R (Lin and Others) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES |
| Judgment Date | 31 July 2006 |
| Neutral Citation | [2006] EWHC 2575 (Admin) |
| Docket Number | CO/8577/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2006 |
[2006] EWHC 2575 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Moses
CO/8577/2005
MR JOHN HENDY QC and MR LESLIE THOMAS appeared on behalf of the Claimants
MISS MONICA CARSS -FRISK QC and MISS CATHERINE CALLAGHAN appeared on behalf of the DEFENDANT
MR ROBERT WEEKES appeared on behalf of Interested Party Jarvis Rail Ltd
MR CLIVE FLETCHER -WOOD appeared on behalf of Interested Party West Anglia and Great Northern
MR PRASHANT POPAT appeared on behalf of Interested Party Network Rail
MR J EADIE appeared on behalf Interested Parties Office of Rail Regulator and Health and Safety Executive
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...
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