Police Reform and Social Responsibility Bill

Memorandum submitted by British Transport Police and British Transport Police Authority (PR 17)

British Transport Police

British Transport Police (BTP) is the national police force for the railways providing a policing service to rail operators, their staff and passengers throughout England, Wales and Scotland.

BTP has developed valuable expertise and the skills required to police a modern railway network. Fully integrated with local policing, BTP works closely with industry and community partners to provide a specialist, dedicated service protecting passengers, staff, and the network infrastructure from disruption and fear of crime.

Key Points

1. The Bill does not address the issues the British Transport Police Authority (BTPA) and British Transport Police (BTP) have raised in terms of the consultation responses they submitted on the review of the Licensing Act 2003 or the policing White Paper "Policing in the 21st Century: Reconnecting Police and the People".

2. Jurisdiction - a "police force area", or "chief officer of a police force area" are both defined by section 1 of the Police Act 1996 which lists all geographic forces in England and Wales – thus excluding, by default, BTP. (Paragraph 2.2 in the attached provides examples of issues this definition creates for BTP).

3. Counter terrorism (Mumbai style attacks) - the Firearms Act 1968 does not cover BTP officers in terms of anything other than CS spray or "other noxious substances". In order to enable BTP to employ firearms officers, the BTPA and BTP would seek an amendment to the legislation to bring BTP in line with the powers section 54 of that Act provides to officers from the CNC and SOCA. (Paragraph 2.2.1 covers this issue).

4. Licensing Act 2003 amendments – BTP is not designated as a "responsible authority". The amendment in the new Bill seeks to expressly include Primary Care Trust’s (PCT) and local Health Boards but not BTP. BTP is also not expressly included in the late night levy charges (paragraph 2.9).

Background

1.1 In October 2001 the Government issued a consultation document entitled ‘Modernising the British Transport Police’ with detailed proposals to bring BTP in to line with Home Office police forces in terms of accountability, status and powers. The Government’s main proposals in the consultation document were, amongst others:

· To place the jurisdiction of BTP constables over the railways on a statutory basis;

· To give BTP constables jurisdiction outside the railways in certain circumstance.

1.2 The proposal to give BTP constables jurisdiction outside the railways was taken forward in section 100 of the Anti-terrorism, Crime and Security Act 2001. Schedule 7 of that Act, (and sections 75 and 76 of the subsequent Police Reform Act 2002), extended to BTP the additional police powers included in the consultation document. These measures were included in the emergency legislation in order to enable the BTP to play a full role in protecting the public from terrorism and crime.

1.3 Where the 2001 Act had provided the extension of BTP constables jurisdiction (but only "in certain circumstances"), this was not consequently addressed in the Railways and Transport Safety Act 2003, in which section 31 gives the BTP a statutory jurisdiction over the railways. Here BTP constables have the powers and privileges of a Home Office constable over all railway property, it also extends outside railway property (a town high street for example) throughout Great Britain in relation to railway matters [1] .

1.4 Section 100 of the Anti-terrorism, Crime and Security Act 2001 provides the following:

1.4.1 Jurisdiction of transport police

(1) Where a member of the British Transport Police Force has been requested by a constable of –

(a) the police force for any area,

(b) the Ministry of Defence Police, or

(c) the United Kingdom Atomic Energy Authority Constabulary,

("the requesting force") to assist him in the execution of his duties in relation to a particular incident, investigation or operation, members of the British Transport Police Force have for the purposes of that incident, investigation or operation the same powers and privileges as constables of the requesting force.

(2) Members of the British Transport Police Force have in any police area the same powers and privileges as constables of the police force for that police area –

(a) in relation to persons whom they suspect on reasonable grounds of having committed, being in the course of committing or being about to commit an offence, or

(b) if they believe on reasonable grounds that they need those powers and privileges in order to save life or to prevent or minimise personal injury.

(3) But members of the British Transport Police Force have powers and privileges by virtue of subsection (2) only if -

(a) they are in uniform or have with them documentary evidence that they are members of that Force, and

(b) they believe on reasonable grounds that a power of a constable which they would not have apart from that subsection ought to be exercised and that, if it cannot be exercised until they secure attendance of or a request under subsection (1) by a constable who has it, the purpose for which they believe it ought to be exercised will be frustrated or seriously prejudiced.

1.5 Welcome though the 2001 Act was, it is does not create parity and equity for BTP police officers in terms of their Home Office or Scottish police force colleagues. Since the enactment of the Railways and Transport Safety Act 2003, BTP has sought to gain equal status in terms of jurisdiction. In August 2008 the BTPA and BTP jointly submitted a letter to the Department for Transport (DfT) requesting a number of legislative changes be included within the Policing and Crime Act 2009, one of which was in relation to police powers and jurisdiction. The relevant paragraphs from the letter are reproduced below.

1.5.1 "We would be grateful for an amendment to section 31 of the Railways & Transport Safety Act 2003 in respect of the powers and jurisdiction of those holding the office of constable in the BTP to bring these more in line with that of Home Office forces, especially given the extension in jurisdiction of special constables in other forces. Police Officers in Home Office forces may exercise their powers anywhere in England and Wales and are not confined in doing so to the police area which is the responsibility of their force. That is a strong argument in extending the powers of a constable for BTP officers beyond railway property."

1.5.2 "We both see the introduction of a Government Bill as an opportunity to bring forward a number of simple amendments that will address anomalies that exist between the provisions for the policing of the railway network and that of territorial policing. It is valuable to public service to retain the British Transport Police’s unique characteristic as a national and specialist force for the railways but the BTP is no less a police service than any other and consequently some (but not all) of the distinctions that exist in legislation between the BTP and Home Office police forces and authorities owe more to omission than to a firm rationale. This is, therefore, a good time to clear these up."

1.6 While no formal feedback was received from the Home Office in relation to the joint letter, anecdotal feedback suggested it had apparently been seen as a little too far reaching for the kind of amendments the Home Office was seeking to include in the Bill. This made it all the more interesting then when the Home Office extended BTP’s jurisdiction under new, but limited, specific circumstances outlined in the Policing and Crime Bill, Schedule 7, Part 1 paragraphs 7 to 10. Paragraph 7 states;

1.6.1 "(3B) Where a member of the British Transport Police Force is for the time being under the direction and control of the chief officer of another police force by virtue of a police force collaboration agreement under section 23, the member shall have all the powers and privileges of a member of that other force."

1.7 This, when read in conjunction with existing legislation regarding BTP’s jurisdiction, actually appears to exclude the Chief Officer of BTP from having direction and control of a police force collaborative agreement which wholly (or partly) involves policing outside of rail property. Additionally any BTP officers involved in such a collaborative agreement would be acting outside of their jurisdiction if carrying out duties outside of rail property where their work is not in relation to railway matters. By the same token, the powers of jurisdiction of police officers from Home Office and Scottish forces do not appear to be extended to the extent that BTP officer powers are in relation to being able to police in England, Wales and across the border in Scotland. So, for example, a collaborative agreement under the direction and control of the Chief Officer of BTP involved in policing on railway property across the England/Scotland border would mean that police officers from Home Office (or Scottish) forces involved in that agreement would be acting outside of their jurisdiction when in Scotland (or England). It was assumed that the anomaly and resulting inequity towards BTP created by this paragraph was not intended, but occurred as a result of a lack of knowledge, on behalf of the author(s) in relation to the current gaps in existing legislation.

1.8 During its passage through Committee stages, a number of amendments to the Police and Crime Bill in relation to the jurisdiction of the British Transport Police (BTP) and the potential for BTP to police airports were tabled. These were withdrawn in the Lords debate on 5 November 2009, when Lord Faulkner of Worcester stated that:

"...in accordance with standard procedures for non-departmental public bodies, a quinquennial review of the British Transport Police Authority will take place next year. The question of the BTP’s jurisdiction, including whether there could be a role for the force to play in the future of airport policing, will be considered as part of the forthcoming review." [2]

1.9 In December 2010 the quinquennial review has yet to be undertaken. Anecdotally the DfT has suggested any quinquennial review of BTPA was likely to be "light touch". The issues regarding BTP jurisdiction have not gone away.

2. Jurisdiction

2.1 BTP is seeking the jurisdictional responsibilities equal to those enjoyed by Home Office and Scottish police force colleagues. A simple legislative solution might be a catch all provision in the Police Reform and Social Responsibility Bill, to the effect that the term "Chief Officer of Police for a Police Area" and "Chief Officer of Police" as defined by the Police Acts 1996 and 1997 includes (where appropriate) the Chief Officer of the British Transport Police. Such a provision would ensure BTP is not automatically excluded from legislation by the definition of a police area. Examples include:

· The Licensing Act 2003 in terms of a "responsible authority";

· The Firearms Act 1968 in terms of possession of a firearm (in relation to firearms found or seized during a search, or where BTP officers have occasion to possess firearms in the context of the special escort of VIPs when passing firearms back to overseas VIPs - at present BTP is required to obtain a Home Office exemption for the day);

· The application process in respect of Sexual Offence Prevention Orders (s104 Sexual Offences Act 2003) and Risk of Sexual Harm Orders (s123 Sexual Offences Act 2003);

· The provisions of the Police Property Act 1997 - BTP is obliged, whenever ownership of property coming in its possession is disputed, to seek a resolution by means of a ruling from the local Magistrates Court. Inclusion of BTP within provisions of the Police Property Act 1997 would considerably reduce the number of occasions and associated costs when a judicial decision as to ownership of property in possession of BTP would be required.

· Such an amendment would also address the anomalies created in the Policing and Crime Act 2009 in terms of collaborative agreements with Home Office and Scottish police forces and also in allowing BTP to competitively bid to police an airport should the opportunity arise [3] .

2.2.1 In terms of issues with the Firearms Act 1968 another more pressing matter has arisen. The level of threat in terms of international terrorism is "severe" and intelligence suggests it will not drop below this level for some time, certainly on the run up to the Olympic and Paralympic Games. Nationally much work has been undertaken by a number of agencies in terms of preparations for a Mumbai style attack, and this of course impacts on the railway network. If BTP were to employ and deploy firearms officers a change in the current legislation (namely section 54(3A)) would be required so that it could bring the force to the same level as the Serious and Organised Crime Agency (SOCA) (section 54 (3)(c)) or the Civil Nuclear Constabulary (CNC) (section 54 (3AA)(a) and (b)). At present BTP is only covered by the legislation in terms of CS spray or the "discharge of any noxious liquid, gas or other thing".

2.3 While the Police Reform and Social Responsibility Bill makes amendments in terms of police force collaborations, it is disappointing that it does not take the opportunity to amend the anomaly created in the Police and Crime Act 2009 in terms of the specific circumstances outlined in Schedule 7, Part 1 paragraphs 7 to 10 (referred to in paragraph 1.6 above).

2.4 BTP concurs with the comments of Sir Hugh Orde, the President of the Association of Chief Police Officers (ACPO) on 25 May 2010 stating that "excessive alcohol use is closely linked with violence and anti-social behaviour and places huge demand on the service in and around city centres in policing the night-time economy". Since the privatisation of the railways in the late 1990’s, there has been a gradual increase in the number of licensed premises at, and proximate to, railway stations – retail outlets, restaurants, pubs and night clubs. The night-time economy has not by-passed the railways and BTP has seen an increase of 4% in alcohol related crime since 2006-07.

2.5 The fundamental point in relation to the Licensing Act 2003 is that it refers to "the chief officer of police for the licensing authority area" which is defined in Schedule 1 of the Police Act 1996 in terms of the geographic Home Office forces of England and Wales, thus excluding by default – BTP (and other non-geographic forces – although in terms of the Licensing Act it is likely to be less of an issue for other non-Home Office forces). The omission of BTP from this definition technically results in BTP falling outside of the current definition of a "responsible authority" in relation to the Act. While the new Bill seeks to amend the 2003 Act so that PCTs and Local Health Boards become specified "responsible authorities" it does not afford the same privilege to BTP.

2.6 BTP has excellent collaborative working relationships with its Home Office force colleagues, however it is not sighted on all 43 force crime and incident logs in the same way that they are not sighted on BTP’s. With the best will in the world, this means that the local force will not be fully sighted on BTP’s alcohol related crime and disorder hotspots on the rail network. For instance, in Leeds there are night clubs located on Network Rail property that fall to BTP to police and investigate crime. BTP has been unable to take direct action in response to significant crime and disorder issues. Being technically excluded from the current system means BTP misses out on the opportunity to make representations to licensing authorities in terms of objecting to or revoking a license. It was hoped that any revised licensing legislation, would make specific mention of BTP in terms of the definition of a "responsible authority" not least, to ensure that all licensing authorities are aware of BTP and include it in any consultation process.

2.7 While the Coalition Government has made clear its main focus on local communities and local areas, the very nature of BTP’s unique status as specialist national force for the railways in England, Wales and Scotland means that it must police across borders, with its "local areas" being substantially larger than those of Home Office forces. In BTP’s experience those who consume alcohol in one geographic area, do not necessarily create problems in that same area, but possibly tens or even hundreds of miles away. For instance, the 2010 play-off finals saw football supporters drinking in pubs which opened early in the morning of the event, then travelling to Wembley by train and engaging in disorder. BTP has no locus on the licensed premises and cannot intervene. It can utilise its national intelligence systems to identify the root cause of any repeat alcohol licensing related problems at their origin, rather than their destination where they may present more obviously. The clauses in the new Bill (e.g. Part 2 section 105), removing the requirement for interested parties to show vicinity when making relevant representations are helpful to BTP and support BTP’s approach, however, it is felt that the definition "persons who live, or are involved in a business, in the relevant licensing authority’s area" or "other person" do not go far enough in recognising the impact of alcohol related crime and disorder on the rail networks and BTP.

2.8 The new Bill makes amendments to the Licensing Act in relation to the process of issuing Temporary Event Notices (TENs). BTP sought express mention in any new legislation in terms of consultation in relation to any TEN applications proximate to the rail network. This would have ensured BTP would have had the ability to alert relevant train operators in terms of rail capacity to transport people to and from events, and at the smaller, un-manned rail stations on the network, ensure visible presence at key times. In terms of the meaning of "relevant person" section 99A could be amended to include the Chief Officer of the BTP where appropriate.

2.9 BTP welcomes the notion of the introduction of legislation to enable licensing authorities to charge a late night levy to help pay for the cost of policing the local night-time economy, especially as much of the focus of BTP’s late night policing takes place around transport hubs and policing late night trains, buses and taxi queues, more often than not dealing with alcohol related crime and disorder and anti-social behaviour. (BTP recorded over 11,000 alcohol related crimes and incidents in 2009-10). The BTPA and BTP had hoped any new legislation would have BTP’s inclusion in any proposals where recovery of additional costs related to late night policing might be possible. It is a concern that where a licensing authority decides that the late night levy requirement is or is not to apply within its area, that BTP is very likely to be excluded from the process by the interpretation of "relevant chief officer of police" and "relevant local policing body" under section 136. A simple solution might be an amendment under this clause to include the Chief Officer of BTP within this definition.

January 2011


[1] Paragraph 80, Explanatory Notes to Railways and Transport Safety Act 2003

[2] Hansard 5 November 2009

[3] As the Policing and Crime Bill passed through the Committee stages both the Airport Operators Association and BAA argued the case for BTP to police the airports . (27 January 2009)