England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		31 October 2017

1. LORD JUSTICE FLAUX: On 13th September 2017 in the Crown Court at Chelmsford at a plea and trial preparation hearing before His Honour Judge Gratwicke, the appellant pleaded guilty to an offence under section 36 of the Malicious Damage Act 1861 of obstructing an engine or carriage using a railway. He also admitted a summary offence of failure to report an accident. On 14th September 2017 the same judge sentenced him to eight months' imprisonment for the Malicious Damage Act offence with no separate penalty for the summary offence. The judge also imposed a period of disqualification from driving for two years under section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 with an extension period of four months under section 35A of the Road Traffic Offenders Act 1988 (as amended). No evidence was offered against him on count 1, dangerous driving, and a not guilty verdict was entered under section 17 of the Criminal Justice Act 1967. He now appeals against sentence with the leave of the single judge.
2. The appellant is a Bulgarian national aged 30 who is a professional HGV driver working for a Bulgarian-owned business based in the United Kingdom.
3. The facts of the offending are as follows. On 21st June 2017 at about 10.40 in the morning, he was driving an articulated lorry along the B181 High Street in Roydon, Essex. As he approached an automated level crossing it became activated by an amber light at the top of a signal being illuminated for three seconds, followed by an audible alarm and a red flashing light for about five seconds before the barriers descend. After the crossing had been activated, the appellant drove his vehicle onto the crossing having failed to notice the amber warning light. The warning alarm and red light started just as he entered the crossing. The appellant realised his error and carried on driving forward, evidently in the hope of clearing the crossing before the barriers descended. However the barrier came down between the cab and the trailer, trapping the vehicle right across the railway line.
4. The appellant got out of his cab and walked around for about three minutes. The signalman had noticed the obstruction on CCTV. He tried to stop the barriers descending but the barriers had already hit the top of the lorry. He tried to phone the crossing but the appellant did not respond. The judge accepted that this was because he was in a panic. The signalman then contacted the control room who placed trains on stop, including the train which was approaching the crossing which was held at a red signal. The appellant returned to his cab and drove clear, breaking the barrier trapped between the cab and the trailer. He stopped briefly on the other side of the crossing but then drove off. There were delays and disruptions to trains as a consequence of the obstruction estimated to have cost Network Rail £23,000 and the cost of repairing the barrier was £750.
5. The appellant was later arrested and interviewed. He said he stopped at the crossing when it was activated, the barriers were rising and he followed two cars in front of him and did not look at the lights. His front wheels were on the track before he heard the warning. There were cars behind him so he could not reverse. He became scared when the barrier hit his vehicle. He said other people in their cars indicated he should move off, so he did. He did not speak English and thought it would be difficult to stop so he drove off and continued with his duties. He accepted that he did not report the accident.
6. In his sentencing remarks the judge said this was a deliberate act by the appellant to drive the lorry onto the crossing when it was clearly unsafe and dangerous to do so. But for the signalman having observed the obstruction, there could have been a dreadful accident. The judge said that railway crossings were to be treated with caution and care. The appellant failed to act in that manner and flagrantly drove his lorry onto the crossing when it was unsafe to do so. He knew the size of the lorry and should have ensured it was safe to cross before he began the manoeuvre, even if the barrier had only been up for a short period of time. He should not have crossed until it was safe to do so.
7. The judge referred to the delays and expense incurred. He continued that those who drive articulated lorries onto a crossing should only do so if there was sufficient clear road ahead to do that safely and not block the crossing when there were no flashing or audible warnings. The appellant failed in both respects. The circumstances of this case, the judge said, was such that only a custodial sentence would suffice to mark the seriousness and dangerousness and to act as a deterrent to others. The judge gave the appellant full credit for his guilty plea and bore in mind his previous good character and good driving record, together with the fact that the appellant would lose his job by virtue of the sentence of imprisonment and the period of disqualification. Nonetheless the judge considered eight months' imprisonment was the least that could be imposed. He was also disqualified from driving for two years with an extension of four months.
8. On behalf of the appellant in his advice and grounds of appeal, Mr Gowan submits that both aspects of the sentence were manifestly excessive. He points out that the maximum sentence for the offence of obstruction is two years' imprisonment and the other cases where defendants have been sentenced for this offence, even where deliberate and concerted conduct was involved, sentences of imprisonment were rarely imposed. For example, in R v Jones and others [2006] EWCA Crim 2942, the appellants were protesters against an arms fair and sought to prevent trains moving in various parts of London by chaining themselves to carriages and the like, causing widespread disruption. This Court allowed appeals against the imposition of anti-social behaviour orders and community service, substituting conditional discharges. In R v Donaghy [2011] EWCA Crim. 334, the appellant climbed onto the top of a railway bridge and threatened to throw himself off which would have endangered him and others on the railway. Power lines were shut down and there was considerable disruption. This Court quashed the sentence of 12 months' imprisonment and substituted a community order, given the appellant's personal circumstances and his need for help, having made several previous suicide attempts.
9. In the recent case of R v Mirahessari and Vahdani [2016] EWCA Crim 1733, two men broke down barriers to get onto the track on the French side of the Channel Tunnel and walked through the tunnel. All trains were stopped and they were arrested by English police about 1 kilometre from the English entrance to the tunnel. Sentences of 14 months' imprisonment (equating to 21 months after trial) were upheld in this Court on the basis that this was deliberate conduct, obstructing the line and severely disrupting services, albeit it was accepted that they were genuinely seeking asylum.
10. We agree with Mr Gowan that this appellant's offending was not deliberate and concerted in that sense at all. Rather, this was extremely careless and negligent conduct in driving his vehicle onto the crossing when the lights were flashing. The appellant obviously thought he would get through the crossing before the barrier came down but his vehicle became trapped by the barrier. It is that which constituted the relevant obstruction and in our judgment that cannot really be said to be deliberate. In the event no one was actually in danger and it is telling that no evidence was offered on the original more serious count of dangerous driving.
11. We consider that the offending in this case was not sufficiently serious to merit a sentence of imprisonment. We certainly do not agree with the judge that a sentence of imprisonment was necessary to deter others. This was a rather freakish incident caused by the appellant's thoughtlessness and negligence so that the element of deterrence does not seem to us to arise. We consider that the correct sentence for this offence would have been a substantial fine. Although it is difficult to judge what level of fine would be appropriate at this stage, we consider that the correct figure is £750.
12. We also agree with Mr Gowan that the length of the period of disqualification was far too great. Given the appellant's previous good driving record we consider that a period of 12 months' disqualification under section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 would be ample. An extension period under section 35A of the Road Traffic Offenders Act 1988 is not necessary given that a custodial sentence is not being imposed.
13. Accordingly, we quash the sentences passed by the judge. We substitute a fine of £750 for the sentence of eight months' imprisonment. That sum is to be paid within three months with a sentence of six months' imprisonment in default if it is not paid. The period of disqualification from driving will be 12 months. To that extent this appeal is allowed.