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Law and History 4: Disaffection

 



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

 

Hansard 1919:                 https://hansard.parliament.uk/commons/1919-08-01/debates/1b16f42e-578e-4cf1-8cec-b10d788b6bb6/Clause3%E2%80%94(PenaltyOnPersonsCausingDisaffectionEtc)     

 

#disaffection #policedissaffection #police #policehistory #btp #railwaypolice

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