Rail 466: It’s the system that should be in the dock after Hatfield

If anyone is put on trial for the Hatfield disaster, Christian Wolmar wonders whether it should be the mandarins and ministers who devised the mistaken model of privatisation that made the tragedy inevitable.

When, sixteen years ago, as a news reporter, I wrote about the capsizing in Zeebrugge of the Herald of Free Enterprise, I remember feeling that the skipper on the deck, the bo’sun in charge of the doors and, indeed, the whole management of Townsend Thoresen should be locked up and the key thrown away. Their combined sloppiness and lack of care had resulted in 187 deaths in circumstances that were nothing short of disgraceful – they had allowed ferries to take to the sea regularly with the bow doors open.

Yet, when a former Railtrack executive rang me to say that six people were being charged with manslaughter relating to the Hatfield train disaster, an event which I covered in great detail at the time and subsequently, my immediate instinct was not to cheer but to feel sorry for them. Was this, I wondered because I know and like some of the people involved? Is it because I feel the rail industry deserves defending unlike the ferry business? Or have I just become a conservative old hack, ready to defend the status quo, backing the big boys rather than the little people?

In truth, it is none of those things but trying to assess whether it is the right thing for the rail managers to be prosecuted is something of a moral minefield. Hence this column raises rather more questions than it answers.

On the face of it, there seems to be no real difference between the two cases. Why should it be right to prosecute those involved in the Zeebrugge sinking and not the Raiiltrack and Balfour Beatty managers? Do they both not owe the same duty of care to their passengers? Weren’t the people at Hatfield who failed to replace a dodgy rail or to impose a speed restriction just as culpable as those at Zeebrugge?

That last one is a question which does not have a simple answer. Certainly the reaction of the people on the Clapham Junction train to whom I have spoken in the past few days is remarkably consistent, much the same as mine after the Herald of Free Enterprise (the very name of the ship suggests that somewhere there is a higher force with a very black sense of humour) went down. The Hatfield crash was similarly caused by a catalogue of errors by people who should not have made them and which resulted in the deaths of four people. Surely, that series of mistakes was so serious that it deserves to be punished by the law?

There are two overall arguments and a couple of specific ones relating to the pattern of the prosecutions which mitigate this view.

First, as a general point, the people who run the rail industry are called upon to make millions of safety judgements every day. If they make one wrong call, should they necessarily find themselves in the dock. If that is the case, then the railways – and other safety critical industries – are going to become themselves enmeshed in huge bureaucratic systems, mostly box ticking exercise to ensure liability is passed on and will also find it increasingly difficult to recruit people who are at all innovative or prepared to take initiatives.

Secondly, the people charged were working in a completely dysfunctional system. Even the most arch supporter of privatisation recognises that Hatfield was an accident that was caused by the way the railways were broken up and sold off: specifically, the fact that Railtrack was not allowed to keep an in-house workforce but had to hand out the work in an arbitrary way separetely to maintenance and renewal companies, through contracts that allowed the company no control over neither the schedule or timetable of work was the main contributing cause of the accident.

Were the people who work in that system like the Gestapo guards in the concentration camps, culpable because of their involvement? Surely not. They knew the system was flawed but they could not have anticipated that it would result in unnecessary deaths. It is too much to ask them to have walked away because the system was so overtly dangerous.

Instead, it could be argued that it should be those who created this crazy system – which is, ironically, gradually being unpicked following the Hatfield crash – who should be in the dock: civil servatns like Sir Steve Robson the oh so clever Treasury guru who pushed through this flawed model of privatisation and Sir Christopher Foster who first conceived it, and ministers like John MacGregor, Brian Mawhinney, Roger Freeman and Sir George Young.

Yes, but that will never happen and therefore should not, at least, those who made thei mistakes face the consequences. Well, this is where the specifics come in.

There are two sets of charges, those under the Health and Safety Act which have been laid against Gerald Corbett, the former chief executive of Railtrack and the safety director, Chris Leah and four other people. These offences cannot be punished by imprisonment. However, six other people, including Nick Pollard the former zone director, face not only Health and Safety Act charges but also the much more serious matter of involuntary manslaughter which, technically, carried a maximum sentence of life imprisonment.

Therefore, in effect, the more junior guys are taking the bigger rap. Clearly, if there had been sufficient evidence, the police would have charged Corbett, as chief executive, with manslaughter but they were obviously unable to do so. Most people back on the Clapham Junction train have missed this point which makes the whole action looks incongruous as they think that the people at the top have been done.

That brings us on to the other general point: what is the purpose of these prosecutions? Clearly, not to make the railway safer because, presumably, the internal enquiry into the accident and the preliminary findings from the HSE have uncovered any major problems and these issues have been addressed. No, the purpose of criminal prosecution is to punish those who have made mistakes, to demonstrate to others in safety crticial industries that their actions – or inaction – could result in criminal proceedings and to assuage the feelings of the survivors and the bereaved.

Does any of this gladden the heart? On the first two points, do we really want railway workers having to think all the time about the possible of being prosecuted for manslaughter should they make a wrong call on a safety decision. The result, as we have already seen to some extent, is that the service suffers because people end up, understandably, covering their backs. As for the victims and bereaved, the desire to see justice done is understandable. However, it should not influence the decision over whether to proceed with a prosecution and I suspect in this case it has. There is a widespread expectation, both among lawyers and in the rail industry, that the charges in the Hatfield case will not stick. The best bet is that a judge will throw out the case before it ever gets to a full trial.

But was the Herald disaster any different? Yes, I think that it was possible to identify specific people who had a lot to answer for: the master on the bridge who proceeded without checking that the bow doors were closed; and the guy beneath decks who was responsible for ensuring they were shut. In the case of hatfield, the sheer number of defendants tends to suggest that responsibility for the accident was much more diffuse, with many more people having a minor part in contributing to the disaster. Yet, even in what appears to be a more open and shut case, all criminal prosecutions in the Zeebrugge disaster failed.

Railway madness (7) – The wrong sort of livery!

Passengers on the 21.33 Paddington – Exeter First Great Western service on 17 June were a bit bemused when they had to swap HSTs at Bristol Temple Meads. They were not given any proper explanation for being thrown off the train to board another which meant they reached their destinations west of Bristol 15 minutes late. In fact, the reason was that the train had the wrong sort of livery. It was sporting the new FGW branding and was needed to return to Paddington early the following day as it was being paraded in front of Moir Lockhead, the head of FirstGroup. If it had gone all the way to Exeter, it would not have been able to get to Paddington early enough.

When I was alerted to this by an angry passenger, I was first told by First that there no such incident had taken place. But on pressing, they informed me that it was true because the livery needed a final check from Lockhead but assured me that he knew nothing of the decision to turf people off the train, a decision that was taken by more junior managers. Who, presumably, have subsequently been reprimanded?

Shares