The history of the law as it applies to railway and dock
police is complex. Things take a lot of
unpicking and it is not unusual for errors in interpretation to persist for
decades. It is an area of niche interest
to police historians and remains largely unresearched. Even a little knowledge of the subject shows
that police officers of all generations have sought to make, often inadequate,
laws work in the interests of justice.
Officers of railway and dock forces are also guilty of more than a dose
of legal wishful thinking.
I have written elsewhere about the nonsense of the
restricted jurisdiction of modern BTP officers.
Various opportunities to put this right have been missed. Most particularly at the time of the drafting
of the Railways and Transport Safety Act 2003, which is the modern legislative
basis for BTP. The Act, which clarified
jurisdiction in some ways also resulted in the loss of the ‘in the vicinity’
power. Another opportunity came with the
Police and Criminal Justice Act 2006.S21 amended the Police Act 1996 to give
special constables in Police Act forces powers throughout England and Wales and
in adjacent territorial waters. But no changes were made to BTP. From this point we have had the strange situation
where a newly appointment special constable in Avon and Somerset has full police powers whilst off duty at,
say, Preston, station but an experienced and fully trained BTP officer would only
have powers in the road outside the same station if he/she could satisfy a number
of tests. I will, inevitably, return to
this subject but it would also be fair to say that the last thirty years have
seen various attempts to consolidate some of the law around BTP and to create
some superficial consistency with other forces.
The rather diversionary introduction above will serve for a
whole series of planned blogs on the subject of the history of the law and RDC
policing. For the remainder of this
short piece I will concentrate on a subject that fits in well with my
personality type: disaffection.
As a difficult young PC I was involved in a disagreement
with senior officers over something, the actual details are lost to memory, but
I remember being called in and being told that I was guilty of causing
disaffection and that if I persisted prosecution would be considered in
addition to disciplinary proceedings. I
took great pleasure in explaining that the offence of causing disaffection did
not apply to BTP officers. I was able to
convey a very convincing impression of a smug git. Insufferable is a word not used much these days
but it is very useful for describing much of my professional conduct (other
descriptors are available).
If I were still
serving a prosecution would now be possible (if rather unlikely).
The Police Act 1919 s3 introduced the offence of causing disaffection
in police forces. The Act became law in
the aftermath of the police strikes of 1918 and 1919. It removed the right to be a member
of a trade union. The offence applies to
officers and to non officers and was aimed at internal trouble makers and those
in the wider labour movement who might be tempted to suborn police officers
from their duties. The harsh penalties
(a fine or up to 2 years with or without hard labour) for the offence were
questioned as the Bill went through Parliament but remained unaltered. The offence survived the repeal of the 1919
Act and formed s53 of the Police Act 1964.
When that Act was replaced by the Police Act 1996 it re-emerged as s91,
viz,:
91 Causing disaffection.
(1)Any
person who causes, or attempts to cause, or does any act calculated to cause,
disaffection amongst the members of any police force, or induces or attempts to
induce, or does any act calculated to induce, any member of a police force to
withhold his services, shall be guilty of an offence and liable—
(a)on summary conviction, to imprisonment for a term not
exceeding six months or to a fine not exceeding the statutory maximum, or to
both;
(b)on conviction on indictment, to imprisonment for a term
not exceeding two years or to a fine, or to both.
The offence remains largely unchanged from that
found in the 1919 Act – although the option of hard labour has gone.
But even in 1996 there was not thought to be a need
to include BTP in the provisions of this draconian provision. The Transport and Railway Safety Act 2003, brought
much of legislation touching BTP in line with that of 1996 Act forces, but it
still didn’t apply the offence of disaffection. It did prevent BTP officers
from joining a union – something which had previously been
achieved by conditions of service. But
within the year something must have mobilised Whitehall, alert to the prospect
of an outpouring of organised unhappiness in the railway police, because in the
Energy Act 2004 the offence of Causing Disaffection was applied to BTP. I don’t recall there being any particular
reason behind the change. I suspect that
it was seen as a tidying up measure (the Act included CNC). I rather wish that they had decided to tidy
up some of the more significant legislative lacuna that plague BTP.
As I usually do I have focused on England and Wales but actually the offence of disaffection was applied to BTP in Scotland by the Anti-Terrorism, Crime and Security Act 2001 by way of an amendment to the Police (Scotland) Act 1967. When the latter Act was repealed to create the Police Service of Scotland (commonly known as Police Scotland) in 2012 the legislators gave up on the idea of disaffection entirely. It seems that Scotland 's constabulary is contented, or that disaffection is so common that it isn't worth mentioning. A new offence of 'Failure to Perform Duty', which only applies to constables of the territorial force (not BTP), was created by the Police and Fire Reform (Scotland) Act 2012, this offence includes being absent from duty.
For all the fears of the legislators of 1919 disaffection
in the police service has never really been an issue, even at times when pay
and conditions have been poor (ie now).
From time to time there is talk of seeking to repeal the restrictions on
the ability to strike but nothing ever really comes of it. Perhaps this will change.
I am now interested now in two areas:
1. Was there any reason why the change was made in
2004?
2. How many police officers and others have been
prosecuted for this offence and in what circumstances?
I would add that I am not a lawyer, nor am I a real
historian. My ramblings about the legal
aspects of this history might, like the rest of these blogs, be a load of old
toffee.
Phil Trendall
August 2003
Notes
Police Act 1919: https://vlex.co.uk/vid/police-act-1919-808116981
Police Act 1964: https://www.legislation.gov.uk/ukpga/1964/48/section/53/enacted
Police Act 1996 https://www.legislation.gov.uk/ukpga/1996/16/section/91
Energy Act 2004: https://www.legislation.gov.uk/ukpga/2004/20/section/68
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