The Court of Appeal has found that the actions of a professional HGV driver, who blocked a railway line with his lorry, were not serious enough to warrant a custodial sentence.
Mr Hristov pleaded guilty to an offence under section 36 of the Malicious Damage Act 1861 (MDA 1861) of obstructing an engine or carriage using a railway, in addition to admitting to an offence of failure to report an accident. A further charge of dangerous driving was alleged, but a not guilty verdict was entered as no evidence was offered against Mr Hristov in relation to this charge.
On the 14 September 2017 the Crown Court sentenced Mr Hristov to eight months imprisonment for the offence of obstructing an engine and disqualified him from driving for two years. No separate penalty was given for failure to report the incident.
However, on 31 October 2017 the Court of Appeal quashed the sentences passed by the Crown Court, holding that “the offending in this case was not sufficiently serious to merit a sentence of imprisonment”.
On 21 June 2017 Mr Hristov was driving his HGV along High Street in Roydon, Essex. As he approached a level crossing the amber crossing lights were flashing, signalling that a train was approaching. Mr Hristov failed to notice the amber lights and began to drive his HGV onto the crossing, by which point the red flashing lights and alarm system had triggered. Mr Hristov realised his error and carried on driving forward in the hope of clearing the crossing before the barriers had descended. However, he was unable to clear the crossing in time and was trapped across the railway line. CCTV footage showed Mr Hristov getting out of his lorry for around 3 minutes (during which time the signalman had taken steps to stop the approaching train) before re-entering the cab and driving through the lowered barrier. Mr Hristov drove clear of the crossing and pulled over briefly before leaving the scene, having caused approximately £750 in damage and costing Network Rail an estimated £23,000.
Crown Court and Court of Appeal Decisions
The Crown Court held that Mr Hristov drove the lorry onto the crossing deliberately when it was clearly unsafe to do so. As such he failed to treat the railway crossings with caution, causing delays and great expense. The Crown Court therefore determined that only a custodial sentence would be sufficient to demonstrate the seriousness of the offence and deter others from doing the same. The Crown Court considered that eight months’ imprisonment was the minimum penalty that could be imposed, even taking into account Mr Hristov’s previous good character, good driving record and the fact that he would lose his job as a result of imprisonment and disqualification from driving.
However, the Court of Appeal has overturned the Crown Court’s decision, holding that:
- Mr Hristov’s offending had not been deliberate and concerted in the sense that he had intentionally caused delay and disruption to the rail network – Mr Hristov clearly believed that he could clear the crossing before the barrier descended and it was this belief that ultimately caused the obstruction. This was therefore a case of extreme careless and negligent conduct;
- As a result of the quick actions of the signalman in stopping the approaching train, it transpired that nobody was actually in danger; and
- In any event, the maximum sentence for the s36 MDA 1861 offence is two years’ imprisonment. In other cases of a similar nature, even where the defendant’s actions were deliberate and concerted, custodial sentences were rarely imposed.
The Court of Appeal held that the appropriate sentence in this case is a substantial fine, which was determined to be £750, in addition to a period of disqualification from driving (which the Court of Appeal reduced to 12 months).
The significant reduction in sentence and disqualification will no doubt be a welcome relief for Mr Hristov who not only retained his liberty, but also obtained the possibility of returning to his professional driving much sooner than he otherwise would have done.
A conviction of a custodial sentence between 6 months to 30 months carries with it a rehabilitation period of 48 months (starting on the day the sentence is completed, i.e. in Mr Hristov’s case at the end of the eight month sentence of imprisonment). The total rehabilitation time therefore would have been 56 months. A financial penalty on the other hand has a rehabilitation period of 12 months from the date of conviction.
There are also significant benefits to Mr Hristov in having his 24 month driving disqualification halved as he may well now avoid any extended vocational disqualification that might have been imposed and his prospects of successfully applying to have his vocational licence are much better. Clearly, the circumstances of this case will have to be taken into account by the Office of the Traffic Commissioner when considering whether to permit Mr Hristov to drive professionally again, but the findings of the Court of Appeal should prove to aid Mr Hristov’s application, should he wish to return to the transport industry.