R v Balfour Beatty Rail Infrastructure Services Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 05 July 2006 |
| Neutral Citation | [2006] EWCA Crim 1586 |
| Docket Number | Case No: 2005/05828 A2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 July 2006 |
[2006] EWCA Crim 1586
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIGH COURT (QUEEN'S BENCH DIVISION)
CENTRAL CRIMINAL COURT
MR JUSTICE MACKAY
[2005] EWHC 248 QB
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
Mr Justice Nelson and
Mr Justice Silber
Case No: 2005/05828 A2
R Lissack QC, G Bebb QC & S Climie for the Prosecution
J Caplan QC & G Forlin (who did not appear in the Court below), & F Canby & T Sharpe for the Appellant
Lord Phillips CJ:
On 18 July 2005 in the Central Criminal Court, on re-arraignment on the 93 rd day of the trial, the applicant, 'Balfour Beatty', pleaded guilty to failing to discharge the duty as an employer, under section 3(1) of the Health and Safety at Work Act 1974 ('the 1974 Act'), to persons not in its employment in breach of section 33 of that Act. The breach of duty in question was a cause of the Hatfield rail disaster on 17 October 2000, in which 102 passengers were injured and 4 lost their lives.
On 7 October 2005 the trial judge, Mackay J, sentenced Balfour Beatty to a fine of £10 million and ordered it to pay £300,000 towards the prosecution costs. The Registrar referred to us Balfour Beatty's application to appeal against the amount of the fine imposed. We grant that application.
The facts in outline
At about 12:23 on 17 October 2000 a GNER train, bound from London to Leeds, was rounding a bend between Welham Green and Hatfield stations at 115 miles per hour when two sections of the track disintegrated and the train was derailed, causing the casualties that we have already described. The track failed as a result of brittle fractures, initiated by gauge corner cracking ('GCC'). The gauge corner is part of the curved portion of the railhead and GCC results from rolling contact fatigue.
All the infrastructure of the UK rail network, including the track, was owned by Railtrack PLC ('Railtrack'). Railtrack recognised that it had primary responsibility for the safety of the track. It sought to ensure that the track was safe by contracting with infrastructure maintenance companies ('IMCs') and track renewal companies ('TRCs'). At least three different contractors shared the functions necessary to keep the track safe. Balfour Beatty was responsible for inspecting the track. A second company, 'Serco', was responsible for grinding the rails in order to remove superficial GCC and a third company 'Jarvis' was responsible for replacing rails where this was necessary. Balfour Beatty's fault lay in failing adequately to inspect the track and further failing to appreciate from the results of inspections that were carried out that these called for action. The most relevant action that Balfour Beatty should have taken, but failed to take, was to impose a speed restriction on the stretch of track where the accident occurred.
The course of the trial
The indictment as originally framed ran to 54 counts. Balfour Beatty and Network Rail Infrastructure Limited, as successors to Railtrack, were the two corporate defendants. We shall follow the example of the judge by referring to the latter defendant as 'Railtrack'. There were 12 individual defendants, being employees of either Railtrack or Balfour Beatty. Each company was charged with corporate manslaughter of the four passengers who died. Four of Railtrack's engineers and two of Balfour Beatty's employees were charged with manslaughter. These charges against employees formed the basis of the charges of corporate manslaughter. A count of breach of section 3 of the 1974 Act was brought against each of the corporate defendants and individual defendants were charged with consenting to or conniving in these breaches.
On 1 September 2004, before the start of the trial, a number of charges were dismissed, including all charges of corporate manslaughter against Railtrack. At the end of the prosecution case, on 14 July 2005, the judge ruled that there was no case to answer in respect of all the remaining charges of manslaughter. There remained outstanding the counts alleging breaches of the duties imposed by section 3 of the 1974 Act. On 18 July Balfour Beatty pleaded guilty to the count that it faced, on a basis, set out in writing, that we can summarise as follows:
i) The deaths were an aggravating feature of the offence.
ii) Balfour Beatty's faults were only some of an aggregation of causes that led to the derailment.
iii) Balfour Beatty failed to ensure that visual inspections of the track were carried out from the appropriate vantage point.
iv) Balfour Beatty failed to respond appropriately to information in reports of ultrasonic inspections.
The basis of plea ended with the following statement:
"6. For the avoidance of doubt the plea above is made on the basis that:
i. there was no failure to comply with Railtrack mandated standards; and that no guidance was made available to maintenance contractors as to when rail affected by GCC should be removed or subject to speed restriction by reference to its measurement on visual inspection, albeit such guidance was made available after the derailment; and
ii. there was not in place an adequate grinding regime for the management of GCC; and that if re-railing had taken place as planned there would have been no derailment; that re-railing had been scheduled as a priority; and that parties other than BBRISL were wholly responsible for the carrying out of scheduled re-railing and for the failure to re-rail by the date of the derailment."
The basis of plea was not accepted by the prosecution.
Railtrack and the Railtrack employees continued to contest the counts alleging that they had breached the 1974 Act. The particulars of these breaches alleged little more than that they had failed to ensure that Balfour Beatty performed their duties under the Act.
On 6 September Railtrack was found guilty by the jury of breach of duty under section 3 of the 1974 Act. The individual defendants were acquitted.
The facts in more detail
GCC does not, of itself, necessarily make a rail unsafe. Initially it will be superficial. Superficial GCC can present a barrier to ultrasonic testing, so that the reading displays 'loss of rail bottom' or LORB. It can also grow to the extent that it develops into, or initiates, fatigue cracks, which can lead to failure of the rail. Periodic grinding of the rails, which removes a microscopic top layer, can remove GCC, thereby permitting effective ultrasonic testing and removing, or reducing, the risk of fatigue cracks.
Balfour Beatty entered into a seven year contract with Railtrack for a consideration of £368 million under which it undertook, among other duties, that of inspecting some 330 miles of track between London and Berwick-on-Tweed. In his sentencing remarks the judge found that the manner in which Balfour Beatty carried out its duties accorded neither with proper practice nor with the standards laid down by Railtrack. These findings were, to a degree, inconsistent with Balfour Beatty's basis of plea. After a trial lasting 93 days the judge was well placed to make his own findings in relation to Balfour Beatty's breaches of duty and entitled so to do.
The judge found that there were failings in each of three levels of the regime that should have been maintained for visual inspection of the track. The first level was a weekly visual inspection that had to be carried out by trackmen to inspect every yard of track against a specified list of defects, which included GCC. The stretch where the derailment occurred was on a curve. Trees bordering the track masked the approach of a train to the extent that there was only 4 seconds warning of this. For this reason, those carrying out the weekly inspections would walk at the stretch in question along the outside of the track, known as 'the cess', rather than within the rails. From the cess it was impossible to see anything of the head of the rail. The judge found that one at least of those who inspected in this way was aware that "what he was doing was useless and possibly dangerous".
The judge rejected Balfour Beatty's contention that this deficiency in inspection was a local failing, commenting "if senior management did not know they certainly should have done. This indicates a total vacuum of management in this important area and of supervision of the actions of the Hitchin team".
The next level of visual inspection should have been carried out by a route section manager ('RSM') once every eight weeks. The RSM responsible for this did not carry out any such inspection for the period of five and a half months that preceded the derailment, although after this had occurred he forged a report, falsely recording that he had carried out a track walk on 18 September 2000. His predecessor had done two track walks and reported adversely on the condition of the track on each occasion.
The third level of inspection was a biennial walk, carried out by a track engineer, on 18 August 2000. He walked mainly in the cess and noticed nothing amiss. The judge did not find this surprising as his principal concern would have been for his own safety in the face of having only 4 seconds warning of approaching trains.
In a nutshell the visual inspections, which should have discovered the defective state of the track before it disintegrated, were very largely a useless formality, were known by those inspecting to be such and this state of affairs should have come to the attention of senior management.
We turn to the ultrasonic testing. This involved ultrasonic...
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