The Office of Rail Regulation ("ORR") announced yesterday that two companies face criminal proceedings for breaches of the Health and Safety at Work etc. Act 1974 ("HSWA"). The proceedings relate to the Potters Bar derailment which occurred on 10 May 2002 and which resulted in the deaths of six passengers and one pedestrian, leaving seventy others injured.

Network Rail Infrastructure Limited ("Network Rail") is facing a charge under section 3(1) of the HSWA that between 31 March 2001 and 11 May 2002 for allegedly failing, as infrastructure controller, to provide and implement suitable and sufficient training and standards, procedures and guidance for the installation, maintenance and inspection of suitable stretcher bar points. Adjustable stretcher bars keep the moveable section of the track at the correct width for the train's wheels. It is alleged that such failure meant that the company failed to conduct its undertaking in such a way to ensure that persons who were not in its employment but who may be affected thereby were not exposed to risks to their safety.

The infrastructure controller for the national rail network at the time of the incident was Railtrack plc (in administration). Railtrack plc was taken over by Network Rail in October 2002, and the legal liabilities of Railtrack plc were assumed by Network Rail at that time.
Jarvis Rail Limited ("Jarvis Rail"), in its capacity as infrastructure maintenance contractor responsible for a section of the national rail network at the time of the incident, faces identical charges under section 3(1) of the HSWA. The charges will be brought despite the fact that the company went into administration in March this year.

The Health and Safety Executive (HSE) report into the incident listed a number of faults which led to the crash, including loose nuts on the points and failure to uncover defects at earlier inspections. The HSE had set up an independent Investigation Board using its powers under section 14 of the HSWA, to oversee the investigation of the derailment. Responsibility for health and safety policy and enforcement on railways was transferred to the ORR on 1 April 2006 and the ORR is now leading the prosecution.

The announcement comes following an inquest into the incident, which took place in June and July of this year, at the end of which a jury returned seven verdicts of accidental death. Ian Prosser, Director of rail safety at ORR said that the conclusion of the inquest has allowed the ORR to make a decision as to whether any enforcement action should be taken in relation to the incident. Mr Prosser stated: "I have decided there is enough evidence, and it is in the public interest, to prosecute Network Rail and Jarvis Rail for serious health and safety breaches."
The decision to prosecute comes as a surprise to many after the Crown Prosecution Service (CPS) confirmed to the ORR last month that it saw no grounds on which to reconsider its October 2005 decision that there was no realistic prospect of conviction for an offence of gross negligence manslaughter against any individual or corporation in relation to the crash.

The proceedings are due to take place in January 2011 in Watford Magistrates Court, where the two companies face fines of up to £20,000. If the case is committed to the Crown Court, the companies could face unlimited fines.

Although it has taken eight years for proceedings to be announced, Bob Crow, general secretary of the Rail, Maritime and Transport Union, has commented that they are "better late than never". He also stated that the prosecution "sends out a clear warning to those currently responsible for rail maintenance, and the government, in this climate of cuts to transport budgets, that anyone caught playing fast and loose with rail safety can expect to feel the full force of the law." However it is questionable whether successful prosecution of the companies in this case will lead to satisfactory financial penalties and accountability being imposed on those actually responsible for health and safety at the time of the incident, given the passing of legal liability from Railtrack plc to Network Rail and the administration of Jarvis Limited.
 

We will monitor the progress of this case with interest.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 11/11/2010.