Merseyrail Guard on Trial (Report now out)

[snail]

So are we now in this country to convict a person without first looking in to all evidence available?

Ah, so you have read all the court evidence?

The RAIB report doesn't attribute weight to the causal factors. I'm still uncertain how you interpret "the guard sent the 'ready to start' code ... while the young person was leaning against the train" as meaning that the train did not depart with her in an unsafe position.

 

[blacknight]

Ah, so you have read all the court evidence?

No have you?
--- old post above --- --- new post below ---

The RAIB report doesn't attribute weight to the causal factors. I'm still uncertain how you interpret "the guard sent the 'ready to start' code ... while the young person was leaning against the train" as meaning that the train did not depart with her in an unsafe position.

RAIB could have concluded primary cause of incident was Train departed with passenger in unsafe position as in did in Brentwood incident which derectly lead to her falling under train it did not.
Quite oftern you will see people tapping on window as train prepares to depart & have shout a warning to stand clear-some even feel you have the been curt & abrupt with them

 

[snail]

No have you?

That's not relevant. I'm not the one claiming evidence has not been presented when prosecuting.

RAIB could have concluded primary cause of incident was Train departed with passenger in unsafe position leading to her falling under train it did not.

Didn't it? The immediate cause is that she fell through the platform edge gap. The first two causal factors are the train being dispatched with her leaning against it and her falling as the train was moving. If the gap wasn't there she would not have fallen on to the track; that doesn't absolve the guard from his duties not to dispatch the train without due care (as the court found).

 

[blacknight]

Did jury have access to RAIB report if not IMO I think there are grounds for an appeal.

 

[GB]

I don't think anyone involved in the trial had access to the RAIB report. Thats not to say that the RAIB investigator could not have been called in as an expert witness for either side though.

 

[oversteer]

So would a guard act any different nowadays if someone tries to open a slam door (say) after locking but before the train has picked up much speed?

At least with opening windows you can lean out and shout to stand back, but people chasing a train are quite blinkered!

 

[ainsworth74]

The RAIB were involved in the court proceedings but I can't remember in what capacity it was (ie extracts of the report or as expert witnesses).

 

[snail]

Did jury have access to RAIB report if not IMO I think there are grounds for an appeal.

That is very unlikely. But what difference would it have made? The Judge refers to 5 'serious and aggravating features' in his summing up, including this:

you were watching this vulnerable girl leaning against the side of the train, in the most obvious position of danger, when you pressed the bell twice to signal the driver to move the train. You were not distracted at the vital moment, or required to turn away in order to operate the controls. You had a continuous and perfect view of her: you were only about 25 metres apart, in a slightly elevated position and with nothing at all between you and her. In my judgment, the CCTV footage is unequivocal: Georgia Varley was not moving away, and she was not showing any sign of moving away, when you gave that signal. On the contrary, she was leaning against and supported by the train which you chose to set in motion. [...] I am satisfied that you merely hoped and assumed she would get out of the way when the train began to move, and on that wholly inadequate basis you took a terrible risk. You completely ignored your repeated training and instruction to the effect that you must ensure it was safe to start the train before you gave the signal.

How is that contradicted in any way by the RAIB findings?

 

[transmanche]

"You were not distracted at the vital moment, or required to turn away in order to operate the controls."

How is that contradicted in any way by the RAIB findings?

"It is also possible that his attention went from the platform to the control panel as he pushed the button to close the doors, watched for the blue interlock light and then pushed the signal button twice to send the driver the 'ready to start' code." para 32.

"Merseyrail’s vehicles were built before this standard was in force; their vehicles have guard’s controls that cannot readily be differentiated by touch and
the controls are located in the opposite direction to the platform/train interface." para 59

Figure 9 in the RAIB report illustrates this.

On the face of it, the judge's summing up on this point seems at odds with the RAIB report.

 

[FGW_DID]

....... UK courts are adversarial and seek to allocate guilt/blame/liabilty, they do not seek the truth.......

my highlighting

Thats exactly what they seek!

To prove or disprove the facts presented to them i.e. establish the truth and then they establish blame OR innocence.

Your version sounds more like 'Kangaroo Courts'!

 

[maniacmartin]

It would be more accurate to say that they do not seek all causal factors, just the actions of the person being tried

 

[snail]

On the face of it, the judge's summing up on this point seems at odds with the RAIB report.

I did wonder that after I had posted my earlier reply. But without knowing the full evidence presented to the court it's hard to know whether the judge had formed a more definite view from that evidence than the other possibilities which the RAIB have only speculated on.

 

[Ediswan]

Perhaps I put that a bit strong. UK courts are definitely not indifferent to finding the truth, but the mechanism is that whichever of the parties makes the more compelling argument wins.

By contrast, the RAIB act in a neutral manner to try to and work out what happened. That is the distinction I was seeking to make.

 

[GadgetMan]

Having read the report I've reached the conclusion that the Guard did nothing wrong. (That's not to say he couldn't have acted differently, but other than in hindsight he'd have had no reason to)

From the text, timeline (which can't be exact about when the 2 buzzes were given), the stills from CCTV and my experience of working as a Guard;

The Guard believed his train was clear and it was safe to shut the doors, the Girl at this time was away from the train and near the wall.

He shut the doors and gave the buzzes. In the few seconds it takes to carry the last part of dispatch out which involves looking away from the platform and train, the Girl has moved towards the train but by the time the Guard looks back out onto the platform the driver's already been given the Buzz Buzz.

When he then saw the girl stood alongside the train (I'm not convinced she was leaning with her weight against the train, to me it looks as though she's just got her hands against it) he shouted at her to step away. In his shoes I'd have done exactly the same. It's a Judgement call and my 10 years of experience on the job tells me that the girl will step away as everyone in that position always has in the past. That's where Judgement comes into it and that's what's brought the Guard down, but he had no reason in his mind to act differently.

Unfortunately on that night for whatever reason she didn't/couldn't step away and although a tragedy it should've been deemed an accident.

The Guard could've stopped the train but if we all did that everytime a Intoxicated person approached a departing train we'd never make any progress in the evenings especially weekends.

 

[arabianights]

Remember the drink drive limit is very low. Something like a half or a pint of weak beer. so 3 of them and your 3 times over the limit. I could probably drink about 15 and still not be drunk as im a big lad, like, so it would be unfair to use that in court if i had 3 yet wasnt drunnk.

Which is why I ask why they use it for someone who is not driving. It is useless.

That's not true. Most people could drink three pints of normal strength beer and still test under the UK drink drive limit. It's not that low - it's actually set at a very sensible scientific level at the point at which performance really starts degrading* and consequently is actually a bit higher than the drink drive level in a few other European countries.

Naturally certain lobbiests and opportunist politicans therefore want to reduce it - in fact I believe it is going to be reduced in Scotland - to "send a message" even though it will criminalise safe behaviour while making no difference to current drink drivers who are already breaking the law and are often several times the limit.

*Interestingly, drivers that have had roughly half to one pint statistically have less accidents per mile than sober drivers, because they "over compensate" for their almost non existant intoxication. Even more interestingly there is evidence this also applies to drivers who have smoked almost any reasonable level of cannabis. Not that I am recommending driving under the influence of anything - you're even safer just "over compensating" while sober

 

[yorkie]

Perhaps I put that a bit strong. UK courts are definitely not indifferent to finding the truth, but the

mechanism​

is that whichever of the parties makes the more compelling argument wins.

By contrast, the RAIB act in a neutral manner to try to and work out what happened. That is the distinction I was seeking to make.

The RAIB seeks to make improvements and make balanced comments. The Courts serve mainly to ensure solicitors get rich and people in responsible positions are disproportionately punished while violent criminals are, in relative terms, let off!

It is difficult to respect the Court's decision, but it's not just the decision that bugs me, but the sentence is ridiculously disproportionate.

A 16 year old inflicted a "dreadful and violent death" on a 3 year old and also got a 5 year sentence (no doubt I'll be shot down with "but he was only 16! 16 year olds are only children and can't be held responsible! Our legal system is fair really!" type comments from the usual suspects :roll:) It's not a one-off. Every day in the news I read of sentences for far worse offences than this guard committed, and yet they get more lenient sentences. It's absolutely bonkers, our legal system is an absolute joke, it's disgraceful! Yes, I know many other countries are worse, but that's no excuse.

 

[ANorthernGuard]

Even though I have sympathy with the guard we need to make a couple of things very clear. Any guard who is a professional will tell you the guard failed on 2 MAJOR points. 1. He failed in his duty of care towards the young girl. As was said before the report came out and secondly when it comes right down to it, giving 2 on the buzzer when it was clearly UNSAFE to do so ultimately led to her death. If he was distracted etc. It could be claimed it was an accident. He wasn't and that was to the courts eyes proven. For that split second he was proven negligent and looking at the evidence i have seen sadly he was (IMHO) of course

 

[yorkie]

... looking at the evidence i have seen sadly he was (IMHO) of course

But if the choice is between a not guilty verdict and 5 years in jail, the not guilty verdict is the only sane choice. Either there has to be a sensible, proportionate sentence for the offence, or he should not be guilty of it. I am not a legal expert but almost anyone with any sense can look at this sentence, and look at sentences for violent crimes and see there is a major lack of justice here.

 

[ANorthernGuard]

5 years is way too long hopefully on appeal that will be reduced to a lot less. The trouble is with our delightful courts there does not seem to be a reasonable balance and no use of common sense. 5 years for a serious error of judgment is too harsh

 

[Jim_]

The Guard believed his train was clear and it was safe to shut the doors, the Girl at this time was away from the train and near the wall.

He shut the doors and gave the buzzes. In the few seconds it takes to carry the last part of dispatch out which involves looking away from the platform and train, the Girl has moved towards the train but by the time the Guard looks back out onto the platform the driver's already been given the Buzz Buzz.

It's been a few years since I worked as a guard so maybe things have changed, but I would never give two on the buzzer immediately after closing the doors without checking the platform again first.

According to the timeline the girl had her hands on the train as the doors were closing so if he'd performed that final check he should have seen her and made sure she was clear before he started the train.

 

[arabianights]

But if the choice is between a not guilty verdict and 5 years in jail, the not guilty verdict is the only sane choice. Either there has to be a sensible, proportionate sentence for the offence, or he should not be guilty of it. I am not a legal expert but almost anyone with any sense can look at this sentence, and look at sentences for violent crimes and see there is a major lack of justice here.

This is a major reason that juries are not told about what sentence the accused is going to get.

There are two very different ways of looking at it. To ye and me, the fact juries aren't told is an abomination, as justice requires a fair result - and so inadvertantly juries sometimes end up condemming an accused to a fate the jury could never have supported.

To someone with a legal mindset, however, the jury is a trier of fact, and it is the legislature's responsibilty to ensure that the punishment fits the crime (and the judge's duty to implement the legislatures' wishes).

I very much want to be on a jury myself and suspect in 99% of cases where the accused is guilty I would be voting guilty. But in the other 1%, where the accused is either clearly not deserving of severe penalty or possibly any penalty at all, I will vote not guilty and damn the legal system - I know best

 

[185]

But if the choice is between a not guilty verdict and 5 years in jail, the not guilty verdict is the only sane choice. Either there has to be a sensible, proportionate sentence for the offence, or he should not be guilty of it. I am not a legal expert but almost anyone with any sense can look at this sentence, and look at sentences for violent crimes and see there is a major lack of justice here.

Hear hear. Law should generally reflect society's opinion of right and wrong; the general replies from the public on the Liverpool Echo website (900+ comments), 95% favour nothing more than a financial or employment sanction against the guard, with most of them suggesting zero guilt or fault.

 

[blacknight]

So would a guard act any different nowadays if someone tries to open a slam door (say) after locking but before the train has picked up much speed?

At least with opening windows you can lean out and shout to stand back, but people chasing a train are quite blinkered!

Judge in summing up this case as created a precident that shout a warning to stand clear is not enough, as in James Street guard gave both a verbal warning & gestured with arm for person to stand away from train.
If person is seen to be in endangering themselves then the emergency stop signal must be given to driver. This seem at odds with a similar fatality at Angmering station in 2009 where inquest jury returned a verdict of accidental death in that case.

 

[Oswyntail]

But if the choice is between a not guilty verdict and 5 years in jail, the not guilty verdict is the only sane choice. Either there has to be a sensible, proportionate sentence for the offence, or he should not be guilty of it. I am not a legal expert but almost anyone with any sense can look at this sentence, and look at sentences for violent crimes and see there is a major lack of justice here.

That is a very dangerous opinion, and the implications of your first sentence beggar belief. Do you think that a defendant who appeals to the jury is any less guilty than one who doesn't? The facts are: a) he was found guilty of an act that resulted in a girl's death b) the sentence is shorter than the maximum available, and reflects the judge's opinion of the case. Comparison with violent crime does not come in to it, unless that crime resulted in death; society seems to believe that causing death is a more serious crime (unless, of course, the weapon is a car, but that's a different matter). I am sure the sentence will not be fully served, but it is comparatively light as it stands.

 

[Jim_]

Judge in summing up this case as created a precident that shout a warning to stand clear is not enough, as in James Street guard gave both a verbal warning & gestured with arm for person to stand away from train.
If person is seen to be in endangering themselves then the emergency stop signal must be given to driver. This seem at odds with a similar fatality at Angmering station in 2009 where inquest jury returned a verdict of accidental death in that case.

I don't think there's any new precedent here. The guard gave the ready to start while the girl was leaning against the train and that's always been something you should never do.

 

[ANorthernGuard]

In total agreement jim

 

[12CSVT]

Guard in James Street took additional measures for despatch for if he had followed official company dispatch process he would have not seen girl once local door was closed & would still have given driver the RA with same consequence.
Maybe if your read report for a second time & look at other examples of incidents that RAIB investigated
Brentwood Primary Cause
Identification of the immediate cause
38 Train 2W10 departed from Brentwood station with a passenger in an unsafe
position between the platform edge and the train.
Kings Cross
Identification of the immediate cause
17 The train departed with the passenger’s fingers trapped in the train doors.
James Street
28 The young person fell through the platform edge gap and onto the track as
the train began to move out of the station.
RAIB report for James Street only as guards actions as a causal factor Not that train departed with passenger in an unsafe postion which puts a hole in case for prosecution.
As in Brentwood incident driver admitted doing final safety check once train was on the move but no further action brought by CPS
As in Kings Cross incident member of staff made an assumption which was incorrect but no further action brought by CPS.
IMO CPS asked for James Street report not to be published because it weakened prosecutions case
Accidents do happen & thats what this was a tragic accident in which young lady died & guard as to bear that for rest of his life

In the Kings Cross incident, the door lights were all out, maybe the RAIB should be looking at design of rolling stock (in particular the door interlock) rather than human error / percieved human error.

 

[blacknight]

I don't think there's any new precedent here. The guard gave the ready to start while the girl was leaning against the train and that's always been something you should never do.

If you look at still taken from CCTV is girl actually leaning against train?she is seen standing upright not slumped against train. How many times do you see people waving through window to the person on the train? Then step back as train departs which guard in this case believed would happen.

 

[ukrob]

The still is pretty irrelevant. What matters is the video the jury saw.

 

[AlterEgo]

The still is pretty irrelevant. What matters is the video the jury saw.

Quite.

None of us have seen the video so it is impossible to determine exactly what has happened.

The facts are thus:

1) The guard gave the ready to start signal when the person was leaning against the train. It's likely that because of the train's controls, McGee did not, and could not see the person then approach the train and touch or lean on the side.

2) The guard, having sent the ready to start signal, leant out of the train and then clearly saw the person touching or leaning against his train. The appropriate action in this circumstance - and what the guard had a duty of care to do - was to send a further "one on the buzzer" to stop the train from departing. That's all he had to do.

3) McGee instead allowed the train to depart having shouted and gestured at the person to move away. He continued to allow the train to depart even as she was stumbling (a stumbling which took place over several seconds), and only stopped the train once she was actually underneath it, sustaining fatal injuries.

This is why McGee is in prison.

I do, however, disagree entirely with the length of sentence imposed - but then that is the nature of a justice system that applies to 55 million people. We probably all have our own idea of what is an appropriate sentence in these circumstances would be, and I expect that if we disclosed them they would vary widely.

What is worrying is that the RAIB report still leaves many questions unanswered. I've heard interpretations of the timeline of events that suggest that the deceased stumbled away, then towards the train, as if this was done deliberately. The fact is, the deceased was very drunk, was in contact with the train and I am not altogether surprised that once the train began to move she stumbled (I imagine), like a newborn giraffe to her death.

It would be infinitely preferable if the CCTV video was released to the industry so these questions can be resolved once and for all.