This story has received plenty of coverage over the past couple of weeks, not least because yesterday a train guard was sentenced to 5 years’ imprisonment. He was convicted for his part in the death of Miss Georgia Varley beneath a train on Liverpool’s underground. At the time of her death 16 year old Miss Varley was intoxicated through drink and drugs. As she leaned on a train, Mr McGee made the decision that the train could move away from the platform and so indicated to that effect. Miss Varley was tragically killed as she fell beneath the train.

I tweeted on the 6th of November about an interesting article which indicated that Mr McGee had given seemingly contradictory evidence regarding the likelihood of Miss Varley moving away from the train.

The jury heard that Mr McGee had told colleagues and the Police that he thought Miss Varley was moving away from the train when he gave the green light. However, his defence statement indicated that it could be reasonably anticipated that Miss Varley would move away from the train as it started to move. This subtle but important difference gives a key indication as to his state of mind and the risk to Miss Varley that he perceived at the time of his signal to the train.

It could also be one of the key reasons that the jury convicted him.

Gross negligence manslaughter is proven when it can be shown that there is a gross breach of a duty of care which causes or significantly contributes to a death, and the breach is so gross as to require the attention of the criminal law. This comes from the anaesthetist case, Adamako.

Mr McGee, as an experienced train guard responsible for the safety of passengers, clearly owed a duty of care to Miss Varley and he breached that duty. Miss Varley died as a result of his decision to allow the train to move.

Was it so gross a decision that it should attract the attention of the criminal law? Well he recognised that there was a risk that Miss Varley would not move away from the train. He must therefore have anticipated that if she had not moved, she would be affected by the movement of the train and could possibly fall beneath it or onto the tracks once it had passed. Accordingly, based on what’s been reported, it doesn’t appear that the conviction was in error. Ultimately, it appears that the situation was in Mr McGee’s control, as stated by The Hon Mr Justice Holroyde in his sentencing remarks.

Unless the Court of Appeal chooses to re-examine Adamako or to examine the Court’s application of the law, it may well be that the only point discussed on appeal will be the length of sentence. Had Mr McGee pleaded guilty he would have received a sentence of around 3 to 3.5 years. However, I’m sure he was advised at numerous stages throughout the investigation and prosecution process that he would be entitled to credit for an early plea. He chose to go to trial.

Whilst Miss Varley was intoxicated, it’s not reason enough to excuse Mr McGee’s actions to the point of it being a defence or indeed mitigation. 5 years is a long time but it seems about right, if a bit harsh. I doubt though that it will be treated as manifestly excessive and therefore the appeal will be unsuccessful.

That Mr McGee will leave prison before what would have been Miss Varley’s 21st birthday if not for the result of his actions may well be a sobering thought for critics of the conviction and sentence.