WCRC Licence Suspended

That was only because criminal proceedings were in the offing, and the RAIB report with conclusions is not allowed as evidence, although for sure the information gathered by the RAIB (that deemed legally sound) would have been used by the defence or prosecution during the case.

 

Are you sure? I can see the point about conclusions, but, as the report was not part of the prosecution case, I can't see how the defence could have required to see it. However, if you are stating know facts as opposed to supposition, then you are ahead of me (and many others who commented on the timing immediately after publication) and I defer to actual knowledge.

Steven

 

Any evidence gathered by the RAIB can be used by the crown prosecution, and evidence used by the crown has to be declared to the defence. The report is a different animal and can't be used - don't get the two mixed up.

 

Copied from Great Britain thread to save cluttering it up with more non train related rantings:

At the end of the day, magazine editors jobs are to sell more mags, and they are hardly going to damage their relations with a TOC that already largely doesn't engage with the media, so probably asking a lot to expect a fair, unsensationalist piece IMO, I've seen enough headlines in various mags over the years to know they make a habit of overplaying things to sell more copies, while their could be plenty of truth in what's said, people must be pretty naive if they take everything reported as 100% factually correct IMO.

 

Suggest you read this:

https://www.gov.uk/government/organisations/rail-accident-investigation-branch/about

Okay, it doesn't say the evidence can't be shared but the gathering of evidence for use in prosecutions is governed by strict rules (PACE Act 1984) and I suspect that, due to the very different purpose of the RAIB in gathering evidence, whatever the position on whether RAIB are allowed to, or even have to, share evidence with ORR, interviews and information received not under caution would be inadmissible in a criminal prosecution.

My very clear memory is that the whole point of RAIB was to find out what happened and learn lessons without people being inhibited in what they said it by fear of prosecution. I also recall that this was watered down after cries from certain elements of the legal profession that this could lead to wrong-doing going unpunished, so the final position may lack some clarity but, due to the basic rules of evidence, you can be pretty sure the ORR will not base any investigations they make on assuming they can let RAIB do the work for them - no way!

Steven

 

I have read the role of the RAIB. You seem to be deliberately missing or misinterpreting the pertinent points I raised that covered this. You will note the first time I said where legally sound, which was deliberately inserted to cover chain of evidence, admissibility, pace etc. It is up to the judge to declare if the evidence is legally admissible, and for any defence to challenge its worth.

The reason an RAIB report can not be used in prosecution, is because it contains conclusions, conclusions based on evidences that have not been challenged or verified. That is why the report could not be produced before the court case. But the RAIB has no legal right of confidentiality to prevent any of the individual evidences gathered by the RAIB being used in legal process, and placed before judge & or jury for argument. You can be sure that the information gathered by the RAIB will be used by the ORR as potential evidence for legal argument, and the RAIB report may well be delayed until ORR actions have completed due legal process.

RAIB rules.

Disclosure of evidence
10.—(1) Except as provided in paragraphs (2) and (3) the Branch—

(a)may publish or make available for inspection any evidence or information it may acquire during the course of an investigation where such disclosure would not obstruct it in its general aims contained in section 4 of the 2003 Act; and

(b)shall provide to a constable or the safety authority investigating an accident or incident, or any other person exercising a power conferred on him by an enactment, or to a constable, a procurator fiscal or the Lord Advocate exercising a power conferred on him at common law in Scotland to investigate an accident or incident, access to and copies of any evidence obtained by the Branch in the course of an investigation of that accident or incident, but only where the recipient would be entitled by an enactment, or in Scotland at common law, to collect that evidence for the purpose of his own investigation.

 

Well, as i see it after looking at the ORR website, RAIB is an investigatory body, Network rail provide the means of transport and are answerable to the ORR who have and do bring legal actions against them.Network Rail have been prosecuted many times over health and safety issues resulting in hefty fines.

 

Sure the old adage about being careful who you stand on while you make your way up applies in this case as there are probably a number of those people waiting to offer payback as the descent occurs, however temporary it may be. WCRC has never seemed too fussy about aiming to please anyone in the media or enthusiasts, perhaps justifiably, but it won't come as much surprise if those they've upset on the way look to extract revenge while they're on the ropes.

 

and the building at Hellifield stands decaying due to lack of sensibility

 

In relation to any prosecution the rules governing it are contained in the Criminal Procedure and Investigations Act 1996 and this is where the distinctions about the admissibility or otherwise of evidence are made.
Provided the evidence has been properly obtained there is no reason why an RAIB inspector could not act as an expert witness giving evidence of his findings based on his competence to evaluate them. The defence may equally obtain an expert opinion to contradict the conclusions the RAIB inspector may have reached. The requirement of a prosecution is to prove the offence beyond reasonable doubt.

 

So Mr K, supposing that the evidence re what exactly happened on 7 March was considered by the ORR to be relevant to its decision re WCRC's licence, are you saying that the ORR might be wise to wait until the RAIB had completed its evidence-gathering so that it could consider it before proceeding to a determination? I don't really see how the timing of this is going to fit with ORR's consultation period.

 

No I didn't say or infer that at all, and can only assume I was not clear in what I said. Let me reiterate, the ORR can use any evidences gathered by the RAIB at any time, do not have to wait for the full RAIB report, but the RAIB will probably not publish the full report until any legal process has completed.

 

My understanding is slightly different to yours....

10 a. is the pertinent point. The aim of the RAIB is to improve safety. Evidence is collected to PACE standards, but witness anonymity is specifically preserved. It is a criminal offence not answer truthfully a question put to you by a RAIB inspector, but only a high court judge can order them to reveal who said what to whom. In other words you cant incriminate yourself by talking truthfully to the RAIB, but talk to them you must. The ORR cant compel you to answer, but anything you do say may be used in evidence. My understanding is that witness evidence collect by the RAIB is not shared with the ORR.

 

So how does that work? In the tragic James Street case, the judge or the defence or the prosecution could have said to the RAIB---- please share with us as a witness of the court subject to X-examination your expert analysis of the timelines of giving the right away and your interpretation of the CCTV? And the RAIB would have been required to comply?

 

Many thanks - that encapsulates exactly what I understood - that there wasn't total "protection" for those giving evidence to the RAIB but that what could be revealed was governed by stringent tests and procedures.

Mr K - you and I are not disagreeing that the RAIB report is not evidence for ORR. Neither would I argue that technical tests undertaken by RAIB could not be used also by ORR without needing to be repeated - but verbal evidence collected would, it seems to me and subsequent posts have strengthened that view, be rather pointless for ORR to go to too much trouble to obtain except in exceptional circumstances. They have to ask for it from what you quoted - and you didn't quote the exclusions of Paras (2) and (3) of Rile (?) 10 - I presume you were actually quoting form Legislation?

I suspect you and I would also agree that ORR do not need to await the RAIB report. ORR will act as they see necessary in respect of their safety responsibilities. If an incident occurred which called into doubt whether a particular type of rail vehicle was safe, they could act very rapidly to issue a prohibition notice. RAIB gather evidence as a means to an end - their main purpose is to draw conclusions and issue recommendations to prevent re-occurrence. Clearly, this is likely to involve more and different work to collating evidence for enforcement action or prosecution. There will be some overlap, and clearly prosecuting authorities can request access to RAIB evidence, but the different aims of the two bodies' work and the effect on timescales probably means that ORR need to collate most evidence independently just be to able to act in a timely manner.

Stevem

 

Posted this on the GB8 page, but more appropriate here I think with some additional comments.

Hold your breath and shoot me down at your peril. Courtesy of a man in the know, I am told that the NR meeting today has concluded that WCR will remain suspended and so where that leaves the rest of the GB8 tour and future steam tours heaven only knows. Clearly 46115 in the Carnforth yard in steam was an unnecessary distraction! Unless DBS can come to the rescue again and with no obvious involvement of GB Freight one wonders what is going to happen for the rest of the GB8 tour.

 

This can hardly come as a surprise. Given that the ORR is consulting on the removal of the safety certificate. It seems to me that such a consultation is unlikely to have started without there being at least a strong possibility that the certificate will be withdrawn.

 

Hasn't anyone cottoned on to the likelihood that Harris has an hidden agenda (apart from sucking up to the anti steam faction in the rail industry)?

He's chairman of Great Central Railway Development Ltd, whose aim is to restore the missing link at Loughborough (for anyone who doesn't know). If the majority of mainline steam disappears a relinked GC can be marketed as the only place to see and travel by steam "stretching it's legs" - I think that's a stated aim of the company- and fundraising, plus publicity, would probably see a huge boost. The likelyhood that people would be out of work, that the day tripper diesel hauled market may disappear as well seems to be of no consequence. His statement to the Telegraph about the certain casualty figure was clearly meant to inflict maximum damage to WC's reputation with the public.

You also have to ponder NR's motives. WC has a good number of provisional slots in the working timetable that would become available with their demise.

Rich

 

That's an unavoidable conclusion.