Sandilands Tram Crash - An Accident

[Tomnick]

The inquest and the RAIB found that it is most likely the driver fell asleep. You cannot mount a criminal defence against falling asleep while driving and killing several people by saying "well, the vehicle didn't know I was asleep and there should have been signs I might have seen even if I was asleep".

I am certain the tram driver did not do this deliberately and am sure he is a broken man. He still, however, should be in prison and is only at home because his crash happened on a part of the network which was not a public right of way. An accident of the law, which is an ass.

It's very disappointing the company isn't being held accountable for the failing you highlight, but I have a huge amount of sympathy for the families whose loved ones were simply deleted from existence by this crash. Nobody is being held accountable under the law. It is not a good outcome.

If I'm not mistaken, there was evidence of braking before reaching the curve, just too late - so we're not talking about a sudden, deep sleep, we're talking about a "microsleep" and subsequent loss of situational awareness, not regained until the last second. It's a risk that's quite widely acknowledged, certainly in the (heavy) rail industry if not the tram world. It's not difficult to lose situational awareness in a situation like that, a relatively long straight with few visual cues, and I have very little doubt that more prominent signs, warnings on the approach and a gradual reduction in permissible speed would all have made a difference.

It's not a good outcome at all, that no-one is being held accountable. I just really don't see what's to be gained, in terms of public interest, by sticking the driver in prison or imposing any sort of 'deterrent' punishment.

Almost certainly

I don’t believe in ‘sudden’ tiredness, of the level of falling asleep. A professional driver should be more aware of his fatigue level, have more coping strategies, and feel more responsibility.

If it’s an accident waiting to happen then the people most likely to notice that are the drivers. If it’s them at risk of going to prison they are more likely to refuse to accept that accident waiting to happen.
Making people responsible makes them think a bit more, even at the level of making people sign for something, let alone go to prison for it

If the driver did feel tired, it's easy to say that they should take more responsibility. How, though, does that work in practice, with potentially poor rostering practices and overbearing management who are more likely to respond to a driver declaring themselves too tired to drive with the threat of discipline than with a supportive approach? Even more so if drivers are routinely feeling tired because of the aforementioned rostering practices. After all, who can honestly say that they feel at their best when they're booking on for an 0400 or 0500 start?

 

[Meerkat]

Who's deciding? Does somebody need to be sent to jail first before they're really about safety...?

Don’t they usually take some extra pay and decide that makes it safe again?

If the driver did feel tired, it's easy to say that they should take more responsibility. How, though, does that work in practice, with potentially poor rostering practices and overbearing management who are more likely to respond to a driver declaring themselves too tired to drive with the threat of discipline than with a supportive approach? Even more so if drivers are routinely feeling tired because of the aforementioned rostering practices. After all, who can honestly say that they feel at their best when they're booking on for an 0400 or 0500 start?

That’s when deterrent is needed. The drivers will more likely refuse to risk prison, or catalogue raising the issue to make sure the management who ignored them end up in front of a judge.

 

[the sniper]

Don’t they usually take some extra pay and decide that makes it safe again?

Better jail a few more people, under your system, you'll make everyone else millionaires...

Going back to the original point, why aren't you prosecuting TfL instead if the objective would be to get more signs? As said, you've suggested a very roundabout way of achieving that.

 

[Journeyman]

If the driver did feel tired, it's easy to say that they should take more responsibility. How, though, does that work in practice, with potentially poor rostering practices and overbearing management who are more likely to respond to a driver declaring themselves too tired to drive with the threat of discipline than with a supportive approach? Even more so if drivers are routinely feeling tired because of the aforementioned rostering practices. After all, who can honestly say that they feel at their best when they're booking on for an 0400 or 0500 start?

Exactly. I've never driven, but I've done safety-critical work on stations and in control rooms where I've had significant decision-making responsibility. I've been up at three in the morning to start shifts, and can I, hand on heart, say I was always in a fit state to be at work? No, of course I can't. Thankfully nothing untoward ever happened on my watch where I made a significant error of judgement, but it could have done. However, if I'd bailed out every time I felt tired at the start of a shift, there would have regularly been stations with insufficient staff numbers to open, and a control room without anyone qualified to carry out a number of my employer's statutory obligations. What are you supposed to do under those circumstances?

It seems pretty clear to me that the driver hadn't behaved irresponsibly beforehand, and that the systems in place to prevent this accident were inadequate, so if anyone is to blame, it certainly isn't him. He's likely suffered enough, and as others have said, there's no gain to be had from locking him up with people who have done far worse. Also, if drivers suddenly face the risk of prison for errors of judgement which could be caused by any number of things beyond their control, I doubt you'll find vacancies very easy to fill.

 

[AlterEgo]

Would there have been a witch hunt against the Moorgate driver had he survived, and what purpose would this have served?

The amount of useful evidence it would have been possible to gather for or against the driver in that accident - including an interview with him - would have been vastly superior to the numerous inferences made during the investigation.

Had the driver been found not to have suffered a medical and been asleep, he would quite possibly have gone to jail. Medical episodes aside, it is his responsibility and his alone to ensure he is alert and capable to drive a train with 400 people on board and ensure he doesn't kill 40-odd of them. But this is pure speculation against a deceased man who cannot defend himself.

I do not expect to fall asleep on the motorway and cause a crash, but if that does happen - it is on me. And if I kill someone doing it I do not expect to tell the police "I didn't mean it, I was asleep at the time" and for them to say "okay, you look upset, no further action".

If I'm not mistaken, there was evidence of braking before reaching the curve, just too late - so we're not talking about a sudden, deep sleep, we're talking about a "microsleep" and subsequent loss of situational awareness, not regained until the last second. It's a risk that's quite widely acknowledged, certainly in the (heavy) rail industry if not the tram world. It's not difficult to lose situational awareness in a situation like that, a relatively long straight with few visual cues, and I have very little doubt that more prominent signs, warnings on the approach and a gradual reduction in permissible speed would all have made a difference.

That has happened to me twice before on motorways until I figured out I was very caffeine-sensitive. It is dangerous and you lose awareness quickly. One time I was snapped out of it by the rumble strips on the side of the carriageway - a sort of cue similar to the ones which don't appear to have existed at the time of the crash we're discussing here. I completely agree that the accident had a small chance of being prevented by some safety measures which were not installed for whatever reason, but that this does not excuse the driver's falling asleep nor provide any sort of defence against him doing so. The cause of the accident was the driver being asleep.

It's not a good outcome at all, that no-one is being held accountable. I just really don't see what's to be gained, in terms of public interest, by sticking the driver in prison or imposing any sort of 'deterrent' punishment.

There is no deterrence in punishing the driver but there is justice, a concept which has eluded many on this thread. The public interest is not simply "this is a dangerous man, lock him up", but had this happened on a street running section he'd be in prison now, and to be honest not many people would be defending a man who fell asleep and killed seven people under his care.

 

[Tomnick]

That’s when deterrent is needed. The drivers will more likely refuse to risk prison, or catalogue raising the issue to make sure the management who ignored them end up in front of a judge.

The risk of losing one's livelihood, mortgage etc., is a more pressing matter for most tram drivers, I imagine. The deterrent from reporting fatigue is the risk of being pushed down the disciplinary route by managers who are often seen as invincible, and ultimately losing that. That's even assuming that the driver recognised the signs of fatigue, as opposed to feeling okay whilst booking-on, chatting to other drivers, bringing the tram off the depot, keeping busy in a street-running section etc., then encountering a sudden drop in workload - "cognitive underload" is another one doing the rounds at the moment, for good reason too.

 

[bramling]

Almost certainly

I don’t believe in ‘sudden’ tiredness, of the level of falling asleep. A professional driver should be more aware of his fatigue level, have more coping strategies, and feel more responsibility.

If it’s an accident waiting to happen then the people most likely to notice that are the drivers. If it’s them at risk of going to prison they are more likely to refuse to accept that accident waiting to happen.
Making people responsible makes them think a bit more, even at the level of making people sign for something, let alone go to prison for it.

I’m afraid I can’t help but find parts of this quite incredible.

Sudden tiredness *is* an issue, a very big one in fact. As is more gradual fatigue, which is an occupational hazard of shift work. Reality is it simply isn’t always possible to have the perfect rest before a shift, especially a dead early one. Reality is also that even the better employers tend to go down the road of “are you fit for work - yes or no?”, with things very quickly being treated as an attendance issue. By the sound of it Tramlink’s processes certainly weren’t at the top of the tree on this.

I just don’t get the point about responsibility. In any transport setting the person on the front is perhaps the one most likely to come off worst in any incident. That exposure to real risk of harm is far more valuable than a signature on a piece of paper, which in most cases is more a mechanism for liability to be passed onto individuals should something happen.

So in the case of the Sandilands curve, we seem to be expecting drivers to envisage something no one else seems to have envisaged, and then somehow get the issue resolved at the same time. A chevron might be fairly cheap to install (but also probably ineffective at preventing this particular incident), but some kind of tram protection system much more expensive and complex. Not much point in having management if the drivers are going to have responsibility for everything.

 

[the sniper]

but had this happened on a street running section he'd be in prison now, and to be honest not many people would be defending a man who fell asleep and killed seven people under his care.

If it had happened on a street running section, signage, lighting and traffic calming measures may well have played a preventative role. Page 91 of the report indicates what would and could have been in place had it been a road.

The Driver a couple of weeks before seemingly just mistook his position in the tunnel(s) and missed the braking point, which resulted in the tram entering the corner at a speed at which it was likely close to tipping over.

Let's not forget that the report says a temporary loss of awareness was the likely cause, which possibly caused him to microsleep. "Although highly unlikely, an undetected medical reason for the driver’s loss of awareness, and disorientation, cannot be discounted."

There seem to be some very certain allegations being thrown about over somebody that the CPS wouldn't prosecute.

There is no deterrence in punishing the driver but there is justice, a concept which has eluded many on this thread. The public interest is not simply "this is a dangerous man, lock him up", but had this happened on a street running section he'd be in prison now, and to be honest not many people would be defending a man who fell asleep and killed seven people under his care.

Given all the various factors listed in the RAIB report and remedial action required to be undertaken, why does TfL get a free pass?

 

[Taunton]

I was querying your apparently baseless assertion that the people at Tramlink had no knowledge of tramway history. Jim Snowdon, who testified at the inquest as mentioned above, certainly seemed to, and assuming he's the same person who posts on RMWeb he still does.

Well if, despite their ostensible expertise in history, they were unable to bring to the project that a high speed approach to a right-angle turn driven wholly on sight had led to multiple fatal accidents in the past, one wonders what the value was of this additional knowledge.

 

[Ianno87]

Well if, despite their ostensible expertise in history, they were unable to bring to the project that a high speed approach to a right-angle turn driven wholly on sight had led to multiple fatal accidents in the past, one wonders what the value was of this additional knowledge.

Historical tramways were really not "high speed" (think Blackpool promenade). And things like braking capability and general crashworthiness have vastly improved since then.

High speed historical accidents tended to be caused by runaways down hills, etc.

 

[Meerkat]

Going back to the original point, why aren't you prosecuting TfL instead if the objective would be to get more signs? As said, you've suggested a very roundabout way of achieving that.

That would depend on whether they knew it was a risk and/or there is a good chance you could prove it was obviously a problem. Which would be easy if drivers, keen on covering their own backsides had demanded mitigations on the corner. Hearing that a driver nearly crashed there a couple of weeks before makes me wonder why a big fuss wasn’t caused at that point.

The risk of losing one's livelihood, mortgage etc., is a more pressing matter for most tram drivers, I imagine.

Exactly. There’s pressure to keep quiet - which is when you need a big threat to overcome that, like going to prison.

 

[Dai Corner]

That would depend on whether they knew it was a risk and/or there is a good chance you could prove it was obviously a problem. Which would be easy if drivers, keen on covering their own backsides had demanded mitigations on the corner. Hearing that a driver nearly crashed there a couple of weeks before makes me wonder why a big fuss wasn’t caused at that point.

Exactly. There’s pressure to keep quiet - which is when you need a big threat to overcome that, like going to prison.

If I was in that position I'd raise the issue through Trade Union channels.

 

[Meerkat]

If I was in that position I'd raise the issue through Trade Union channels.

You need that or anonymous reporting channels so that drivers can report risks without danger of getting their card marked.

 

[notadriver]

The top speed of croydon trams was reduced to 70 kph after the crash. Should the maximum speed be restored to 80 kph or lowered for all uk tram systems to 70 kph?

I can’t think of many situations where a uk city bus makes a brief 50 mph dash with a 15 mph tight bend at the end of the straight ?

 

[Ken H]

Going to go out on a limb here, but i reckon a segregated tramway is more akin to a railway than a street running tram. I dont think driving on sight is god enough, bearing in mind the different environment. So on segregated sections, some form of protection is warranted. Something that will stop the vehicle automatically if disregarded. I should be possible to devise some simple system. AWS or a underground type train stop would do it.

 

[ComUtoR]

Exactly. I've never driven, but I've done safety-critical work on stations and in control rooms where I've had significant decision-making responsibility. I've been up at three in the morning to start shifts, and can I, hand on heart, say I was always in a fit state to be at work? No, of course I can't. Thankfully nothing untoward ever happened on my watch where I made a significant error of judgement, but it could have done.

You got lucky, others don't. We ALL have a responsiblity to be fit for work. As a Driver I am required to 'sign' a 'statement of readiness' before I start work. Granted, a lot of the times I feel that it is specifically worded to pass the blame squarely on the Driver but it is an important document. We declare that we are 'fit to work'; even if we are fit from the start we may not be fit by the end of a shift but that still comes with a responsibility to take ourselves off if we do not feel ok to continue. I absolutley accept that issues can come on without us noticing.

However, if I'd bailed out every time I felt tired at the start of a shift, there would have regularly been stations with insufficient staff numbers to open, and a control room without anyone qualified to carry out a number of my employer's statutory obligations. What are you supposed to do under those circumstances?

We do our duty. That is to remove ourselves from duty if we do not feel fit. It is a huge failing, especially on the railway, that the default attitude is that people are pulling a sickie or trying to get out of work and that attitude has bred a culture where front line, safety critical workers, will push themselves into carrying on. Management attitude plays a heavy part in this too. The culture of MFAs (managing for attendance) and any form of 'sickness' being heavily penalised is something we need to get away from; not continue to support. The staffing issues are down to the employer. If they insist on continual cutbacks and running the rosters to the bare bones then there will always be consequences.

Fatigue is very real. As an example of how poor railway culture really is I'll let this sit in peoples minds.

My TOC introduced 'Fatigue reporting' forms to help Drivers report any issues. The immediate response from Management was that they were only forms to fill in to help provide evidence, not so you could get out of doing a turn. Other responses from Management were that they needed multiple reports before anyone could act because a single report wasn't enough and because 'nobody else had an issue' Any time off from fatigue issues - yep, on your record. Drivers who reported fatigue were sent for a medical because it was their problem and could lead to dismissal due to 'medical capabilities'. What happened was that a culture of fear was created and now pretty much the fatigue forms are gathering dust in the filing cabinet.

 

[ainsworth74]

Isn't the issue less that the driver isn't in prison (I would tend to agree that I'm not entirely sure it would achieve much but then it does rather seem like a slippery slope to advance the arguments given above) but more that he hasn't been put in trial for the results of his actions?

It would seem to me that a prosecution for involuntary manslaughter on the basis of either recklessness or more likely negligence would at least be a sustainable charge with prosecution and defence then able to put to a jury the various arguments which are being made here and then leaving them to determine whether they are sure of the defendants guilt (which is a high bar to pass). That would seem to me to allow for justice to both be done and to be seen to be done even if the outcome is that the driver is found not guilty. Rather than the simple platitude that the driver must (and I'm certain he must) feel horrible and no doubt spends much of his life wishing he had been able to do things just ever so slightly differently that morning meaning that there's no point even considering whether a prosecution is warranted.

Seven people are still dead. I don't necessarily advocate that seven people are dead and therefore someone should be in jail as a result but I do feel that when seven people are killed it would be a remarkable outcome if no-one is even prosecuted.

 

[MotCO]

1. If the driver found himself nodding off when driving, what could he effectively do? Stopping the tram and having a five minute walk or something is probably not practical. Could he adopt a standing position and drive standing up - it is more difficult to sleep standing up (although I have been known to do this while commuting!). Could he open a window or turn the heating off? Could he suck on a sweet or eat chewing gum to aid concentration etc? Are any of these (or other actions) ever discussed in training?

2. If it was decided to proscute the driver, most of the comments on here suggest prison would be the outcome; however it is not the only outcome. A suspended sentence, acquittal, or a fine are all other possible outcomes. If it did come to trial, there could be much in the way of mitigation. Others have questioned the risk assessment of the design of the track at that point. Ditto the lack of effective warning signs or automatic protection. If the management regime was not conducive to drivers raising real driving risks or concerns without fear of recrimination, then that is a flaw in the management system, not the fault of the driver. If there were not adequate checks, advice etc on tiredness, or if rotas were incompatible with good sleeping patterns, if training was poor (see note 1 above), again this is not the fault of the driver. So while some are advocating a prison sentence, I'm not sure that this would necessaily be the outcome of a trial.

3. If there was a trial, should there not be a corporate charge, for all the mitigation issues raised above?

 

[bramling]

Isn't the issue less that the driver isn't in prison (I would tend to agree that I'm not entirely sure it would achieve much but then it does rather seem like a slippery slope to advance the arguments given above) but more that he hasn't been put in trial for the results of his actions?

It would seem to me that a prosecution for involuntary manslaughter on the basis of either recklessness or more likely negligence would at least be a sustainable charge with prosecution and defence then able to put to a jury the various arguments which are being made here and then leaving them to determine whether they are sure of the defendants guilt (which is a high bar to pass). That would seem to me to allow for justice to both be done and to be seen to be done even if the outcome is that the driver is found not guilty. Rather than the simple platitude that the driver must (and I'm certain he must) feel horrible and no doubt spends much of his life wishing he had been able to do things just ever so slightly differently that morning meaning that there's no point even considering whether a prosecution is warranted.

Seven people are still dead. I don't necessarily advocate that seven people are dead and therefore someone should be in jail as a result but I do feel that when seven people are killed it would be a remarkable outcome if no-one is even prosecuted.

Very much agree with the last bit. It would indeed be quite remarkable for there to be nothing at all, even a fine at corporate level (though the problem with that is fining TFL is akin to fining the taxpayer, and there's a blur of responsibility between TFL and First Group).

 

[AlterEgo]

If it had happened on a street running section, signage, lighting and traffic calming measures may well have played a preventative role. Page 91 of the report indicates what would and could have been in place had it been a road.

The Driver a couple of weeks before seemingly just mistook his position in the tunnel(s) and missed the braking point, which resulted in the tram entering the corner at a speed at which it was likely close to tipping over.

Let's not forget that the report says a temporary loss of awareness was the likely cause, which possibly caused him to microsleep. "Although highly unlikely, an undetected medical reason for the driver’s loss of awareness, and disorientation, cannot be discounted."

There seem to be some very certain allegations being thrown about over somebody that the CPS wouldn't prosecute.

The reason the CPS did not prosecute for gross negligence manslaughter is that there is no evidence that evidential test would be met for gross negligence. He would have to have done something like be drunk, or been awake until 2am with a 5am book on time the next day, or have been wilful and callous. Nobody is alleging these things about the driver.

The reason the CPS did not prosecute for the expected offences of causing death by careless or dangerous driving is, according to their own press release, is

These offences, contrary to section 2 of the Road Traffic Act 1988, require proof that a mechanically propelled vehicle was driven dangerously or carelessly, on a road or public place, and that the way the vehicle was driven caused death.

The CPS was satisfied that the section of the tramline where the tram was being driven at the time of the incident was neither a road nor a public place, and that for this reason alone the offence cannot be proved.

He was not prosecuted for the offence of endangering the safety of a person on the railway because:

This offence, contrary to section 34 OAPA 1861, makes it an offence to endanger, or cause to be endangered, the safety of any person conveyed upon the railway by any unlawful act or wilful omission or neglect. The tramline on which the tram was being driven at the time of the incident is not a railway, and there is no parallel offence of endangering the safety of a person on a tramway. Nor was there evidence of unlawful or wilful conduct in this case.

The absolute, pure chance he fell into a lacuna in the law is why he is not prosecuted. He wasn't on a road or in a public place, nor was he technically on a railway. Else he'd be feeling the force of the law.

If you fall asleep at the controls of a train and crash it and kill seven people you're going to be arrested and put on trial. If you drive a bus and fall asleep and kill seven people, you get arrested and go on trial.

I am quite fed up of people sticking up for the driver when it is clear he has had the most extreme good fortune, both to survive the crash he caused and also to escape every legal consequence as a result. I maintain if he does this 200 yards further on and crashes in the street he goes to prison.

Given all the various factors listed in the RAIB report and remedial action required to be undertaken, why does TfL get a free pass?

Indeed, a situation equally as foul and unjust but this forum isn't populated with people who work as safety certificate holders for large companies. Because it's populated with train drivers and guards the focus is on why the poor driver in this case deserves our sympathy for being asleep. That was the proximal cause of the accident.

1. If the driver found himself nodding off when driving, what could he effectively do?

If I find myself nodding off while driving a car I consider the chance that I might kill myself or other people to be serious enough to warrant stopping the vehicle and pulling over. If the driver felt he was falling asleep that is exactly what he should have done. There may have been consequences for him, but this does not override his moral and legal duty to cease operating a vehicle he has suddenly become unfit to drive.

Going to go out on a limb here, but i reckon a segregated tramway is more akin to a railway than a street running tram. I dont think driving on sight is god enough, bearing in mind the different environment. So on segregated sections, some form of protection is warranted. Something that will stop the vehicle automatically if disregarded. I should be possible to devise some simple system. AWS or a underground type train stop would do it.

I agree.

2. If it was decided to proscute the driver, most of the comments on here suggest prison would be the outcome; however it is not the only outcome. A suspended sentence, acquittal, or a fine are all other possible outcomes.

Death by careless driving - probably the most likely charge had this happened on a part of the network classified as a road - starts at a community order, but the aggravating factors here are the numbers of deaths and the fact this was a professional driver who had other people under his care. I think we could expect him to serve a short prison sentence, although a good solicitor might be able to get it suspended.

3. If there was a trial, should there not be a corporate charge, for all the mitigation issues raised above?

Yes! Absolutely.

Seven people are still dead. I don't necessarily advocate that seven people are dead and therefore someone should be in jail as a result but I do feel that when seven people are killed it would be a remarkable outcome if no-one is even prosecuted.

Quite. And the families are right to be disgusted. Nobody will be held accountable, and we are expected to believe this is what a civilised society should permit.

 

[the sniper]

If you fall asleep at the controls of a train and crash it and kill seven people you're going to be arrested and put on trial. If you drive a bus and fall asleep and kill seven people, you get arrested and go on trial.

True. Though if this were a train, it's highly unlikely there would have been a derailment at all, let alone a trial. If it were a bus, I don't think the same circumstances could be exactly replicated, though that is easily arguable one way or the other. It being a tramway meant it fell through the cracks, in more ways then one...

Going by what the report says though, I think it's an over simplification to just say they simply fell asleep and that was that. That wasn't seemingly a factor in the previous near derailment. In this incident the Driving didn't show any hint of potential tiredness until the straight leading to the corner. Coming through the tunnel, in the usual braking area, the driver was making small alterations on the traction/brake controller.

 

[Nym]

Not sure if it's been pointed out or not yet. But Croydon Tram does now have an overspeed protection system.
Protection zones are defined by RFID tags in the track similar to ASDO systems used by SWR and LUL.

 

[43066]

I do not expect to fall asleep on the motorway and cause a crash, but if that does happen - it is on me. And if I kill someone doing it I do not expect to tell the police "I didn't mean it, I was asleep at the time" and for them to say "okay, you look upset, no further action".

But a private individual driving on a motorway is choosing to be there, and if they have any doubt at all they can simply pull off the motorway and take a break.

That’s different to the situation where someone is forced into driving fatigued by their shift patterns, with the threat of loss of job over them if they complain about it. And anyone doing the shifts those tram drivers are doing is going to be fatigued a lot of the time they are at work. It is physically impossible not to be.

The reason the CPS did not prosecute for gross negligence manslaughter is that there is no evidence that evidential test would be met for gross negligence. He would have to have done something like be drunk, or been awake until 2am with a 5am book on time the next day, or have been wilful and callous. Nobody is alleging these things about the driver.

The reason the CPS did not prosecute for the expected offences of causing death by careless or dangerous driving is, according to their own press release, is

These offences, contrary to section 2 of the Road Traffic Act 1988, require proof that a mechanically propelled vehicle was driven dangerously or carelessly, on a road or public place, and that the way the vehicle was driven caused death.

The CPS was satisfied that the section of the tramline where the tram was being driven at the time of the incident was neither a road nor a public place, and that for this reason alone the offence cannot be prove

As I read that the evidential test for manslaughter wasn’t met because, as you say, there’s no evidence the driver did anything either wilfully dangerous act or omission. That would have been the obvious charge of there was any evidence of any wrong doing - but there simply wasn’t!

It follows that the “dangerously or carelessly” elements of the DBDD offence might well also not have been present even if that charge had been in scope.

There’s simply no evidence he did anything other than book on for an extremely fatiguing shift, after the best night’s sleep he could get, and unfortunately on this occasion suffered an involuntary microsleep at a crucial moment.

That has happened to me twice before on motorways until I figured out I was very caffeine-sensitive. It is dangerous and you lose awareness quickly.

So if it has happened to you as a private individual you should be well aware of how insidious it can be, let alone for professional drivers who are forced by their jobs to drive fatigued.

It has also happened to most train drivers before but only gets talked about when they end up hitting buffer stops at terminal platforms.

He was not prosecuted for the offence of endangering the safety of a person on the railway because:

This offence, contrary to section 34 OAPA 1861, makes it an offence to endanger, or cause to be endangered, the safety of any person conveyed upon the railway by any unlawful act or wilful omission or neglect. The tramline on which the tram was being driven at the time of the incident is not a railway, and there is no parallel offence of endangering the safety of a person on a tramway. Nor was there evidence of unlawful or wilful conduct in this case.

The most important part of this paragraph is the last sentence. Even if the offence had been in scope, there was no evidence of unlawful or wilful conduct, so a charge likely wouldn’t have been brought on that ground either

Quite. And the families are right to be disgusted. Nobody will be held accountable, and we are expected to believe this is what a civilised society should permit.

The feelings of the families, understandable though they might be, are irrelevant. What a civilised society (acting in this case through the CPS) does is put any desire for scapegoating and revenge to one side, and decide objectively and dispassionately whether there is a realistic prospect of a conviction of any relevant offence, based on the evidence available. It strikes me that’s exactly what has happened here. The conclusion is that there is simply no case to answer, which I think is the correct result morally and legally.

I consider it far more relevant and concerning that none of the failings of the organisation charged with operating the tram network seem to have been addressed despite the damning nature of the accident report. To my knowledge nothing has even been done to address the fact the same accident could happen again tomorrow - chevron signs have been erected at the curve - clearly no defence against a microsleep type event!

 

[etr221]

He was not prosecuted for the offence of endangering the safety of a person on the railway because:

This offence, contrary to section 34 OAPA 1861, makes it an offence to endanger, or cause to be endangered, the safety of any person conveyed upon the railway by any unlawful act or wilful omission or neglect. The tramline on which the tram was being driven at the time of the incident is not a railway, and there is no parallel offence of endangering the safety of a person on a tramway. Nor was there evidence of unlawful or wilful conduct in this case.

The absolute, pure chance he fell into a lacuna in the law is why he is not prosecuted. He wasn't on a road or in a public place, nor was he technically on a railway. Else he'd be feeling the force of the law.

The CPS also stated that they did have sufficient evidence to warrant a charge, i.e. enough to make a guilty verdict probable (a consideration which also applied to some of the other potential charges).

Edit: checking e-mail from CPS, what they said was "The first is that the driver did not commit an unlawful act, nor did he do or fail to do anything wilfully."

But I am not convinced that they took the right decision in deciding that section 34 OAPA 1861 did not apply: although it would be certainly be open to legal argument.

On enquiring of the CPS the basis of their decision, I had the following response:

By way of clarification, tramways and railways are considered to be distinct legal entities. This is clear from the definition of tramways and railways in section 2(1) Railways and Other Guided Transport Systems (Safety) Regulations 2006 (ROGS), which makes it clear that the term ‘railway’ does not include a ‘tramway’.

It is not accepted that certain parts of the Croydon Tramlink can be considered a ‘railway’. Although it is clear that large parts of the Croydon Tramlink line used to be railways and are described as ‘railways’ in the Croydon Tramlink Act (CTA) it cannot be that the use of the term ‘railway’ in the CTA to describe these sections of track means that such stretches of track, which are indisputably tramways in fact and law, are also railways. If ‘railway’ does not include ‘tramway’, the section of the track where the driver lost control, which we know to be a tramway, cannot be included in the legal definition of ‘railway’.

As said, the Tramlink Act describes that part of (and indeed most of) the system as a railway (that is what they had powers to construct) (and other parts are 'railways worked as tramways'); it also specifically excludes parts of the 'Regulation of Railways' Acts from applying to Tramlink (which means that in general they do).

The OAPA 1861 (and another, similar, contemporary Act of about the same time), does not define 'Railway' (although there are three clauses creating offences 'on the railway' - and it makes no reference to 'tramways') - which I would suggest means that the duck test would apply

At least some of the Regualtion of Railways Acts (of about the same period) do interpret 'railways' as including both railways and tramways.

The ROGS Regulations (the CPS rely on) might be characterised as requiring certain technical standards, for which the distinction that they draw is relevant: I'm not sure it should be applied in interpreting more general mid Victorian legislation. One thing in it is that - IIRC - it says that if a system - or any part of it - is a tramway, then it is not a railway; which means that - at least arguably - until the Weymouth Quay tramway closed, Network Rail's system (all of it!) was a tramway, not a railway. And returning to the OAPA, one the clauses is about placing obstructions on the line (railway) - leading (at least following the CPS logic) to the situation where - on the sections where Tramlink and Network Rail lines run alongside each other - if two people placed obstacles, one on Tramlink and the other on NR, only one could be prosecuted, at least under the OAPA 1861.

 

[matt_world2004]

One has to question the extent TfLs concession model encourages operators to push shifts to the legal maximum rather than taking a holistic approach to safety. Operators get fined hugely for trams not being run, but also bid on the lowest cost basis . Meaning they often use the bare minimum of staff and rely on overtime to keep the service running.

17% of bus drivers have reported falling asleep at the wheel in London that's frighteningly high

 

[edwin_m]

One has to question the extent TfLs concession model encourages operators to push shifts to the legal maximum rather than taking a holistic approach to safety. Operators get fined hugely for trams not being run, but also bid on the lowest cost basis . Meaning they often use the bare minimum of staff and rely on overtime to keep the service running.

17% of bus drivers have reported falling asleep at the wheel in London that's frighteningly high

I don't see why the deregulated model would be any better in this respect. At least TfL has the power to specify measures above the legal minimum in its concession contracts, though it doesn't necessarily mean it actually does so.

 

[matt_world2004]

I don't see why the deregulated model would be any better in this respect. At least TfL has the power to specify measures above the legal minimum in its concession contracts, though it doesn't necessarily mean it actually does so.

It's a structural issue caused by franchising and concessionising which could pose a a safety risk to GBR

 

[AlterEgo]

But a private individual driving on a motorway is choosing to be there, and if they have any doubt at all they can simply pull off the motorway and take a break.

That’s different to the situation where someone is forced into driving fatigued by their shift patterns, with the threat of loss of job over them if they complain about it. And anyone doing the shifts those tram drivers are doing is going to be fatigued a lot of the time they are at work. It is physically impossible not to be.

This is an argument that a lower standard of driving is permissible for professional driver and that they do not have the same legal or moral responsibility to stop the job than a private driver (who very well may be doing something very important while driving tired, like trying to turn up for work!).

Your argument is not a good argument and fails. Professional and individual drivers have the same moral and legal responsibilities.

As I read that the evidential test for manslaughter wasn’t met because, as you say, there’s no evidence the driver did anything either wilfully dangerous act or omission. That would have been the obvious charge of there was any evidence of any wrong doing - but there simply wasn’t!

Indeed.

It follows that the “dangerously or carelessly” elements of the DBDD offence might well also not have been present even if that charge had been in scope.

No it doesn’t follow. If you fall asleep, absent any medical issues, while driving a vehicle and kill seven people, you will be found guilty.

The argument that tiredness can be so sudden that you lack any competence to arrest it won’t stand up in a court. A professional driver is in fact less able to defend himself against this charge because he, more than the private driver, knows the risks of fatigue and what he can do to arrest or prevent it.

Driving in the right hand lane of a motorway and feeling suddenly tired has a much lower chance of exiting safety than a tram on a straight track with no interfering traffic, and a brake which can be applied without the risk of crashing from behind. I would much rather be driving a tram on a segregated right of way and feel suddenly tired than be doing 70 on a motorway, three lanes of interfering traffic from safety and multiple decisions and risk assessments to make.

There’s simply no evidence he did anything other than book on for an extremely fatiguing shift, after the best night’s sleep he could get, and unfortunately on this occasion suffered an involuntary microsleep at a crucial moment.

Nobody is forced to do a job or continue with it in an unsafe manner. He was a professional driver being paid money to execute his job You may be able to bring mitigation against a guilty verdict or plea by bringing such an argument up but it does not change the legal and moral responsibility of a tram driver to not drive a tram if he is fatigued enough to risk falling asleep.

The feelings of the families, understandable though they might be, are irrelevant. What a civilised society (acting in this case through the CPS) does is put any desire for scapegoating and revenge to one side, and decide objectively and dispassionately whether there is a realistic prospect of a conviction of any relevant offence, based on the evidence available. It strikes me that’s exactly what has happened here. The conclusion is that there is simply no case to answer, which I think is the correct result morally and legally.

You think the correct moral result for a man falling asleep driving a tram full of people and wiping out seven of them into a grave is to face no legal consequences? Really?

I’m afraid it is tedious and depressing to find professionals in a safety critical industry thinking this is a proper moral outcome, legal issues aside.

There are absolutely questions for the tram operating company to answer, but the proximal cause of the crash was the driver falling asleep.

The case with death by careless driving is that a jury is entitled to infer, unless there are absolutely exceptional circumstances, like a medical issue requiring an expert witness to explain, that a person who falls asleep is aware that they are about to fall asleep.

 

[notadriver]

But a private individual driving on a motorway is choosing to be there, and if they have any doubt at all they can simply pull off the motorway and take a break.

That’s different to the situation where someone is forced into driving fatigued by their shift patterns, with the threat of loss of job over them if they complain about it. And anyone doing the shifts those tram drivers are doing is going to be fatigued a lot of the time they are at work. It is physically impossible not to be.



As I read that the evidential test for manslaughter wasn’t met because, as you say, there’s no evidence the driver did anything either wilfully dangerous act or omission. That would have been the obvious charge of there was any evidence of any wrong doing - but there simply wasn’t!

It follows that the “dangerously or carelessly” elements of the DBDD offence might well also not have been present even if that charge had been in scope.

There’s simply no evidence he did anything other than book on for an extremely fatiguing shift, after the best night’s sleep he could get, and unfortunately on this occasion suffered an involuntary microsleep at a crucial moment.




So if it has happened to you as a private individual you should be well aware of how insidious it can be, let alone for professional drivers who are forced by their jobs to drive fatigued.

It has also happened to most train drivers before but only gets talked about when they end up hitting buffer stops at terminal platforms.



The most important part I consider it far more relevant and concerning that none of the failings of the organisation charged with operating the tram network seem to have been addressed despite the damning nature of the accident report. To my knowledge nothing has even been done to address the fact the same accident could happen again tomorrow - chevron signs have been erected at the curve - clearly no defence against a microsleep type event!

Your knowledge is wrong. Many measures have been put into place including chevrons and an automatic braking system which applies the brakes if the tram is travelling too fast towards severe curves. The guardian system also protects against drivers falling asleep. The roster has changed so drivers can only do 5 days in a row.

 

[MotCO]

Your knowledge is wrong. Many measures have been put into place including chevrons and an automatic braking system which applies the brakes if the tram is travelling too fast towards severe curves. The guardian system also protects against drivers falling asleep. The roster has changed so drivers can only do 5 days in a row.

This does imply that Tramlink are admitting that their procedures and systems were not up to scratch, and therefore they are accepting some liability. If Tramlink were faultless, why introduce such measures as working no more than 5 days in a row, and adding chevrons and an automatic braking system?