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Hatfield is hollow victory for profession

News analysis - Engineers implicated in construction accidents face closer scrutiny than ever following last week's Hatfield trial verdict. Mark Hansford reports.

MANY ENGINEERS will have breathed a sigh of relief at the outcome of the trial of men and companies implicated in the October 2000 Hatfield rail crash.

The good news was that after a seven month trial, the fire engineers prosecuted were found not guilty of health and safety breaches, after the judge had previously directed the jury to find them and their employers Balfour Beatty and Network Rail not guilty of manslaughter charges.

At the same time, Network Rail was found guilty of breaching Health & Safety legislation. Balfour Beatty had already pleaded guilty to the same charge.

But life is unlikely to get any easier for those involved in future accidents.

During the Hatfield trial, defence barristers argued that in many respects, prosecuting individuals for their role in the crash was unfair. They cited the complex structure of the rail industry and the way in which it was run after privatisation in the period before the crash.

'Put in military terms, you see in this court five lieutenants accused of losing the entire war, ' defence barrister Jonathan Goldberg QC told the jury. He represented one of the accused, Balfour Beatty civil engineer Nicholas Jeffries. 'These five infantrymen are court martialled, but the civil servants, the politicians, the men with knighthoods who created the dysfunctional system go scot-free' Unfortunately, those hoping that in the future this argument will help civil engineers avoid prosecution could be wrong, Legal experts believe that the government will rush an already drafted corporate manslaughter bill onto the statute books.

The new bill is very different to the existing law. No longer will prosecutors be expected to find the 'controlling mind'; responsible for decisions which lead to accidents. Instead they will looking for 'management failure by senior managers'.

This means that engineers will remain in the frame when accidents strike. After the new bill becomes law there will be a charge of 'corporate killing' against companies implicated.

But board members would also face prosecution, if considered responsible for the actions of middle managers making decisions at site level. Then, the middle managers themselves would face prosecution separately under the Health & Safety at Work Act.

'Heath & Safety Executive (HSE) inspectors are already obliged to look at the management line and see if any individual has committed an offence. Now the way the new law is drafted the investigator is drawn to look at individuals before you can go for the company, ' says Rob Elvin, partner at law fi rm Hammonds and a specialist in defending engineers accused of corporate manslaughter or under the Health & Safety at Work Act.

'The investigator has got to look for senior management failings. And this will lead him to look for failings under the Health & Safety at Work Act. So you are left with a whole host of managers fi ghting health and safety offences at the same time as the company is fighting corporate manslaughter and health and safety charges, ' he says.

Individual convictions for Health & Safety at Work Act breaches may not involve prison sentences, but they can ruin careers and cause untold stress for those with charges hanging over them.

'The HSE has been picking on companies by attacking line managers and that is going to be exactly the same under the new corporate manslaughter law, ' says Steve Hanson, senior health & safety consultant at cost consultant EC Harris. 'The danger is that people will become risk averse as a result and it will create a massively bureaucratic system.

'What concerns me is that people will begin to get scared and will create their own paper trails and pass things along, ' says Elvin. 'People will get paranoid about making a decision.' Elvin says the proposals as they stand are unfair. 'Even a senior manager can only make decisions within the skill set and resources he is given. The HSE is very quick to say 'don't blame the guys on the ground if they haven't been trained properly, ' but the same goes for managers.

It is still the company that must make sure the training is right, and ultimately the company is owned by the shareholders.' 'Under the new law two lots of people are going to be worried, ' adds Hanson. 'The middle managers and the board members who are responsible for them.

The implications are that people in senior positions are going to think twice about taking positions in the rail and construction industries, ' he says.

Business lobby group CBI has also expressed reservations warning that prosecuting individual managers could create a climate of fear within their ranks.

The ICE recognises the position such a new law could place on engineers: 'The ICE recognises that its members work in an environment where they have to use engineering judgement to manage complex risks.

If, in exceptional circumstances, that judgement becomes open to question, this could result in prosecution in a culture of promoting safety through prescription, ' it says.

'The ICE recognises it is reasonable to punish appropriately, and hence deter culpable conduct by organisations and individuals which cause injury/ death or which has the potential to do so.

The Institution added that fear of prosecution could reduce innovation and limit the use of engineering judgement. It could also deter high flyers from seeking positions of responsibility.

It says it will lobby the government on this and will challenge proposals 'where the balance between engineering judgement and the adherence to procedures is inappropriate'.

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