The Offi ce of Rail Regulation (ORR) announced on 10 November 2010 that two companies face criminal charges for breaches of the Health and Safety at Work etc. Act 1974 in relation to the May 2002 Potters Bar derailment.

Network Rail Infrastructure Limited is facing a charge under section 3(1) of the 1974 Act for allegedly failing, as infrastructure controller, to implement suitable training and procedures for the installation, maintenance and inspection of stretcher bar points. Adjustable stretcher bars keep the moveable section of the track at the correct width for the train’s wheels.

The infrastructure controller for the national rail network at the time of the incident was Railtrack plc (in administration). However, Network Rail Infrastructure Limited took over Railtrack in October 2002 and assumed its liabilities for the incident.

Jarvis Rail Limited, the infrastructure maintenance contractor responsible for the relevant section of the national rail network at the time of the incident, faces identical charges under section 3(1) of the 1974 Act. The charges will be brought despite the fact that Jarvis was put into administration in March 2010.

The Health and Safety Executive set up an independent Investigation Board using its powers under section 14 of the 1974 Act to oversee the investigation into the derailment. Its report identifi ed a number of faults which led to the crash, including loose nuts on the points and failure to uncover defects during earlier inspections. However, responsibility for health and safety policy and enforcement on railways was transferred to ORR on 1 April 2006 and ORR is now leading the prosecution.

The announcement follows an inquest into the incident in June and July 2010, at the end of which a jury returned seven verdicts of accidental death. Ian Prosser, Director of rail safety at ORR said that the conclusion of the inquest has allowed ORR to make a decision as to whether any enforcement action should be taken in relation to the incident. Mr Prosser stated: “I have decided there is enough evidence, and it is in the public interest, to prosecute Network Rail and Jarvis Rail for serious health and safety breaches.”

The proceedings are due to take place in January 2011 in Watford Magistrates Court, where the two companies could face fi nes of up to £20,000. If the case is committed to the Crown Court, as is likely, the companies could face unlimited fi nes.

It is questionable whether successful prosecution of the companies in this case will lead to satisfactory fi nancial penalties and accountability being imposed on those actually responsible for health and safety at the time of the incident, given the passing of legal liability from Railtrack plc to Network Rail and the administration of Jarvis Limited.