NIP for crossing train level crossing **FPN of £50 and no points**

[rds60h]

My betting is that is says so on the signs above the phone, you can see one across the other side as well. I can't see you have much hope here.

 

[ATTACH=CONFIG]49279[/ATTACH]

 

The other sign is not confusing, the wording makes it quite clear that if you are driving a low loaded lorry you could ground.

 

Conniff, I think you may well be correct that it says so on the signs above the phone although I cannot tell from the photograph. But, surely anything on that sign would only be read if you approached the phone and if that was the case then wouldn't that be considered as the notice being too late to be adhered to, as stated in the Road Traffic Signals Manual Chapter 1 - 1.2. :-

Signs must give road users their message clearly and at the correct time. The message must be unambiguous and speedily understood; it must be given not too soon for the

information to have been forgotten before it is needed, and not too late for the safe performance of consequent manoeuvres.

 

That would be my opinion; but I would happily bow to your opinion if it differs to mine, considering your extensive knowledge of many of these situations.

[BazzaS]

That is exactly the point you can only be able to prosecute you if they are able to prove beyond reasonable doubt and with many motoring offences unless there is photographic evidence then there is reasonable doubt.

 

Fallacious.

You said "Yes there is specific requirements for photographic evidence on some offences", and can't substantiate that : you've been asked which offences but can't give examples - likely because you can't accept you are wrong.

 

Now you claim they are only able to prosecute if they can prove beyond reasonable doubt .... but that is the court's role in reaching a verdict, not the prosecution's on deciding which should be prosecuted.

 

The CPS are the main organisation that decide on if a criminal prosecution should take place. Their 'yardstick' is two-fold:

a) that prosecution is in the public interest, and

b) that Crown Prosecutors must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against each defendant.

 

http://www.cps.gov.uk/publications/code_for_crown_prosecutors/

 

If you wish to rely on statements like "Yes there is specific requirements for photographic evidence on some offences" in court, the "prove it " and "be precise, because you've got it wrong" you've seen here won't be a patch on what you'll likely face in court!

[rds60h]

Fallacious.

You said "Yes there is specific requirements for photographic evidence on some offences", and can't substantiate that : you've been asked which offences but can't give examples - likely because you can't accept you are wrong.

 

Now you claim they are only able to prosecute if they can prove beyond reasonable doubt .... but that is the court's role in reaching a verdict, not the prosecution's on deciding which should be prosecuted.

 

The CPS are the main organisation that decide on if a criminal prosecution should take place. Their 'yardstick' is two-fold:

a) that prosecution is in the public interest, and

b) that Crown Prosecutors must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against each defendant.

 

http://www.cps.gov.uk/publications/code_for_crown_prosecutors/

 

If you wish to rely on statements like "Yes there is specific requirements for photographic evidence on some offences" in court, the "prove it " and "be precise, because you've got it wrong" you've seen here won't be a patch on what you'll likely face in court!

 

In which case can you explain how someone caught speeding on the motorway by the gantry cameras can be prosecuted without photographic evidence ?

I was not fellacious, it is you being pedantic.

[Conniff]

Come on girls, lets not turn this into a war of words

[sailor sam]

Isn't the use of these type of crossings covered in the highway code? Plus i'm still wondering how the OP's VRM was recorded.

[BazzaS]

In which case can you explain how someone caught speeding on the motorway by the gantry cameras can be prosecuted without photographic evidence ?

I was not fellacious, it is you being pedantic.

 

If caught by a gantry camera : the court can't require a camera to take the witness stand, and the photos are entered into evidence instead. (I suspect you knew that anyway)

 

However, this doesn't mean that the offence of excess speed always requires photographic evidence : the evidence of a suitably qualified traffic police officer would suffice, for example.

In the end it is for the court to weigh the evidence in front of it, photographic or otherwise.

 

No matter how you try to spin it, you still can't come up with an offence that always mandates photographic evidence to be proven.

 

Sometimes the evidence is photographic and sometimes it isn't, but it isn't always required to be photographic.

[UKDomains]

Hi all, apologies for my absence, I had to go away for work for a while.

 

Thank you for all the comments. I have taken the NIP and edited it and attached. Looks all normal to my uneducated eye.

The whole thing was that I was CONFUSED by the signs, taking them to mean heavy vehicles need to phone. I wasn't being lazy and not phoning, I genuinely thought the signs meant for large vehicles.

 

So with me being away, I need to get the NIP back to them by the 11th. The attached scan is of Part A. There is another sheet with part B, Part C and Part D where I can explain myself.

 

Now looking at the alleged offences, they state 2 incidences:

Driver of vehicle failed to inform and the 2nd one, vehicle crossed tracks in front of train causing train to brake.

 

In my part D I propose to say the following:

 

"Due to the nature and location of the various signs it led me to believe that all heavy vehicles should stop and phone for permission. The signage is very ambiguous and not immediately clear as to the correct course of action. In the second part of the alleged offense, it is stated that the vehicle crossed in front of the train, causing it to brake. This is in fact incorrect. On seeing the train approach, I waited for the train to pass me and on visual inspection I then determined the track was clear to cross. A short distance away from the crossing the train came to a complete stop, before I had even crossed the tracks. I propose that the train was in fact in the process of slowing down before it passed the crossing as it was coming up to a red light which is a short distance away from the crossing."

 

Any suggestions/comments? What I'm curious about is how did they get my reg no.?

[UKDomains]

Just an update to this thread. It has been over three weeks now since I sent the above back in, and have not heard anything yet. Will update when I do.

[sailor sam]

Hmm, I would of thought that to bring a successful prosecution, they will need some evidence in the form of some CCTV footage of the 'incident' or a witness statement. Both of which should be made available to you prior to any court hearing. Have you spoken to a solicitor yet about this?

[MikeG]

Which offences have specific requirements for photographic evidence?.

 

Speed cameras provide photographic evidence but even so a prosecution for speeding doesn't require photographic evidence : evidence from a police officer may suffice (for example)

 

I'm not aware of any offence that has a specific requirement for photographic evidence : just that the evidence (photos or otherwise) can be tested (if need be) in court, to the criminal standard of proof ("beyond all reasonable doubt")

 

You are right, it's not the offence, it's the detection mechanism. Devices approved for unattended operation need a second corroborating detection mechanism eg: Gatso's radar + photos. If the two don't agree to 10% then there is insufficient evidence. Somewhere I recall 'shall not be convicted on the word of one officer alone', and there is good legislative support for 'Formed Opinion' confirmed by a device that is regularly ignored in court, where the reverse order seems to do.

[UKDomains]

Hi All,

I have not updated this for a while as I heard nothing since I sent the NIP back to BT Police until tonight.

 

Received a phone call from the PC investigating and

he said on reviewing my reply I sent them and speaking to the driver of the train,

they are dropping the alleged offense of crossing in front of the train (which I did not do),

but they are prepared to offer me a police caution for not using the phone before crossing.

 

This will have to involve me going to the BT station,

and admitting that I crossed without using the phone,

and then I will receive a police caution and would not need to go to court.

 

Can anyone please explain to me what this would involve,

what implications this would mean to me, etc.

 

I have never had anything remotely like this happen to me previously.

 

I still contend that I was confused by the signage, so did not do it on purpose.

[dx100uk]

the bottom lines is its a verbal a slap on the wrist.

 

end of the matter

 

dx

[BazzaS]

Hi All, I have not updated this for a while as I heard nothing since I sent the NIP back to BT Police until tonight. Received a phone call from the PC investigating and he said on reviewing my reply I sent them and speaking to the driver of the train, they are dropping the alleged offense of crossing in front of the train (which I did not do), but they are prepared to offer me a police caution for not using the phone before crossing.

 

This will have to involve me going to the BT station, and admitting that I crossed without using the phone, and then I will receive a police caution and would not need to go to court.

 

Can anyone please explain to me what this would involve, what implications this would mean to me, etc. I have never had anything remotely like this happen to me previously.

I still contend that I was confused by the signage, so did not do it on purpose.

 

Do you require an eDBS?. A caution would show on an enhanced DBS.

 

However, if the offence is a "strict liability" one then lack of intent doesn't matter : either you did it or you didn't. What exactly are they now saying you could be given a formal caution for?. Is it a strict liability offence?

[UKDomains]

They did not say. He just said it would show on my police record as a caution, but no one would know about it, not even employer etc.

 

He also just said that I would be given a caution for driving through the crossing without using the phone. I didn't admit anything, just agreed to see him at the BT police station next week.

[BazzaS]

They did not say. He just said it would show on my police record as a caution, but no one would know about it, not even employer etc.

 

He also just said that I would be given a caution for driving through the crossing without using the phone. I didn't admit anything, just agreed to see him at the BT police station next week.

 

He would say that, wouldn't he ......

How does he know for sure that you aren't about to apply for a job that requires an eDBS, where any caution wouldn't be regarded as 'spent '?

 

http://www.nacro.org.uk/what-we-do/resettlement-advice-service/advice/frequently-asked-questions/criminal-records-and-dbs-crb-checks,1616,NAP.html#15

[Conniff]

A caution is no different to a conviction in a court. They take fingerprints, DNA sample and photos. If you have done nothing wrong, then don't agree to it.

[UKDomains]

After a few days of thinking, I've decided I'm going to refuse to accept the caution. I still believe that I was in the right and that the signage is confusing.

 

I'm also wondering why the first part of the alleged offense was dropped, namely the crossing in front of the train causing train to brake. Obviously they questioned the driver again and got the correct answer.

 

I'm going to print out the following to show the Bt police who wants to see me:

 

http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/@motor/documents/digitalasset/dg_191955.pdf

 

Page 28 shows the exact same sign that says park here and use phone...it states:

Place where drivers of large

or slow vehicles should park

near a level crossing while

contacting the signal operator.

 

I'm going to argue that this first sign I saw in the following photo (bottom sign)

[ATTACH=CONFIG]51020[/ATTACH]

 

Does anyone have any suggestions how to go about this?

What is likely to happen if I refuse the caution?

 

Questions I would like to ask the BT police:

 

1. Why did you drop the first part of the alleged offense.

2. how did you record my car reg number.

 

Any other questions anyone can think of?

[BazzaS]

If you refuse the caution? They will either decide to drop matters, or they will summons you to court for the court to decide on if you are guilty or not guilty.

[UKDomains]

Well, I had my chat with the BT police this morning at Norwich Train station. I showed them all the signs involved, showed them the relevant bits in the "know your roadsigns" taken from the directgov website, and argued that I did not break any road traffic act regulations, as nowhere does it state motor vehicles HAVE to phone, and indeed the sign does say HEAVY vehicles need to phone.

 

The PC listened to what I had to say, then basically said "OK, I need to go through this form with you so we can get the story properly, and I need you to sign here..."

When I basically told him I'm not in a position to accept a caution over this at the moment. He looked totally bewildered and went to speak to his Sgt, who then came to speak to me.

 

He maintains that yes, the road traffic act does not state that I MUST phone to find out about trains coming, but that according to the Office of Rail regulations, ALL vehicles need to phone when crossing user and that I should be familiar with this law as well as a road user.

 

He then went on to say that he has no option, that I either need to accept the caution, or he would then be forced to hand it over to the Magistrate's Court.

 

The reasons I gave them for not accepting the caution:

 

a. I believe the signage and law to be ambiguous.

b. I'm going to be applying for my Citizenship shortly and there is a prerequisite in the application that the "applicant be a member of Good Standing" I'm fairly certain that with a caution on my record it would perhaps show I'm not of good standing and might influence my citizenship application.

 

He basically then said he advises I get legal advice and to contact them within 24 hours to let them know if I'm accepting the caution, which means I would need to go back to see them, or if I'm refusing the caution, which means they'll forward it on to the Magistrate's Court. He also confirmed driver wrote down my car reg number after he had passed my car.

Edited May 20, 2014 by UKDomains
added section

[BazzaS]

Well, I had my chat with the BT police this morning at Norwich Train station. I showed them all the signs involved, showed them the relevant bits in the "know your roadsigns" taken from the directgov website, and argued that I did not break any road traffic act regulations, as nowhere does it state motor vehicles HAVE to phone, and indeed the sign does say HEAVY vehicles need to phone.

 

The PC listened to what I had to say, then basically said "OK, I need to go through this form with you so we can get the story properly, and I need you to sign here..."

When I basically told him I'm not in a position to accept a caution over this at the moment. He looked totally bewildered and went to speak to his Sgt, who then came to speak to me.

 

He maintains that yes, the road traffic act does not state that I MUST phone to find out about trains coming, but that according to the Office of Rail regulations, ALL vehicles need to phone when crossing user and that I should be familiar with this law as well as a road user.

 

He then went on to say that he has no option, that I either need to accept the caution, or he would then be forced to hand it over to the Magistrate's Court.

 

The reasons I gave them for not accepting the caution:

 

a. I believe the signage and law to be ambiguous.

b. I'm going to be applying for my Citizenship shortly and there is a prerequisite in the application that the "applicant be a member of Good Standing" I'm fairly certain that with a caution on my record it would perhaps show I'm not of good standing and might influence my citizenship application.

 

He basically then said he advises I get legal advice and to contact them within 24 hours to let them know if I'm accepting the caution, which means I would need to go back to see them, or if I'm refusing the caution, which means they'll forward it on to the Magistrate's Court. He also confirmed driver wrote down my car reg number after he had passed my car.

 

"He basically then said he advises I get legal advice and to contact them within 24 hours to let them know if I'm accepting the caution, which means I would need to go back to see them, or if I'm refusing the caution, which means they'll forward it on to the Magistrate's Court."

 

Wise to seek formal legal advice. To do so, you may need to find out exactly what offence they are claiming you committed, so that your legal adviser can advise more fully.

 

My understanding is that the police don't pass it to Magistrates, they pass files to the CPS, who then make a charging decision.

 

What is your key objective?. your immigration status??

 

A caution counts as a conviction. It appears to me the key issue is if you stand a chance of escaping conviction at court, as then it is worth declining the caution.

If legal advice is that you would be convicted at court : take the caution.

 

The disadvantage of taking a caution : it counts as a conviction which you MIGHT escape by going to court.

The advantage of taking a caution : no penalty other than a criminal record.

 

It would be worth knowing what you would be charged with, to asses the likely extra penalty if found guilty at court, to help you make your decision.

 

Edited to add:

 

In one of your photo's the "STOP" sign (red) appeared partly obscured.

 

Were there gates you had to open to drive across?. In opening the gates would you have had to have seen the "STOP" signs, and do those signs say you have to phone?.

[BazzaS]

Was the sign at the gate the same as this one? :

http://www.drivingtesttips.biz/images/stop-look-listen-railway-sign.jpg

 

If so, nothing there to say you MUST phone. In fact by the fact that it says you must 'notify' (phone) for a vehicle that is "unusually long, wide, low, heavy or slow moving", you might conclude that for your car, if it doesn't meet any of those descriptors, that you don't need to phone.

 

The steps to take (listed at 1, 2, and 3 on that sign) : you complied with, as far as you could?

 

As for offences, you've posted the NIP which does set out the potential offences they are considering: under the Road Traffic Act 1988

 

S2 Dangerous Driving

S3 Careless Driving

S22 leaving vehicles in dangerous positions

S28 Dangerous cycling

S29 Careless cycling

S35/36

and "Aiding and abetting any of the above"

 

where does cycling come into it?!. Was there a cyclist they claim you "aided and abetted"?.

 

However, the wording in S28 and S29 is the similar to S2 and S3, just substituting "rides" or "cycling" and "cyclist" or "rider" in place of "driving" and "driver".

 

S2 Dangerous driving, they would have to show your actions fell far below the standard of a "competent and careful driver", and that it would be obvious to that competent and careful driver that driving in that way would be dangerous.

 

S3 Careless driving, they would have to show your actions fell below the standard of a reasonably careful driver (and also "in determining what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.")

 

S22 leaving vehicles in dangerous positions

If a person in charge of a vehicle causes or permits the vehicle or a trailer drawn by it to remain at rest on a road in such a position or in such condition or in such circumstances as to involve a danger of injury to other persons using the road, he is guilty of an offence.

 

Yet, it seems to me from what you have posted that you claim you never left your vehicle AT REST in such a position, you drove forward, saw a hazard, and so drove back?.

 

S35 : failing to comply with traffic directions

Who gave you directions? it seems to me this section deals with being told or signalled directions by an authorised individual, whereas signs are dealt with at:

 

S36: Failing to comply with traffic signs.

You have already identified the requirement for the signs to be in the prescribed format, and 'clear' / unobscured.

 

The "fly in the ointment"? : As identified earlier by sailor sam, the Highway Code.

https://www.gov.uk/road-works-level-crossings-tramways-288-to-307/level-crossings-291-to-299

 

Within '297' "If there is a railway telephone, always use it to contact the signal operator to make sure it is safe to cross. "

 

It seems then that the issue is if breaching 297 of the highway code would be careless driving.

Points for : part 297 and the sign would lead a careful and competent driver to know they needed to phone

Points against: the signage was confusing, and the large signs at the crossing suggested that only drivers of large, wide, slow-moving etc. vehicles had to phone. If the requirement was for all drivers to phone, why did that sign not say "all drivers phone". "Expressio unius" would be a good point to argue ... the list didn't say "and such vehicles", it wasn't an illustrative list, but a 'complete list', which didn't include your vehicle.

 

The police may be looking for a speedy resolution avoiding court, for a minor offence, and thus offered the caution - I don't think you ought to be accepting a caution without them ensuring you know what offence you are admitting to!.

 

Equally, it may be that they know their case is weak, and a caution is an 'easy win' for them (and counts as a crime solved in their numbers!).

 

I'm not a lawyer, so it may be worth considering this with a solicitor.

Get a solicitor's advice, since you are worried your citizenship status turns on this. Unless they say "take the caution" get them to present the above (and their views) to the CPS on your behalf, and hope a decision not to proceed is reached?.

[UKDomains]

Thank you for all the time spent on looking into this. some comments from what you have posted:

 

1. What is your key objective?. your immigration status?? YES.

 

2. The sign you posted was not the sign in question. The sign at the gate, which is obscured when driving towards gate, but unfortunately plainly visible when you get out of your car and approach gate to open can be found on this page: https://www.translink.co.uk/Documents/Services/NI%20Railways/User%20Worked%20Crossings%20WEB.pdf

Page 11, right hand sign. Interestingly, bottom of sign states maximum penalty £1000. I could always argue that a caution is more of a penalty to me having citizenship refused based on caution.

 

The fly in the ointment? : As identified earlier by sailor sam, the Highway Code. https://www.gov.uk/road-works-level-...ngs-291-to-299 Within '297' ;If there is a railway telephone, always use it to contact the signal operator to make sure it is safe to cross. " YES, you are correct here. I had however read it to mean: 294 Railway telephones. If you are driving a large or slow- moving vehicle, a long, low vehicle with a risk of grounding, or herding animals, a train could arrive before you are clear of the crossing. You MUST obey any sign instructing you to use the railway telephone to obtain permission to cross. You MUST also telephone when clear of the crossing if requested to do so. Laws RTA 1988 sect 36 & TSRGD regs 10 & 16(1)

 

I have attempted to get advice from CAB, who were unable to help, and gave me some telephone numbers of lawyers, who all wanted money before speaking to me.

Edited May 20, 2014 by UKDomains
formatting

[BazzaS]

The sign you have posted makes it clear you must phone.

It will be hard for you to claim you did not know what was required of you , if the sign would have had to have been clearly visible to you when you were opening the gate.

[UKDomains]

The sign you have posted makes it clear you must phone.

It will be hard for you to claim you did not know what was required of you , if the sign would have had to have been clearly visible to you when you were opening the gate.

 

*sigh* I just don't know what to do. I just feel that in my situation the punishment does not fit the crime. I'm just devastated

[UKDomains]

And I've confirmed on the UK Border Agency website that any police caution will result in refusal of citizenship application for 3 years.