What is the perfect crime? The one that isn't discovered? The one for which someone else is convicted? The one that no one cares about? How about the one you commit and someone else is punished for in the full knowledge that you are guilty and that this other party is paying? Sound too good to be true?
In December 2005, 14 year old Olivia Bazlinton and her friend 13 year old Charlotte Thompson were struck and killed on a railway line at Elsenham in the Home Counties. No jokes about Essex girls, please. This tragedy that left two families grieving could have been avoided. Trains are noisy creatures, but anyone who works on the railway will tell you it is surprising how they can creep up on you unless you keep your wits about you. There have been enough permanent way workers killed by them in Britain and elsewhere over the years to more than justify that assertion.
In this case, an inquest in January 2007 returned a verdict of accidental death, and the investigation was subsequently closed. Although there was of course no suspicion of foul play, the issue of fatal accidents is seldom that simple where they occur on other people's property or where there are issues relating to a wider public.
In January of this year, the body responsible for regulating our supposedly privatised rail network took a second look, and now it has been decided that
"After careful consideration and examination of Network Rail documents not previously seen by ORR, we have concluded that there is enough evidence, and that it is in the public interest, to bring criminal proceedings against Network Rail for serious breaches of health and safety law which led to the deaths of Olivia Bazlinton and Charlotte Thompson".
The first hearing is due to take place before Chelmsford magistrates on January 31 next year.
Brian Clarke of the Office of Rail Regulation
very kindly answered the following questions:
AB: Re your announcement that Network Rail is to be prosecuted over the deaths of the schoolgirls Olivia Bazlinton and Charlotte Thompson. Can I ask that in the effect of your securing a conviction, what penalty can be imposed on a) the company b) any individual(s) concerned?
BC: ORR will be asking Chelmsford Magistrates’ Court to commit this matter to the Crown Court. In the magistrates’ court the maximum fine that can be imposed for each offence under the Management of Health and Safety at Work Regulations 1999
is £5000; the maximum fine that may be imposed for a breach of section 3 of the Health and Safety at Work etc Act 1974
is £20,000. If the matter is dealt with in the Crown Court that court may impose an unlimited fine in respect of each offence.
AB: May I ask who will pay the fine if the company is convicted?
BC: Network Rail would be responsible for paying a fine (the size of the penalty is set by the court). In this instance we are not prosecuting an individual, but the company.
AB: Will any individual be held to account, ie fined or imprisoned?
BC: Cases can be prepared against both companies and individuals. They can be heard in either magistrates or crown courts. Those being prosecuted can be fined, although breaches of enforcement notices can result in prison sentences.
AB: Can your office or any official body as a result of this compel the company to take other action?
BC: Our aim is firm but fair enforcement of health and safety law. Many deficiencies can be dealt with before formal enforcement becomes necessary. If necessary, we will take action against those who break health and safety law, as this puts both passengers and workers at risk.
With regard to our enforcement powers, we have several levels of action available:
· information and advice this could be given verbally, or a written warning of non-compliance;
· improvement notices – whereby there has to be an improvement in activity within a set timescale
· prohibition notices – whereby work must stop completely until an issue has been addressed
· issue cautions - a formal caution is a statement by an inspector and accepted in writing by the dutyholder, that the dutyholder has committed an offence for which there is a realistic prospect of conviction. It will be very unusual for a caution to be issued.
· prosecution – the final stage where we take action under health and safety legislation.
This sounds good, no doubt the ORR means well, and of course Mr Clarke - who is a press officer - can't be held responsible for what action will or will not be taken against Network Rail, but although theoretically Network Rail is a private company, it - and the rest of the rail network - is heavily subsidised by the government (ie us). For a breakdown as well as an argument against paying private companies out of the public purse, check this
What we have come up against here is the principle of vicarious liability. As far as public bodies are concerned - including private bodies that are subsidised by the public - that means no liability at all. For a discussion of how this state of affairs came about, and what must be done to overcome it, the reader is referred to THE WIZARD OF OZ SYNDROME: A New Theory Of State Tyranny
, but very briefly, in 1862, it was decided in Limpus v London General Omnibus Company that "a master is liable for the torts of his servant acting within the scope of his authority even when he has expressly forbidden the servant to do the thing complained of." See here
at note 45.
Let us take an even more clear example. In July 2005, the Metropolitan Police were staking out a property in South West London in the wake of the 7/7 atrocities. As a result of a tragic series of happenstances, including an element of both incompetence and gung-ho on their part, a team of detectives ambushed an innocent man on a train at Stockwell Underground Station, and shot him in the head.
The Police Commissioner was informed initially that a terrorist had been shot dead, and could barely conceal his jubilation. When the truth came out, his and everybody's mood changed.
The so-called Independent Police Complaints Commission was brought in, but what were they and the other legal authorities to do? Clearly someone should have been charged with something. The obvious charge to prefer would have been murder, or at the very least manslaughter, but the idea that our magnificent boys in blue could be put in the dock for something so grave was beyond their ken, especially at that time. So someone came up with a splendid compromise. No individual officer would be prosecuted, but the Metropolitan Police would be prosecuted under health & safety regulations, just as in the current case. And that is exactly what happened.
In law, a company is an entity, and can be punished. Although it can't be sent to gaol, it can be fined or sometimes ordered to do or not to do certain things, and if it doesn't comply then further sanctions can be imposed. The Metropolitan Police being a public body, what use was a fine? All that resulted from this court case was barristers and others making a lot of money, and police officers sitting around outside the courtroom doing the Times
crossword when they could have been out pounding the beat or otherwise keeping us safe from burglars, muggers, and hopefully terrorists.
On November 1, 2007, the Metropolitan Police was found guilty
of failing in its duty of care to Jean Charles de Menezes, and fined £175,000, with £385,000 costs. Guess who paid the fine?
We will see the same sort of thing happen with the prosecution of Network Rail. If the company is convicted, the great British public will pay the price.
The principle of vicarious liability is not necessarily fatally flawed in each and every case, but unless a real sanction can be imposed on a real perpetrator, preferably a real human being, when a real crime or tort is perpetrated, then the people responsible will simply laugh up their sleeves while the rest of us pick up the tab.