The UK has dozens of laws, dating back over 170 years, scattered around the statute books, covering all aspects of railways, their creation, closure, management, operation and use.
Safety arrangements and corresponding legal requirements relating to level crossings impact on most members of the population. There are conflicting priorities which must be managed, arising out of the rights and interests of railways providers and those of people who are affected by or come into contact with the railway.
The unruly jigsaw of law that exists has not always responded adequately to the presence and needs of an evolving society. Certain statutes have been created specifically for the railways but other legal provisions have arisen out of general legislation and have been applied to railways. For example:
- the Criminal Damage Act 1971 applies to the damage and destruction of property generally;
- the Health & Safety at Work Act 1974, imposes duties on employers and businesses of all descriptions;
- the Equality Act 2010 applies to most types of service provider.
The Law Commissions recognised the need for the law to be clarified and to encourage safety and efficiency, having regard to the various interests involved.
It was also considered essential to allocate duties and responsibilities generally and to ensure, in particular, that rights of way at level crossings were well understood. While it was envisaged that some new legislation, specific to railways, was required, in certain cases, the current law was deemed acceptable, subject to clarification.
The main themes covered by the paper and on which the Commissions consulted included:
- the Health & Safety at Work Act 1974;
- crossing closures;
- the creation of new crossings;
- cooperation between stakeholders;
- the interests of disabled people;
- planning issues; access and rights of way;
- heritage and private railways.
The final theme for consultation, on which we focus here, was the criminal law, regulating the conduct of users of level crossings.
A glance at the existing criminal law
One of the first recorded fatal accidents at a crossing took place in about 1832, when a cart trundled out in front of one of Robert Stephenson’s original engines, en route from Leicester. Legislation on level crossing safety subsequently appeared: the Highway (Railway Crossings) Act 1839 required gates to be closed across the railway to allow people and road vehicles to cross. However, the Railway Regulation Act 1842, reversed the position, requiring ‘good and sufficient gates’ to be placed at either end of level crossings, operated by a ‘good and proper’ person to operate them.
The Victorians recognised that the burden of responsibility for safety lay not only with the railway companies. Legislation was introduced and fines levied to punish ‘persons obstructing the officers of any railway company or trespassing upon any railway’ under the Railway Regulation Act 1840. The misconduct of anyone leaving objects on the railway line, throwing stones at carriages, removing lights or hiding signals was addressed by the Malicious Damage Act 1861 and the Offences Against the Person Act 1961 and could be punished by life imprisonment in cases of intent to cause injury. These statutes are still relied on by the Crown Prosecution Service (CPS) today.
Legislation continued to trickle out of Parliament into the twentieth century, creating a patchwork of obligations. In December 1926, following a major accident at Naworth level crossing in which nine people were killed, it was claimed in the House of Lords (in the UK Parliament) that there was at least one accident per week at level crossings nationally. It was suggested that the problem should be solved by phasing out crossings completely. (Hansard HL Deb 01 December 1926 vol 65 1060-72). As we know, this was not to be and it was left to the law to continue its attempt to govern the existence and use of crossings.
The British Transport Police (BTP) began issuing on the spot fines for trespass on the railway under the British Transport Commission Act 1949 but it was unclear as to whether this covered all types of level crossings. This power is still used for less serious offences at crossings, the current maximum on the spot fine for pedestrians being £50.
As cars have taken over the roads, offences by drivers at level crossings have often been dealt with under general legislation, such as the Road Traffic Act 1988. While Network Rail has announced the proposed installation of ‘state of the art’ voice warning devices to reduce risk, the law relating specifically to the conduct of users at level crossings has not kept pace with modern life. The CPS therefore still relies largely on elderly and confusing statutes of Victorian origin to pursue more serious criminal conduct in court.
What comes next?
It is anticipated that the work of the Commissions will result in a new, updated or clarified, modern set of laws, defining and dealing more specifically with crimes committed at level crossings by drivers and pedestrians. The new law will be likely to focus on compliance with signs at crossings and to impose penalties for dangerous forms of conduct of varying degrees. We await the issue of the draft legislation in 2013.
Author: Lyndsay Austin, November 2012.