After a major accident or catastrophe with casualties or fatalities, it would be all too easy for panic to set in, but the first 24 hours must be handled correctly without compromising the business.

Decisions made by managers or directors at this point lay the foundations for external scrutiny and investigations. The police and railway regulators including the Rail Accident Investigation Branch (RAIB) and Office of Rail Regulator (ORR) will immediately attend the scene; all too often representatives of the railway organisation ‘over-cooperate’, giving the authorities and media as much information as they have in the hope of sweetening the relationship. Unfortunately, this can result in self-critical, inaccurate or confidential documents being released.

Railway businesses can easily lose their way in high-pressure situations, allowing events to overtake them. By taking specialist legal advice from the outset, the fast-moving environment of a crisis can be handled more effectively, the organisation navigated through the crisis and a range of disciplines such as welfare counselling and media handling introduced to limit impact on stakeholders.

The first 24 hours

The first 24 hours are the most crucial. Any crisis will draw significant attention from external organisations, generating volumes of questions that appear to need answering immediately. The business should deploy the necessary resources to commence its own internal investigation, look beyond short-term issues and consider the long-term implications of the incident; providing a detailed strategic response covering media issues and recognising how events could be perceived in the court room.

The investigation team should also shadow the actions of the enforcement officers to ensure that it has access to similar knowledge and a fair understanding of what will happen next.

Legal obligations

Almost inevitably, a range of different regulators and agencies will become involved, some conducting parallel investigations. The rights afforded to each suspect person or organisation depend on which regulator is involved; the stage of the investigation and the purpose of each action (gathering evidence or information). If a business doesn’t fully understand these rights, it should enlist specialist legal advice to allow it to respond appropriately and brief its employees about the implications of each procedure.

The British Transport Police (BTP) conducts investigations into certain railway incidents, for example involving level crossings, cable theft and trespass. Where there is a railway accident, BTP becomes the initial contact point for other railway regulators including the RAIB and ORR, working closely with the local police force in the geographic area of the accident and investigating criminal offences.

Where there is evidence of a serious criminal offence (deaths, multiple casualties, serious injury or other serious consequences, e.g. derailment of a train or train collision), BTP decide with the CPS (Crown Prosecution Service) whether there is sufficient evidence to bring charges, for example corporate manslaughter. The BTP investigation will take precedence. RAIB may provide technical support. ORR may provide specialist safety guidance.

A suspect is protected in its dealings with the BTP by various rights provided by the Police and Criminal Evidence Act 1984 (PACE), including the right to silence. Further, any request for a witness statement is on a voluntary basis.

The role of RAIB is to conduct ‘no blame’ investigations into railway accidents to identify causes and improve safety. RAIB findings are always published whether or not criminal proceedings are brought. In cases where the BTP/police do not have precedence, RAIB will lead the investigation into the cause of the accident/incident. However, even where the police have primacy, RAIB inspectors will normally interview persons (and take witness statements) before the police or ORR. RAIB has the power to compel any person to answer documents and provide documents (unlike the police). Offering information to RAIB which is or may be inaccurate is counter-productive and may be a criminal offence.

In contrast, ORR investigates and prosecutes ‘non-serious’ breaches of health and safety legislation in the operation of railways. Normally ORR awaits the outcome of an RAIB investigation or the police (where there is a serious criminal offence) before commencing its investigation. The investigation may include requests for voluntary witness statements (where there is evidence against a suspect) and may be preceded by a request under compulsion power to a person to answer questions or produce a document. This process is normally used as part of the information gathering process and any information provided cannot be used in evidence against that person.

While a business must comply with legal obligations, it should not be excessively hostile towards the authorities, nor should it pander to them and give more information than is necessary. Legal advisers can also guide managers and directors through these procedures and spot appropriate opportunities to gain credibility by being proactive.

Internal investigation

Launching an immediate internal investigation led by professional advisors helps to ensure that the business won’t be taken by surprise. A robust internal investigation encourages witnesses to co-operate and therefore gives the business a chance to be more fully appraised of potential liabilities. The findings are not necessarily something to be shown to the authorities as they may be self-critical or set higher standards for compliance. Handled correctly however, this process is covered by legal professional privilege, meaning that information remains confidential.

Controlling information

In the aftermath of an incident, it is essential to contain the spread of information, especially that which is sensitive, untested or not yet known to the investigating agencies. Any information released to third parties could end up in court. One senior individual, to whom all others report, should be appointed to speak with outsiders, brief the workforce and control the release of information. This includes ensuring that no inappropriate, off-the-record comments are made.

Any major accident is likely to hit the headlines. It is particularly important to be mindful of what (and when) information is passed to the media. Effective media handling can preserve the organisation’s reputation. Media enquiries should be dealt with promptly and sincerely.

Best practice

The 2007 Virgin train crash killed one person and injured many more and pushed both Virgin Trains and Network Rail into the spotlight. The incident was managed brilliantly – communication with the media was swift, efficient and accurate. Virgin chairman Richard Branson, and Network Rail CEO John Armitt, were both quickly briefed and available for interview, which was an important step and provided an opportunity to reassure the public and encourage them to form positive opinions of both businesses.

In interviews, Branson was visibly emotional, yet dignified and positive, praising the heroism of the train driver, the design of the train and even commending Network Rail for being ‘dignified’ in accepting responsibility for the accident. Armitt was the central spokesperson for Network Rail and gave full disclosure at every point. Both businesses fully cooperated with the authorities. This could have been a potentially reputation-damaging incident but the way in which it was handled meant that both businesses kept their reputations intact, complied with investigations and saw their companies through to the next stage.

As Branson said after the 2007 crash, railways are still the safest mode of transport, a comment that has been backed up by statistics – figures from the Railway Safety and Standards Board show the total number of incidents were 551 in 2011/12, down from 1,598 in 2001/2. Despite this, accidents can still happen and there is still potential for extreme liabilities and reputational damage, so it is important that any business which finds itself in such a situation applies a full crisis management approach instead of simply ‘responding’. Businesses must act quickly but without being impulsive. Engaging the appropriate professionals can help navigate managers and directors through the difficult aftermath of a serious accident and regain some power during the investigations.

Rupert Nevin is senior partner in the regulatory team at business law firm DWF.