Monday 11 September 2017

The Curious Case Of The Criminal Offence That Isn't

In early August, an article appeared in the Birmingham Mail which appeared to jump the shark regarding vaping on trains. As we will come to, it has since been significantly edited, but the Wayback Machine has the original.
Train users caught putting their feet on seats or vaping could face prosecution
Train company London Midland has launched a new campaign to stamp out anti-social behaviour and it could see passengers facing prosecution for breaking new railway by-laws. 
Commuters caught putting their feet on seats or vaping could end up in court. 
The new regulations were introduced this week (from August 7) in response to complaints from train passengers. 
"Prosecution"? "New railway by-laws "? "End up in court"? For using an e-cig? What fresh hell is this?

It seemed a bit rum seeing as new by-laws must be approved by the Secretary of State for Transport, and if that had been the case, it passed just about everyone by. So a few questions were asked about this hyper over-reaction on Twitter.

As usual, click to enlarge

Right OK. So within a few tweets we are already miles away from "new railway by-laws" and into some dumbass policy dreamed up by wooden tops in suits in a Brummie office. How, exactly, can anyone be prosecuted for breaking a private company's policy? I could install a policy of banning the eating of sardines in my office premises (thought has occurred), but I don't think the Police would race down with their blue lights flashing to enforce it and fine people for me.

Because the article also showed a BBC video of a passenger being given an 'interview under caution'. Now, I have experience of these so know that an interview under caution is a procedure, under the Police and Criminal Evidence Act (PACE) 1984, in situations where someone is suspected of committing a criminal offence. Not adhering to a private company's charter is not a criminal offence unless private companies are allowed to just make up criminal law on the hoof or something.

The Freedom Association's Andrew Allison asked this question about the interviews, and London Midland seemed to think that, yes, they were being conducted against vapers.

And again

They suggested, though, that it was not they who were conducting them, but the British Transport Police. So I asked them. They couldn't say how many interviews under caution they had conducted, for two reasons. Firstly, because London Midland hadn't even been in touch with them about it.
I have contacted the Officer in Charge for British Transport Police at Birmingham New Street and the Superintendent who has overall responsibility for British Transport Police’s Midlands region and neither are aware of any written guidance correspondence or guidance received from or given to London Midland on this issue or any guidance issued to officers specifically relating to vaping on London Midland services.
But secondly, and probably more importantly, because it wouldn't be their responsibility anyway (emphasis is all theirs, not mine).
A number of Train Operating Companies issue guidance that the use of e-cigarettes is prohibited on the railway. It may be that the TOCs’ Conditions of Carriage prohibit the use of electronic cigarettes however BTP are not responsible for enforcing conditions of carriage. Under normal circumstances, the use of an e-cigarette on a train or in any enclosed railway building is not a criminal offence. 
British Transport Police would not have issued any fines or threats of prosecution in relation to Terms of Carriage alone.
If anyone is conducting interviews under caution, then, it isn't British Transport Police, so it must be London Midland. I do hope they have a rock solid case for doing so, don't you?

On that note, as I mentioned earlier, the Birmingham Mail's article has since been re-written after Sarah J pointed out to them that it was very misleading. It now includes this clarification, presumably after consulting London Midland.
Although vaping is not specifically included within the railway by-laws, in light of customer complaints London Midland considers it to be a discomfort to other passengers and may therefore be a breach of the regulations.
The specific 'regulation' they refer to is Railway By-Law 6(8) [pdf] which states:
No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway. 
That's one hell of a stretch. Which is why I was glad that the British Transport Police included their own guidance on the matter in their reply.
Is the use of an e-cigarette a Byelaw offence? 
The use of an e-cigarette would not normally be covered by Byelaw 6(8) unless we can evidence that the interference is wilful. For example, where after a complaint from another passenger, the individual continues to use the e-cigarette. We would need to ensure we are able to obtain sufficient evidence to support the prosecution.
London Midland can "consider" vaping to be a contravention of that by-law as much as they like - they are entitled to their opinion after all - but the Police beg to differ. Or, as they put it, "There is no law or byelaw against vaping on a train".

Nope, and some train company exec is not suitably qualified to decree that a criminal offence has been committed when the Police disagree, I'd say. So this would appear to be a case of some pompous, puffed-up, lazy pratts at London Midland making a great big deal out of a very minor 'problem'.

So what was the state of play before this grand new display of clunking fist power by London Midland? Well, whether vaping was prohibited by their charter or not, if a passenger felt discomforted or inconvenienced by someone vaping, they could complain. If the vaper then continued, wilfully, it would become a contravention of a railway by-law.

And what is the situation now? Well, exactly the same. It doesn't matter whether London Midland have an opinion one way or another, their charter doesn't create a criminal offence, and the by-law is only contravened if a vaper persists when asked to stop. A complete waste of time then, and a further hysterical restriction on e-cigs which the Royal College of Physicians have said should be widely encouraged.

Instead of a neanderthal show of widespread corporate ignorance, if London Midland had any bright sparks working for them, they could have instead adopted an inclusive policy like this advanced by ECITA a couple of years ago.
In order to ensure that customers are fully informed, we recommend the installation of signage, such as this:

so that those who wish to use electronic cigarettes are reminded to do so discreetly, and to treat their fellow passengers with courtesy and respect, while also informing those customers who do not wish to use such products that they can expect the products to be used in a minimally invasive or offensive way – and can report any misbehaviour in this regard. We believe that this is the appropriate balance to strike for this type of public environment. If such a policy were adopted by UK train operators, then they could be – at least in some small way – contributing to improvements in UK public health, rather than risking being a potential cause of harm.
Sadly, London Midland is staffed - from Twitter monkey right up to board level - by people with about as much acumen, common sense and imagination as a garden gnome.

Still, that's probably why they've just lost the franchise. Oh dear what a pity never mind. 

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