I'd say it's hardly common in the mainline either, probably no more or less common on the tube. The tube is a more intense service than most main lines but the mainline covers far higher mileage of track with far more stations.
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CPS prosecutes Merseyrail Guard
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I'd say it's hardly common in the mainline either, probably no more or less common on the tube. The tube is a more intense service than most main lines but the mainline covers far higher mileage of track with far more stations.
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bramling
Veteran Member
Heavily agree with this.
Unless it turns out there's more to the story than meets the eye, I'd hope the guard involved has some comeback afterwards. Furthermore, it's a waste of public resources to bring about such a silly prosecution. Again, unless it turns out there's more to it.
Bletchleyite
Veteran Member
Indeed. If the procedures are deficient Merseyrail are the ones who should be prosecuted, but I can't see why they are.
Well how about waiting to see if the case does get to court - then we will hear what grounds the CPS has for making this move. Because until that happens, we aren't going to know any more, due to the legal process.
Source : Liverpool Echo 18/01/16
I am at a loss as to why CPS are prosecuting this.
If his employer are happy with his actions following their investigation where is the Public Interest element in prosecuting this Guard ?
Especially as she was trying to board a train where the doors were closing ???
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Oooft! Don't fancy yours much!......I certainly wouldn't like to meet her on a dark night. :roll:
Back on topic, sort of, why are these thugs only getting a few months when railway guards are threatened with two years for somebody else attempting to board a train when the doors are closing? Madness!
NSEFAN
Established Member
If this is indeed true then it's perhaps an area of risk to passengers, which might need modifications to either procedure, or the trains. In any case, I still don't see how it can be the guard at fault. He is paid to follow safety instructions and shouldn't have to second-guess them with the hindsight of a passenger coming to harm.
Either the CPS doesn't trust Merseyrail's assessment of the situation, or knows something that we don't. The fact that the union is supporting the guard suggests to me that it's the former.
As a guard I am watching this very carefully. Obviously if there is a guilty verdict and what we know are the full facts then there are some serious industry wide ramifications.
But, for the CPS to be pushing I still think there must be something more that hasn't been reported. Just can't fathom what that might be.
But, for the CPS to be pushing I still think there must be something more that hasn't been reported. Just can't fathom what that might be.
Bletchleyite
Veteran Member
But if it's Merseyrail at fault, i.e. faulty procedures, shouldn't it be the company being prosecuted, not the individual?
A prosecution of someone following allegedly faulty H&S procedures turns the whole idea (that you are meant to follow them strictly) on its head - it has huge implications for more than just the railway.
DarloRich
Veteran Member
Indeed - It has ramifications not just for guards but for anyone following a safe system of working
wilful omission or neglect is the key phrase here
Xenophon PCDGS
Veteran Member
Would the CPS have already considered that point of view when preparing their case? I would like to know what actually is said to be the actual subject of prosecution when the matter is being heard in a Court of Law.
As long as we don't attempt to speculate on the specifics of this particular case it should be safe. I suggest sticking to general discussion of facts that are in the public domain - which, unfortunately for us but fortunately for the process of justice, are few and far between.
northwichcat
Veteran Member
Back on topic, sort of, why are these thugs only getting a few months when railway guards are threatened with two years for somebody else attempting to board a train when the doors are closing? Madness!
If a medical professional (even an off-duty one) ignores someone obviously in need of medical help they can face serious criminal charges if they later die.
The RMT keep arguing guards are crucial for the safety of passengers and must not only exist on all services but must also be very well paid for their critical role. Therefore, they should be willing to accept that an on duty guard can face serious criminal charges (just like a medical professional) if he or she doesn't currently follow correct procedure and passenger safety is compromised as a result.
Whether in this instance the guard did or didn't follow correct procedure is down to his employer and the court. Facing a criminal charge doesn't mean he's guilty. The unfortunate problem we have in this country is someone is supposed to be innocent until proven guilty but the way the media report stories doesn't always give that impression.
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Most of the discussion is broadly along the lines of "in the newspaper is says.... as such we don't understand why this is going to court" or "if the have followed the rules then why are they being prosecuted" or "the RMT and TOC are supporting him, so they must be broadly OK with what he did" with an element of "there must be something we don't know" thrown in.
Hardly contempt of court material (especially on a fairly specialist forum), as most people would have to go looking for it. If any one of us ends up as juror then being a member of this site and having viewed this thread would be something that we should declare.
Tetchytyke
Veteran Member
The union should be supporting their member, regardless of whether they think the member is in the right or in the wrong. I wouldn't read anything into it.
TheEdge said:
I don't.
I think people on here, and elsewhere, are focussing too much on the assertion that the door chimes were sounding and not paying enough attention to the age and physical condition of the woman involved. 89-year-old women, even spritely ones, are not renowned for their agility and turn of speed. I can understand the CPS having a certain amount of scepticism, shall we say, at the idea that an 89-year-old woman took a mad sprint for the doors just as they closed.
DaveNewcastle
Established Member
The CPS apply a two stage test when determning whether to prosecute or not, the 'Full Code Test' which consists of two parts, the Evidential Test and the Public Interest Test.
These tests are expanded here : https://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html
The Public Interest Test comprises a number of questions, listed here at 4.12 a to g.
There are additional Public Interest factors to consider which apply to specific allegegations, some which weigh in favour of prosecution in this case might be:
- the defendant was in a position of authority or trust;
- there are grounds for believing that the offence is likely to be continued or repeated;
- a prosecution would have a significant positive impact on maintaining community confidence.
and some additional Public Interest factors which might weigh against deciding to prosecute would be:
- the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
- a prosecution is likely to have a bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;
These issues are not simply 'scored' but assessed in terms of proportion, impact, relevance and, of course, their public interest.
185
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I'm taking this to be the CPS' argument - that the conductor watched the person boarding and pressed close whilst she was boarding, albeit slowly.
Additional procedures at the five underground level stations now include blowing a whistle seconds before commencing operation of the door close button.
I think the CCTV will better explain why they have proceeded with this case, however I do think they are barking up the wrong tree.
A government agency, the HMRI (now ORR) has passed off that station as safe to work with a certain procedure - many, many times. If RAIB find that specific procedure was followed to the letter, then I see no argument from the CPS - the crown versus the crown is an argument for them in an office somewhere, not down here in the real world.
Additional procedures at the five underground level stations now include blowing a whistle seconds before commencing operation of the door close button.
I think the CCTV will better explain why they have proceeded with this case, however I do think they are barking up the wrong tree.
A government agency, the HMRI (now ORR) has passed off that station as safe to work with a certain procedure - many, many times. If RAIB find that specific procedure was followed to the letter, then I see no argument from the CPS - the crown versus the crown is an argument for them in an office somewhere, not down here in the real world.
Surely the charges should be against the company? It may also be the case the passenger should face charges for endangering the railway.
If everyone (Merseyrail & RMT) agrees the guard was following the correct procedure, then the procedure must be flawed.
It is ridiculous that someone doing their job correctly can face charges. The turmoil in the persons life must be horrific, and all for going to work and carrying out your normal duties.
If everyone (Merseyrail & RMT) agrees the guard was following the correct procedure, then the procedure must be flawed.
It is ridiculous that someone doing their job correctly can face charges. The turmoil in the persons life must be horrific, and all for going to work and carrying out your normal duties.
Tetchytyke
Veteran Member
Based on the charge I'd guess that it will either that he saw her and closed the door anyway or that he should have seen her.
I would guess that the age of the passenger concerned will probably also have influenced the CPS' decision to prosecute. The CPS, as part of the public interest test, should pay regard to the vulnerability of the victim as well as whether the suspect was in a position of authority.
As we know, the victim was an 89-year-old woman.
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DarloRich
Veteran Member
With respect the CPS do not agree the job was carried out correctly. I don't want to say anymore as it will only lead to unpleasantness when tempers run high.
Philip Phlopp
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If the CPS don't believe the dispatch procedure is correct, it's something they need to take up with the ORR and the licence holder (MerseyRail), not some poor guard who was doing everything he was told to do by his employers, who in turn were doing everything required of them by ORR.
There's a very real risk that train operating procedure is going to be dictated by the CPS and the requirements they're effectively setting to avoid prosecution, rather than appropriate, safe procedures as drawn up by people who actually know what they're doing.
Clarence Yard
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Unfortunately the law doesn't exempt an employee if, in carrying out those duties correctly, an offence may have been committed. The person at the sharp end accused of carrying out the act, however unintentionally, is always in the firing line.
That is why I always say to fellow railway employees - join the union. You might never need their help but it is the cheapest and most effective legal insurance you will ever buy.
That is why I always say to fellow railway employees - join the union. You might never need their help but it is the cheapest and most effective legal insurance you will ever buy.
Bletchleyite
Veteran Member
This is the wider problem with legal precedent as a whole - judges and juries who do not understand more technical offences set precedent requiring rules that simply do not make sense.
Personally, I would rather laws were better drafted and more precise in order to avoid too much of this "lay" interpretation in all areas.
As an example (though of a civil/common law situation), Scouting puts a lot of emphasis on training older children not to require adults to be watching them at every second of the day...but then once in a while along comes a legal case where a clueless judge inadvertently sets a precedent damaging this concept by suggesting that, for instance, supervision is inadequate by definition if an adult didn't see an incident occur.
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Tetchytyke
Veteran Member
I don't really agree with this, tbh. The law of negligence is as old as the hills, and it is usually a simple factual matter rather than anything more complex: would a "reasonable person" have done the same thing in the same situation.
If, as in the last case involving Merseyrail, the jury think that a reasonable person would have done a different thing in the same situation (e.g. not give two bells whilst a drunken girl was holding on to the train) then the jury will convict. Of course there's an element of hindsight in these matters, that's unavoidable, but the idea a jury or judge are not fit to make these decisions is wrong.
Bletchleyite
Veteran Member
The trouble with this is that it depends on what a "reasonable person" is. That changes over time, of course, but the problem is more (in that kind of case heard before a judge rather than a jury) that it's down to one person's opinion. Yet that one person's opinion sets precedent.
If such cases were heard before a jury, and precedent were not set, i.e. each jury could decide on its own, I would have less of an issue.
Philip Phlopp
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The reasonable person test should be an irrelevance, because we're talking about a guard who has been trained to operate in accordance with the operating procedures laid down by a designated body (MerseyRail, who hold a passenger train operating licence) and who is in turn authorised and regulated by the Government's appointed body, the Office for Rail and Road (Office for Rail Regulation, as was).
A reasonable person would, in all honestly, do as they've been trained and instructed to do by their employer, who holds a passenger train operating licence and who has been assessed as being competent to hold that licence by the regulator of the railways.
An untrained but reasonable person could easily do something that's highly dangerous or inappropriate for the railway, it wouldn't be unreasonable to do it especially as we're not requiring the reasonable person to be versed in operating instructions or trained in any way.
No, I'm sorry, but this needs to be taken out of the CPS hands entirely, and given over to ORR, and more appropriate tests carried out before prosecution is carried out.
As much as it pains me to say it, the guard currently is an irrelevance, I do not want CPS decisions on prosecution to dictate safety culture and policy on the railway, because they're not competent to decide on prosecution or the terms on which they'll prosecute. This should be left to the professionals, not amateur lawyer hour. I don't want workers being injured or killed, passengers being dragged under trains or significant damage to the railway itself occurring because our staff are dodging the CPS Perry Mason squad, and doing things in a way which is unsafe but keeps the CPS happy.
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Tetchytyke
Veteran Member
Only the highest courts can set precedent. The decision of a District Judge, panel of Magistrates or Crown Court judge and jury does not set any sort of precedent.
What a "reasonable person" is is defined in law; it is (basically) someone with the usual and normal skills and ability in the thing that they are doing. A car driver in a careless/dangerous driving case would be compared with a normal car driver, not Lewis Hamilton, for instance.
In this case, the jury would be deciding whether other railway guards, faced with the same situation, would act in the same way.
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