CPS statement on Croydon Tram crash charging decision

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Jenny Hopkins, 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.”

Brief facts:

In the early morning of Wednesday 9 November 2016 a tram in public service was approaching a bend in the track at a point near Croydon when it derailed and overturned. The tram was travelling far in excess of the speed limit when it derailed.

There were sixty nine passengers on board. Seven passengers died and many others were seriously injured. The driver survived without serious injury.

Forensic examinations of the tram and track revealed no defects that might cause or explain the derailment. No drugs or alcohol were detected in the driver, and he suffered from no known medical condition that could have impaired his driving. He had the reputation of a reliable and experienced tram driver.

The criminal investigation concentrated on driver error as the cause of the derailment, and in particular on the allegation that the driver fell asleep shortly before the tram derailed. The principal offence considered by the CPS was that of gross negligence manslaughter.

Assessing the evidence:

In order to prove manslaughter by gross negligence the prosecution need 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. Whilst driving a tram in public service with passengers on board, the driver either fell asleep or lost concentration to such a degree that he completely relinquished control of the driving task, with the result that the tram derailed. There was no evidence that the driver’s failure to drive the tram in a competent manner was the result of the sudden onset of a medical condition which rendered him incapable of carrying out his driving function or caused him to lose consciousness.

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 in this case. In order 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. A conviction cannot be returned if the negligence is, or may have been, less than gross. 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, in order for the conduct to be gross.

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. If this is what happened, it is clear that this was an unintended and involuntary act. 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.

For these reasons we concluded that the offence of gross negligence manslaughter was not supported by the evidence.

Were any other offences considered and what were they?

Causing death by dangerous or careless driving:
These offences, contrary to section 2 of the Road Traffic Act 1988, require proof that a mechanically propelled vehicle was driven dangerously or carelessly, on a road or public place, and that the way the vehicle was driven caused death.

The CPS was satisfied that the section of the tramline where the tram was being driven at the time of the incident was neither a road nor a public place, and that for this reason alone the offence cannot be proved.

Wanton and furious driving:
This offence, contrary to section 35 of the Offences Against the Person Act 1861 (OAPA), is aimed at drivers who are either deliberately driving in an irresponsible and unrestrained manner such that others might be harmed by it or who recognise that, because of the way they are driving, others are being put at risk, and continue to drive in that way regardless.

The evidence indicates that the driver’s loss of control in this case was involuntary and unintended. He would not have been aware of the fact that his driving had deteriorated so dangerously, let alone of the consequences to others as a result. We therefore concluded that the mental element of this offence is not made out.

Endangering the safety of a person on the railway:
This offence, contrary to section 34 OAPA 1861, makes it an offence to endanger, or cause to be endangered, the safety of any person conveyed upon the railway by any unlawful act or wilful omission or neglect. The tramline on which the tram was being driven at the time of the incident is not a railway, and there is no parallel offence of endangering the safety of a person on a tramway. Nor was there evidence of unlawful or wilful conduct in this case.

Corporate Manslaughter:
The CPS also considered whether there was any realistic basis for prosecuting any of the companies involved for the offence of corporate manslaughter, contrary to section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 - for example the company which owns the trams and tramline and the company which runs the system and employs the driver.

There is no evidence that any of the companies was guilty of gross organisational failures that caused the deaths of those who died in this incident, as would be required for this offence to be made out. No defects were discovered in either the tram or the tram track that could have accounted for the derailment. It is clear from the evidence that the sole cause of this tragic incident was the driver losing awareness and control of his driving task.

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