Guidance note 1: legislative overview

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Guidance Note 1

Dealing with crime and anti social behaviour on public transport: an overview of the legislation

Age of criminal responsibility

Children from the age of 10 may be deemed as criminally responsible for their actions if the prosecution can show that they knew that what they were doing was seriously wrong. From aged 14 a young person is fully responsible for their actions, in the same way as an adult.

These age limits apply to the offences set out in this guidance note, except where specified otherwise.

Disorder

Section 2 of the Public Order Act 1986 provides for the offence of violent disorder, when three or more persons, present together, use or threaten unlawful violence so that their conduct causes other people present to fear for their personal safety. The offence may be committed in a public or private place. Examples include fighting between three or more people involving the use of weapons, fighting between rival groups, and serious disorder where missiles are thrown. Violent disorder is punishable with a level 5 fine (currently £5,000) or 6 months imprisonment.

Section 3 provides for the offence of an affray, which is when a person uses unlawful violence towards another and that causes other members of the public present to fear for their personal safety. Violent conduct towards property would not be enough for an affray: the violence should be serious and indiscriminate. The offence may be committed in a public or private place. Examples might include a fight in public where the level of violence would put others in fear for their own safety; indiscriminate throwing of objects towards a group of people; and the wielding of a weapon. The maximum penalty is a level 5 fine or 6 months imprisonment.

The Criminal Justice and Police Act 2001 is aimed at increasing the powers of the police and local authorities to deal with disorder and public nuisance. The aim of Penalty Notices for Disorder (PNDs) is to provide an effective, alternative means of dealing with low level anti-social and nuisance offending without a court hearing. The current tariff is £80 or £50 depending on the offence. This is intended to deliver swift, simple and effective justice, and to deter. It reduces the amount of time police officers spend on paperwork and attending courts, and the burden on the courts. Police are thereby freed up to spend more time on the streets, dealing with more serious crime, and the courts to deal with more serious offending.

Specifically, the Act makes provision for the issuing of PNDs. It lists 'penalty offences' as follows:

  • Being drunk in a public place
  • Throwing fireworks
  • Knowingly making false alarm calls to the fire brigade
  • Trespass on the railway
  • Throwing stones at trains
  • Buying alcohol under the age of 18
  • Wasting police time
  • Disorderly behaviour while drunk
  • Consuming alcohol in a designated public place
  • Using public telephones to send messages known to be false or to cause alarm

The British Transport Police were explicitly included within this legislation.

The powers of a constable to issue a PND under the Criminal Justice and Police Act are extended to Police Community Support Officers (PCSOs) by Schedule 4 paragraph 1 of the Police Reform Act 2002. If a chief constable wishes to enable a PCSO to use this power s/he does not have to designate them for all listed penalty offences, but may choose to give them the power in relation to only one or two of the offences, according to local circumstances.

The Police Reform Act provides the police with additional resources - or an 'extended family' - in the form of Police Community Support Officers (PCSO) and individuals accredited ('Accredited Persons') under Community Safety Accreditation Schemes (CSAS).

PCSOs are given a power of detention, where they have reason to believe that a person has committed a fixed penalty offence or an offence that has caused injury or harm to another person or loss of or damage to property. This power enables the PCSO to detain the person for up to 30 minutes pending the arrival of a police constable.

Section 43 of the Act provides for the establishment of the Railway Safety Accreditation Scheme. Under the Scheme, an application can be made to the chief constable to assign limited powers to Accredited Persons in order to combat crime and disorder and enhance railway safety and security. These powers include:

  • Taking names and addresses of people acting in an anti-social manner
  • Issuing Fixed Penalty Notices for offences such as throwing stones at trains, railway trespass and littering
  • Confiscating alcohol and tobacco from young people
  • Requiring the removal of abandoned vehicles

In addition, an Accredited Person (AP) is an 'authorised person' under the bye laws, and as such would have powers under the bye laws. This would include, for example:

  • The power to refuse access to, or require to leave, the station or train anyone believed to be likely to act in a riotous, disorderly or offensive manner
  • The power to require a person to remove from the railway any item that is believed may threaten, annoy, soil or damage any person or any property

The powers of a constable to issue a PND under the Criminal Justice and Police Act are extended to AP by Section 89 of the Anti Social Behaviour Act 2003. These are in addition to the Fixed Penalty Notices that APs can issue for such things as litter, dog fouling, fly posting and graffiti. The offences for which APs may issue PNDs are:

  • Throwing fireworks
  • Knowingly making false alarm calls to the fire brigade
  • Trespass on the railway
  • Throwing stones at trains
  • Buying alcohol under the age of 18
  • Wasting police time
  • Consuming alcohol in a designated public place
  • Using public telephones to send messages known to be false or to cause alarm
  • Behaviour likely to cause harassment, alarm or distress

The two offences that involve drunken behaviour (i.e. being drunk in a public place and disorderly behaviour while drunk) are not extended to APs. Powers available to APs are granted at the discretion of the chief constable who has accredited them.

The age limit for PNDs was reduced to 16 in Section 87 of the Anti Social Behaviour Act from April 2004.

Police guidance about the use of PNDs in relation to young people states that they should only be issued for minor, straightforward offences, and not in the case of persistent offenders. Powers of arrest, reprimand and final warning remain unchanged and should be used where appropriate. In particular, where offenders are vulnerable and in need of intervention, police officers are told that they should not use PNDs, but should use a more appropriate disposal that allows for such an intervention to be made.

Under Section 12 of the Criminal Justice and Police Act 2001, a police officer (including a PCSO) can require someone to stop drinking and confiscate the alcohol of someone who is drinking in a 'designated public place' (alcohol exclusion zone). This is defined in Section 13 as one that the local authority designates, on the basis that there is public nuisance or disorder there that is associated with the consumption of alcohol.

Harassment

The Protection from Harassment Act 1997 makes it an offence to harass another person, or behave in such a way as to cause them to fear violence on at least two occasions. This legislation requires there to be a 'course of conduct' (defined as being at least two occasions). Hence, if a person harasses two separate members of staff only once each, they are not committing an offence under the Act.

Civil law proceedings may be brought by someone who is or may be the victim, and damages may cover anxiety as well as financial loss. The victim may obtain an injunction and apply for an arrest warrant if the person breaches the terms of the injunction. The penalty is maximum of 5 years imprisonment or a fine, or both.

A court may make a restraining order on the person, preventing a repeat of the conduct that has led to the order for a specified period or until a further order is made. If the restraining order is contravened, the penalty is a maximum of 5 years imprisonment or a fine, or both.

Anti social behaviour

The Crime and Disorder Act 1998 made provision for Anti-Social Behaviour Orders (ASBOs), to prohibit named individuals aged 10 or over from specified activities, to protect communities from anti-social behaviour, especially neighbour nuisance. Local authorities or the police may take the lead in obtaining an ASBO in a magistrates' court. An ASBO may be made if a person has acted in a way likely to cause harassment, alarm or distress to two or more people and if an ASBO is considered necessary to protect people from further anti-social acts. It is imposed for at least two years but may be indefinite. The maximum penalty for a breach is 5 years imprisonment in the Crown Court. To cover an omission under the original legislation, Section 61 (4) of the Police Reform Act 2002 enabled the BTP to apply for ASBOs.

ASBOs have been used successfully to deal with a range of behaviours that are of concern to public transport operators including: begging, prostitution, harassment of staff, drunkenness, menacing personal appearance, loitering, and graffiti. They have even been used to tackle theft and car crime.

Section 30 of the Anti Social Behaviour Act 2003 provides that where a police officer of Superintendent rank or above has reasonable grounds for believing that the public is being harassed, alarmed or distressed by the presence or behaviour of groups (of 2 or more) people in a public place, and that anti social behaviour is a significant and persistent problem in the locality, they may issue a Dispersal Order relating to that location for a period up to 6 months. This gives a police officer (including a PCSO) the power to require groups to disperse from that locality, and for people not living in the locality to leave immediately and not return within 24 hours. Contravention of such a direction may result in a fine and/or 3 months imprisonment. These powers were specifically made available to the BTP in relation to any locality over which they have powers and responsibilities.

More information on dealing with anti social behaviour is provided in Guidance Note 4.

Football related disorder

The Football (Disorder) Act 2000 provides for football banning orders, which can be used to prevent known trouble makers from using attending football matches and using public transport on match days. An application can be made to magistrates in relation to an individual on the basis of evidence that they have previously caused or been involved in disorder and continue to pose a threat.

They can be imposed for between two and ten years and the precise conditions can be tailored on a case-by-case basis.

Criminal damage

The Criminal Damage Act 1971 creates an offence where a person intentionally or recklessly damages or destroys property belonging to another, and the maximum penalty is 10 years imprisonment. There is an offence of possession with intent to damage or destroy property.

The Criminal Damage Act also creates an offence of criminal damage with intent to endanger life, which carries a maximum penalty of life imprisonment.

Begging

The Vagrancy Act 1884 relates to begging, sleeping rough and being found in enclosed areas, and is punishable by 5 years imprisonment. Begging is a recordable offence and so upon arrest the police will take photographs and fingerprints.

Powers of arrest

In January 2006 new powers were introduced under the Serious Organised Crime and Police Act 2005, giving police officers a simplified power of arrest, based on the test of 'necessity'. This has increased the powers of arrest from only 'arrestable' offences to any offence, however minor. This power was introduced to enable the police to deal with all offences and exercise the power of arrest to meet the needs of the situation. The 'necessity' test means that the constable has to focus on the individual circumstances of the case (not just the offence itself) and in particular the circumstances of the victim, offender and needs of the investigation. The emphasis is on the provision of justification for any arrest.

Young offenders

Under the Crime and Disorder Act 1998 Police cautions to young offenders aged 10-17 were replaced. A young person who admits a minor offence may be given a Reprimand, provided s/he has not been reprimanded, warned or found guilty previously. A future minor offence results in a Final Warning, but charges are brought for more serious incidents. An individual receives a warning only once, unless a subsequent offence is minor and more than two years after the first warning. Reprimands and warnings are given in police stations in the presence of an appropriate adult.

A Referral Order is a contract agreed between the young person, their family, a youth offender panel and the victim (if appropriate). All young people who plead guilty to a first offence in court but are not given an absolute discharge or a detention and training order must be sent to a panel, where a contract with the young person is negotiated, that is likely to include an apology.

Courts are given the power to make a Reparation Order that requires juvenile offenders to make reparations to victims or to the community. The Order is based on a report prepared by a member of the YOT, a social worker or probation officer; and is supervised by one of them. A Reparation Order may only be made when a sentence is not fixed by law and when a non-custodial sentence is planned. The action required could involve up to 24 hours work and must be completed within three months.

If breached, the court may impose a fine of up to £1,000, make an attendance centre or curfew order, apply a new sentence relating to the original charge (Youth Court) or commit the offender to appear before Crown Court (depending on original charge).

If a court believes that it will assist rehabilitation or prevent re-offending, it may issue an Action Plan Order relating to a young person convicted of an offence for which the sentence is not fixed in law. The Order requires the offender to follow an Action Plan for three months. Courts have the same options for dealing with failure to comply as for Reparation Orders.

The Act gives courts the power to apply Detention and Training Orders to retain in custody a young person convicted of an offence that would be punishable by imprisonment if the offender is over 21 years. Such Orders are not made for offenders under 15 years, unless their offending is persistent, or under 12 years, unless an Order is necessary to protect the public.

For offenders over 16 years who are dependent on (or have a propensity to misuse) drugs, courts may impose a Treatment and Testing Order lasting between 6 months and 3 years, if it is thought s/he may be susceptible to treatment. The "treatment requirement" requires an individual to accept treatment throughout the period and the "testing requirement" requires provision of samples to ascertain whether s/he has drugs in the body. Orders can only be made when treatment can be provided.

Legislation specific to the railway

Some of the early legislation, dating back to the mid nineteenth century, is still used to order and safety on the railway. This is set out below.

Railway trespass

The following legislation refers specifically to railway trespass:

  • Section 16 Railway Regulation Act 1840: offence to wilfully trespass on any railway premises, punishable by one month's imprisonment.
  • Section 55 British Transport Commission Act 1949: penalises trespass on railway lines or on property in dangerous proximity to lines. Punishable by a level 1 fine (currently £200).

Damaging trains and endangering safety of users

The following legislation refers specifically to damaging trains and endangering the safety of users:

  • Section 56 British Transport Commission Act 1949: summary offence of throwing missiles at rolling stock or static railway equipment. Punishable with level 3 fine (currently £1,000 or 3 months imprisonment.
  • Section 33 Offences Against the Person Act 1861: offence if intent to injure or endanger the safety of persons on the railway. Punishable by life imprisonment.
  • Section 35 Malicious Damage Act 1861: penalises placing wood etc on railways, taking up rails, turning points etc with intention to obstruct, upset, overthrow or destroy rolling stock. Punishable by life imprisonment.
  • Section 32 Offences Against the Person Act 1861: as above, but with intent to endanger the safety of anyone travelling on the railway. Punishable with life imprisonment.

Fare evasion

Section 5 Regulation of Railways Act 1889: travelling or attempting to travel without having paid a fare and with the intent to avoid payment; having paid the fare for a certain distance and riding beyond that without paying the additional fare and with the intent to avoid payment; and having failed to pay the fare giving a false name and address to a member of staff.

Railway bye laws

Under Section 129 of the Railways Act 1993 a train operating company is empowered to make bye laws regulating the use, maintenance and conduct of people using its assets. These may refer to such matters as:

  • Carrying potentially dangerous items
  • Bring drunk or carrying alcohol
  • Being 'unfit' (by reason of improper condition of clothing, for example) to travel
  • Unacceptable behaviour (such as abusive, indecent, spitting, damaging property)
  • Busking, selling or touting
  • Trespass and loitering

Anyone contravening a byelaw may be required to give their name and address to an 'authorised person' (e.g. a member of staff of the TOC). They may also be asked to leave the train and/or station, and may be removed using reasonable force if they refuse to do so.

Contravention of bye laws is punishable by a level 3 fine (currently £1,000) except for bye law 17 (referring to compulsory ticketing areas), which is punishable with a level 1 fine.

An authorised person exercising these powers must produce a form of identification when requested to do so.

Bye laws covering bus and tram

Across the country there are local bye laws. A local authority may apply to the Secretary of State for permission to operate bye laws relating to particular activities. There are no national bye laws relating to crime on bus or tram, although there are local bye laws on tram services, generally provided under their enabling legislation.

Useful websites

www.btp.police.uk is the website of the British Transport Police, and can be a useful source of recent information relating to legislation and successful prosecutions under 'Latest News'.

www.crimereduction.gov.uk is a Home Office website designed for crime reduction practitioners, and can be a useful source of information about legislation and good practice in crime reduction.

www.youth-justice-board.gov.uk includes information on Youth Offending Teams and how the youth justice system works.

www.dft.gov.uk is the Department for Transport website and may be useful for information relating to crime on public transport specifically, including research findings and guidance notes for operators, under 'Crime and Public Transport'.

www.opsi.gov.uk is the website for the Office of Public Service Information, and provides access to all UK legislation.