Annex A: Appendix to the
Basis of Plea|
"Appendix: Alleged Late Disclosure"
May 2002 Hill risk assessment
1. In light of the investigations Network
Rail has been able to conduct since receipt of the PCS, Network
Rail considers it likely that this document was disclosed to the
ORR in the course of its initial investigation.
2. First, by a memorandum dated 5 December
2005, Mr. Hill sent
to Mr. Frary of the ORR "copies of risk assessments and inspections
conducted by the level crossing risk control team and the local
Mobile Operations Manager". There is no reason to suppose
that the assessments enclosed did not include the totality of
the author's own assessment.
3. Secondly, an email dated 7 December
2005 from Mr. Frary to Mr. Lewis of Network Rail and an internal
email from Ms. Kinnish of Network Rail to Mr. Lewis dated 15 December
2005 were both annotated in manuscript to show that the level
crossing risk assessments had been collated. When the level crossing
file was revisited as part of a review in July 2010, the original
Part B (which was the risk assessment) was stapled together with
the original Part A (the inspection report). It is unlikely that
copies of Part A of the document would have been copied or provided
in isolation to the Part B risk assessment.
4. Thirdly, on 20 December 2005, Mr.
Lewis of Network Rail attended HMRI's (predecessor to ORR) offices
at Rose Court and delivered a copy bundle of documents. The same
copy bundle was provided to the RSSB on 21 December 2005. It is
clear that the Part B risk assessment was received by the RSSB
as it was referred to in the evidence heard by the Inquiry on
5-6 January 2006.
5. Further, whilst not demonstrating
that the 2002 risk assessment was received by the ORR, it is material
that on 13 April 2006, Mr. Lewis sent to Mr. Frary of ORR a copy
of a schedule listing
the documents held by him with a request that ORR indicate which
documents they required. The Part B risk assessment formed part
of the document title "Inspection of footpath and bridleway
crossings" listed at section 3.3.9. On 19 April Mr. Frary
forwarded to Mr. Lewis an amended version of this schedule newly
titled "Network Rail Elsenham file HMRI request" which
did not seek copies of the documents listed at section 3.3.9 of
Mr. Lewis' schedule.
July 2005 Cook risk assessment
6. The same factors as set out above
in relation to the 2002 risk assessment apply in relation to the
2005 risk assessment.
7. The Hudd memorandum was not in the
hard copy Elsenham file. It was not, therefore, disclosed with
the other documents referred to above.
8. It appears to have been attached
to an email to Mr. Lewis on 11 January 2006 from Mr. Rigby of
Network Rail. It was marked "Elsen.doc". Mr. Lewis has
no recollection of receiving the email and its enclosure but the
email records show that he forwarded it to an unidentified person.
Mr. Lewis does not know to whom he sent it but accepts that it
should have been disclosed to the ORR in April/May 2006 when further
disclosure was provided.
9. The failure to disclose this document
did not arise because of any failure to have in place a proper
system for disclosure. This was one document which does not appear
to have been printed off and placed in the file. Neither Mr. Hudd
nor Mrs Kaye now has any recollection of this memorandum, or whether
they, respectively, drafted and received it or what consideration
was given to the matters raised in it and the proposals made.
Whilst it seems clear that the memorandum was created in 2001,
it is not clear that it was actually communicated.
2 Bundle Tab 7. Back
Notes taken by David Jones of Network Rail, Bundle Tab 8. Back
Bundle Tab 9. Back