The tram was going at four times the speed limit when it left the tracks in November 2016
No one was to blame.
That, after three years of investigations by police and other agencies, was the view of the Crown Prosecution Service when it announced yesterday that there were to be no charges brought following the Croydon tram crash.
British Transport Police, who conducted the criminal investigation, said “every scrap of possible evidence has been scrutinised”.
Seven people – Dane Chinnery, Donald Collett, Robert Huxley, Phil Logan, Dorota Rynkiewicz, Phil Seary and Mark Smith – died and 62 suffered serious injury when a tram travelling from New Addington derailed on a bend before the Sandilands tram stop on November 9, 2016. It was the worst tram accident in a century. It was the worst rail tragedy for 17 years.
Probably as had been hoped by the CPS, and certainly senior figures at City Hall, much of the immediate reporting on the decision to end the investigation into the tragedy focused on the outrage of bereaved families because the tram driver, Alf Dorris, was not being taken to court to face charges of manslaughter.
There is to be a memorial service next week to mark the third anniversary of the crash
Dorris may well have been prosecuted for dangerous driving had he fallen asleep at the wheel of a London bus, but because there are no similar dangerous driving laws for those in charge of trams, it meant that British Transport Police and the CPS had limited scope over any prosecution.
The CPS decision, however, is just as significant because it means no charges are to be brought for corporate manslaughter against Transport for London or their operators, Tram Operations Ltd, whose staffing rotas and on-track safety measures had been seen by many as significant contributory factors in the tragedy.
The CPS said that they could not prove that any negligence which caused the deaths amounted to gross negligence, and was therefore a crime.
The decision of the CPS not to pursue TfL or TOL, a subsidiary of FirstGroup, does not prevent a private prosecution being taken against the companies by those affected by the tragedy.
The first, perhaps most important, outcome from yesterday’s announcement, though, is that now the criminal investigation is over, a proper inquest into the Croydon tram crash can now take place – something the families of those killed or injured have been denied for three years.
The CPS Statement in full
Jenny Hopkins, right, the head of the CPS special crime and counter-terrorism division, said:
“The Croydon tram crash has had a devastating effect on the local community, especially the families and friends of the seven people who so tragically lost their lives.
“The CPS has carefully reviewed all the available material in this case in accordance with the Code for Crown Prosecutors and concluded that the evidence does not support a prosecution of the driver for the offence of gross negligence manslaughter.
“We considered other criminal offences but the evidence did not support a prosecution.
“We fully recognise the impact this decision will have on families who have lost their loved ones and we have offered to meet with them to explain our reasons in full.
“Our thoughts remain with everybody affected by this tragedy.”
Sarah Jones, the MP for the area where the Sandilands derailment occurred, as well as representing New Addington, the home of most of the victims, said, “It’s clear that something went horribly wrong to cause the Croydon tram crash. The families, who have shown huge strength for the past three years, deserve justice.
Sarah Jones: the families deserve justice
“This isn’t the end of the process, it’s important now that we see the coroner’s inquiry which the families have called for. And beyond possible health and safety prosecutions, it’s clear that there is a gap in the law which has made this investigation so complicated.
“I will be pushing for new laws to prosecute death by dangerous driving on tramways, to bring trams in line with the laws on our roads.”
The affected families described the decision not to prosecute as “disgusting”.
Crash investigators found that tram driver Dorris fell asleep for up to 49 seconds as his tram sped towards a curve at 45mph – almost four times the speed limit.
He escaped the accident with light injuries and was arrested on suspicion of manslaughter.
Colleagues say that Dorris has been “mentally destroyed” by the crash and its devastating aftermath.
Finn Brennan, the district organiser of union ASLEF who represents tram drivers working on the Croydon network, said of yesterday’s CPS announcement, “I welcome the fact that the driver of the tram involved in the tragedy at Sandilands will not face prosecution. He was one of the many victims of this terrible incident that was caused by a lack of adequate safety systems.”
Crash investigators reporting in 2017 listed 15 recommendations to improve safety on the tram network, including a significant review and change of the drivers’ working patterns.
Brennan said, “TfL are now starting to instal an automated braking system that will reduce the chances of a similar incident to Sandilands. But it was the collective failure of TfL and FirstGroup’s TOL to recognise the risk of a derailment, not the actions of one individual, that caused this crash.”
Brennan probably has in mind that concerns over fatigue due to shift patterns had been raised by a whistleblower three years before the tragedy.
And the November 2016 incident was not the first time that trams had been speeding around that relatively tight bend. Nine drivers had previously had to use their emergency brake to comply with the speed limit at the bend, according to the Rail Accident Investigation Branch, which delivered its report into the crash in 2017.
It is two years now since the RAIB reported that the “most likely” cause of the crash was a “temporary loss of awareness” by Dorris, which meant he failed to deploy the brakes properly.
And it has been these findings which influenced the on-going police inquiries.
According to police sources, by far the most likely explanation of what happened in this case is that the driver fell asleep, or into a microsleep (a period of unintended, light sleep usually lasting for a few seconds) shortly before derailment. There have been other recorded and widely reported instances of this happening on the tram network, both before and since the Sandilands tragedy.
The workloads and shift patterns of tram drivers have become a contentious matter, especially since senior TfL officials failed to share their own review of driver tiredness with the crash investigations team. Sadiq Khan, the Mayor of London, and now supported by Croydon’s Labour-run Council, has refused to investigate who was responsible for withholding that important evidence.
According to the police conducting the criminal investigation, if Dorris fell asleep at the controls, “it is clear that this was an unintended and involuntary act”.
In their briefing yesterday, the CPS said, “There was no compelling evidence that the driver had done anything which he ought to have known could adversely affect his concentration or make him susceptible to falling asleep whilst driving the tram, nor was there evidence that he had culpably contributed to his negligent failure to drive the tram in a safe manner.”
To prove manslaughter by gross negligence the prosecution needs to establish that:
1. The defendant owed a duty of care to the person or persons who died.
2. By a negligent act or omission the defendant was in breach of the duty which he owed to the person or persons who died.
3. The negligent act or omission was a cause of death.
4. The negligence, which was a cause of death, amounts to gross negligence and is therefore a crime.
The CPS was satisfied that the first three elements of the offence could be established. But, the fourth and final element of the offence is the need to prove that the conduct in question amounts to gross negligence, which the CPS concluded could not be proved. The CPS says that for the conduct to be “gross”, “the law requires it to be so reprehensible or bad in all the circumstances as to amount to a criminal act or omission, and not merely such as to give rise to civil liability for negligence”.
The CPS said, “Even serious mistakes are not to be equated with gross negligence. There must be something over and above negligence, even when there is a risk of death, for the conduct to be gross.”
A tram emerges from the Sandilands tunnel, close to where the crash occurred three years ago
The reference to “civil liability” here may be significant, as the possibility of a civil action being brought against the tram operators remains open.
Certainly, there remains a huge anger among the families of those killed at circumstances that led to the crash, and how they have been treated since.
Ben Posford, the lawyer who represents Andrzej Rynkiewicz, whose wife Dorota died in the crash, described yesterday’s CPS announcement as “devastating for many of the families”.
He said, “They assumed that the delay of almost three years meant charges might be brought at the end of the investigation.
“For the bereaved families, the process has meant an interminable wait for answers. It is vital the systemic failures that led to this tragic event are explored in an open and transparent process.”
Rui De Sa, a survivor of the crash, said, “No one wants to take the blame. I feel no one cares.”
One of those killed in the crash was Philip Logan, and his step-son, Lee Sherwood, said, “It’s disgusting what’s happened. I suppose all the families are devastated, because they’ve all been betrayed.
“Of course I blame the driver. He’s the one that was in control of the tram. But I also blame TfL as well. They’re directly responsible.”
- For Inside Croydon’s archive of articles on the Sandilands derailment, click here
- Civic ceremony for third anniversary of Croydon tram crash
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You would have thought that , with over a century of shift working by drivers of trains, tube, trams, and buses, and makers of cars on 24 hr production lines, processes in refineries, power stations, and duty shifts the military, that someone would have investigated shift patterns and sleep in a university, big company or the armed forces, and published conclusions as to the best ways of minimising sleep while on shift. Is there not some national code of Practice about safety and shift systems?
Likewise, one would have thought that the designers of the Croydon to New Addington tram track and its signalling and operating system would have thought critically about the very tight bend at the accident location, and designed in to the project alarms, gongs or bells in the cabs on the approaches, plus as bold signage and lighting, to alert drivers to the bend , and the speed limit needed to pass through the bend in safety.
This is about far more than a single tragic accident, it is about safe systems of working designed in by the project designers, approved by the project commissioners, and managed by an organisation. ie. lots of people in several professions and organisations.
Were these two aspects considered in the report?
If not, why not?. Does the Coroner have the ability to consider such issues for themselves?