middleton -type inquest.

Since Middleton, coroners are fully aware of the need to involve the next of kin by permitting full cross -examination even though that is not an essential element of such inquiries: (see D at paragraphs 23, 24, 40 and 41). They hold a preliminary hearing or hearings for inquest management purposes. There will frequently be advanced request for disclosure of documents and such disclosure will take place. Moreover, in fulfilling the requirements identified by Lord Bingham in Middleton in relation to the verdict, factual questionnaires have been composed. I was given a number of examples in different inquests. The one in R (Scoles v Secretary of State for the Home Department) EWHC (1) Admin runs to 10 pages and recorded the jury's view of failures in the system due to lack of documentation and communication, error in locating the unfortunate deceased in a Young Offenders Institution and commentary on the insufficiency of local authority secure units.

But it was of particular interest to learn, I appreciate not in evidential form, from the Bar what happens when no enhanced inquest takes place. Even absent an obligation on the state to initiate an investigation, the inquest must be full and fair, practical and effective. It must be public and the bereaved must have the opportunity of fully taking part: (see Taskoushis, paragraphs 44 to 47 and paragraph 106). It is of note that in Taskoushis, which concerned the suicide of a long -term schizophrenic after one attempted suicide and an escape from hospital, the claimant succeeded in establishing the failure of the coroner to hold a sufficiently full inquest into the failures of the system even though there was no requirement under Article 2 to hold an enhanced inquest and even though it was not necessary to read down the 1998 Human Rights Act into the 1988 Coroners Act (see paragraph 106 where possibly an error has occurred in the judgment of the Master of the Rolls in the transposition of the dates of the relevant statutes).

Long gone are the days of travel to some dispiriting corner of St Pancras or Battersea only to be told peremptorily, when appearing on behalf of the bereaved, "Keep quiet and sit down." Coroners nowadays are more concerned to conduct full inquiries with ample opportunity for participation, even absent the obligation to conduct enhanced inquests. Many, I was told, seek to conduct a full and fair inquiry and do not believe in offering the bereaved what may be perceived as a second -class inquest. Thus, following Taskoushis, there will often be little difference in practice between an enhanced Middleton -type inquest and other inquests following deaths which give rise to concern both to those immediately involved and to their families.

The controversy that has arisen between the claimants and the Secretary of State and the Office of Rail Regulator must be seen in the context of those principles. There is a dispute as to whether there arises an obligation on the state to institute an investigation. This dispute is itself said to turn on whether the circumstances suggest that there may have been a violation by an agent of the state, in particular in breaching the substantive obligations to establish a system of precautions, procedures and means of enforcement to which Lord Bingham refers in Middleton at paragraph 2. There is a substantial dispute as to whether there is any potential or arguable violation by a state agent at all. Whilst it is plain that the HSE and what was the HMRI, and is now the RSSB, are state agents, there is nothing to suggest, so it is argued, following the inquiries already conducted, that they were guilty of potential violation as explained by the European Court of Human Rights in Osman v United Kingdom [2000] 29 EHRR 245, (particularly paragraph 116). There is nothing to suggest that they knew or ought to have known of a real and immediate risk to life or that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

There is a further dispute following Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB) in which Sir Michael Turner struck out a claim arising out of this Potters Bar crash on the basis that Railtrack was a state agent and thus that Article 2 imposed on it an obligation to protect passengers. Permission has been granted to appeal that decision.

It seems to me, before resolving these interesting issues, vital to determine whether it is necessary in the circumstances of the instant case to resolve them at all. If the proposed inquest, in the context of the investigations which have already taken place, will satisfy all the requirements which Article 2 imposes where a state -instituted investigation is required then there is no need to resolve the issues at all. The claimants will have achieved all they possibly could achieve if such issues were resolved in their favour.

Investigations, to which I have already referred, set out what were believed to be the causes of the crash and the underlying failures in systems for inspection and maintenance. A number of recommendations have been made. So far as the independent consultants W S Atkins are concerned, most have been implemented or are approaching completion.

The first investigation set out initial findings arising out of the first four days of the investigation. They show that points number 212A, south of the station, had moved as the rear of the third carriage of the train had passed over and causing the fourth carriage to derail. The HSE stated that defects had been found, namely detached nuts, a disconnected stretcher bar and a fractured lock bar which would have been sufficient to cause the derailment.

There was then a decision to initiate investigation pursuant to Section 14 (2) of the Health and Safety at Work Act 1974. The terms of the investigation, set out in a letter dated 14 May 2002, show that it was concerned to establish the causation of the derailment, including root causes, to identify what are described as duty holders (effectively those who work on the railways) and other appropriate recipients, information requiring immediate attention for further rail safety and to examine the HSE's role in regulating safety on the railways in regard to the Potters Bar incident and prior to it, including their role in securing compliance with regulatory requirements. The investigation was to consider the Potters Bar incident in the context of other recent crashes and to make recommendations for future action.

The Investigation Board contained members who were independent as tested against the requirements identified by the European Court of Human Rights in Jordan v United Kingdom, (at paragraph 106, pages 426 to 427). The requirement of investigation requires independence from those implicated in the subject -matter and a lack of hierarchical and institutional connection as well as practical independence. The Investigation Board was, in my judgment, plainly independent. It comprised four members: two members of the HSE's senior civil service independent of HMRI in the sense that they were responsible for other aspects of the HSE's work relating to nuclear safety and in relation to Scotland, and two external experts wholly independent of HSE who were Professor Shannon a director of Engineering Research at British Gas and Mr Michael Roberts formerly Group Technical Director at British Airports Authority plc.

The second HSE report was published on 4 July 2002. It confirmed the preliminary conclusions of the first report relating to points 2182E and noted that in relation to similar points, differing standards in conditions and maintenance and differing standards in relation to record keeping had been identified. The Investigation Board found no evidence of vandalism. Meanwhile, by the end of 2002, the British Transport Police had informed the Department of Transport that the investigation was continuing but was akin to a major fraud investigation. In May 2003 the police announced that they had identified 5,000 people who had relevant evidence to give in relation to the crash and had taken over 1,350 statements, 3,400 exhibits and lodged over 2,800 documents.

The third HSE report was published on 9 May 2003. It again confirmed that derailment was due to the failure of the points identified and four factors contributing to that failing, including the poor condition of components, and an absence of nuts on the stretcher bars designed to operate the points. They had been poorly maintained and were out of adjustment. It continued by identifying different systems for maintenance and repair, creating a possibility of confusion. It pointed out the absence of guidance for instructions and maintenance and deficiencies in arrangement for inspection. There was inappropriate adjustment and insufficient maintenance identified as the underlying cause of the derailment. There had been a failure to understand the operating environment and to implement appropriate arrangements for installing the points, inspecting them and maintaining them. It further noted that the HSE had conducted a thorough and searching technical inquiry into the derailment. It reiterated that there was no evidence of sabotage. It also identified wider issues in relation to the system for safety management and culture, the selection and control of contractors and the rail industry's response. It also considered the Prior Inquiry Report relating to HSE's role before the accident. It made 26 general and specific recommendations to the rail industry.

That third report considered the Prior Role Inquiry which itself had considered HSE's role leading up to the Potters Bar accident. There is no suggestion and there could not be any suggestion that those conducting that Prior Role Inquiry were not independent, both hierarchically and institutionally, from HSE in relation to railway safety.

There is no need to refer again to the RSSB report which did not form the basis of the Secretary of State's decision.

It should be stressed that neither the factual conclusions nor the recommendations in any of those reports, particularly the third HSE report and the Prior Inquiry Report are written in stone. Should further material emerge at an inquest or independently of an inquest, it must be recalled that there has been no final report. But I should note Mr Burrows' statement that the reports published to date in respect of Potters Bar have put more information in the public domain about the findings of an on -going investigation than has ever been done before. Whether that is correct it is impossible to judge. But it is of note when he turns to the timing that a number of significant recommendations were made within eight weeks of the derailment, with further recommendations being made just over a year after the accident occurred. That contrasts with the public inquiry into Ladbroke Grove which reported almost two years after that crash, as did the inquiry into the Southall rail crash.

I have not sought to give a full account of the facts found and the recommendations made. They will be considered at the renewed inquest.

Jarvis', the maintenance contractor's, stance is important but of some concern. It wishes to emphasise that it does not accept the facts found, particularly in the light of the fact that no decision had been made whether to prosecute for criminal offences under the Health and Safety at Work Act. That is understandable. Its stance would be no different whether at an inquest or a public inquiry unless blanket immunity was obtained, a possibility so fanciful as to be safely ignored at this stage. But I described its stance as being of some concern because of its attitude to civil liability. It published a statement in conjunction with Network Rail which starts:

"Statement regarding Potters Bar rail crash

Network Rail and Jarvis plc today announce that they have formally accepted liability on behalf of the rail industry for all legally justified claims brought by the bereaved and injured in respect of the Potters Bar crash that took place in May 2002. Just a few months after the accident the interested parties announced that Railtrack, now Network Rail, would take a lead in settling claims and that all legally justified claims will be handled as if liability had been accepted. This was to ensure that the issue of liability did not stand in the way of settling claims or cause unnecessary distress to those involved while the accident remained under investigation. Network Rail and Jarvis have now agreed they should formally accept liability on behalf of the industry for claims brought by the bereaved and injured despite the continuing investigations into the root cause of the accident. Network Rail and Jarvis hope that by formalising the liability issue those affected by the tragedy will gain some level of comfort and assistance. In the meantime the industry parties will continue to work with the HSE as its investigation continues."

(Quotation not checked against statement)

That liability had been accepted was the understanding of Mr Burrows in his statement - see paragraph 106 - but that apparently was wrong. There is now before the court a statement from Mr Broadbent, the Director of Health, Safety, Quality and Environment of Jarvis Rail Ltd. This says at paragraph 5:

"5 Jarvis does not accept the findings of the HSE or the RSSB in their entirety. Nor does Jarvis accept many of the conclusions that were reached in those reports. Jarvis has a number of concerns with the way in which the HSE conducted its investigation including the dismantling of the points ..... (words omitted). Jarvis will raise these concerns at the appropriate forum."

Paragraph 16 reads:

"Jarvis does not accept liability for the accident. Jarvis does not accept that it was at fault or negligent."

The statement is dated 2 May 2006.

I hope I can be forgiven for a sense of bewilderment. I simply cannot understand the distinction Mr Broadbent makes between formally accepting liability on behalf of the rail industry and Jarvis not accepting liability. But I need not try harder to achieve a more happy state of comprehension; some cases have settled, others have not. No one is suggesting that the possibility of further litigation is sufficient to satisfy the requirements of a state -instituted inquiry: see Taskoushis at paragraph 106.

Mr Broadbent's statement also refers to another source of anxiety for the bereaved, the suggestion still apparently maintained by Mr Steven Norris of sabotage. Again it is quite inappropriate for me to resolve that issue or how Mr Norris' statement came to be made. If it is suggested that there was sabotage that case can be made at the inquest; if not, then the coroner may well have to consider how a such statement came to be made by a former transport minister, since he may take the view that too ready an attempt to shift blame by an unjustified suggestion of sabotage by a non -executive director, with his background, might speak volumes of the attitude of that company to its safety responsibilities. But that will be a matter for the coroner.

These inquiries, even though independent and full, could not satisfy the requirements of a state -instituted investigation unless there was adequate participation by the bereaved. The extent of the participation required by Article 2 has never been the subject of prescriptive rule in Strasbourg or national jurisprudence. The authorities are replete with the proposition that families should be involved to the extent necessary to safeguard their interests: (see, for example, paragraph 62 in Khan and paragraph 25 in Amin which refers to "an appropriate extent"). That tells the families the objectives without providing any standard against which their involvement may be measured. This absence of clear regulation is itself important; it provides flexibility. The more serious the potential violation of the state's substantive obligation, the greater the public anxiety which will be aroused and the greater the need for full involvement. But the requirements of full participation do not impose a requirement of cross -examination even in a public inquiry: (see paragraphs 40 to 41 in D).

There is an aspect of participation or involvement which, perhaps, seems to have been paid too little attention in the authorities. It is that aspect probably best exemplified in the process of truth and reconciliation hearings in South Africa or the process of restorative justice in which offenders meet their victims within the criminal process. The bereaved seek an independent full inquiry into the facts which led to the deaths. They may seek lessons to be taught for the future. They seek to find out who was responsible. In so doing, they must remember that neither at an inquest nor in a public inquiry may criminal or civil liability be determined: see Section 2 of the Inquiries Act 2005. They do seek some identification: faces, names, the real people whose anonymity cannot be hidden behind the facade of monolithic organisations. After all, if those individuals, whose actions or omissions might have saved life or contributed to death, fear that they may one day have to come face to face with those who suffer as a result of what they have done or failed to do, life may be protected in the future. This aspect of participation, the prospect of coming face to face with those responsible and seeing them questioned and, in that way, called to account was touched on in the case of Khan : (see in particular paragraphs 42 and 43).

It is said that the process of the inquiries which have already been undertaken satisfies the requirements of participation. On 7 March 2004 there was a meeting between bereaved families, the injured, the British Transport Police and the HSE in which presentations were made relating to the investigation and the stage which the different investigations had reached. On 7 December 2004 there was a meeting between the bereaved families, the Health and Safety Commission Board, the British Transport Police and other inspectors working on the crash, detailing what had been discovered about the causes of the derailment and maintenance systems and the auditing of maintenance systems. The bereaved had the opportunity to see the reports, but, as was only to be expected, they had not participated in the preparation of the reports and that itself is not a breach of any requirement under Article 2 for a state -instituted inquiry: (see paragraph 24 in D).

But the feature those reports lack is any aspect of what I have described as restorative justice. The bereaved have seen no one responsible; they have not heard anybody questioned or observed their response. If there was to be no inquest, if the possibility of criminal charges were not still alive, I would have rejected the submission that there had already been sufficient participation by the bereaved. But there is to be an inquest. There does remain the possibility of criminal charges. It is of vital importance to consider what that inquest will entail.

The Secretary of State has asserted that there will be what he calls "a full inquest". It is inconceivable that by that he meant anything less than an enhanced or Middleton -type inquest.

To use the adjective "full" in the context of this case on 8 December 2005, over one month after these judicial review proceedings were launched on 26 October 2005, to indicate something less than an enhanced inquest would be misleading. I cannot accept that in so sensitive a case the Secretary of State would mislead the bereaved, even inadvertently. That that is what the Secretary of State means also follows from the appointment of a senior High Court Judge, both experienced and respected in rail transport, to act as deputy coroner. It is not to be credited that there should be such a waste of a valuable judicial resource on a less than enhanced inquest. That that is what is intended is also confirmed by Mr Burrows' reference to the power of the coroner to make a report by his reference to Middleton: (see paragraph 167 of his witness statement).

Both sides have accepted that the coroner has power to appoint counsel to assist the inquisition. I have already referred to the power to obtain advanced disclosure. The Secretary of State has already agreed to fund the inquest and will receive representations as to funding for both presence and representation. Those are matters for him, but it is difficult to see how full participation, without meeting all the reasonable requests, particularly from those travelling from abroad. This court cannot dictate what witnesses the coroner calls or what cross -examination he permits, but nor could it do so in the case of a public inquiry: (see D). It is right to point out that there is freedom to make submissions on the facts at a public inquiry, but those attending an inquest are entitled to make submissions of law in particular as to how the deputy coroner should direct the jury, the form of the questionnaire and as to recommendations pursuant to Rule 43. Such submissions would merely be beating the wind unless they were founded on the facts of the instant inquiry.

The use the coroner makes of existing reports will be for him but he is bound to consider them. There will be ample opportunity for those representing the parties to raise the questions which they seek to raise, to challenge or reinforce the findings or recommendations already made. I must stress again that it is not for this court to dictate in advance how the deputy coroner conducts the inquest. But I can discern no basis for being able to predict in advance that it will fail to meet those requirements which Article 2 imposes in cases where a state is required to institute an investigation. I emphasise the words "in advance". Unlike most of the cases cited, these proceedings are brought before the renewed inquest has taken place: (contrast Taskoushis or Scoles or cases such as D where no inquest is possible). In Khan no decision had been taken whether to order an inquest or a public inquiry. The court was far from suggesting an inquest was not appropriate: (see paragraphs 100 and 101).

Mr Hendy QC suggests a number of unanswered questions, central to which is how a system permitted a type of switch point to be introduced without a proper manual of installation and maintenance and how that lack was continued for about nine years. There is no justification whatever for thinking that such questions will not be answered by the time of the conclusion of the renewed hearing of the inquest, coupled with the investigation which has already taken place. Mr Hendy QC has asked a number of other questions, but none of them seem to be incapable of resolution by the full inquest promised.

I must also observe that the Secretary of State has assured the bereaved in his decision letter that should the inquest prove to be less than full he may still consider ordering a public inquiry: (see the third paragraph of that letter).

I conclude therefore that it is unnecessary to resolve the legal question whether Article 2 imposes a requirement in this case on the state to institute an investigation or the subsidiary questions relating to the involvement of state agents in this appalling tragedy. The inquest, in combination with the investigations already undertaken, will meet all that Article 2 requires even in its most rigorous application. But at least these proceedings - which apparently required the production of seven volumes and more than 22 authorities - may have brought some measure of assurance to those who have been bereaved that the failure to protect those whom they loved will be properly investigated with their full participation.

MISS CARSS -FRISK: My Lord, we would suggest no order as to costs. There are three small factual matters: I think you suggested that Network Rail took over from Railtrack in October 2000, it was October 2002.

LORD JUSTICE MOSES: I will note that for when I correct the transcript.

MISS CARSS -FRISK: I think you may have said that it was the RSSB that took over from the HSE - I may be wrong about that - but it was the ORR that took over, the Office of Rail Regulation.

LORD JUSTICE MOSES: Yes.

MISS CARSS -FRISK: Finally as to funding for representation at the inquest, that is for the Lord Chancellor as opposed to the Secretary of State.

LORD JUSTICE MOSES: I will alter that, but he does not exist anymore.

MISS CARSS -FRISK: Someone in a similar capacity.

LORD JUSTICE MOSES: You mean the Department of Constitutional Affairs.

MR THOMAS: Mr Lord, I say nothing as to costs. In relation to the claimants they are publicly funded. I would ask for the usual order for the parties.

LORD JUSTICE MOSES: I shall certainly make that, thank you.

MISS CARSS -FRISK: We are extremely grateful to your Lordship for dealing with this.