Merseyrail Guard on Trial (Report now out)

[radamfi]

I'm used to be quite critical of how much some rail staff get paid and their attitude to industrial relations. However, there's no way I would do a job that could possibly get me put in jail for a mistake for the amount of money that guards get.

 

[ANorthernGuard]

Was he guilty? Yes
Was the sentence too long (IMHO) certainly
Will this change the way I do my job? No
I will carry on doing the doors etc. the way Northerns procedures state. Like we should be doing anyway!

 

[Nick W]

He was convicted (IMO) because he wasn't quick enough to halt the dispatch process. And if I'd have been on the jury, based on the RAIB I'd have had to go for a guilty verdict myself. I do have issues with the sentence handed down, and the comments of the mother of the dead girl, but the conviction (IMO) must stand.

But, as you say, if he'd followed the official dispatch procedure in force at the time, he'd not have seen the deceased move back to the train, and (IMO) could not have been found guilty. Perverse it may be, but in not following procedure, he was in a position to have prevented the tragedy. And unfortunately he didn't.

I'd agree. I don't understand the sentence at all. It fails in retribution because the guard has already suffered from what he has seen. It fails in protection because the guard isn't a danger to society - in fact I suspect that were he to work a shift tomorrow, he'd be one of the safest guards as he'll know better than anyone else the danger of complacency. It fails as a deterrent, because the lesson is that to avoid prosecution you should do the minimum required under your training to ensure safety.

My theory is that judges will give low sentences when they can see themselves being convicted for a similar crime and harsher ones when they can't see themselves in the person's shoes. When cycling, I'd estimate that over 50% of drivers are reckless. Therefore, I'd examine judges have a high chance of regularly undertaking reckless on the road. What a surprise that road offences yield such a low sentence.

 

[transmanche]

My theory is that judges will give low sentences when they can see themselves being convicted for a similar crime and harsher ones when they can't see themselves in the person's shoes. When cycling, I'd estimate that over 50% of drivers are reckless. Therefore, I'd examine judges have a high chance of regularly undertaking reckless on the road. What a surprise that road offences yield such a low sentence.

I take your point. However (with a risk of going over old ground) there is a difference in that in this case the guard was charged with manslaughter; cases on the road which result in a death would generally lead to the lesser charges of causing death by dangerous/careless driving.

 

[Ferret]

I take your point. However (with a risk of going over old ground) there is a difference in that in this case the guard was charged with manslaughter; cases on the road which result in a death would generally lead to the lesser charges of causing death by dangerous/careless driving.

Agreed. But, is that right? Is causing death by dangerous driving tantamount to manslaughter? Discuss!

 

[radamfi]

Agreed. But, is that right? Is causing death by dangerous driving tantamount to manslaughter? Discuss!

I would say it is, but perhaps the reason for the lesser sentence is that you are not doing a job at the time.

 

[Train jaune]

Its a question of was someones behavior so reckless as to put someones life at risk or was it just a mistake. The jury in this case obviously thought that this went beyond a mistake and accident into recklessness without due regard for someones safety

 

[Ferret]

I would say it is, but perhaps the reason for the lesser sentence is that you are not doing a job at the time.

I don't see the job part as relevant. Far more people end up dead on the roads after all - and both a train and a car are lethal if not treated with due respect. The parallels are there when you think about it! Still, again, other opinions aren't necessarily wrong!

 

[Nick W]

Agreed. But, is that right? Is causing death by dangerous driving tantamount to manslaughter? Discuss!

Good question, or rather is it "manslaughter by gross negligence"? Difficult as I think it comes down to what "gross negligence" is.

One "experiment" I do is that where it's my right of way when I'm cycling, but a car attempts to barge through coming the other way and expect me to move to the curve, I will hold my position until fear of death/injury kicks in. I think out of maybe 100 times, only once did the car stop.

I wonder if, had I not moved and was subsequently killed, it could be deemed the same offence as the car driver had a "clear view" and yet made no attempt to brake on an assumption that I would move.

This is off topic, I know, but very interesting.

I would say it is, but perhaps the reason for the lesser sentence is that you are not doing a job at the time.

Do you have more of a duty of care to others whose lives are in your hands just because you're receiving money for your actions? Surely not!

 

[Requeststop]

Reading this sad and tragic incident from abroad, leaves me thinking a number of things. Uppermost is the pressures now put upon staff to keep to times and timetables.

In a rural situation which is one I am more familiar with, the odd minute delay here and there does not seem to matter, but in a more intense urban or mainline situation where 10-16tpm's are required on sections of line, the pressure's on train staff are undoubtedly more intense. Add to this the demand for "driverless" trains, cutting of platform staff etc, the likelihood of further incidents like this seem sadly to be inevitable.

Regarding this incident on Merseyrail, my thoughts go out to not only the families and friends of the deceased, but to the staff of Merseyrail and the guard/conductor. I think it was an aweful position to end up in for them.

 

[radamfi]

Do you have more of a duty of care to others whose lives are in your hands just because you're receiving money for your actions? Surely not!

I would personally replace death with dangerous driving with manslaughter. However, I bet the motoring lobby would make the excuse I mentioned.

 

[Captain Chaos]

I would personally replace death with dangerous driving with manslaughter. However, I bet the motoring lobby would make the excuse I mentioned.

So in theory they would be saying that Taxi Drivers would be IF they have a fare paying passenger inside the vehicle but wouldn't be if they didn't? That would be a crazy stance for them to take!

Personally I believe there should be a new law of Manslaughter through Dangerous Driving.

 

[transmanche]

Do you have more of a duty of care to others whose lives are in your hands just because you're receiving money for your actions? Surely not!

Apparently you can. (I was intrigued, so I looked it up.) According to the CPS; "The duty [of care] can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37)."

(In R v Pittwood, the defendant was put under a duty to act on account of being contractually obliged to close the gates at a railway crossing.)

 

[arabianights]

Just shows how peverse the legal system is.

All this prosecution has acheived is vengence*. Nothing else.

Unnecessarily ruining a man and his family's lives so as to satisfy in part some sub human instincts.

Meanwhile the RAIB report will hopefully do some actual good.

 

[GB]

I would personally replace death with dangerous driving with manslaughter. However, I bet the motoring lobby would make the excuse I mentioned.

Its ludicrous that there is such a difference in sentencing guidelines between manslaughter and death by dangerous driving. As someone who drives both socially and as part of my job I would support a change.

 

[Matt Taylor]

The unfortunate reality is that the delay minutes will not add up because some guards have not looked in depth at what really happened in this incident whilst others barely know that it even happened. Only a small minority will take heed of the lessons to be learnt and apply extra caution when required.

It is interesting to see the way that concerns are being raised at the increasing numbers of platform interface incidents, sadly I can only see this getting even worse if the McNulty report is implemented even in part. The withdrawal of platform staff at many locations can only be regarded as a victory for profit over safety.

Finally for now (0330 book on tomorrow!) I think we can all agree that McGee gave two on the bells while the girl was leaning against the train and that although (IMO) that is not what killed her it is certainly the reason he is now behind bars.

 

[Nick W]

Apparently you can. (I was intrigued, so I looked it up.) According to the CPS; "The duty [of care] can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37)."

(In R v Pittwood, the defendant was put under a duty to act on account of being contractually obliged to close the gates at a railway crossing.)

That makes sense - applying it to the guard's situation. If an off-duty guard had been able to see the young woman leading on the train and failure to pull the passcom, they would not have failed in a duty of care.

However in the case of driving, surely the duty of care comes from being the operator of a dangerous instrument, not being "employed to look out for the safety of other road users" .

 

[arabianights]

As a motorist I would be fine with deaths caused by dangerous driving treated as manslaughter - but a quid pro quo let's get rid of the silly death by careless driving law. By a strict legal definition of careless driving, every single driver is a careless driver at some point. It's therefore once again vengance - why should it make any difference to the punishment that you have killed someone? Vengence and retribution, both concepts that we should remove from the legal system at once.

On the other hand dangerous driving is by definition extremely reckless conduct and causing death by your reckless conduct is manslaughter by any other name - no reason for there to be a seperate driving offence really. I suspect one reason it is seperate is so they can give you a driving ban, which you probably can't get for manslaughter.

 

[radamfi]

http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/death_by_dangerous_driving

Says that death by dangerous driving can carry a sentence of 7-14 years. How often do you hear of a sentence that long?

 

[Roverman]

I overheard an LM guard discussing this with a VT staff member at Stafford and they were saying that the Union was reviewing everything in the wake of this and they would not be surprised if the Union pushes for 'danger' money whatever this means.

 

[LNW-GW Joint]

A sad case with lots to mull over in the RAIB report.
There's a lot about "the gap" of 300mm in this case, and how to reduce it - building out the platform or train etc.
Plus some pictures of older stock which do a safer job.
There is no criticism anywhere of the current infrastructure or stock, which comply with standards, but it is obvious that there is a "gap" risk.
With a dedicated fleet like Merseyrail's you might have expected recommendations to reduce this risk, at the busiest stations at least.
507/8s are old trains. It would be interesting to know if things would have been any different had the guard been operating a brand new 377 or similar.

James St Platform 1 is currently closed for refurbishment.
I wonder if it will look any different, from a safety point of view, when it comes into service again in a few weeks.

 

[Ediswan]

Do you have more of a duty of care to others whose lives are in your hands just because you're receiving money for your actions? Surely not!

It seems you do.

Take assumed-risk sports such as white water kayaking. Occasionally there is a fatal incident. The police will ask questions, in particular whether anybody was being paid to act as a guide, instructor etc. If so, they carry on asking questions. If it was 'a group of friends', with nobody being paid, the police rarely show further interest.

 

[Flamingo]

I can see there being lots of delays due to emergency stops during arrival and dispatch, and all the related nausea with not having the train fully platformed.

 

[AlexS]

I overheard an LM guard discussing this with a VT staff member at Stafford and they were saying that the Union was reviewing everything in the wake of this and they would not be surprised if the Union pushes for 'danger' money whatever this means.

Certainly train dispatch is and may become a bit of a hot potato relations-wise at present - sitting entirely on the fence regarding the merits or otherwise, but stating a fact, all RMT guards, platform staff and retail staff at East Midlands Trains are being balloted for industrial action short of a strike regarding the expansion of self dispatch of trains by guards within the company.

 

[Phil6219]

Finally for now (0330 book on tomorrow!) I think we can all agree that McGee gave two on the bells while the girl was leaning against the train and that although (IMO) that is not what killed her it is certainly the reason he is now behind bars.

Yes, that is exactly it. While I believe that this whole debacle is the wrong thing to do at the end of the day all the prosecution were concerned about was did he give a 2-bell whilst she was in contact with the train. He did and therefore was found guilty. The court is not interested in the circumstances leading up to it, and sadly the way the legal system is in this country the jury does not comprise of people who understand that situation as they don't come from that background.

When it comes to a prosecution such as this one, the jury should be made up from people who have either an operational knowledge or a clear understanding/expertise of the industry. Lawyers explain only what they want to (I shall leave it there as I really can't stand lawyers).

I overheard an LM guard discussing this with a VT staff member at Stafford and they were saying that the Union was reviewing everything in the wake of this and they would not be surprised if the Union pushes for 'danger' money whatever this means.

Well in the usual sense "Danger Money" is given when there is a risk to the employee, for instance the guys who put out/collect traffic cones on live motorways get paid a bit more because of the risk of injury. Some airlines have in the past offered danger money to crews who volunteer to work on flights which carry a hazard (think transporting troops to near warzones, or a certain DHL freight run to Iraq - the airline can not force them to take that risk, a little cash rewards the volunteers for choosing to work that flight). Perhaps in this sense there is a risk of prosecution for making a mistake (no argument, a mistake not an act of willful negligence) and the unions will press for a bit of money to accompany that risk.

Frankly I find it rather absurd, it is the wrong way to fight the system and if anything will only help the TOC's in getting DOO.

If there was platform dispatch staff at the majority of stations then this kind of thing will almost be eradicated (of course lines need to be drawn, Denton station for example is hardly going to need staff for the one train per week).

On the subject of risk, everything we do involves risk. The risk itself is a variable, it could be death/serious injury to a minor inconvenience. The key is to reduce the top extremes of risk as much as possible, I don't have my health and safety at work act 1978 to hand but the phrase "As reasonably practicable" is in there, but Merseyrail realised that one way to reduce a risk to passengers is to allow the guard to leave his/her local door open so the guard could have an unobstructed view of the train departing. This has reduced the risk to passengers, not to the guard though as it has increased it considerably (I'm sure a simple clip on strap over the exterior handles could be a nifty addition).

One thing I was told many years ago was that the more you undertake the same journey, the more the likelihood that an accident will happen. The advice we were given was to be careful, extra vigilant but always expect and prepare for the worst.

Phil

 

[Roverman]

Excellent reply Phil6219 in particular this;

One thing I was told many years ago was that the more you undertake the same journey, the more the likelihood that an accident will happen. The advice we were given was to be careful, extra vigilant but always expect and prepare for the worst.

The same definitely applies to roads.

 

[radamfi]

Well in the usual sense "Danger Money" is given when there is a risk to the employee, for instance the guys who put out/collect traffic cones on live motorways get paid a bit more because of the risk of injury. Some airlines have in the past offered danger money to crews who volunteer to work on flights which carry a hazard (think transporting troops to near warzones, or a certain DHL freight run to Iraq - the airline can not force them to take that risk, a little cash rewards the volunteers for choosing to work that flight).

Those activities carry a risk of death. Being thrown in jail for a number of years, getting a criminal record and having a lifetime of guilt is arguably worse than death.

 

[Nick W]

This convictions makes me ask how many other railway workers have been convicted of manslaughter?

All I can think of is the signalman involved in Quintinshill - 18 months in jail for the deaths of 230 people and the driver involved in the Purley station railway crash, convicted and jailed for 12 months, later reduced for 4 for the deaths of 5 people (a conviction which was later overturned).

In both cases the sentences seem much more reasonable than the one given in this case.

 

[transmanche]

This convictions makes me ask how many other railway workers have been convicted of manslaughter?

Pittwood (as mentioned in post #43) was a railway employee and convicted of manslaughter.

 

[Nick W]

Pittwood (as mentioned in post #43) was a railway employee and convicted of manslaughter.

He forgot to close a gate he had opened leading to one death and one serious injury, after which he was left to rot in jail for a whopping three weeks...