I disagree. Guards have a duty with regards to safety, and safety is precisely the reason that the RMT etc go on about protecting our jobs. An innocent mistake is one thing, but if the CCTV evidence shows a consistently poor method of working (slapdash if you will) then the guard has to take the consequences that go with his actions. People were very quick to hang Schettino when the Costa Concordia went down and this may just be a variation on that theme (on a much smaller scale of course). We are responsible for people's lives, and we must take that responsibility seriously.
That said, I do believe there is a case for a rule book change when it comes to looking out onto the platform as the train departs or perhaps having more despatch staff.
I think I'd agree with ralphchadkirk and ukrob. The CPS must think that there is sufficient evedence to bring charges. However, saying that I don't think too much expressing of opinions of the Guards actions on a Forum like this is a good idea. Everybody is entitled to a fair hearing.
G.
Indeed. I do not agree with the sentiments that the Guard
must be innocent and shouldn't be prosecuted.
"Gross Negligence Manslaughter" is what the Guard has been charged with. This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords: :
a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.
The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a "reasonable person would do in their position". If they fail to do so they will have breached that duty. This is an objective test and will be based upon the defendant's position at the time of the breach. The defendants in such cases are often people carrying out jobs that require special skills or care, such as doctors, teachers, police or prison officers, or electricians, - or in this case the Guard - who fail to meet the standard which could be expected from a reasonable person of the same profession and cause death.In R v Bateman the Court of Criminal Appeal held that gross negligence manslaughter involved the following elements:
the defendant owed a duty to the deceased to take care;
the defendant breached this duty;
the breach caused the death of the deceased; and
the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.
Individuals have a duty to act where there is a contract. In R v Pittwood 1902, a railway crossing gatekeeper had opened the gate to let a cart pass and forgot to shut it again. Later a hay cart was struck by a train while crossing. He was convicted of manslaughter. It was argued on his behalf that he owed a duty only to his employers, the railway company, with whom he had contracted. It was held, however, that the man was paid to keep the gate shut and protect the public so had a duty to act. He hadn't kept the gates closed, and by him not doing so somebody was killed.
Now, All that waffle came from the CPS etc, but from that one can surmise that in this case they must have good evidence (CCTV?) to show that a) The Guard had a duty of care, b) He failed to do what he should have done correctly, c) as a result the girl died. Whether that is not observing correctly prior to departure, or not looking out after departure I do not know. My gut feeling is that he failed to look out properly before departure, and didn't notice that this girl was acting the fool, and therefore didn't notice she was likely to be a danger, and set the train off.
I think they key is to use your skills, knowledge, training, experience etc to judge the situation. And you can only really do that by watching people on the platform. If there are people banging on windows at their mates at 11pm and dancing around on the platform like idiots it is fairly safe to assume they are popped up and fooling around. I wouldn't dream of setting the train off in such a situation. Even if they told me to f off, at least I have done my bit and can react accordingly.
As stated, as "professionals" who are responsible for the safety of the public, the our duty of care is towards them. They may be ****ed, but sadly that is not really a defence.
I am not for one minute saying that the Guard is guilty, but there must surely be evidence to reflect the above if it has got to this stage.
