Rank: Super forum user 
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I have just learned from the BBC News that both Network Rail (formerly Railtrack) and Jarvis Rail (since gone into administration) are to be prosecuted for health and safety failures regarding the 2002 Potters Bar train derailment, where seven people died. Why it has taken 8 years to come to this decision is beyond me. Furthermore, given the current situation with both companies, is it really in the public interest?
http://www.bbc.co.uk/news/uk-11726734
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Rank: Super forum user 
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I expect they are using the H&SAWA as a last resort in order to appease certain areas of interest as was done with the met police recently
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Rank: Super forum user
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This was always the fallback position of the legal system, if we can't get them on anything else we can always get them on H&S Law. It will be interestinbg to discover exactly what the charges are to decide how serious this is being dealt with. Presumably it will be standard issues, but who knows. I was party to the original internal Railway Safety investigation (as an observer) on the accident so am unable to say anything about the evidence other than is in the officiakl report, but it seems there was a serious lack of managerial control over the issues that led to the accident and perhaps that is were the case is coming from. It will be interesting to follow the case as it comes to court.
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Rank: Super forum user
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The reason it took so long is because the gov (in 2007) decided not to proceed because it may have been necessary to hold a public enquiry (or joint inquest) into the Potters Bar and Grayrigg accident/s together.
In the middle of 2009 the SoST decided that separate enquiries should be held.
Because of the work related death protocol a prosecution was considered unwise unless waiting for the inquest would compromise the case (http://www.hse.gov.uk/pubns/misc491.pdf)
Network Rail Infrastructure Limited is facing one charge: Between 31 March 2001 and 11 May 2002, it failed to conduct its undertaking as the infrastructure controller for the national rail network in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who may be affected thereby were not exposed to risks to their safety, in that it failed to provide and implement suitable and sufficient training, standards, procedures, guidance or other specifications for the installation, maintenance and inspection of shallow-depth adjustable stretcher bar points.
Jarvis Rail Limited is facing one charge: Between 31 March 2001 and 11 May 2002, it failed to conduct its undertaking as infrastructure maintenance controller for the East Coast Main Line section of the national rail network in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who may be affected thereby were not exposed to risks to their safety, in that it failed to provide and implement suitable and sufficient training, standards, procedures, guidance or other specifications for the installation, maintenance and inspection of shallow-depth adjustable stretcher bar points.
All the above is available from the Office of the Rail Regulator, somewhere....I hold it on file on my pc.
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Rank: Super forum user
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Network Rail was not responsible for the training of Jarvis employees, this was the responsibility of Jarvis as the contractor. Therefore one aspect is unfounded. Secondly the procedures for the maintenance of the points was laid down many years ago, when the points were in fact introduced onto the railway infrastructure. The standards for maintenance of this type of point set up have been well established for years. The charge of not providing suitable and sufficent standards or procedures is also untrue as Railway Group Standards specified the method and maintenance requirements for this type of point set up back in BR days. The main question is the inspection and maintenance, perhaps there is some milage in this issue and the courts will decide. As far as Jarvis are concerned, the employees worked for BR (or most of them did) and this type of point were in use then and they should have been trained in how to maintain them. There may have been some changes to the method of maintaining these types of fittings but were on minor change to the basic methods. I think these charges have been drafted to cover all aspects and will no doubt be seen as a cover all charge for the court to judge as it sees fit. The main pojnt is those responsible have slipped the net so they are going for the governing body in the absence of any chance of a conviction of those really responsible.
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Rank: Super forum user
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Indeed Bob, that was the thrust of my thread. Eight years after the event and we are now in a situation where both companies that were allegedly at fault no longer exist. Railtrack was a private company and have since been taken over by Network Rail (a public body) and presumably any fine will come out of funds necessary for the up-keep of the railways.
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Rank: Super forum user
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And if the case goes to crown the fines to the not-existing companies can be unlimited.
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Rank: Super forum user 
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JohnMurray wrote:And if the case goes to crown the fines to the not-existing companies can be unlimited.
In this event, the insurers would defend the case and/or take the hit for any financial penalty
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Rank: New forum user
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Although the defence may be paid by insurers the fines will not be.
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Rank: Super forum user 
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Would the defence be paid for by insurers? I don't think so but will happy to learn from those who know. I would have thought that the insurers would only pay the compensation though maybe they will contribute to the defence in an attempt to reduce payments.
On BBC Radio 5 Drive they were discussing the possibility of a Corporate Manslaughter prosecution. Given that this act did not come into force until 2008 the researchers were ill informed
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Rank: Moderator 
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Could the Moderators remind forum-users of the rules regarding legal cases:
"5. Discussion of potential or actual legal proceedings is prohibited on the public discussion forums. Public inquiries may be discussed, including where IOSH is a party to the Inquiry, on the Members’ Forum. Information that has been intentionally released, for example to alert others to a particular hazard or fact, can also be discussed in the IOSH Members’ Forum."
So the specifics should not be discussed, please, unless they fit in with the rule above.
Jane
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Rank: Super forum user
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Point taken Jane. Incidentally, my original and subsequent post did not mention specifics of the case, rather the principles involved.
m, the CM&CH Act 2007 also does not apply retrospectively.
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Rank: Super forum user
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My point is the two companies involved, one is no longer in business and the other has taken over the responsibility from the original company. The case is by far from perfect and it is only being taken forward as a sop to the general public and the families of those killed. There will be no great leap forward from this case.
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Rank: Super forum user
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Just to clarify previous postings:
Fines are not paid for by insurance it is regarded as "against public policy" to be able to insure against penalties such as fines.
Insurance pays for the conduct of civil claims for damages/compensation i.e. the legal costs and pays any compensation that may be negotiated or awarded by a court. Where there is a court case then the losing side pays the other parties costs so an insurer paying for the defence of an employer will end up paying both sides costs. Where compensation is negotiated then there will be some agreement on costs, for example each side may pay their own costs.
As for the defence of criminal cases it is usual for EL policies to carry an extension to cover whereby the insurer will fund the costs of defence - but generally at their own discretion or agreement. It is uusal for EL insurers to agree - it is in all parties interest to have the prosecution defended and it also means that evidence for the following civil claim (where there has been injury to employees or third parties) is obtained at the earliest oppportunity.
Hope this helps
Phil
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