A Wicked Combination of Circumstances?
The Case of Gary Hart

By Scott Lomax.

At first it was described as “a wicked combination of circumstances”, but by 11 January 2002 only one circumstance was deemed responsible when Gary Hart was sentenced to five years in prison for causing the Selby rail disaster.

On the morning of 28 February 2001 ten people lost their lives, thirty had received serious injuries and a further forty had received minor injuries, when Hart’s Land Rover, which was towing a trailer carrying a Renault Savannah, slid off a section of the M62 motorway, and found its way on to a stretch of railway. Hart had been travelling from his home in Strubby in Lincolnshire to Lancashire, in order to deliver the Renault, when at approximately 06:10 his vehicle came off a section of the road between junctions 34 and 35 of the M62 at the Little Heck Bridge at Great Heck, near Selby. Hart had immediately telephoned the emergency services but it was too late. Travelling at its maximum speed of 117 mph, a passenger train hit the vehicle and partially derailed. A freight train, which had departed twenty minutes early, was heading in the opposite direction at a speed of 65 mph. Collision and tragedy were inevitable. It was, as the media reported at the time, a disaster reliant upon the cruelest of timing.

It is believed that the derailment was caused when a piece of metal from Hart’s Land Rover found its way on to the track and dislodged one of the wheels of the GNER express train.

The convergence of the Land Rover on to the track, which was described by Rail magazine as a ‘relatively minor road accident’, was only one factor in a culmination of incidents that resulted in the loss of life.

The man originally portrayed as a victim was soon to be portrayed as the cause of the Selby disaster. It often appears that in the face of a challenge, and the burden of responsibility, certain agencies in this country will seek the easier option. In the case of Gary Hart it was far cheaper and more convenient to create a scapegoat rather than accept that this was an accident waiting to happen; the tragedy was the result of an accident exacerbated by other factors. By blaming one individual the authorities were passing on the culpability of decades of neglect on the roads and railways. The deaths of the ten men on 28 February 2001 were not only due to one man, yet agencies have refused to accept some of the blame. Those people died as a result of other neglected factors that have been dismissed as having had no part in causing the tragedy.

At the inquest in to the Selby disaster, which opened in September 2003, Nick Bracken, of the British Transport Police, told the jury that, “At the time of the impact at 6:13am in February, it was dark and the driver of the train [the GNER express] would have had little or a short view of the vehicle [Hart’s Land Rover].” If true then one factor responsible for the derailment is the insufficient safety measures having been adopted for the freight train to be used outside daylight hours.

The crash barriers, designed to prevent vehicles from leaving the carriageway, was clearly inadequate otherwise Hart’s Land Rover would have been unable to plough through a gap in the barrier before travelling down the embankment. A report published by the Highways Agency, within a week of the incident, found that the crash barriers would have to have been at least twice as long to prevent the Land Rover from having left the motorway. Peter Lawrence of the pressure group Rail Future voiced his view, following Hart’s conviction, as to the state of the road safety measures, “I don’t think the crash barriers were sufficient and needed lengthening to prevent this type of accident occurring. The local authorities and the Highway Agency have to sit down and look at this very carefully because it’s clear that the safety precautions were inadequate. … this is a road problem.”

The legislation of road safety in place when the Little Heck Bridge was built, in 1974, gives guidelines for the length of the safety barriers that should be constructed. The section 201(v) of B.E.5 states that, ‘To prevent direct impact between a vehicle and the end of the vehicle parapet facing the traffic on the nearside, a safety fence shall be provided on each approach towards the bridge. The safety fence shall be at least 100 feet long and shall continue the line of the traffic face of the parapet.’

The length of the safety barrier at the Little Heck Bridge was, and still is, 33.5 metres in length. Therefore it only just meets the minimum standard of barrier length. In August 1974 there was an accident at Leyland on the M6 that bore many resemblances to that which Hart was to experience twenty-seven years later. A vehicle came off the road, on an approach to a bridge, and ended up on a railway line.

At the time of the Leyland accident a member of staff from British Rail wrote to the Department of the Environment saying, ‘I have expressed my concern over the adequacy of the containment standards for crash barriers and bridge parapets where motorways and highways run close to, or cross over, railway tracks.’

His letter was responded to by a Mr Elliott, who stated, ‘The extent of the safety fence is a matter for the decision of the responsible Highway Engineer and the recommendation … is advisory and not statutory.’

It is interesting to note that concerns over the safety of bridges had been voiced decades before the Selby accident. It is also interesting to note that it is perfectly legal for a bridge to have a short barrier even if the conditions of the stretch of road dictate that a longer barrier should be in place. It is for the discretion of the engineers whether they wish to use the minimum length or not, even when some roads clearly require longer barriers. Experts who studied the Little Heck Bridge considered it to be a “hazard of exceptionally high consequences” and yet only the minimum safety measures were put in place.

Legally the safety barrier may have been sufficient. However, a bridge described as a “hazard of exceptionally high consequences” should have had safety measures of exceptionally high standard rather than those that are only just legal. Perhaps it is cynical saying that it was realised that a longer barrier, though required, was too costly. Kate McMahon, an economist for the Department of Transport, has said that, “there would be an overall reduction in safety if funds were diverted from other safety measures to safety barrier extensions with a lower NPV (Net Present Value)”. This, translated in to simple terms, means that there is not the money to invest in safety measures that are so badly needed on our roads.

Behind the theories and speculation, which surround this case, there remains one important fact; if the safety barrier had been twice as long then Hart’s vehicle would never have found its way on to the track and disaster would have been averted. Irrespective of whether or not Hart fell asleep there was, and still is, a large area of the bridge with inadequate protection to prevent vehicles transgressing on to the line. That the safety barrier was insufficient to prevent an accident cannot be disputed.

Since the Selby tragedy there have been at least thirteen incidents in which vehicles have crashed through barriers on the East Coast line. It is therefore reasonable to conclude that such barriers do not effectively prevent vehicles from leaving the road. When Hart was convicted, and bridge strengthening and other safety measures began on the nation’s roads, it was decided that the barriers conformed to a satisfactory standard. With Hart having seemingly been made a scapegoat perhaps it was easier to ignore the substandard crash barriers.

Conditions of road travel have changed since the legislation in place in 1974 was passed; road speeds are faster than they were nearly three decades ago and there are more cars on the roads. One suspects that it is about time that the legislation should be revised to reduce the possibility of a similar accident occurring in the future.

With what appears to have been a cover up having begun, the burden of responsibility passed to Hart, who was arrested, charged and subsequently convicted of causing death by dangerous driving. Sentencing him to five years imprisonment the judge who presided over his trial, Mr Justice Mackay, told Hart that he was not “a victim of the Selby rail crash … You were not just a cause of it, you were the cause of it.” Peter McKay, from North Yorkshire Police, said that “He [Hart] could have avoided these deaths, he did not, he alone was responsible.” This belief is clearly erroneous. A High Court case in October 2003 concluded that Hart was the “precipitating cause” but that, even though negligence had not been proven, it would have been the responsibility of the Highways Agency to “prevent egress on approach to the bridge from whatever cause and consequent incursion onto the railway line.” The agency failed in this respect.

Hart had been accused of having fallen asleep at the wheel, thus being unable to control his vehicle as it left the road and stopped on the track. To add weight to this claim, which of course is impossible to prove in the circumstances, they relied upon evidence showing that on the eve of the accident Hart had been using his telephone line from 21:48 until 03:58, talking to a woman he had met via the Internet. He himself admitted that he had only had an hour or forty-five minutes of sleep that night. As damning as this seems it must always be remembered that the allegation of him having fallen asleep has never been proven. The fundamental flaw in the prosecution’s argument is that there is no evidence whatsoever to disprove Hart’s protestations. The whole case against him was based upon the events of the previous evening and early hours of the morning. Courts should concern themselves with facts and not theories.

Hart claimed that he could go without sleep for lengthy periods of time; not an unknown characteristic of some individuals. This was termed an “arrogant” and “selfish” claim by the judge. Mackay believed that Hart’s actions were, “in moral terms little different than driving when one’s judgment to drive is impaired by drink.” The belief that he did not fall asleep, however, was substantiated by the evidence of six witnesses who said that Hart was driving in a “sensible and appropriate” manner immediately prior to the accident.

At the inquest in to the deaths of the ten men the coroner, David Hinchcliff, told the jurors that there was only one verdict they should return; unlawful killing by Gary Hart. He told them that their decision could not contradict the conviction against Hart. Following the verdict he told the press that, “When I opened the inquest, I stated that we would endeavour to carry out a full, fair and fearless investigation. I hope that has been achieved.” Unfortunately it has not been achieved. It is most unfair that an inquest took place after a trial. The inquest should have been used to determine whether criminal action should have been taken against Hart before he was charged with any offence. Instead, however, the legal basis of the inquest was reduced so much so that the jury were effectively told what their decision should be.

Since his conviction fifteen survivors and bereaved families have made claims for compensation against Hart. Additionally Great North Eastern Railways Ltd and Railtrack Plc made claims for damages to their property. Freightliner Ltd also sought compensation. In total over £22.3 million was paid out by Hart’s insurance company before October 2003. The company is expected to pay at least another £10 million in claims.

Following the inquest in to the cause of the deaths, resulting from the Selby disaster, Hart’s insurance company launched a legal battle at the High Court in order to have the Highways Agency help pay compensation on the grounds that the safety barriers on the Little Heck Bridge were “inadequate”. However, in late October 2003 the legal battle ended with it being decided that the agency should not be held responsible.

In April 2003 the Lord Chief Justice Woolf set guidelines for sentences for death by dangerous driving. He told the Court of Appeal that the minimum sentence for motorists, who had caused death by dangerous driving, should be one year. He went on to recommend that if the motorist had been drinking, was on drugs, had been speeding, was using a mobile phone or had fallen asleep, then a sentence of two to three years would be appropriate. Only if a combination of factors were involved, should sentences reach four to five years. At the time Hart allegedly fell asleep these guidelines had not been introduced. Even by these guidelines, which were created to give harsher sentences than had previously been passed to convicted drivers, someone who allegedly fell asleep should only receive a maximum of two years imprisonment. Hart’s actions did result in the loss of ten lives. However, the numbers affected were out of his control. Therefore how can a five year sentence, when considering Woolf’s guidelines, be justified?

Although there can be no doubt that the accident in which Hart was involved was the immediate cause of the tragedy, one is forced to ask whether this man alone deserves punishment for what was conceivably an accident on his part, but which was the result of decades of neglect on the part of agencies such as the Highway Agency.

Hart has said, “I have always had the deepest sympathy for the victims and I have ten people’s lives on my heart for the rest of my life, that will be the hardest to deal with. I have never denied that I played a part in those deaths but the police lied so much to get someone (me) to blame.”

It is rather worrying that what is clear evidence, that Hart was only the spark that lit a fire which had been waiting to be ignited for decades, has been ignored just as the condition of our nation’s highways has also been ignored.

Hart will not be the last man imprisoned because of an inability for agencies to accept responsibility, and this is a major concern. It is a major concern because it allows the police, courts and government departments to prosecute an individual instead of tackling the deadly conditions of our roads and railways. The inadequate safety measures pose a threat to anyone who travels on them and so it is only a matter of time until another disaster, such as that at Selby, takes place.

 

Editor's Note: If Hart had had a heart attack would the authorities have still claimed the fault for the accident was entirely his and nothing to do with them? Think about it.

 

Unless it has been fixed there is a similarly dangerous safety barrier situation where the slip road leading from the M1 going south leads to the M25 heading east. Part way around the bend is a road size gap with a steep incline leading down onto a road below. Another accident waiting to happen? Will that too also be entirely the fault of the motorist?

 

 

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