Farm worker who caused car-train collision at manual level crossing loses appeal against dangerous driving conviction

About this case:

• Citation:
  [2025] SAC (Crim) 5
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Ivan Nicol was prosecuted by the procurator fiscal in Inverness for a breach of section 2 of the Road Traffic Act 1988 after a collision that occurred in January 2023 at the Lower Cullernie level crossing on the Aberdeen to Inverness railway line. He was disqualified from driving for one year and given a £1000 fine with an additional £40 victim surcharge as a result of his conviction.

The appeal was heard by Sheriff Principal Aisha Anwar KC with Appeal Sheriffs Gregor Murray and Philip Mann. Culross, advocate, appeared for the appellant and Glancy KC, advocate depute, for the respondent.

Authorised users only

The Lower Cullernie level crossing was located at an intersection between the railway line and the A96 Aberdeen to Inverness Road, near to a junction with Redhill Farm at Culloden, where the appellant was employed. The crossing was not automatically controlled, with authorised users required to open and close the gates manually on either side. Red and green warning lights indicated when the crossing was safe to use. When the appellant drove onto the railway track, the warning light was displaying red, and an approaching train collided with the rear of his vehicle, causing damage to both the car and the train.

At trial, footage of the collision from the train’s cameras was shown and evidence was led from the train driver and from a police constable, PC Ward, who attended at the scene and spoke to the nature of the locus. Following the conclusion of the Crown case, the solicitor for the appellant made a submission of no case to answer in which he submitted that there was insufficient evidence to prove that the locus was a road or other public place.

The sheriff found that PC Ward’s evidence about the nature of the road was sufficient to establish that the locus fit the criteria for the offence. It was agreed by joint minute that the appellant was an authorised user of the crossing, and the sheriff’s found in fact that that the road was not a private road and was accessible to members of the public who wished to travel to the dwellings and business premises beyond the crossing.

It was submitted for the appellant that the presence of an “authorised users only” sign suggested use of the crossing was restricted to a special class of person. The sheriff’s finding that the road was a public road was little more than a bald assertion, and a finding that a road is not a private road was not the same as a finding that it was one to which the public had a right of access.

The Crown submitted that sufficient evidence was led to entitle the sheriff to convict. Finding in fact 11 made it clear both that the road was not private and that use of it was not restricted. The sheriff had been entitled to make that finding based on PC Ward’s evidence, which was supported by the evidence led from a Network Rail employee about the layout of the road and crossing. In the absence of a question in the stated case directed at finding in fact 11, it was not open to this court to look behind the finding in fact at the evidence.

Accessible to the public

Delivering the opinion of the court, Sheriff Principal Anwar said of the definition of “road”: “The sheriff found that at Lower Cullernie there is a level crossing ‘where the public road crosses the railway track’. Finding in fact 5 states in terms that the locus is a public road. Finding in fact 11 states that the road is not a private road. The clear import of these findings is that the road is a ‘way over which there is a public right of passage’. In those circumstances, there is no requirement for a detailed analysis of how the road was used or for what purpose.”

She continued: “As this court noted in Dickson v PF, Kilmarnock (2023), the requirement for properly directed questions in a stated case is not a procedural technicality: specific and focussed questions both identify the issues for the appellate court and inform the content of the stated case, affording the sheriff the opportunity to set out and explain their findings in fact where those are challenged. There being no question directed at findings in fact 5 and 11, this appeal would fall to be refused.”

Considering whether the appellant’s arguments nonetheless had merit, the Sheriff Principal said: “[The sheriff] noted that notwithstanding the submissions made on behalf of the appellant, no witnesses had referred to the crossing as a ‘work user crossing’ or to there being lockfast gates or to there being a notice which described the crossing as a private level crossing. She found in fact that the road passed over the level crossing and led to several residential properties and a farm site housing a number of commercial properties and beyond’ and was accessible to members of the public who wish to travel to the dwellings and to the business premises.”

She concluded: “We accept that the evidence of usage by members of the public was sketchy and brief. Ordinarily, where the nature of the locus and its usage is not immediately obvious, more might be expected by way of evidence from the Crown. However, it is not the case that the Crown led no evidence of public use; the police officer confirmed that members of the public accessed the road and that they did so to travel beyond the private dwellings and commercial premises. The presence of the sign limited access to ‘authorised users’; however, it did not prevent the public from taking access.”

The court accordingly concluded that the sheriff was right to reject the no case to answer submission and convict the appellant and refused the appeal.