On 14 November 2012, Christopher McGee, a train guard who was at the time employed by Merseyrail, was found guilty of manslaughter by gross negligence following a two week trial at Liverpool Crown Court.
McGee was sentenced to five years’ imprisonment for the part that he played in the tragic death of Miss Georgia Varley, who was 16 at time of the incident.
Whilst each case turns on its own facts, the prosecution has some significance for railway employees in similar positions with duties of care to others, where an error lasting only a few seconds can nonetheless be characterised as grossly negligent.

The facts as reported

Miss Varley was on a night out with friends in Liverpool on 22 October 2011. She was intoxicated through drink and drugs. She had mistakenly left the train at James Street station and leaned against the carriage as she realised her friends were still on board. As she did so Mr McGee signalled to the driver by means of the train’s internal bell system that the train could move away from the platform. Miss Varley was tragically killed as she fell beneath the moving train.

The law

To find a defendant guilty of gross negligence manslaughter the jury must be satisfied that:
• A duty of care existed between the defendant and the victim;
• The duty has been breached;
• The breach caused the death of the victim;
• The breach should be characterised as gross negligence and therefore as a crime.
Whether negligence is gross depends on the seriousness of the breach in all the circumstances in which the defendant was placed when it occurred. The jury has to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the victim, was such that it should be judged criminal.
While this involves an element of circularity the jury is effectively left to decide how far conduct must depart from accepted standards to be characterised as criminal.
Gross negligence manslaughter is judged against the criminal standard of proof which requires the jury to be sure and convinced ‘beyond reasonable doubt’ that the offence has been committed.

Miss Varley was tragically killed as she fell beneath the moving train

Aggravating and mitigating factors

Mr Justice Holroyde in his sentencing comments accepted that:
• Mr McGee’s gross negligence occurred over a few seconds and was not a prolonged course of risk taking;
• He had no relevant convictions;
• He had served the railways conscientiously for 20 years;
• In consequence of what happened he was suffering from post traumatic stress disorder; and
• A sentence of imprisonment would be difficult for him to bear.

However, he went on to state that:

• Mr McGee had been repeatedly trained and instructed in matters of safety including the risk of accidents at the platform/train interface and knew that anyone falling between a moving train and the platform edge was likely to be killed;
• He had sole control of the train’s movement and his actions determined whether Miss Varley was safe from risk;
• He knew that Miss Varley was intoxicated by her behaviour at a previous station, and seeing her unsteady on her feet before leaning on the train;
• He had a clear view of Miss Varley and was not distracted. She was not moving away from the train and was leaning on it when he pressed the bell signal to depart;
• He took a terrible risk in assuming that Miss Varley would move away when the train began to move and he ignored his repeated training and instruction to ensure it was safe to start the train before he gave the signal;
• After giving the signal he could have countermanded it before the train had really begun to move and have warned Miss Varley to stand away from the train but he did not do so.

The judge sentenced McGee to five years’ imprisonment. McGee has been given leave to appeal to the Court of Appeal.

Implications

Train guards work in what are sometimes extremely challenging circumstances. The constant emphasis on safety within the railway industry means that like many other categories of railway employees they are well trained and aware of their responsibilities for the safety of their colleagues and passengers. The consequence of this is that it is difficult for such an employee who makes a deliberate decision to act in a way which unintentionally results in the death of a passenger to excuse himself from the legal consequences. At the same time, and conversely, the better the training the less likely it is that the employer will be criminally responsible for the gross negligence of an employee.

Daniel McShee and Kamal Chauhan, Kennedys LLP. Telephone: 020 7667 9667