Why ORR Prosecuted WH Malcolm

1 September 2021
The recent fine handed down to Daventry International Rail Freight Terminal (DIRFT) operator, WH Malcolm Limited, was one of the largest ever for a health and safety offence on the railway. Why did we prosecute them?
Patrick Talbot
Patrick Talbot
National Mainline Operators' Team (Freight Lead)
Cover Image
Daventry International freight Terminal

The logistics company was given a £6.5 million fine and ordered to pay £241,000 in costs in July at Northampton Crown Court after being found guilty by a jury on two health and safety offences.  

This followed an ORR prosecution after an incident in 2017 at the freight terminal, where an 11-year-old child, Harrison Ballantyne, received a fatal electric shock. He easily gained access to part of the DIRFT site with his friends to retrieve a football. He was then able to climb on top of a stationary freight wagon where he received a fatal electric shock from the overhead line. 

Why WH Malcolm were prosecuted  

All employers are required to take ‘reasonably practicable measures’ to prevent risks to the health and safety of ‘persons not in their employment’. This includes the risks associated with people gaining unauthorised access to hazardous premises- the duty isn’t unique to rail.

There are two basic actions that are an important part of a company’s responsibility to preventing this risk. One is to carry out a suitable and sufficient assessment of the risks of people gaining unauthorised access (trespass) to their property; the other is to put in place appropriate measures to prevent and control unauthorised people from gaining access to potentially hazardous environments.

These duties exist for real reasons and should take into account the hazards on-site as well as the local environment. They should also account for both the potential for future incidents of trespass and the previous history or evidence of actual trespass at the location. 

WH Malcolm didn’t do either of these. 

Warnings ignored

Our investigation found WH Malcolm had not only failed to assess the risk of unauthorised access to the terminal, but also failed to put in appropriate measures to prevent unauthorised access to a part of the site where there were frequent freight movements and overhead line equipment carrying 25,000 volts.

More than that, the company were found to have ignored previous warnings and to have failed to learn lessons from previous health and safety enforcement taken against the organisation.

Judge Adrienne Lucking QC described this as a failure to “take responsibility for what was a serious and obvious failure to prevent public access to a highly dangerous environment”. 

She also described WH Malcolm’s lack of action as “a serious failure within the organisation to address risks to health and safety” adding that “…the defendant ignored concerns raised by employees and others about the accessibility of the head shunt…” and  “The defendant failed to make appropriate changes following prior incidents exposing risks to health and safety”. 

This is one of the reasons why the judge levied one of the largest fines following an ORR prosecution. 

In passing sentencing, Judge Adrienne Lucking QC said these health and safety failings were “inexplicable”. The judge added that this fine “must [therefore] bring home to directors and shareholders the need to comply with health and safety legislation”.

An avoidable tragedy

Prevention is essential. There’s been a lot of education and important campaigns taking place, but this is not an ‘either-or’ situation: education and proper prevention of trespass must take place to continue to make the railway as safe as practicable for all. 

Harrison’s death was an avoidable tragedy that has had life-changing and wide-reaching consequences for Harrison’s family, his friends that witnessed the incident and their families. 

This incident is a reminder of not only the tragic consequences that can result from trespass on the railway but also of the importance of ensuring that appropriate measures are taken to control the risks associated with unauthorised access to railway infrastructure. 

The two images below show the South Headshunt at Daventry International Railfreight where Harrison and his friends gained access.

WH Malcolm prosecution

WH Malcolm prosecution