Train driver receives suspended prison sentence for ignoring safety systems

[whole diary]

[Super Guard]

Signallers will tell drivers they are authorised to continue with GSMR-GB^▸ (Great Britain) on the radio only.

While no-one here is condoning the drivers actions re: SPAD^▸ (Signal Passed At Danger) and the aftermath, while the radio set-up wouldn't have changed the guilty plea, it could be seen as the tipping point in a future case, and drivers shouldn't be put at any risk of prosecution, just because NR^» (Network Rail - home page), RSSB^▸ (Rail Safety and Standards Board) and ORR^» (Office of Rail and Road formerly Office of Rail Regulation - about) cannot get their stories straight.

[ChrisB]

Is this driver an ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) member I wonder?

If so, he was very badly advised. He should never have pleaded guilty to the radio offence & the ORR^» (Office of Rail and Road formerly Office of Rail Regulation - about) would then have had to prove it was indeed currently illegal.

[bobm]

Is this driver an ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) member I wonder?

If so, he was very badly advised. He should never have pleaded guilty to the radio offence & the ORR^» (Office of Rail and Road formerly Office of Rail Regulation - about) would then have had to prove it was indeed currently illegal.

The ASLEF website says he is.  What advice he was given or chose to act on is less clear.

[stuving]

It appears he was charged with a single safety offence under the section on "Employees to take reasonable care for the health and safety of himself and others who may be affected by his acts or omissions at work". I don't think you can plead guilty to some bits of that and not others.

[ChrisB]

If it were a single charge, I agree. It wasn't clear that this was the case to me, at least

[JayMac]

You have to be charged with an offence that is on the statute books or one that is common law.

Incorrectly/failing to setting up CSR^▸ (Cab Secure Radio)/GSM-R^▸ (Global System for Mobile communications - Railway.) isn't an offence in and of itself, so the driver would not have been charged with it.

[ChrisB]

But isn't that what ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) wants to confirm in instigating this action?

[JayMac]

They want to confirm that incorrect/failing to set up CSR^▸ (Cab Secure Radio)/GSM-R^▸ (Global System for Mobile communications - Railway.) is or isn't an offence? All they have to do is ask one of their lawyers. If that's going to cost them money for legal opinion, I can tell them for nothing. There is no such offence on the statute book.

I think it also highly unlikely that prosecutions would follow under defined legislation, such as The Health and Safety at Work Act, for running a train with CSR/GSM-R not set up, if this is the only error/omission made by a driver.

ALSEF should be concentrating their efforts on pointing out to their members the much more serious dangers and likely legal consequences of 'reset and go' without authority following a SPAD^▸ (Signal Passed At Danger). Why they are fixated on the CSR/GSM-R issue is beyond me.

[stuving]

But isn't that what ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) wants to confirm in instigating this action?

Not exactly. The charge is one of contravening a statute - what I quoted describes it, though in court it is probably referred by by its section number.

What constitutes "reasonable care" is not is the statute, so the submissions in support of the charge refer to various rules employees are told they must follow. Hence the problem that the accused pleads guilty on the basis of some of what he is said to have done, none of the prosecution submission is exposed to argument in court. It's a rather awkward mixture of formal, statute, law and codes of practice or rule books that are produced by less formal processes.

[ChrisB]

ALSEF should be concentrating their efforts on pointing out to their members the much more serious dangers and likely legal consequences of 'reset and go' without authority following a SPAD^▸ (Signal Passed At Danger). Why they are fixated on the CSR^▸ (Cab Secure Radio)/GSM-R^▸ (Global System for Mobile communications - Railway.) issue is beyond me.

Totally agree.

Probably because he is an ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) member, and they should have supported him? And this is their only possible challenge to authority, especially as their member has pleaded guilty on the far more serious offence. Face saving in front of their members?

[ellendune]

You have to be charged with an offence that is on the statute books or one that is common law.

Incorrectly/failing to setting up CSR^▸ (Cab Secure Radio)/GSM-R^▸ (Global System for Mobile communications - Railway.) isn't an offence in and of itself, so the driver would not have been charged with it.

He was charged under the Health and Safety at Work Act.  It did not say which section, but the offences can be quite broad. For example, knowingly driving a car with defective brakes is an offence when it is on a public highway.  It is still an offence under the Health and Safety at Work Act when it is in a workplace not on a public highway.  There is not provision in the Act or any Regulation to say  that (so far as I am aware) but section 7 of the Act says:

It shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work

It is left up to the courts to decide what is reasonable. In the case of the car and the brakes the existence of a the road traffic offence is taken into account for the test of reasonableness. In this case I cannot see any code or practice or rule that supports the view the courts took. 

In view of this I think it would be helpful for ORR^» (Office of Rail and Road formerly Office of Rail Regulation - about) to be clear on this and for the rule book to reflect that clarity. I therefore fully support ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) in seeking such clarification. 

[Network SouthEast]

ALSEF should be concentrating their efforts on pointing out to their members the much more serious dangers and likely legal consequences of 'reset and go' without authority following a SPAD^▸ (Signal Passed At Danger). Why they are fixated on the CSR^▸ (Cab Secure Radio)/GSM-R^▸ (Global System for Mobile communications - Railway.) issue is beyond me.

Any ASLEF^» (Associated Society of Locomotive Engineers and Firemen - about) member will tell you that the union have been running regular campaigns for years advising against reset and go (along with mobile phone use, drugs, other transgressions etc..).

ASLEF are taking up the radio issue because this is a NEW matter.

Things like resetting and continuing have been frowned upon for years.  Every drivers knows not to do it. This driver has had a moment of madness and ingored this.

However until now there was never any guidance from anyone about unregistered radios being a problem. As I've already said, the RSSB^▸ (Rail Safety and Standards Board) were even advising drivers it was possible to enter/continue in service with an unregistered radio. This is why a fuss is being made about radios.

ASLEF have never condoned a member that has 'reset and go'.

ASLEF are concerned that their members act lawfully.

By the way, don't assume ASLEF support any member for anything just for the sake of it. I can think of a few examples of when you'd get no support from them. Turning up for work on drink or drugs is a good of when ASLEF would let you fend for yourself.

[TonyK]

I agree with what I think is the reasoning by NSE^▸ (Network South East) and BNM on this.

A SPAD^▸ (Signal Passed At Danger) almost certainly never involves a conscious decision to pass the red light, making it likely to be a matter for internal discipline in the normal case, and in the absence of a serious outcome involving damage or injury - inconvenience is always going to result. Resetting the brake involves a conscious decision to do something that every trained driver of trains would know to be a serious breach of protocols, and a source of potential grave danger, even on a lightly used branch line. The man on the Clapham omnibus would probably need little explanation to see that it was potentially a dangerous action, and it may even be seen as an offence of strict liability - there is no defence that can be offered. The pendulum would swing towards prosecution because of the degree of action, and pour encourager les autres. It would automatically trigger an investigation involving the driver being interviewed under caution - it's that transcript I would like to see primarily.

The radio offence sounds like an add-on, although NSE's learned and detailed account of the issues does leave one scratching the head a bit. I assume that the driver took advantage of the protection afforded by his membership of his union, and was represented by their lawyers. Maybe the issue was not clear cut, or was clear cut against him? Maybe they indicated they would deny that charge and were told it would go to trial if they did, rather than being dropped as insignificant? In that case, the legal team may have advised him that he was in a similar position to the driver / front gunner of the getaway car for the armed gang who have just raided a bank in ultra-violent style, being charged with robbery, GBH, attempted murder, possession of an Uzi, dangerous driving, plus sounding the horn in a built up area during the hours of darkness.

A guilty plea means no trial, so no transcript, just a note of the reasoning of the sentence in case of an appeal against that. The court will find it tricky to decide a sentence, given the low number of such cases going to appeal courts, so leaving little by way of precedent.

There is pretty much no chance of appeal against a guilty plea - I can only think of one attempt, when a man who pleaded guilty to washing his coach during the water shortage regulations in 1976 later found that the operator's requirement to clean the vehicle trumped that act. He remained guilty because of his plea, although the sentence was reduced to an absolute discharge (from, IIRC^▸ (if I recall/remember/read correctly), flogging, hanging, transportation, plus costs - feelings were high in those days)