At the start of the trial of Great Western Trains (GWT) on charges of Corporate Manslaughter a judge has told the Crown Prosecution Service that it would be unsafe to proceed with the prosecution. The Judge, Mr Justice Scott-Baker gave the ruling at the Old Bailey yesterday, 31 June 1999.
The charge was that on the 19th September 1997 Great Western Trains (GWT) was negligent in ensuring that 1A47 the 10.32 Swansea to London (Paddington) train was safe to place into service thereby causing the death of 7 passengers in collision with a freight train at Southall, Middlesex. This constitutes Corporate Manslaughter.
GWT have entered pleas of not guilty.
The issues are that GWT knowingly permitted the train to continue in service with the ATP system inoperative and the AWS isolated and that knowing the risks took no steps to mitigate the circumstances.
The case had been delayed by the Crown Prosecutor seeking a ruling from the Judge on the options by which the prosecution would proceed.
In lengthy ruling lasting over one hour the Judge reviewed the precedents and set out his conclusions based on the interpretation of law and the evidence submitted.
He started by pointing out that this case was separate from that of the driver who has been charged on 7 counts with manslaughter and who has also pleaded Not Guilty to the charges. The case is also separate from any charges brought by the HSE against GWT or the driver for negligence under the Heath and Safety At Work Act.
He reviewed the important differences between Civil and Criminal charges. In a civil charge the important issue is the damage caused to the plaintiff and whether the accused was negligent. The degree of negligence is not important.
For Criminal charges the degree of negligence is all important and the extent of the damages less so. The results of either can be an unlimited fine but the latter carries a stigma and can, under some circumstances, lead to imprisonment.
Thus if the prosecution under criminal law is to proceed, the extent to which GWT was negligent, if at all is the matter for careful consideration.
There has been few precedents for prosecution of a corporate body for manslaughter. In 1991 the Crown Vs P&O Ferries prosecution in relation to the sinking of the Herald of Free Enterprise, the Judge instructed the jury to dismiss the case on the grounds that no single individual on the Board could be identified as the "directing mind" for the decisions concerning the safety of the ship. The sinking was a combination of errors both in management and in operation which collectively led to the disaster. The Judge ruled in this case
"Since the end of the 19th century the 'Corporation' has penetrated private lives to an unprecedented level. This means they have social duties to the public which can be interpreted as the 'directing mind'. If it can be established the extent to which this 'directing mind' is responsible for the an event which results in a death then Unlawful Killing or Corporate Manslaughter will stand"
In the case of the P&O case no such evidence was forthcoming and the prosecution failed.
The case of the Crown Vs Lyme Bay School the prosecution was successful but the business was owned and operated by a single individual and the 'directing mind' was therefore, easy to identify.
The Judge gave a long list of other corporate prosecutions all of which had failed. The rulings by the learned Judges all pointed to weaknesses in the identification of the 'entity' which is to be prosecuted. Some of these are set out below:
"A body corporate can neither take or discharge responsibility other than through its servants"
"Corporation is a aberration with nether body or head and can only be pursued through an individual"
"When a limited company is an employer it expects those employees to demonstrate judgement, decision making and risk evaluation – a corporation has none of those attributes for reasoning and hence cannot be held responsible"
In light of these precedents and rulings there are only three possible avenues for the prosecution,
(a) Prosecution on all counts on the failure of the duty to ensure the safety of the 7 passengers
In respect of (b) Judge Scott Baker identified Mr. Richard George, managing Director of GWT as that person.
(b) Identification of a senior individual in GWT who was considered to be the 'directing mind' and who was considered to negligent
(c) Identification of more than one individual in GWT who were considered to collectively form the 'directing mind' and who were negligent
Before ruling on these avenues Judge Scott Baker said that accidents are rarely caused by a single event but by a combination a number of events each one of possibly a minor nature which act cumulatively. This leads one to consider that negligence can be aggregated. In the case of the Herald of Free Enterprise the obvious aggregation of both operating and systematic failures was considered unsafe as it was not possible to attribute all to individuals. Those that were would not, on there own, have cause the sinking. He wish to discuss aggregation later.
In the case of the Southall Accident the failure was one of system. GWT failed to abide by the undertakings set out in its Safety Case. This acts does not alone constitute a case for a Criminal Prosecution only if gross negligence on behalf of identified individuals can be established.
Based on the evidence submitted the Judge was not able to see clearly how the prosecution could prove gross negligence on count (a). For this to sustained the risk would need to have been obvious and taken with full knowledge of the consequences. No one could foresee that a freight would be crossing the path of the passenger. He therefore considered that option (a) was unsafe.
In the case of option (b) it is important to establish the extent to which Mr George was the "directing mind". It is important to prove that he was directly responsible for the system of working and the prosecution must establish that the risk would be obvious to that person. Finding our that he is the Managing Director does not automatically bestow a duty of care. It is important to establish if he ordered a tort and whether he knew it was tortous. In the case of (b) the prosecution has not made this clear and so this too is unsafe.
In the case of ( c) the case cannot proceed against individuals who are not named. Even if they were, we are back to aggregation of actions which in itself is not always found. The difficulty with aggregation is the unpredicted probability of the combination of minor events which cannot be foreseen and therefore knowledge of cause and events cannot be proved. This too is unsafe.
Judge Scott Baker went on to say:
"Judges interpret the law. Parliament makes the laws which we interpret. Following the Herald of Free Enterprise Disaster the Law Commission issued report 237 on the strengthening of the laws concerning corporate responsibility. The recommendations were that the laws concerning corporate negligence should be strengthened and addressed by Parliament. This request has gone unheeded for more than 3 years. Until the laws are changed Judges hands are tied."
In light of the precedents and conclusions the Judge found that to proceed with the prosecution as it stands was unsafe.
The prosecution was asked to respond.
The prosecution council thanked the Judge for his thorough analysis. He said that the Crown prosecutor would wish to consider his position and asked for an adjournment until 12.00 Friday 2nd July 1999. In addition, a medical report was now available which would effect the decision to proceed but the nature of this could not be disclosed at this time. This too would be presented on Friday. In addition, 5 other expert reports were due to be tabled.
An adjournment was agreed. Should the trial continue this will be on Monday the 5th July.
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