Man cleared after driving over Romney Hythe & Dymchurch level crossing in front of train

[whole diary]

[bobm]

From KentOnline

A former High Commissioner to New Zealand drove over an unmanned rail crossing in Lydd just seconds ahead of an oncoming train.

Retired diplomat Robert Alston drove his Chrysler car over the Romney, Hythe and Dymchurch line in Taylors Road after warning lights were flashing.

Train driver Andy Hunt - who was in charge of No12 engine - was forced to slam on the brakes after spotting the vehicle.
 
Mr Alston, 76, of Coast Drive, Lydd On Sea, who denied the offence - had later telephoned the authorities to report what he had done.

But now a judge has ruled the Oxford-educated Mr Alston's driving wasn't dangerous..and ordered the jury to return a verdict of not guilty.

Judge Nigel Van Der Bijl had earlier taken the unusual step of inviting Mr Alston - a former ambassador to Oman and Governor to the Pitcairn Islands - to sit behind his barrister rather than in the dock at Canterbury Crown Court.

Prosecutor Ian Foinette had told the jury: "Very often allegations of dangerous driving involve somebody being in a car, tearing around country lanes or residential areas at high speed...like a lunatic.
 
"But that is not one of these cases here. It wasn't a case of him playing 'chicken'.
 
"The Crown alleges this defendant drove dangerously in that he drove across a level crossing on the Romney, Hythe, Dymchurch railway when the red warning lights were flashing and was very nearly involved in a collision."

CCTV^▸ (Closed Circuit Tele Vision) footage of the incident - taken from a local Spar shop next to the crossing - showed Mr Alston's car reversing slowly from the parking area before going over the crossing.

Five seconds later, Mr Hunt's train is seen passing as the rear of the car is clearly in sight.

Mr Foinette said that Mr Alston "is a local man" and "inevitably would have known the potential dangers of going across the level crossing".

He added: "It is not suggested by the Crown that he deliberately drove across and deliberately ignored the red flashing lights.

"But with his local knowledge he took a conscious decision to cross over.
 
"The Crown say that he didn't deliberately drive dangerously but that was the effect and a collision would have been almost inevitable, " said Mr Foinette.

A police community support officer who went to the area a short time later to investigate the near miss said that because of the low sun it would have been difficult to see the flashing lights.

But Mr Alston told the police that after reversing he wasn't in a position to see the lights.

Mr Foinette said: "The Crown say that even if you were unable to see one set of lights you would have been able to have seen the other set flashing."

A few minutes after the incident and after he returned home, Mr Alston telephoned the authorities to say he had been involved in the near miss.

He told them that he knew the rail timetable and he had not expected a train until after 10am - an hour after the incident.

At the end of the prosecution case, Mr Alston's barrister Crispian Cartwright successfully argued that his client's driving had not "fallen far below the standards of a careful and competent driver."

He added: "In my submission there was nothing wrong with this defendant's driving when he manoeuvered his car out of the car park.
 
"The Crown say that he didn't deliberately drive dangerously but that was the effect and a collision would have been almost inevitable " - prosecutor Ian Foinette
 
"His fault was, for whatever reason, to see the lights but there was nothing wrong with the manner of the driving.

"And if one looks at the CCTV there is a margin of some five seconds between the car clearing the railway line and the train coming along. That, I know, sounds very short.

 "At worst this defendant was guilty of careless driving although he may not be even guilty of that."

Judge Van Der Bijl ruled that Mr Alston had no case to answer and took the decision to order the jury to return a not guilty verdict.

He then agreed that Mr Alston's privately-funded defence costs be paid by taxpayers.

[JayMac]

Hmm...

Did the CPS make the wrong decision in going only for a 'dangerous driving' rather than 'careless driving' prosecution?

Usually it's no defence to say you didn't see red lights at a level crossing.

It also concerns me somewhat that the defendant's standing in society, by dint of his former position as an ambassador, appears to have afforded him some privileges in the court not normally given to Joe Public.

And relying on knowledge of timetables has proven in the past to be folly.

Ignoring red lights at a level crossing, deliberately or otherwise, is, to my mind, always dangerous. Credit should not be given just because timing made the difference between a 'near miss' and a collision.

The RH&DR has had two fatal accidents at level crossings in the 21st century. Both saw the deaths of volunteer train drivers. Both were caused by road users failing to use the crossings correctly.

I personally think that all such prosecutions should be tried as 'Endangering the Safety of Rail Users' using Section 34 of the Offences Against the Person Act 1861.

[trainer]

There are a number of things about the conduct of this trial as reported (I'm always suspicious of newspaper reports) which raise concerns.  Near misses on level crossings are always serious.  If the driver was not at fault, a five second 'near miss' should perhaps warrant further investigation.

[6 OF 2 redundant adjunct of unimatrix 01]

One rule for one.....

[Cynthia]

Sounds to me like a mate of the judge, or a fellow golf club member or a mason, don't you know, chaps.  And why did we tax-payers end up paying the defence costs, at a time when those lower down the social ladder can't get legal aid for love or money?

[JayMac]

Sounds to me like a mate of the judge, or a fellow golf club member or a mason, don't you know, chaps.  And why did we tax-payers end up paying the defence costs, at a time when those lower down the social ladder can't get legal aid for love or money?

I share similar concerns Cynthia. In fact, just this evening, in conversation with a fellow forum member, I suggested funny handshakes may have been involved. A light-hearted summation, for which I have no proof, and I made only as a satirical aside. I should make it clear that this is personal opinion based only on this one news item and is not to be taken as an official comment from this forum's staff members.

As for the costs awarded in this particular case, that isn't unusual. Anyone found not guilty after a charge has been brought by the CPS, can rightly claim the costs from the state (cf. the Crown) incurred in mounting their defence.

Ultimately, Mr Alston has been found not guilty. And, despite any concerns we may have, that verdict has to be given due respect.

[SDS]

Anyone can apply for an order for costs in any case. However having it granted is another thing.
I regularly read of private prosecutions by other TOCs^▸ (Train Operating Company) which when it gets to the court they "offer no evidence" and the other party applies for a costs order against the TOC, this is normally granted.

However allowing the former diplomat/ambassador (Ambassador, with these funny handshakes, you're really spoiling us) to not sit in the dock where every other accused person sits, is wrong.

The CPS screwed up on this one and were more interested in attempting to prosecute the 'high profile person' rather then thinking hmm whats an easy case to prove.

[Tim]

Hmm...

Did the CPS make the wrong decision in going only for a 'dangerous driving' rather than 'careless driving' prosecution?

Agreed.  Dangerous requires you to see the lights and ignore them.  Careless covers not noticing the lights.

Personally, and noting that a driving licence is a privilege not a right, I think that even when the prosecution is not able to prove an offense has taken place, a driving licence should be removed on lesser evidence, not as a criminal punishment but as a preventative measure in the interests of public safety.   

[SDS]

Agreed.  Dangerous requires you to see the lights and ignore them.  Careless covers not noticing the lights.

Personally, and noting that a driving licence is a privilege not a right, I think that even when the prosecution is not able to prove an offense has taken place, a driving licence should be removed on lesser evidence, not as a criminal punishment but as a preventative measure in the interests of public safety.   

Then you will get someone claiming that because they paid for it they want the money back, or its a breach of Article 6 or Article 7. Would never work.

[Southern Stag]

Sounds to me like a mate of the judge, or a fellow golf club member or a mason, don't you know, chaps.  And why did we tax-payers end up paying the defence costs, at a time when those lower down the social ladder can't get legal aid for love or money?

It isn't particularly fair to pay for your own defence when you're found not guilty, it would in effect be a punishment despite you being found innocent of wrongdoing. Taxpayers pay the vast majority of defence costs anyway. Legal Aid is widely available for defendants in criminal cases where they don't have the means to pay for a defence themselves, even if the quality of the legal aid provided is arguably diminishing now.

[grahame]

It isn't particularly fair to pay for your own defence when you're found not guilty, it would in effect be a punishment despite you being found innocent of wrongdoing.

Hear, hear ... as a generality I find it astonishing the way that some people are taken 'to hell and back' by the legal system, named in the papers, suspended from work, made sick with worry to the extent that it leads to family issues ... only to be found innocent at the end.  Merely paying for their defence in these circumstances seems like a very small step - almost a token gesture - in helping them move on.   This is neither a comment on the specific case in this thread, nor from any experience; I appreciated that wrongdoing must be stopped /apprehended / discouraged ...

[LiskeardRich]

A look of the location on Google Streetview and the parking space of the mentioned Spar shop may well make the left side lights out of view to someone coming out of the end space. It mentions the sun being low which may have obscured the right hand lights from being visible.

A police community support officer who went to the area a short time later to investigate the near miss said that because of the low sun it would have been difficult to see the flashing lights.

But Mr Alston told the police that after reversing he wasn't in a position to see the lights.

[grahame]

From The Telegraph

A holiday steam train carrying around 50 passengers has derailed after crashing into a tractor on an unmanned level crossing.

Several people were injured when the miniature locomotive collided with the stationary vehicle on the Romney, Hythe and Dymchurch Railway.

One witness said she saw the driver "leap from the train" and take passengers to safety after one of the carriages collapsed on its side.

Paramedics treated five people - including the driver - at the scene for minor injuries as fire crews worked to secure the locomotive's boiler, which was feared to be at risk of exploding. The other passengers were checked over as a precaution.

[Timmer]

Sad to read that there has been another incident on the RH&DR. There are a lot of unmanned crossings along the line which can lead to issues. Some of the crossings have speed restrictions.

It's a line I like to visit every year. If you haven't done so it's well worth it. The fare of around £15 gives you a days unlimited travel and access to the model railway at New Romney, so good value for money. Dungeness at the end of the line is the only part of the UK^▸ (United Kingdom) that is designated as desert. Visit it and you'll see why 

[Bmblbzzz]

Going back to the first case in this thread, of the retired ambassador driving across in front of the train, it might have been the case that he benefited from his position or possibly being a mate of the judge, but in practice it's very rare for anyone to be found guilty of dangerous driving. The problem is the definition:

A person drives dangerously when:

the way they drive falls far below the minimum acceptable standard expected of a competent and careful driver; and
it would be obvious to a competent and careful driver that driving in that way would be dangerous.

http://www.cps.gov.uk/news/fact_sheets/dangerous_driving/

There is no standard set out for 'competent and careful', in practice juries (and judges!) will judge it against their own driving, inevitably introducing a large element of 'there but for the grace of God'...