EXECUTIVE SUMMARY

  I am writing to set out the response of Network Rail Infrastructure Limited (Network Rail) to the Government's draft Bill for reforming the law of Corporate Manslaughter.

  This response falls into two parts. The detail of Network Rail's response is contained in the annex to this letter. This letter sets out in executive summary from Network Rail's response to the key points in the draft Bill.

  1.  As it has done throughout this important debate, Network Rail recognises that there is a view that clarification is appropriate in this area of the law.

  2.  In general, Network Rail acknowledges the draft Bill as currently published and the improvements in the policy developments that have taken place since previous consultations. Network Rail believes the requirement to identify knowledge or an unreasonable lack of knowledge on the part of senior managers is a necessary ingredient in any new offence. Similarly it must be an essential requirement that the breach must amount to gross negligence.

  In September 2002 Network Rail received an impact assessment from the Home Office Criminal Policy Group, which indicated that the proposed offence at the time required nothing more of organisations than compliance with existing health and safety law and regulation. The impact assessment itself accepted that considerable importance was being placed on the "labelling" which results from a criminal conviction.

  Network Rail had concerns about such an approach. In responding to the impact assessment it indicated that there would be a significant responsibility on the prosecuting authorities only to pursue the most serious cases where the evidence justified doing so. It therefore welcomes the introduction of the requirement for senior management involvement and the need for any breach to be gross as a positive improvement which should assist in achieving the Government's stated aim of focusing on the worst cases of management failure.

  3.  Network Rail believes that the clear statement that this is an offence directed at organisations for which there can be no secondary liability for individuals is essential and is without doubt a sensible and critical conclusion to have reached.

  Network Rail had serious and justifiable concerns about the proposed enforcement action against a director or other company officer (hereinafter described as the Associated Orders) contained in the 2000 proposals (but not in the Law Commission Report in 1996) which could have required in conjunction with a corporate killing offence that:

—  Any individual who could be shown to have some influence on the circumstances in which a management failure occurred should be subject to a Disqualification Order from acting in a management role and;

—  Where an organisation was guilty of corporate killing officers of the undertaking who "contributed substantially" to the management failure could be convicted and liable to a penalty of imprisonment or a fine.

  Network Rail strongly believes that the Home Office has reached the right conclusion in not including the Associated Orders as part of the draft Bill. Plainly it is right that where a duty of care is breached there should be accountability and laws in place to punish the guilty where that is appropriate but the offences of manslaughter by gross negligence, and under health and safety legislation, provide that accountability.

  Network Rail's primary concern was the potential punishment of individuals who when applying the normal principles of gross negligence manslaughter and health and safety legislation, would not be so accountable. Network Rail considered this to be contrary to the principles of reasonableness and fairness. Further, if the Associated Orders had been introduced, it would assist no one if the threshold of accountability was reduced to a level where engineers, managers and directors were unable to manage efficiently due to the constant fear of being prosecuted for any mistake they make. Indeed they would most likely have lowered standards of safety, leading to a "closed" (as oppose to "open") safety culture inhibiting the investigation of incidents and learning of lessons.

  4.  In terms of the offence of corporate manslaughter aimed at organisations, as stated above Network Rail believes that the requirement for senior management involvement in the offence is an improvement on the proposals outlined in the Law Commission and the Government's Paper of 2000.

  Network Rail does not believe that a prescriptive definition of senior manager to any circumstance is achievable. The question of who is a senior manager will depend substantially on the size of a company and the complexity of its management systems.

  Network Rail would welcome greater clarity as to whether that question will in each case be a question of law for the Judge to decide or alternatively a question of fact for the jury. Network Rail's view is that deciding the question of who is a "senior manager" will be analogous to deciding the question under the common law of who represents a directing mind of a company, in that this will be a question that is a matter for the jury to decide, having been properly directed by the Judge, but that a Judge would have the power to dismiss on application by the defence a case where he or she held that no reasonable jury properly directed could reach the conclusion that a person or persons identified are senior managers of the company. Network Rail understands that the Home Office agrees with this approach.

  5.  Network Rail also welcomes the introduction in the draft Bill of the requirement for a breach to be "gross". This requirement was not in the previous proposals and in Network Rail's view it represents a helpful and valid addition to emphasise that the new offence should be restricted only to the most serious cases, as opposed to a repackaging and re-labelling of health and safety duties.

  6.  Network Rail also acknowledges and welcomes the guidance given in Clause 3.2 which requires the jury to focus on what senior managers knew or ought to have known.

  7.  Network Rail agrees that the new offence should compliment existing health and safety legislation. However if a company is prosecuted both for corporate manslaughter and under the Health and Safety at Work Act both offences the starting point should be that both offences should be tried together. A single defendant on charges arising out of the same set of facts should not be forced to undergo duplicated sets of proceedings which will only result in significant additional costs unless there are good reasons for doing so in a particular case where an application for severance could be made to the Judge. There would be no justification for having a strict rule of not trying offences against the same defendant arising out of the same set of facts together.

  Both the HSWA and the new corporate manslaughter offence have the same legal burden of proof in that the prosecution is required to prove beyond all reasonable doubt there has been a breach of duty. That burden having been fulfilled, under the HSWA it is for the accused to then prove that all reasonably practicable measures have been taken. Network Rail's view however is that this does not provide any justification for separate legal proceedings. A jury properly directed should be able to reach conclusions based upon the facts before them and it would not involve undue "mental gymnastics" by the jury to separate the ingredients of the two offences.

  8.  Subject to some specific concerns identified in the annexed document, Network Rail welcomes and supports the proposed approach in relation to public authorities and the distinction to be between delivery and matters of policy/prerogative.

  9.  Network Rail has serious concerns about the imposition of remedial orders by Criminal Courts. Its view is that it should be the role of Criminal Court to impose standards of safety in any industry or to regulate the management of safety.

  That is the role of the HSE (or other Safety Regulator) who in the event of any corporate manslaughter conviction would surely be aware of the prosecution and could fulfil the same role by serving Prohibition or Improvement Notices under HSWA. Network Rail considers that there are risks in allowing Criminal Courts to regulate the management of safety where a Court is dealing with a specific incident and where it may be unaware or not fully appreciate other safeguards in the system. This is certainly the case in the railway industry where an industry specific safety regime is required by the Railway Safety Directive (Directive 2004/49/EC).

  10.  Network Rail welcomes the indication in the draft Bill that there is no proposal to change the current responsibilities of the police to investigate, and the CPS to prosecute. It also welcomes the requirement for the consent of the DPP before proceedings can be instituted.

  We hope that these views are seen as constructive and are of interest. Network Rail would welcome the opportunity to engage further with the Government on these important issues.

June 2005

  This section sets out Network Rail's comments on each of the main sections of the consultation paper.

FOREWORD AND INTRODUCTION

  1.  As it has done throughout this important debate, Network Rail sees the force of change in this area of the law and accepts that there is a need to clarify and simplify the nature and ingredients of the offence of corporate manslaughter. Network Rail believes however that the offence should only be prosecuted in the most serious of cases where there has been a flagrant disregard for health and safety leading to death. Network Rail welcomes therefore the indication that the offence will be reserved for the very worst cases of management failure and that the offence will complement, not replace, other forms of redress such as prosecutions under health and safety legislation.

  2.  Network Rail also welcomes the indication that it is not the intention of the proposed legislation to increase regulatory burdens, stifle entrepreneurial activity or create a risk adverse culture.

  3.  In this respect Network Rail welcomes the indication in paragraph 3 of the Introduction that a key part of the proposals is to strike the right balance between a more effective offence and legislation that would not unnecessarily impose a burden on business. If, as it states, at the heart of the new offence is a desire to create a more effective means of attributing failures to an organisation then the draft Bill will have Network Rail's support.

  4.  Network Rail particularly welcomes the indication that the offence will not apply to individual directors or others. It believes that this is an important and valid conclusion to have reached. Network Rail considers that had the Associated Orders set out in the 2000 paper formed part of the draft Bill it would, at the least, have "increased regulatory burdens, stifled entrepreneurial activity and created a risk averse culture" (see later section on individual accountability).

NEED FOR REFORM

  5.  Network Rail recognises the reasons stated for the need for reform in relation to the offence of corporate manslaughter and the Bill as currently drafted. Network Rail considers it is important that society has confidence in the law. If as appears to be the case there is a perception that the current law favours large undertakings over small undertakings then this may be a justifiable reason to clarify and simplify the nature and ingredients of the offence.

  6.  It is true of course that the penalties available to a Court where there is a breach of health and safety legislation, namely a fine and/or remedial order, are the same as for the new offence of corporate manslaughter. However Network Rail acknowledges that there may be extreme cases where a management failure has been so gross that the stigma attached to a conviction of a corporation for an offence similar to manslaughter is required. However Network Rail repeats its view that the offence should be restricted for the worst examples of management failure where there has been a clear gross breach by senior managers in the way an undertaking has been managed or controlled.

THE OFFENCE

  7.  In general terms Network Rail supports the approach proposed but has specific comments concerning the constituent parts of the offence as set out below:

(i)  The scope of the offence

Network Rail supports the requirement for a duty of care analogous to the current law. It agrees that it is important for organisations to be clear that the new offence does not apply in wider circumstances than the current offence of gross negligence manslaughter.

Network Rail notes the circumstances in clause 4(1) when a relevant duty of care will arise. Currently, Network Rail does not consider it is clear what "the supply of services" may involve. Network Rail, for example operates a very diverse undertaking involving many different tasks and wishes to have as much clarification as possible about when a duty of care may arise.

Network Rail agrees that the new offence of corporate manslaughter should apply to Government departments. The intention to create a "broad level playing field between public and private sectors" is strongly supported.

Network Rail anticipates that there will be significant debate upon the activities by public bodies that should be susceptible to prosecution. It notes the exclusion of duty of care as set out in Clause 4(2) in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests).

Network Rail is concerned that such exclusions should be applied fairly to public and private bodies. Decisions of public policy are not confined to public authorities. In certain situations Network Rail, and other "private" organisations, will make decisions which will involve questions of allocation of resources derived from the public and determine policies which involve weighing up competing interests. In the exercise of these functions a private sector organisation should be in the same position as a public body. Network Rail, similarly to an NHS Trust, has a finite resource with numerous competing priorities and is required to make decisions about prioritisation of safety expenditure.

In those circumstances Network Rail considers that the prosecuting authorities should take decisions to ensure that where a private body makes what is in effect a public policy decision, it too should have the benefit of the clause 4(2) exclusion.

Further in this regard, it is important that there is equality before the law. For example, Network Rail considers it is important that the Highways Agency, being the infrastructure controller for the strategic road network, is subject to the same levels of accountability as Network Rail (and, indeed, local highways authorities). It is not clear from the explanatory notes how liability might be applied to the Highways Agency and in what circumstances culpability will be excluded. Network Rail suggests further clarification of clause 4(2) is necessary.

In the context of the Railways, another matter requiring clarification is the position of the Office of Rail Regulation (ORR), which under the Railways Act 2005 is to become the industry's safety regulator (as well as its economic regulator). The ORR is not identified in the Schedule to the draft Bill as being a Government Department subject to the new offence presumably because it undertakes functions of public policy. However, Network Rail's ability to perform its undertaking is directly affected by the exercise of those public policy functions by the ORR. For example, the ORR, having considered competing public interests and the availability of resources, may decide not to fund a particular safety measure such as an automatic train protection system. Does it follow that Network Rail cannot be prosecuted for any fatal consequences directly arising from that decision?

From time to time it may be necessary for the Secretary of State to review the schedule and make alterations to those bodies listed. The current proposals do not make it clear what criteria will be applied and as to how these potential changes will be implemented. Network Rail believes that some explanation of the criteria and process for review should be given how the powers of the Secretary of State will operate in such circumstances.

(ii)  Management failure by Senior Managers

Network Rail believes that the introduction of the requirement for senior management involvement is in general a positive policy development.

This requirement was not in the proposed corporate killing offence either in the Law Commission Report in 1996 or the Home Office's Paper in May 2000 (or even at the time of the impact assessment in September 2002).

At that time Network Rail responded that in cases of death the proposed corporate killing offence mirrored section 2 and section 3 of HSWA but with the greater stigma of corporate killing. Thus using section 3 of HSWA as an example, an organisation would be guilty of a breach of section 3 if it failed to ensure so far as is reasonably practicable that employees or those affected were not exposed to risk. This did not appear to be materially different from ingredients of the proposed corporate killing offence and the Impact Assessment accepted that there was a degree of "repackaging" in the proposals.

Network Rail submits that the offence of corporate killing as outlined in the Law Commission, the 2000 proposals and the Impact Assessment if enacted would have had a significant effect on a company's potential for serious criminal liability in an unfair and unsatisfactory way. It would have rendered an organisation potentially liable for corporate manslaughter on the basis of individual errors rather than true corporate management failure. Network Rail fully supports the intention that the new corporate manslaughter offence in the draft Bill is designed to capture truly corporate failing in the management of risk (paragraph 14 of the consultation paper).

To this extent Network Rail welcomes the introduction of the requirement for senior management involvement as a criteria for the offence of corporate manslaughter. Indeed Network Rail considers that the removal of the requirement to identify and convict a "directing mind" is a positive development as it removes the threat of senior individuals being aggressively investigated and prosecuted inappropriately for manslaughter in order to try and secure a conviction against an organisation.

Network Rail believes that inevitably common law will refine who will (and will not) fall within the definition of senior manager and accepts that because of the diversity of organisations in business that a comprehensive statutory definition may not be achievable.

Network Rail considers that the question of whether or not a person is a senior manager should be a question of fact for the jury to decide in the same way that a jury currently reaches conclusions on who represents a directing mind of a company. It would of course be open to a Judge on application to dismiss a case where he or she finds that no reasonable jury properly directed could reach the conclusion that the person or persons so identified are a senior manager.

Although Network Rail welcomes the requirement that the offence is predicate upon senior management involvement in the management failure, it believes that there are a number of specific issues that need to be clarified.

For example, although Network Rail accepts that no comprehensive statutory definition may be achievable it believes that further clarification could be given on the definition of a person who plays a significant role in "the actual managing or organising of the whole or a substantial part of those activities" (Clause 2(b)).

The test under the common law of who represents a directing mind is summarised in Lord Reid's speech in Tesco Supermarkets v Nattrass (1972 AC 153) that a "Corporation must act through living persons though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is speaking as the company and his mind which directs his acts is the mind of the company."

It is unclear in Network Rail's view what "the actual managing or organising of the whole or substantial part of those activities" means in the context of a large national undertaking like Network Rail. Network Rail believes that there is a risk that definition could significantly lower the seniority of the class of person who is classified as a senior manager from those that represent the directing mind under the current law. It considers that it would be unfortunate if this were the case and that this would be contrary to the stated intentions of the scope of the new offence.

Network Rail also invites clarification on the comment in the consultation paper (paragraph 27) that management failure will involve a different basis of liability focusing on the way the activities of an organisation are in practice organised or managed. Network Rail notes the comment that this has not replaced the need to identify a single directing mind with a need to identify several, nor does it involve aggregating individuals' conduct.

Network Rail does not believe that it is clear what this actually means nor in reality how this is not going to involve some form of aggregation of senior managers' conduct. Network Rail believes that the Home Office should give further guidance on how the acts or omissions of more than one senior manager in any incident are to be examined and how liability will be imposed other than on the basis of some form of aggregation of those senior manager's involvement.

(iii)  Gross Breach and Statutory Criteria

Network Rail welcomes the indication that it is not the intention to catch companies or others making proper effort to operate in a safe or responsible fashion or where efforts have been made to comply with health and safety legislation but appropriate standards not quite met. As stated, Network Rail believes the offence should be reserved for the worst examples of management failure.

In addition Network Rail also welcomes the indication that the proposals do not seek to make every breach of a company's common law and statutory duties to ensure health and safety liable for prosecution under the new offence.

Network Rail considers the introduction of the requirement for any breach to be gross and the stated intention that the offence will only be reserved for the "very worst cases of management failure" to be a sensible policy development consistent with the stated aim of the offence and the overriding primary objective of not lowering overall standards of safety through a risk culture.

Network Rail believes that the guidance given in Clause 3(2) is helpful in that it requires the jury to focus on what senior managers knew or ought to have known. The inclusion of specific criteria also overcomes one of the criticisms of the current common law namely that the test as set out in R v Adamako is circular in that what is gross is what the jury believe should be gross and consequently what is criminal is what the jury believe to be criminal without specific guidance being given to them.

Although Network Rail considers that the inclusion of the criteria in Clause 3(2) is an improvement, Network Rail submits that the actual drafting is not as clear as it could be. It is not, for example, clear as to whether all of the criteria in Clause 3(2) must be present to create a finding of grossness.

In addition Network Rail considers that the definition of "health and safety legislation or guidance" in Clause 3(3)(b) is in need of further explanation. The current definition of "code, guidance, manual or other similar publication that is made or issued (under an enactment or otherwise) by an authority . . ." is too wide and will lead to uncertainty within industry of when a company will be in breach of its obligations. Network Rail considers that this should be replaced by "any written code of practice or official written guidance that is published by the relevant safety regulator following consultation with the relevant industry and is readily available to the public".

Network Rail also believes that Clause 3(4) (namely that the guidance on what is "gross" does not prevent the jury from having regard to any other matters they consider relevant) is too wide and creates unnecessary uncertainty as to when criminal liability might arise. Given the stated intention to make the offence of corporate manslaughter a serious offence within the general criminal law, it is important that there is clarity of when the acts or omissions of a company, which would otherwise constitute legal enterprise, will be so serious so as to attract the imposition of this new criminal sanction.

APPLICATION

  8.

(i)  Corporations

Network Rail agrees with the analysis in the consultation paper.

(ii)  The Crown

Network Rail believes that the decision to have no general Crown immunity providing exemption from prosecution is a sensible and equitable conclusion to have reached.

In terms of those Crown bodies identified in the Schedule to the draft Bill, Network Rail notes that the Office of Rail Regulation is not included amongst that Schedule, presumably for public policy reasons. Network Rail also refers to its comments above concerning the scope of the offence and decisions on public policy made by organisations that are not public authorities.

(iii)  Unincorporated Bodies

The Home Office paper in 2000 proposed the extension of the corporate killing offence to "any trade or business or other activity providing employment". Network Rail notes that the draft Bill for reform now published does not apply to unincorporated bodies although the matter is being kept under review.

Network Rail believes that this is a sensible policy development. It believes that to extend the applicability in the way suggested in the 2000 Proposals would have cast the net too wide. Network Rail notes that the position has now returned to that originally set out in the Law Commission's proposals that were limited to organisations formed to secure profit.

Network Rail believes that the extension to unincorporated bodies covering, for example, voluntary organisations would have discouraged much useful work in the voluntary sector and believes that the draft Bill for reform has reached sensible conclusions in drawing a distinction between those organisations where a duty of care would otherwise be present under the current common law.

(iv)  Individuals

Network Rail notes that the draft Bill imposes no new liability on individuals. Network Rail welcomes this as a sensible conclusion. Earlier proposals to extend enforcement action against a director or other company officer (which appeared in the 2000 proposals (but not the Law Commission report in 1996)) including to disqualify a manager who had "any influence" on a management failure and to potentially imprison someone who contributed substantially were conceptually unsound. They would have lowered the level of possible criminal sanction to an unacceptable and unreasonable level.

Network Rail believes that public and media perception of the corporate manslaughter debate has unhelpfully confused the issues of culpability of organisations and the culpability of individuals and that the current draft Bill rightly distinguishes between those two elements.

The Home Office paper in 2000 also included a number of Associated Orders and Penalties (hereinafter described as the Associated Orders). These included in conjunction with the corporate killing offence that:

—  any individual who can be shown to have had some influence on the circumstances of which a management failure occurred should be subject to a disqualification order from acting in a "management role in any undertaking carrying on a business or activity in Great Britain"; and

—  there would be an additional criminal offence so that officers of the undertaking who contributed substantially to the management failure were liable to a penalty of imprisonment or a fine in separate criminal proceedings.

As stated, Network Rail fully supports the conclusions in the draft Bill not to introduce secondary liability of this nature.

The Government's proposals in 2000 for the Associated Orders in fact went further than the Law Commission's recommendations and if enacted would have exposed directors, managerial staff and employees to unsatisfactory substantial risks.

The Railway Industry has been the subject of much publicity and debate in relation to accidental fatalities and this is understandable. However Network Rail believes strongly that the primary focus of any proposals for change to the law of manslaughter should be to improve safety. The principles of retribution and deterrence should be secondary. Network Rail submits that the Associated Orders did not achieve this primary aim.

Such draconian measures could have led to people refusing to take positions of responsibility and could have resulted in activity designed to give the impression of good safety management by the creation of audit trails for the prime purpose of exculpation, at the expense of safety improvements brought about by open reporting and investigation with the ultimate consequence that safety standards would be negatively affected. Network Rail believes that the proposals had the potential to lower the threshold of liability to unacceptable levels. Further, the effect of those proposals would have been to create a range of penalties which caused individuals to be unnecessarily circumspect in the conduct of their duties and to deny mistakes or seek to transfer blame. This could have had a severe detrimental effect on learning lessons and safety culture.

The second Associated Order relating to officers who "contribute substantially to the management failure" in particular caused Network Rail considerable concern. Network Rail's view is that it would be unjust for an individual, against whom insufficient evidence can be found to convict him of manslaughter or a health and safety offence to still be liable to a term of imprisonment through secondary liability. If there is sufficient evidence of individual culpability then the prosecuting authorities should charge the individual with a manslaughter offence.

It should also be noted that enforcing authorities have powers under section 37 of the Health and Safety at Work Act 1974 which are very wide and which will cover the acts or omissions of officers of undertakings which have exposed individuals to risk. In addition, the enforcing authorities have powers under section 7 of the HSWA in relation to employees, which creates a duty to other employees and others affected.

In conclusion Network Rail contends that the Associated Orders were too wide ranging and rather than improve safety might have had the effect of creating a poor safety culture with staff unwilling to take on safety management responsibilities and leading ultimately to lessons not being learnt and a reduction in safety. Network Rail therefore fully supports the conclusions reached in the draft Bill.

OTHER ISSUES

  9.

(i)  Causation

Network Rail notes the analysis of causation at paragraphs 49-21 and agrees with it.

(ii)  Sanctions

Network Rail notes that a power to impose a remedial order by a Court is also included in the draft Bill. That power is available to the Courts under the HSWA (s 42) but it is rarely used. Network Rail believes that the potential sanction is fraught with difficulties and that may be a reason why it is not used under HSWA. Network Rail's view is that any such orders would need to be consistent with the strategy of improving safety across a whole industry. It believes there would be a danger that a Court considering one aspect on managing safety by one undertaking in an industry would be unaware of the impact of any remedial order on the activities of the system overall.

The only sanction which should be applied is a financial penalty. Network Rail submits that the appropriate level of fine should be calculated by the Court consistently with the criteria adopted by the Court of Appeal in R v Howe and R v Friskies Petcare (UK) Limited which apply in relation to health and safety offences currently.

Network Rail believes that clarification should be given on the relationship between a fine imposed for corporate manslaughter and any simultaneous or subsequent fine for health and safety offences which would arise out of the same set of facts and underlying culpability.

In summary, Network Rail's view that it is not the role of a Criminal Court to impose a standard of safety in any industry or to regulate the management of safety, particularly in a large and complex industry like the railway industry. This is particularly so in a situation where a Court is unlikely to have received the views of all constituent parts of an industry and there is a danger that an order might be made that was in conflict with other industry safety/operational or financial considerations or with other possibly industry—specific legislation. Regulation of safety in any industry is the role of the appropriate Safety Regulator (such as the HSE or the ORR) and one would expect that that body to be aware of the circumstances of any corporate killing prosecution and could fulfil the same role by serving Prohibition or Improvement Notices under the HSWA.

(iii)  Extent

Network Rail is an English based company but operates in Scotland where it is also the infrastructure controller for the Railway Network. Network Rail is not unique in being an undertaking operating in different parts of the United Kingdom. It believes that it would be sensible for a single regime to apply. It would be unfortunate in Network Rail's view for different standards of criminal liability to apply to the management of a single train service running from London to Inverness depending upon the precise point of its journey particularly as the Bill cannot be extended to cover Scotland without the approval of the Scottish parliament through a special parliamentary process. The example given would be most unfortunate in Network Rail's view and the Home Office should be seeking uniformity of applicability of the new offence throughout the whole of the United Kingdom prior to its introduction.

(iv)  Investigation and Prosecution

Network Rail notes the Government's conclusion recognising the importance of police involvement in order to signal the new offence as a serious offence under the General Criminal Law and that as a consequence the draft Bill proposes no change to the current responsibilities of the police to investigate, and the CPS to prosecute corporate manslaughter.

Network Rail acknowledges the conclusions reached and welcomes them. It believes that the police and CPS should be the investigating and prosecuting authorities for corporate manslaughter respectively.

If the powers of the health and safety legislation enforcement agency, for example HSE (or in the case of the railway, from about December 2005, the ORR) were extended to cover the prosecution of an offence of corporate manslaughter, Network Rail believes that the sharing of information and evidence immediately following an incident would be further hampered by the conflicting interests of finding out what has happened in order to learn lessons and criminal prosecution for retribution purposes. In addition, because of their role in regulation it is possible that the HSE (or ORR) might have played a part in not correcting any management failure on the part of the corporate defendant despite having knowledge of it.

Network Rail believes that for these reasons and because the CPS has the experience in bringing major criminal prosecutions, the conclusions reached are the correct ones.

Network Rail also welcomes the indication that nothing in the proposed Bill affects the roles and powers of the independent accident investigation branches who undertake the investigation of air, marine and rail accidents.

Network Rail welcomes the requirement of the DPP's consent before proceedings can be instituted.