SENTENCING STATEMENTS

On sentencing, Lord Matthews said:

“Very few people who saw them, especially in this part of the world, will ever forget the images of the power cars and the carriages at Carmont but, distressing as these images are, they were only of machines. Their loss pales into insignificance compared to that of those who tragically lost loved ones in the calamity and those who were passengers on the train. All of them have to live with the memories and the effects of this tragedy

Those who died were Brett McCullough, 45 years of age with a wife and three young children; Donald Dinnie, a 58 year old man who left a partner and two adult daughters; and Christopher Stuchbury, 62, who left two adult children, two adult step-children and a wife, who lost her soulmate on their wedding anniversary. I can only hope that the memories of the happiest day of her life will in time overcome the memories of the saddest.

For those who survived, Nicola Whyte, Rebecca White, Heather Conger, her sister Karli Conger, Kamila Diufer and Alberto Muniz, the traumatic events have left their mark in varying ways, physical, psychological and financial  as narrated by the advocate depute. No penalty I can impose will come close to compensating all whose lives have been touched by what happened, particularly when they know that it could all have been avoided.

The names have been mentioned already by Counsel but I have mentioned them again because they lie at the heart of this case.

The accused company, whom I shall call Network Rail, pleaded guilty to a charge under the Health and Safety at Work etc Act 1974 sections 3 (1) and 33(1)(a).

Section 3(1) creates a general duty on employers to conduct their undertakings in such a way as to ensure so far as reasonably practicable that persons not in their employment who may be affected thereby are not exposed to risks to their health or safety. Section 33 (1)(a) makes it an offence to fail to discharge this duty. There are corresponding provisions in relation to employees but they do not concern us today.

It can be seen that the offence is the creation of risk but, of course, where that risk materialises and injury or death result the offence is rendered much more serious.

There are obviously many ways in which the offence can be committed and the indictment and the agreed narrative tell us how it was done in this case. It is not necessary to repeat the detail of what the court has already heard but in essence the failings were in connection with the drain and the management of extreme weather conditions.

There was a slope failure near the crash site some time before 23 October 2002 and soil and rock were washed onto the tracks. Network Rail concluded that this was caused by a build up of surface water following recent storms. It was decided that amongst other work there should be a new drain. Examinations in April 2007 and in 2008 confirmed the desirability of this and initial documents were prepared. There was a landslide on 21 August 2008 and a report was prepared which found amongst other things that there was a high potential for failure of topsoil due to saturation and erosion. Carillion were contracted to carry out the works and Ove Arup & Partners were commissioned to design them. In June 2010 15 metres of soil slumped and in April 2011 while the project was ongoing there was a further failure of the slope due to over-saturation. As the job proceeded a number of modifications were suggested and agreed to but with a change of engineer and what seems to have been a breakdown in communication these were not incorporated into the finished drainage system, which in any event suffered from a number of defects in its construction. Had the drain been built according to the specifications as modified the excess water caused by the extreme conditions could have been accommodated and the accident would not have happened.

After the construction was completed, in January 2013, Network Rail did not check that the drain had been properly constructed, failed to ensure that a health and safety file was kept available for inspection and failed to add all parts of the drain and its surroundings to the appropriate register so that it was not properly inspected and maintained or assessed for risk of failure. The agreed narrative shows that it was not inspected until May 2020, despite notification of problems in 2012, 2013 and 2016. An inspection in May 2020 can best be described as cursory.

As far as the management of weather conditions is concerned, the essence of the failure consists in not having in place an adequate system of training and quality assurance in relation to the analysis of weather forecasts and the use of the various sources of information which were available. In light of the weather warnings, Extreme Weather Action Teleconferences should have been held but were not and that resulted in missed opportunities to take appropriate action. Whether the holding of an EWAT would in fact have prevented the accident is impossible to say but opportunities to take appropriate action may have been missed. The risk was not sufficiently assessed, the line was not proved, or shown to be safe, despite the known existence of landslips elsewhere and there was a failure to impose a speed restriction on the line. I need not go onto details about this since it was all explained in the agreed narrative.

This morning the court heard Mr Gray’s plea in mitigation. He expressed eloquently the company’s regret and sympathies for all those affected. Amongst the factors to which he has drawn attention are the company’s safety driven ethos, operating as they do one of the safest railway networks in Europe, with accidents such as this a very rare occurrence. As far as the drain itself is concerned Mr Gray highlighted the fact that the operation was not a complex one and had been entrusted to a company who had carried out many similar projects without incident. The failures to have a hand over and complete a proper record of the asset and the lack of inspection thereafter were not deliberate but were regrettable oversights. No one suggests otherwise. Mr Gray then mentioned the effects of climate change, which the company had sought to address, the difficulties of predicting where and when convective rainfall will occur, and the constraints under which the company operated in relation to access to new developments and technology. The failure to hold EWATs was because of a genuine and reasonable belief that a dynamic approach would be preferable. The weather conditions of 12 August 2020 were unprecedented and cause widespread disruption to the service meaning that the company was battling on a number of fronts. Lastly he highlighted, as had the Crown, the considerable efforts made since the tragedy to ensure, so far as possible that this sort of thing can never happen again. I take on board everything that Mr Gray said and mean him no disservice by not repeating it in detail.

Since the accused is a company, no individual is in the dock and the only disposal open to me is a fine. In order to calculate that, there is helpful guidance in a number of authorities. What I have to do is make an initial or provisional assessment of the seriousness of the offence, taking account of the extent to which the company fell short of the appropriate standard. I have to consider all the aggravating and mitigating factors. The fact that there were multiple deaths is clearly an aggravating feature, as is the fact of injury to a number of persons and the existence of previous convictions. I have to consider, for example, whether there was an isolated occurrence or a continuing failure. Was the breach committed with a view to profit? There is no suggestion that that is the case. What are the accused’s resources? There is really no issue about that, other than the fact that public money is involved. Was there a prompt admission of guilt? Yes. What steps have been taken to remedy any deficiencies? These have been clearly and eloquently set out. To what extent will any fine affect the company’s ability to perform its public services, always remembering that at the end of the day the taxpayer will be footing the bill?  The objective of the fine should be to help to achieve a safe environment for the public.

I have taken account of all the relevant considerations and reached a provisional view what the level of the fine should be.

That is not the end of the matter because I should also have regard to the relevant guideline which applies in England and Wales as a cross check on the fine which I have in mind. This is not to be done in a mechanistic fashion but the 1974 Act is a UK Statute and it is helpful to take account of the approach south of the border.

In the first place, the guideline tells a sentencer to decide what the level of culpability is. I am quite satisfied that it is high. There were failures to put in place standard measures. A number of concerns were ignored or at least not acted on, such as the reports in 2012, 2013 and 2016. The breaches of duty in relation to the drain were long standing.  The level of harm risked was clearly category A, namely death and I am satisfied, given that a large number of people over the years were exposed to the risk and that the offence was a significant cause of actual harm, that the harm category is 1.

The company is clearly a very large one. It has, as has been said, a number of previous convictions for breaches of the same section, which are aggravations, although I do not understand them to be of the same order as this one. On the other hand, it has clearly accepted responsibility and has taken significant remedial measures.

Then I have to stand back and ask myself if, in all the circumstances, I am satisfied that the provisional fine fulfils the objectives of sentencing and is fair and proportionate, including a consideration of the fact that the accused is publicly funded and the extent to which a fine may affect its operations.

Having undertaken all these exercises I have decided that had this matter gone to trial I would have imposed a fine of £10,000,000. A discount of one third has often been afforded where a plea had been tendered at the earliest opportunity, as it was here, but there is authority for the view that that may not be appropriate where the sum of money involved is high. In this case, however, since any trial would, as the Crown have conceded and as Mr Gray has properly said, been lengthy and complex, not to say distressing, I am satisfied that it would be wrong not to give full recognition to the considerable efforts which have been made to resolve the matter. A discount of about the same order should be afforded and the fine which I impose is £6,700,000.

Lastly may I place on record my gratitude to counsel on both sides of the bar and those instructing them for the assistance they have provided to the court in the construction of the agreed narrative and submissions in mitigation.

I shall allow the company a period of 3 months within which to pay the fine, as requested by Mr Gray.”

08 September 2023