Phone before crossing. Advice, or the law?

[Nimbus]

Two signs at a local, Public Right of Way level-crossing, on an unmade bridleway and footpath state - ' STOP Always telephone before crossing with vehicles or animals to find out if there is time to cross' and 'Pedestrians must use the telephone before crossing.' But is anybody OBLIGED to ring, legally? It's a question that Network Rail appears to be unwilling - or unable - to answer. Likewise the BTP and ORR. Odd. Very odd. I am led to believe that the signs are indeed just advisory, despite the hectoring 'Always' and 'must'. I've also been unable to clarify whether miniature red lights at foot-crossings have any legal compulsion in observing them - which is important as the new 'Meerkat' warning devices due to be set at every foot-crossing in the country from April 2019 will include a red light warning, as well as an electronic voice warning. Flashing lights at a road level-crossing are the only red lights that I can find laws relating to. You MUST obey them. But as for anything else... Does anybody know? Please do quote the bit of the Act or Acts concerned. A million thanks!

[65447]

I think the answer would lie in the situation where someone failed to do as 'suggested', resulting in an accident, where the blame would be laid?

A parallel legal situation is with the Highway Code, which recommends doing or not doing certain things in particular situations. It is not legally enforceable but is used as the basis by which to apportion fault or blame.

[John Palmer]

One possible starting point is Railway Byelaw 12(1), in the following terms:

"An Operator may issue reasonable instructions relating to safety on any part of the railway by means of a notice on or near that part of the railway. No person shall, without good cause, disobey such notice."

Byelaw 24(1) goes on to provide that:

"Any person who breaches any of these Byelaws commits an offence and, with the exception of Byelaw 17, may be liable for each such offence to a penalty not exceeding level 3 on the standard scale."

So non-compliance with the notices described carries a risk of prosecution. It would be for the prosecutor to show that the relevant notice contained instructions that were (a) reasonable and (b) relating to safety on the part of the railway lying near to the notice, but that's probably not a high bar to surmount.

[Nimbus]

That's really interesting, except that if the crossing is legally a Public Right of Way, then railway bylaws cannot apply, as they are not legally 'railway land.' You cannot trespass on a Public Right of Way. The ubiquitous red Trespass signs you see at every crossing relate to the land either side of the PRoW, not the crossing itself. . . ( And the recent Law Commission report into level-crossings has actually raised the legality of this Trespass Law in itself ). Bridleways, footpaths, etc are legally Highways, for which the local Highways Authority has control. Only they can erect 'Legal Traffic Signs', so anything the railway erects can only be advisory. ( This was a key bone of contention at the Inquiry into the Hoxton crossing crash. Apart from being erected at an angle not easily read from the road, the 'contact signalman' signs had been erected by the railway and were not therefore legally binding ). All modern road level-crossing warning signage and lights are erected by the Highway Authority for this reason. Level-crossing signage away from modern roads appears to be left to the railway. The two signs mentioned above do not conform to the legal standards set down in the latest legislation, TSRGD 2016, nor were they erected by the Highway Authority. It would seem to me that therefore they are not, in fact, legally binding? Which may be why nobody in the 'rail industry' will give me a straight answer to a straight question!

[John Palmer]

Rights of way can be a difficult area of law, and when a road crosses a railway on the level the Law Commission's documentation illustrates some of the legal complexities that can arise!

I don't agree that a crossing over the railway is not 'railway land' by reason of it being a public right of way. Ownership of such land is subject to that right of way, but the right is not more than a right to pass, and as such cannot displace ownership – in other words ownership and the right of way can co-exist in the same piece of land.

Part 13 of the Commission's Consultation paper (at https://s3-eu-west-2.amazonaws.com/lawc ... tation.pdf, page 167) addresses the application of the criminal law to level crossings. Section 13.22 makes specific mention of Railway Byelaw 12(1). There is no suggestion that use of a level crossing in the exercise of a public right of way over it would, of itself, afford a defence to a prosecution for infraction of Byelaw 12(1), and I suspect that a court would treat the existence of such a public right of way as having no relevance to the question of whether an offence under Byelaw 12(1) had been committed. In such a case, I don't disagree that the defendant could not be treated as a trespasser whilst he was engaged in exercising the public right of way over the crossing, but an act of criminal trespass would not be the offence of which he was being accused.

You referred to the Hoxton crossing crash, and I am wondering whether you meant to refer to the accident at Hixon?

[Nimbus]

Yes, Hixon is what I meant.

The problem with Public Rights of Way is that the rights to use such appear to have been little considered by the various railway incarnations since they were made Law in 1934 ( 1932 Act ). The subsequent Highways Acts have maintained the rights and it interesting to note that the law relating to stopping at red lights at road/rail crossings is all to do with obeying Legal Road Signs, rather than anything railway-related directly. The same applies to 'red figure' warning lights at such pedestrian railway crossings with them. ( And note that green lights are never used at road/rail crossings. There's a reason for that ). As with all railway crossings, the legal question of PRoW 'obstruction' hasn't really been addressed. 'A locked gate is an obstruction, as may an unlocked gate be.' This seems to directly contradict Victorian railway crossing gate legislation. The definition of what constitutes an 'obstruction' can be very wide, but Highways Act law on gates is quite strict. An unlocked gate is permitted for the security of livestock, with an issued permit, but a locked gate across a PRoW is illegal at any time. So much for interlocked crossing gates! 'Obstruction' has more recently been taken to include stiles and wicket gates / kissing-gates as well - in fact the last mentioned all appear to have been illegal under anti-discrimination Acts which came into force in 1995 and 2010. I know that a new 'wide gate' is being introduced to replace all these at some point. ( Just think how an electric wheelchair user could presently use a pedestrian railway crossing near you. Two near me here not only have stiles either side, but no decking at all across two electrified 60mph tracks!!! And even for able-bodied folk, ballast can be very slippery in morning dew, as I have found out.) Whether the act of having to ring up an unknown third party constitutes an 'obstruction' to a persons right to 'unhindered' free movement along a PRoW is an interesting point. I would suggest that it does. The legal liabilitiy of any information given over that phone also remains a touchy subject. A signaller has told me the language used is strictly limited. The railway is also now liable under the Data Protection Act ( and more so under the incoming new Act ) to provide copies of any such telephone conversations made by an individual under a Subject Access Request. Likewise they must supply any video footage of an individual/individual's car at a CCTV Crossing, if so requested. A £10 fee applies in each case.

[John Palmer]

http://www.legislation.gov.uk/ukpga/Vic ... ent%253Dni currently sets out Section 1 of the Highway (Railway Crossings) Act 1839 in the following terms, as it applies in England, Wales and Northern Island (in Scotland a similar provision applies with minor modifications in nomenclature):

“Proprietors of Railroad to maintain Gates where any Railroad crosses the Highway, &c.

Wherever a railroad crosses or shall hereafter cross any turnpike road or any highway or statute labour road for carts or carriages in Great Britain, the proprietors or directors of the company of proprietors of the said railroad shall make and maintain good and sufficient gates across each end of such turnpike or other road as aforesaid at each of the said crossings, and shall employ good and proper persons to open and shut such gates, so that the persons, carts, or carriages passing along such turnpike or highway shall not be exposed to any danger or damage by the passing of any carriages or engines along the said railroad”

That looks to me like a moderately clear expression of Parliament's intention to override Common Law provisions that obstructions to a highway are unlawful, and to authorise railway undertakings – indeed to require them – to install and operate gates obstructing highways in such a way as to protect their users from the passage of trains.

I readily concede that there seems to be some gobbledegook in the wording of the section as carried by the government's Legislation website, with its doubled-up reference to 'proprietors', but I don't see this precluding a conclusion that the Victorian legislation (actually, this dates from William IV!) did address the contradiction of Common Law principles inherent in the installation of level crossing gates across a public highway.

[Nimbus]

The problem is that much more recent Law has not been accommodated for, or the implications understood, in relation to effects on earlier legislation. The 1930s Rights of Way Act and subsequent Highways Acts in particular. A public Level-Crossing, at any point across it, is a part of the Highway. ( Highway, Public Road and Public Right of Way are generally interchangeable terms. ) As an NR document states, ' Black Horse Drove crossing is a public road maintainable by the local highway authority... The section within the railway boundary is a public road but is maintained by Network Rail, at Network Rail's expense.' So, NR is, in effect, just the maintenance contractor to the highways authority. Anybody using a Highway is subject to Highway / Road Traffic law, not railway by-law. As the QC authoring the Hixon crash Inquiry noted of the 'Phone signalman' signs erected at the crossing by BRB, ' They are not prescribed by the Traffic Signs Regulations and they have no mandatory force.' And later, 'The Emergency Notice has already been criticised and is plainly unsatisfactory... it lacks the dignity and importance of a true road sign, but is not very different from a trivial railway notice such as 'Trespassers will be Prosecuted.' So, to be mandatory, crossing signs need to be Legal Road Signs - and 'railway notices' have little or no legal value to highway users. Furthermore, current railway-erected signs at crossings not only fail to be Legal Road Signs, many are not required to be designed to Railway Group Standards, or even to be erected mandatorily to the railways own rules, ( which have nothing to do with Highways ). Quite why Highway Authorities are very hot at erecting Legal signage at metalled road crossings, but do nothing at lesser-grade ones, remains confusing. I presume that they are not legally required to erect ' Give Way' signs, which would appear to be all that is required? It would appear that Railways have filled the 'notice void' by erecting their own, which have had actually had no mandatory effect since the Right of Way Act onwards... If it ain't a Legal Road Sign it ain't mandatory, on any part of a Highway. The Law Commission would not appear to have understood that a public Level-Crossing is legally a Highway and not a railway?

[John Palmer]

It would be helpful to have more details of the NR document stating that “Black Horse Drove crossing is a public road maintainable by the local highway authority... The section within the railway boundary is a public road but is maintained by Network Rail, at Network Rail's expense.” Is this document more recent than the 2006 RAIB report at http://www.railwaysarchive.co.uk/docume ... eDrove.pdf? If so, it suggests that a change in this crossing's legal status has occurred since the 2005 accident there, because the RAIB report describes the crossing as having a significantly different legal status.

The RAIB report paints quite a complicated and, indeed, unusual legal picture. It indicates that Black Horse Drove crossing was, by 2005, a private occupation crossing with public footpath rights. The report conveys to me a strong impression of this state of affairs having been foisted upon the railway, beginning with the adoption of the road on either side of the crossing by the highway authority. This is said to have taken place prior to 1910 without the railway company being consulted and, as the report says, “the section of road between the railway fences remained private.” By 1991 the British Railways Board had “accepted” that the crossing had acquired public footpath status. No doubt as a consequence of this there were, at the time of the 2005 accident, notices on either side of the crossing stating that it had not been dedicated to the public except as a footpath.

If the legal position remains as set out in the RAIB report then any document stating that the section of the road within the railway boundary “is a public road but is maintained by Network Rail, at Network Rail's expense” gives a misleading impression. Whatever the position now may be, in 2005 the only right the public had to use the crossing was on foot alone. The public had no right to go over the crossing in a vehicle. That's not to say that the tractor driver killed in the accident at the crossing was using it unlawfully when he drove a tractor onto it, because it's entirely possible he was entitled to use it as an occupation crossing (as it was originally constituted). However, any such use would involve the exercise of a private vehicular right of way rather than the public right which the words 'public road' tend to suggest.

I would be interested to learn of any legal authority to the effect that road users are subject to road traffic laws but not to railway byelaws where the road they are on passes over railway land. Likewise I would like to know of any basis in law for the claim that railway signs cannot be mandatory at such locations unless they follow statutory requirements for road signs. I don't know of any such authorities but am willing to learn of them. Until then I know of no reason why the demands both of road traffic legislation and railway byelaws should not co-exist, and if that's the case then disregard on railway land of safety instructions carried by a nearby railway notice can lead to a conviction for breach of Railway Byelaw 12(1), regardless of whether the accused was at the same time on a public right of way.

[Nimbus]

Yes, the BHD document is very recent as NR are now hoping to block and divert the PRoW. I think, again, the confusion may be over the term 'public road', which here means Public Right of Way. The term Highway would also cover both. As for signage, the ORR's 2011 'Level crossings: a guide for managers, designers and operators', ( out of date upon publication due to not taking into account the 2010 disability legislation ) states at 2.304 Signs specified in the 1996 Regulations may be placed by a crossing operator on or near a private road or path. It is an offence for a user to fail to comply with any requirement, restriction or prohibition conveyed by a crossing sign lawfully placed on or near a private road or path ( Transport and works Act 1992 and Transport and Works ( Scotland ) Act 2007). A public footpath or bridleway is clearly not a 'private road or path,' but, where they convey an appropriate message, signs from the 1996 Regulations are commonly used. At footpath, bridleway and private crossings, other suitable signs may be used to inform users, clearly and simply, how to use the crossing safely.' The penalties for non-observance at private crossings are clear, as is the non-mention of such for Public ones. Or indeed of any Regulations as to the erection of signs at PRoW crossings. There still aren't any. And any internal rules appear to have reduced the need further - compare the last BR requirements / first Railtrack ones, GO/OT0011 1993, with the present RIS -0792-CCS Issue 1. Level-crossings are the responsibility of the Highway Authority, except maintenance. Any work on them at all has to be granted by the railway's application to the HA. The unclear point here is whether a person legally using a PRoW level-crossing is using a Highway, and subject to laws relating to such, or using a railway, and subject to those laws. As, for legal reasons, the 'surface' of every public level-crossing is nominally the 'property' of the Highway Authority, anybody using one is indeed 'on a Highway' and not a railway, and therefore subject only to Highway law. ( As the ORR guide appears to suggest ). 'The 1996 Regulations' mean The Private Crossings ( Signs and Barriers ) Regulations 1996. Tellingly, there is no Public Crossings equivalent, except for automatic crossings on metalled roads, which come under Road Traffic legislation.

[John Palmer]

Yes, I agree that confusion about terminology may well have arisen, apparently in the minds of those Network Rail witnesses who refer to Black Horse Drove as a 'public road'. I can find no trace of an order having been made for this crossing under the Level Crossings Act 1983 or otherwise. The significance of this is that if NR had treated treated this crossing as having become subject to a public vehicular right of way since the 2005 accident then they would have concomitantly accepted that it had become subject to more rigorous safety rules. In that case I would have expected NR to seek an order under the appropriate act that would determine how the crossing was to be equipped and operated, and the fact that no such order has, apparently, been made suggests that there has been no change since 2005 in the crossing's status as a public right of way on foot but not by vehicle. Alternatively the RAIB report's description of the crossing's legal status is wrong, but the references made by the RAIB to correspondence exchanged between British Rail and HMRI in 1991 addressing that status suggest otherwise.

Whatever the position regarding Black Horse Drove Crossing may be, it seems to be an unusual case of the public road having extended up to, but not over, the railway for at least part of the time both have been in existence, so it may not be helpful in illuminating legal rules of wider application.

I don't agree that a person who is on a public highway is subject only to highway law. One relevant consideration is what such a person is doing whilst on that highway. The road user only enjoys a right to 'pass and repass' over the highway, but as soon as exercise of that right ceases then such road user can no longer raise it as a defence to any allegation that he was breaking some legal rule pertaining only to those present on railway land.

Irrespective of whether being present on a highway affects the question of whether a road user is on railway land and thus subject to railway legislation, such presence confers no licence to act in defiance of a large body of laws other than those pertaining to highways. Being engaged in exercise of the right to pass along a public highway is not a defence to a charge of murder, for example, but Section 34 of the Offences Against the Person Act 1861 is probably more relevant:

“Whosoever, by any unlawful act, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years”

If you step onto a railway crossing in defiance of the notice referred to in the OP requiring you to use the telephone, and thereby so alarm the driver of an approaching train as to induce significant mental injury, might you not be at risk of prosecution under Section 34? Is the position any different if such behaviour doesn't actually induce such injury but increases the likelihood of it being sustained?

Anyway, if the railway has warned me by notice that I must 'use the telephone before crossing', then I am going to assume that it has a good, safety-related reason for doing so and that I am one of those whose safety is at issue. In that case I'll use the phone as directed and take my chances on the call being a source of upset to the bobby at the other end.

<edited to remove extraneous 'have'>

[Nimbus]

I think the matter comes down to bye-laws and the physical area they are applicable to, which are very precise. If it's not the railway, then railway bye-laws don't apply - as the NR Crossing Guidance document mentioned previously appears to imply. ( Obviously, national laws still apply ). Signallers offer 'advice' on the telephone and 'authorize' a person to cross, but are always expected to make it clear that crossing is still at the person's own risk, shifting liability. 'Authorize' is a funny word, as it can have several meanings - advise, or, order - and it is not at all clear what the meaning is in the case of a signallers' authorization. The legality of an invisible stranger 'ordering' another member of the public to do anything, anywhere, in a public space is deeply dubious - and perhaps a reason rail bodies rather skirt the issue? ( And most 'phones are accessed from the 'land side' of a crossing - i.e. the phone conversation takes place away from the level-crossing and not on any supposed 'railway land', which is even more odd - and of dubious merit ). Even if a bye-law to obey a railway sign on railway property were to apply, requiring a person to call-up an unnamed and unaccountable stranger - then having done so, it is not obvious at all what the obligation - if any - in having to 'obey' any 'advice' provided by the unaccountable mystery voice on the other end of the line, is - which rather defeats the point. ( And these days one hopes all such calls are routinely monitored to avoid any abuse, either way, as they appear to be totally off-grid at present - which is deeply worrying, if not surprising ).

[John Palmer]

So far as I can tell, the signalling regulations currently applicable to level crossings are set out in https://www.rssb.co.uk/rgs/rulebooks/GE ... ss%204.pdf, and took effect from 5 December 2015.

Regulation 2.1.1 is as follows:

“When you receive a telephone call from the crossing, you must find out:

•which crossing the user wants to use
•what is required to pass over the crossing
•how long it will take.

If there is enough time for the crossing to be used before the next train passes over it, you must, except as shown in regulation 2.1.2, tell the user to use the crossing immediately. If there is not enough time, you must tell the user to wait and telephone again.”

I don't regard the expression “Tell the user to...” as being advisory, and I don't treat the word 'authorise' as connoting the giving of advice. There may well be railway publications saying that signallers' communications to road users are only advisory, but I haven't been able to discover them.

Regulation 2.1.2 goes on to deal with how animals, large, low or slow-moving road vehicles and small wheeled trolleys are to be dealt with. It explicitly contemplates a signaller 'authorising' a road user to pass over a crossing and sets out what the signaller must do before issuing such authority. The wording of the regulation should leave signallers in little doubt that it envisages them giving a road user permission to cross, and that such permission is to be treated as being given on behalf of the railway because it is permission granted in the observance of the railway's regulations. I would not want to have to argue that any 'permission' so granted had nothing more than advisory status.

Regulation 2.1.2 requires the signaller to tell any road user to whom authority to use the crossing is to be given to report back 'when the movement has passed over the crossing'. If the road user fails to do so the signaller is then obliged to treat the crossing as unavailable for normal working until told that it is safe for the passage of trains.

I don't see any particular difficulty in a signaller establishing 'which crossing the user wishes to use', although Reg. 2.1.1 may contain an ambiguity in not making clear whether this expression refers to the crossing's geographical location or any distinction to be drawn between a vehicular or a foot crossing at such location. I can, however, imagine a number of misconceptions that may arise during any exchange aimed at establishing 'what is required to pass over the crossing' and 'how long it will take'. Such misconceptions could easily have serious safety implications.

When railways were authorised by the 1839 Act (and thereafter by the Railway Clauses Consolidation Act 1845) to erect gates at level crossings, such gates represented an effective obstruction to movement by road over the crossing. It would be interesting to know whether any road user ever attempted to bring an action against a railway company on the basis that such gates impeded his right of way along the public highway. I have never encountered a report of such a case but imagine the defendant railway company would have defended the action on the basis that the impediment was one sanctioned by the 1839 and/or 1845 Acts. The court would then have been called upon to determine whether these statutory provisions or the public right of way had primacy.

Where crossing gates across the full width of the road have been superseded, e.g. by half barriers, there is no longer a solid obstruction to road passage over the crossing. Any driver intent on asserting that his right of way will not be impeded by the railway is able, at his own peril, to zig-zag around such barriers. To that extent any instruction given by a signaller that a road user is not to cross could be treated as being de facto advisory only. But would you want to argue in front of a tribunal enquiring into an ensuing accident that such road user's right of way along the public road took precedence over the train's movement over the crossing?

It occurs to me that in any argument as to whether a road user or a train is to be given precedence at a level crossing carrying a public right of way over the railway, the railway is perfectly entitled to say that its trains enjoy no lesser right to 'pass and repass over and along the highway' than the road user, and that for this reason the road user has no right to claim precedence of use.

[Nimbus]

I now have now raised the issue with a good sample of CC Highway Authorities asking their position on the matter. The Railway Triad - DfT, ORR, NR, have, frankly, refused to discuss the matter. Two other persons who are looking into the matter, as complete outsiders, have both commented that the conflict of legislation between Railway and Right of Way / Highway law does not appear to have ever been clarified and is very much a grey area, which, given the number of crossings, is frankly bizarre. They also note that the recent Law Commission report did not address the issue at all.

As an experiment, the other week, at a 'phone signaller' crossing, I phoned and asked the signaller - or whoever it was at the end of the line - for his name. He would not supply it, which was interesting when it comes to legal accountability.

Another fascinating legal area of crossing obscurity are 'Sleeping Dog' level-crossings. These are PRoW crossings that are no longer in public use, for various reasons, but over which PRoW rights technically remain as they have never been legally extinguished. Even though fenced-off or whatever, legally a person may still cross at that point. Two separate County Council rights of way officers have been very clear on that point. I am now compiling a list of all such crossings. There are three in Cambridgeshire, for example.

The following is quoted from a document submitted to the now closed Cambridgeshire Level Crossing Reduction Order Public Inquiry - the Inspector is expected to take up to a year to report their findings. All documents are in the public domain at County libraries and should, by now, be on-line.

This is the statement of a CCC Rights of Way Officer on NR's general attitude to PRoW footpath level-crossings -

'Cambridgeshire County Council Officers have persistently raised with NR the fact that NR infrastructure is often extremely poor in comparison with the British Standard.'

'It is known that NR like to use difficult stiles to dissuade the public from using paths over which they have legal rights.'

'In an age of the Equality Act 2010 and before it the Disability Discrimination Act 1995, it is extraordinary that NR should be able to get away with this.'

21-11-2017

Objection 12 / CCC - Rebuttal of Proof of Evidence, Public Inquiry: NR ( CLCRO ) 201X

[Nimbus]

All the Cambridgeshire Level Crossing Inquiry submitted documents mentioned are now on-line at the Inquiry hosting site of Persona Associates - Persona.com. The OBJ-12 / CCC document is at OBJ/29/W16/R - Karen Champion.