- Code for Crown Prosecutors - Considerations
- The Law
- Charging Practice
- Procedure - Pre-trial
- Prosecution by Other Authorities
Code for Crown Prosecutors - Considerations
The principal purposes of transport legislation are:
- to preserve the safety and comfort of passengers and staff
- to prevent acts of dishonesty by either passengers of staff.
A prosecution for contravention of transport legislation will certainly be in the public interest:
- where public safety has been placed at risk
- where passengers or staff have sustained loss, damage or personal injury
- where serious or widespread disruption and inconvenience has been caused to persons using the transport system.
A prosecution may not be required where there is a purely technical breach of the law if:
- there has been no risk to public safety and
- the offence resulted from a genuine oversight or misunderstanding and
- no injury or loss has been sustained by either passengers or staff.
In assessing the public interest in taking criminal proceedings the circumstances of each case should be considered carefully. In particular:
- the age of the offender
- the risk of injury to himself or others
- the likelihood of disruption to rail services.
Those factors should be weighed together with the broader public interest factors set out above.
This is the principal form of dishonesty to affect public transport. The fact that it is widespread is a relevant public interest factor. Remember also the general principles covering prosecution for all offences of dishonesty.
Assault on Transport Staff
Assaults on public transport staff in the course of their employment are a cause for concern. The
public interest will invariably require a prosecution. See Code for Crown Prosecutors, paragraph 5.9d.
Criminal Conduct at Sea and in the Air
Unruly, drunken or violent behaviour on board an aircraft is dangerous and will almost always require a prosecution. Such behaviour at ports, airports or on board ships is likely to occur in less confined spaces and may not be so alarming or dangerous. Nevertheless a prosecution will usually be in the public interest.
Such offences will involve using a variety of statutory offences dating back to the 1840s.
The Regulation of Railways Acts 1840-1873: "railway" extends to all railways constructed under the powers of any Act of Parliament and intended for the conveyance of passengers in or upon carriages drawn or impelled by the power of steam or by any other mechanical power; and the word "company" included the proprietors for the time being of any such railway (section 21 Railway Regulation Act 1840).
References in sections 54-57 of the British Transport Commission Act 1949 shall include references to any successor of the British Railways Board.
Several summary offences deal with this (Stones 7-7041):
- Section 16 Railway Regulation Act 1840: it is an offence to wilfully trespass on any railway or premises connected therewith and to refuse to leave when asked to do so by any officer or agent of the railway company. 'Wilfulness' can be proved by the refusal to leave. The offence is punishable by one month's imprisonment
- Section 23 Regulation of the Railways Act 1868: this prohibits passage upon or across any railway line except for the purpose of crossing the line at an authorised point. A person commits an offence by so doing after having once received warning by the railway company, their servants or agents, to desist
- Section 55 British Transport Commission Act 1949: this penalises trespass on railway lines or property in dangerous proximity to such lines or electrical apparatus. Evidence is required of a notice exhibited at the station nearest the place of offence providing a clear public warning not to trespass on a railway. Punishable by a fine.
Damaging Trains and Endangering the Safety of Rail Users
(Stones, 7-7020 to 7-7039).
- Criminal Damage Act 1971;
- Section 56 British Transport Commission Act 1949 - a summary only offence which penalises the throwing of missiles at rolling stock or static railway equipment. The section only requires that the missile is likely to cause injury to either property or persons;
- Section 33 Offences Against the Person Act 1861 - note the intent to injure or endanger the safety of persons on railways must be present. The offence carries, on conviction, life imprisonment;
- Section 34 Offences Against the Person Act 1861 and section 17 Railway Regulation Act 1842 - deal with any unlawful act or wilful neglect endangering public safety. Section 34 covers all potential defendants; section 17 is aimed specifically at railway employees;
- Section 35 Malicious Damage Act 1861 - penalises the placing of wood, etc, on a railway, taking up rails, turning points, or showing or hiding signals, and requires evidence of an intent to obstruct, upset, overthrow, injure or destroy any engine, tender, carriage or truck. Indictable only; punishable with life imprisonment;
- Section 32 Offences Against the Person Act 1861 - uses much the same wording but requires an intent to endanger the safety of any person travelling on the railway. Punishable with life imprisonment;
- Section 36 Malicious Damage Act 1861 - obstructing engines, or carriages, or railways. The specific intent required under the above sections is not necessary.
Intoxication of Employees
- Section 93 Railways and Transport Safety Act 2003 (Stones 7-5732) provides that aircrew and controllers may be prosecuted if they are impaired from carrying out their duties by drink or drugs
- Transport and Works Act 1992 (Stones 7-7079 - 7080) workers on railways or tramways may be prosecuted if they are unfit for work through drink or drugs.
Ensure that the appropriate procedures in relation to excess alcohol offences have been correctly complied with, and, where unfitness to carry out work is alleged there is admissible and reliable evidence of unfitness.
You will often have a choice between specific legislation relating to the form of transport, and proceedings under the Theft Act 1978, or Forgery and Counterfeiting Act 1981. See the Fraud Act 2006 and Forgery and Counterfeiting elsewhere in the Legal Guidance.
Section 5 Regulation of Railways Act 1889 (Stones 7-7043) is usually used for offences of fare evasion on the railways for:
- travelling/attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof; or
- having paid the fare for a certain distance, knowingly and wilfully proceeding by train beyond that distance without previously paying the additional fare for the additional distance and with intent to avoid payment thereof or
- having failed to pay the fare, giving in reply to a request from an officer of a railway company a false name and address.
Section 103(a) Railway Clauses Consolidation Act 1845 (Stones 7-7001) covers a person refusing to quit a carriage on arrival at the point to which he has paid his fare.
Both section 5 and section 103(a) are summary only offences. "Intent to avoid payment" in section 5 does not mean a dishonest intent, but an intent to avoid payment of the sum actually due.
There are provisions in bye-laws which cover fare evasion, but in the vast majority of cases it will be appropriate to use the section 5 offence.
Consider using the provisions of the Fraud Act 2006, where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority.
Where tickets have been altered or defaced consider a charge under the Forgery and Counterfeiting Act 1981.
Assault on Transport Staff
Follow the guidance on assaults in Offences against the Person, incorporating the charging standard, elsewhere in the Legal Guidance.
Criminal Conduct at Sea and in the Air
Such behaviour, especially in the air, may well endanger the safety of the craft in which it occurs. You may wish to consider charging offensive weapon or public order offences, or offences against the person. However, you should also carefully consider:
- the Aviation Security Act 1982 (Stones 7-5433 to 7-5436);
- the Civil Aviation Act 1982 (Stones 7-5370);
- the Aviation and Maritime Security Act 1990 (Stones 7-6225 to 7-6267) and
- the Air Navigation Order 2005 (Stones 7-5821 to 7-5946).
These statues specifically deal with offences committed on or at aircraft; aerodromes; ships; fixed sea platforms; and harbours.
Offences on-board Aircraft
Courts in the United Kingdom have power to deal with offences which are committed on-board any aircraft whilst on the ground or in the air over the United Kingdom.
Section 92 Civil Aviation Act (CAA) 1982, as amended by the Civil Aviation (Amendment) Act 1996, confers jurisdiction in respect of offences committed on British-controlled aircraft whilst "in flight" outside the United Kingdom and United Kingdom airspace. The CAA defines "British-controlled aircraft".
Under the same section, courts in the United Kingdom will have jurisdiction in respect of offences committed on a foreign aircraft (except for military aircraft) outside United Kingdom airspace in the following circumstances:
- in the case of an aircraft registered in a foreign country the act or omission must constitute an offence both in this country and under the law in force in that foreign country (the 'dual criminality' test) and
- after the act or omission occurs, the next landing of the aircraft is in the United Kingdom.
You should also note the following points:
- the period an aircraft is "in flight" is deemed to span the period between the first application of power for the purpose of the aircraft taking off until the moment when the landing run ends at the termination of that flight
- the 'dual criminality' test will be deemed to be met unless the defence serve upon the prosecution a notice stating the grounds for their opinion that the test is not met and requiring the prosecution to prove the contrary
- if the aircraft is not registered in any country the 'dual criminality' test will not apply.
Part 1 of the Aviation and Security Act 1982 (Stones 7-5433 to 7-5436) provides for offences against the safety of aircraft, including:
- hijacking (section 1)
- damaging or endangering the safety of aircraft (sections 2 and 3)
- dangerous articles on aircraft and in aerodromes (section 4)
- offences relating to security at aerodromes and on aircraft (sections 21(A)-(E)).
The CAA regulates the safety of civil aviation. In particular, the Air Navigation Order 2005 (ANO), made under section 61 of the CAA creates a number of offences designed to secure the safety of civil aircraft, some relate to the conduct of passengers and air traffic controllers as well as to aircrew. In particular, you should note the following:
- Article 73 prohibits any person acting recklessly or negligently in a manner likely to endanger an aircraft, or any person therein;
- Article 74 prohibits any person recklessly or negligently causing or permitting an aircraft to endanger any person or property;
- Article 75 prohibits any person entering any aircraft when drunk, or being drunk in any aircraft;
- Article 76 prohibits any person smoking in any compartment of an aircraft registered in the United Kingdom at a time when smoking is prohibited in that compartment by a notice to that effect exhibited by or on behalf of the commander of the aircraft;
- Article 77 requires every person in an aircraft to obey all lawful commands which the commander of the aircraft may give for securing the safety of the aircraft and its passengers or for the efficiency of air navigation. This could include, for example, an order to a passenger to switch off a mobile telephone
- Article 78 prohibits every person in an aircraft from using threatening, abusive or insulting words or behaviour or from behaving in a disorderly manner towards a member of the crew of the aircraft. It also makes it an offence for someone intentionally to interfere with the performance of duties by a member of the crew.
You will therefore have a choice of proceeding under the CAA or the ANO. Some offences under the CAA are summarily only, whereas an equivalent offence under the ANO may well be triable either way, such as offences under Articles 73, 74 and 75. You should therefore consider:
- the likely disposal of the case
- the level of danger, actual or perceived, occasioned by the defendant's actions.
If you are reviewing any case involving the issue of aircraft safety you are strongly advised to consult the Civil Aviation Authority. Such prosecutions can pose difficult evidential problems and the Authority, who have a great deal of knowledge and experience in this area, can offer helpful advice. In the first instance, you should contact the Secretary and Legal Adviser.
The Aviation and Maritime Security Act 1990 (Stones 7-6225) provides for offences relating to security at aerodromes, on ships or fixed sea platforms and at harbours:
- Section 1 is concerned with offences of endangering safety and security at aerodromes;
- Part II provides for offences of endangering the safety and security of ships and fixed platforms. It includes hijacking and destroying ships and fixed platforms
- Sections 37 - 40 provide for offences relating to security at harbour areas and on ships.
Section 39 Civil Aviation Act 1982 (Stones 7-5374) makes it an offence to trespass on land forming part of an aerodrome licensed under the Air Navigation Order. You should note that a defendant is not liable under this section unless it can be proved that at the time of the offence notices warning trespassers of their liability could be readily seen near the boundary.
The concept of drunkenness was sufficiently clear and the question whether a defendant had been drunk on an aircraft was eminently a matter of fact for the jury: the decision of the Court of Appeal in R v Tagg, The Times 14 June 2001.
Procedure - Pre-trial
Proceedings under section 1 and Part II of the Aviation and Maritime Security Act 1990 and under sections 1,2,3 and 6 of the Aviation Security Act 1992 require the consent of the Attorney General.
All offences under the Transport and Works Act 1992 require DPP consent.
Under section 92(2) Civil Aviation Act 1982, DPP consent is required for the prosecution of offences committed outside United Kingdom airspace on either a British controlled or a foreign aircraft. If such a case raises issues of publicity or sensitivity you should refer it to your CCP, DCCP or Head of Division, CPS Central Casework Divisions.
Prosecution by Other Authorities
You should be aware that the transport legislation includes a series of offences which will not be prosecuted by CPS under section 3(2)(a) Prosecution of Offences Act 1985. These include minor cases of fare evasion under the Public Service Vehicle Regulations and proceedings under Part II of the Aviation Security Act 1982.
Offences under the Airports Act 1986 will normally be prosecuted by the Secretary of State for Transport or by the Civil Aviation Authority. In the event of a member of either organisation being accused of an offence under the Airports Act it has been agreed that the case will be referred to the Crown Prosecution Service to avoid a conflict of interest.