THE government is facing a legal challenge from thousands of motorists after the attorney-general admitted that they had been wrongly penalised for jumping red lights.

Drivers could have three penalty points scrubbed from their licences following the discovery of a legal loophole that has existed for 16 years.

The problem relates to motorists who have been penalised by traffic cameras or policemen for going through red lights at more than 300 level crossings that have been created since 1990.

The crossings were signed off by the Health and Safety Executive (HSE), but government lawyers have realised that, according to current law, only the Department for Transport (DfT) and its immediate agencies, such as the Highways Agency, have the power to approve them.

That means that the 306 level crossings have, technically, been erected illegally. Those drivers who have been fined and had their licences endorsed with penalty points after being caught jumping red lights at these crossings will now be able to challenge these offences.

Both Lord Goldsmith, the attorney-general, and Ken Macdonald QC, the director of public prosecutions, are understood to have been consulted over the bungle.

“We have got to assume that we’re talking about thousands rather than hundreds of drivers, given the number of level crossings involved,” said a Whitehall source this weekend.

However, motorists who have been prosecuted for more serious offences, such as dangerous driving, at these crossings are unlikely to have their cases quashed by the courts.

The loophole came to light as government lawyers pored over the Road Safety Bill, which is expected to complete its passage through parliament this week.

Ministers have tabled a last-minute amendment to the bill that will give the Office of Rail Regulation, which took on the HSE’s rail safety role earlier this year, the power to sign off any new level crossings. The amendment will also retrospectively validate the 306 crossings that were approved by the HSE.

The government, however, is unlikely to disclose the location of these illegal rail crossings until the Road Safety Bill has received royal assent later in the year.

A source said: “We will try to make it as difficult and as expensive as possible for anyone to challenge us in the courts. Even though these drivers might have been wrongly penalised due to a technicality, we would use the moral argument that they were potentially endangering lives by ignoring a red light.”

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