Opinion

£6.5m fine for child’s railway death: the sentencing factors

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Why rail freight operator, WH Malcolm Ltd Harrison was fined a record £6.5m after a young boy was electrocuted by one of its overhead power lines.


The tragic case of Harrison Ballantyne, an 11-year-old boy electrocuted while retrieving his ball from the top of a stationary rail freight carriage, was sentenced at Northampton Crown Court in July 2021. The case gives plenty of food for thought on the moral reasons for managing health and safety as well as the financial case for doing so.

The incident began with children playing as they usually do, kicking a football on a bridle path, and turned into every parent’s worst nightmare. The prosecution, brought by the Office of Rail and Road (ORR), resulted in the highest ever fine for a health and safety offence since the introduction of the sentencing guidelines for health and safety breaches in England and Wales in February 2016.

Laura White, Associate at Pinsent Masons LLP

In June 2017 Harrison was playing football with five friends on a bridleway in Northamptonshire. While they were playing the ball went onto the top of a train wagon on a nearby bridge carrying a railway line. The line on that bridge was a shunt, used for moving wagons to and from the nearby Daventry International Rail Freight Terminal, which is connected to the West Coast Mainline. The wagons on the bridge could be there for hours or days and a 240kV powerline ran overhead.

The incident

All six of the children went to retrieve the ball from the wagon. The route to do so was described by the sentencing Judge as obvious and easy for a child to access. They went up onto the ‘head shunt’ (the area where the train was positioned), by climbing over a post and rail fence, walking up an embankment, around a short section of fence and directly onto the trackside (see picture far right). Harrison climbed up onto the roof of a train that was parked underneath the overhead line, and electricity arced, killing him instantly.

The horrific scene was witnessed by all of his friends. During the sentencing process victim impact statements from three of the children described the serious psychological harm suffered by them. The victim impact statements from Harrison’s family and the families of the witnesses described the devastating long-term impact of the incident on their lives.

The defendant company, WH Malcolm Ltd, the operator of the rail freight terminal, was found guilty after trial of two offences. These were a breach of section 3(1) of the Health and Safety at Work Act 1974, namely its duty to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in its employment were not exposed to risks to their health and safety; and a breach of regulation 3 of the Management of Health and Safety at Work Regulations 1999, of failing to make a suitable and sufficient assessment of the risks to health and safety.

At the trial it became clear the defendant company had operated in a way which demonstrated many of the aggravating features that a court is required to take into account when sentencing health and safety offences. They ignored concerns raised by employees and others about the accessibility of the area to unauthorised persons; and they failed to make appropriate changes following prior incidents of trespass and vandalism. These failings persisted over a long period of time.

Not only is trespass a well-known issue in the rail industry in general but a survey at the site carried out in 2013 had identified shortcomings in the fencing and the trespass route. A quote was obtained for fencing work in the area but approval was not given for expenditure of around £4,000. Some 18 months later, in 2015, a trespass incident and reports of trespassers being seen by workers prompted another quote exercise which resulted in the fence on the north side of the bridge being rectified but not on the south. This was despite police officers in the area raising concerns.

Unsurprisingly in the circumstances, when considering these facts against the official sentencing guidelines for health and safety offences, the court found the defendant’s culpability to be high.

Level of harm risked

When considering the level of harm risked against the sentencing guidelines the court found level 1 harm on the basis that the seriousness of the harm risked was clearly death and the likelihood of the harm arising was high. The sentencing judge took into account that rail infrastructure is a dangerous place where even trained adults are at risk.

A child, with little or no awareness of the dangers, was found to be at very serious risk. This was exacerbated by the proximity of a bridleway with inadequate fencing and trains parked underneath high voltage lines. The frequency with which events of trespass were known to take place was a significant factor.

Even the day before the tragic incident a train driver had correctly reported children playing in the area and the defendant company was apparently unaware of this.

Both additional factors of harm specified in the sentencing guidelines were present: the incident was clearly a significant cause of actual harm and the offence exposed a number of members of the public – and specifically children – to the risk of harm.

The defendant company had a turnover of £184 million, well over the £50 million mark of a ‘large’ company under the sentencing guidelines. The starting point fine for a large company for high culpability harm category 1 is £2.4 million with a range of £1.5 to £6 million.

The starting point was moved substantially upwards to the next category, giving a starting point of £4 million and a range of £2.6 to £10 million, reflecting that there had been the death of a child. Further aggravating features were previous enforcement history, psychological harm caused to the child witnesses, an inexplicable failure to carry out the identified work for a modest sum and evidence of profit being put before safety.

Moral case for health and safety

All work-related fatalities are absolute tragedies for the family and friends of the deceased. However, when it is a child who is killed and child witnesses suffer serious psychological injury this really does bring into sharp relief the moral case for managing health and safety.

I’m sure anyone responsible for financial decisions around health and safety reading about this case will think again when considering the cost implications of safety measures. While reasonable practicability involves balancing factors of costs and other practicalities against the likelihood of a risk materialising, companies shouldn’t underestimate the moral and financial cost of getting it wrong.

ORR opinion article on the prosecution

Sentencing Council guidelines 

Contact Laura White at: www.pinsentmasons.com

Laura White is Associate at Pinsent Masons LLP

 

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£6.5m fine for child’s railway death: the sentencing factors

By Laura White, Pinsent Masons LLP on 25 November 2021

Why rail freight operator, WH Malcolm Ltd Harrison was fined a record £6.5m after a young boy was electrocuted by one of its overhead power lines.