Railway Byelaws - Current Status

[Swirlz]

[Mod Note - Split from this thread.]

The bylaws are made under S.219 Sch. 20 of the 2000 act.

Well, actually that isn't correct any more, they are made under the Section 46 Railways Act 2005, but moot point.

Section 219 Transport Act 2000 has been repealed in full. So has Schedule 20.

He only refers to Byelaw 20 for the altering a ticket, he hasn't mentioned the "intent to avoid" legislation yet.

Actually I'm not sure any valid Byelaws actually exist at the moment!

No Byelaws appear to have been created/confirmed using Section 46 Railways Act 2005, and the Section 219/Schedule 20 powers no longer exist.

 

[SussexMan]

If it is an offence under secondary legislation, (i.e. the Byelaws), my understanding is that there will still be a record of conviction, that would show up if you applied for jobs with kids/disabled etc.

No that's wrong.

A Disclosure Scotland Check (a Basic CRB) will disclose all unspent Convictions (not cautions).

A Standard CRB will disclose all spent and unspent convictions plus cautions, warnings & reprimands.

An Enhanced CRB will disclose all spent and unspent convictions plus cautions, warnings & reprimands PLUS will check the "barred" lists plus in rare situations relevant information held by the Police but where there was no conviction.

The type of check an employer does will depend on the nature of the job although many employers do Standard or Enhanced CRBs where there is no legal authority to do them.

Byelaw offences are not Criminal Offences and will not show up on any CRB type check.

Finally, I didn't think that Byelaws are Secondary Legislation. If they are then I stand corrected but lots of criminal offences are the result of Secondary Legislation.

 

[Swirlz]

No that's wrong.

A Disclosure Scotland Check (a Basic CRB) will disclose all unspent Convictions (not cautions).

A Standard CRB will disclose all spent and unspent convictions plus cautions, warnings & reprimands.

An Enhanced CRB will disclose all spent and unspent convictions plus cautions, warnings & reprimands PLUS will check the "barred" lists plus in rare situations relevant information held by the Police but where there was no conviction.

The type of check an employer does will depend on the nature of the job although many employers do Standard or Enhanced CRBs where there is no legal authority to do them.

Byelaw offences are not Criminal Offences and will not show up on any CRB type check.

.

I asked a magistrate this question in September this year, relating to local council Byelaws, not Railway ones.

The Magistrate confirmed that most Byelaw offences result in a record of conviction which could be made visible, to people requiring enhanced disclosures within industry.

My lecturer did not mark me down or make any specific comment when this went into my course work.

My local company, Merseyrail has this on their site:

Q:Will I get a criminal record?
A: If found guilty of a Byelaw offence, it may appear on an enhanced CRB CHECK but if you are found guilty of a Railway regulation act 1889 section 5 offence, then this would show up on any CRB CHECK. If you pay the administrative penalty, this will enable us to withdraw your case from court, and consequently you will have no CRB RECORD.

Westminster Council also think the same, in relation to Local Authority Byelaws:

We are concerned that under byelaw 8 a rough sleeper could find themselves with a fine of up to £500 that they are unlikely to be able to pay and a criminal record that could put further barriers in the way of them breaking out of homelessness.

Basingstoke Council also believe Breach of Byelaws is a criminal offence:

The Council may apply to the Secretary of State for permission to operate bye laws covering particular activities. These are effectively local laws to deal with local issues.

Failure to comply with bye laws is a criminal offence. In many cases any person contravening a bye law is liable on summary conviction to a fine

Also, I meant delegated legislation, (not secondary).

Employers now tend to word their questions differently now anyway, such as:
"Have you ever been investigated or involved in relation to any offences, whether or not it resulted in a conviction?"

 

[snail]

It may be worth investigating pleading not guilty to the (Byelaw) S219/Schedule 20 offence on the basis that the legislation no longer is in force, and the fact no Byelaws have been created or confirmed by the SoS using the Railways Act 2005.

I'm sure your studies have taught you to be careful when making statements about legislation. You have overlooked section 46, clause 4 of the 2005 Act (my emphasis):

4) Bye-laws which—

(a) were made by the Strategic Rail Authority under section 219 of the 2000 Act, and

(b) are in force immediately before the repeal of that section by this Act,

shall continue to have effect after the coming into force of that repeal as if every reference in those bye-laws to that Authority were a reference to the Secretary of State.

 

[Swirlz]

I'm sure your studies have taught you to be careful when making statements about legislation. You have overlooked section 46, clause 4 of the 2005 Act (my emphasis):

shall continue to have effect after the coming into force of that repeal as if every reference in those bye-laws to that Authority were a reference to the Secretary of State.

But 46(4) appears to be very limited and only allow the Byelaw text to substitute SRA to Secretary for State.

I think an "and" is missing or should be there.

shall continue to have effect after the coming into force of that repeal [and] as if every reference in those bye-laws to that Authority were a reference to the Secretary of State.

 

[snail]

What? Why does the SoS need to issue new bye-laws if his name is now substituted in the old ones? Why bother changing the text if the bye-laws are no longer active? Illogical.

The DfT appear to think they are still in force. I know the DfT can be incompetent in certain areas but do you not think someone at one of the hundreds of prosecutions brought under them may have spotted it by now if your assertion is correct!

 

[Swirlz]

What? Why does the SoS need to issue new bye-laws if his name is now substituted in the old ones? Why bother changing the text if the bye-laws are no longer active? Illogical.

The DfT appear to think they are still in force. I know the DfT can be incompetent in certain areas but do you not think someone at one of the hundreds of prosecutions brought under them may have spotted it by now if your assertion is correct!

Because I think 46(4) has been incorrectly or very poorly worded.

It is possible that the Byelaws have been accidentally repealed as a result of the poor wording, which only seems to allow a name change. The Byelaws have not been re-issued or re-confirmed by anyone. The authority name in the original Byelaws is the only thing that 46(4) allows for.

I think at the very least, the summons should no longer refer to S219, because it doesn't exist.

 

[wintonian]

I think at the very least, the summons should no longer refer to S219, because it doesn't exist.

But if S.219 existed at the time of the alleged offence?

 

[michael769]

Your analysis is incorrect in my opinion. 46(4) does two things

1. To preserve (continue) the validity of the bye laws.
2. To amend the bye laws to replace any reference to the SRA with the Secretary of State.

The intent of parliament to this effect is made quite clear in te 2005 Act.

 

[snail]

I think at the very least, the summons should no longer refer to S219, because it doesn't exist.

But it does, because the bye-laws were issued under it!

If the summons as quoted by the OP has any errors it omits reference to section 46 of the 2005 Act (the reference is to clause 4 (a) and (b) only).

There is also subsection 5 of s46 to consider:

(5) The Secretary of State may by order revoke or amend—
(a) any bye-laws having effect in accordance with subsection (4);
(b) any bye-laws saved by the 2000 Act.

What's the point of that if subsection 4 says what you claim it does?

There is sloppy legislation out there; the courts often will pick up on it. Do you seriously think your reading of the 2005 Act is the first time in 7 years that anyone has spotted the bye-laws may be invalid?

 

[Swirlz]

But it does, because the bye-laws were issued under it!

If the summons as quoted by the OP has any errors it omits reference to section 46 of the 2005 Act (the reference is to clause 4 (a) and (b) only).

There is also subsection 5 of s46 to consider:

(5) The Secretary of State may by order revoke or amend—
(a) any bye-laws having effect in accordance with subsection (4);
(b) any bye-laws saved by the 2000 Act.

What's the point of that if subsection 4 says what you claim it does?

There is sloppy legislation out there; the courts often will pick up on it. Do you seriously think your reading of the 2005 Act is the first time in 7 years that anyone has spotted the bye-laws may be invalid?

I think Section 46(4) omits "and". If it included "and" then it would make the rest of the Act make sense, and the Byelaws would be retained.

The only significant challenge to the Byelaws appears to have been in 1996, and that was related to playing music to the annoyance of passengers.

I think it needs reviewing by a superior court.

The law (as written) seems at best, open to varied interpretative as to the status of the Byelaws.

I know what parliament intended to achieve by this section, (by virtue of the other sections), but you can only comply with the law as written - not just what they MEANT to write.

shall continue to have effect after the coming into force of that repeal [and] as if every reference in those bye-laws to that Authority were a reference to the Secretary of State.

That "and" is the crucial word missing in my opinion, else it could mean that the SRA name shouldn't be used any more and nothing else.

 

[SussexMan]

I asked a magistrate this question in September this year, relating to local council Byelaws, not Railway ones.

The Magistrate confirmed that most Byelaw offences result in a record of conviction which could be made visible, to people requiring enhanced disclosures within industry.

Sorry, yes I agree many byelaw offences are criminal offences. However I think it has been confirmed many times on here that Railway Byelaw Offences are not Recordable Offences and therefore do not appear on someone's Criminal Record.

If it doesn't appear on someone's Criminal Record it will not appear on a Basic or Standard check. The only time it could possibly appear on an Enhanced CRB check was if the Police thought that the information was relevant to the CRB application. Seeing that Enhanced checks are for people working in Regulated Activities I really don't see why the Police would concern themselves with such "minor" offences. I have never seen anything of this nature disclosed on an Enhanced CRB. Indeed I have only ever seen two CRBs with additional information supplied (and they related to serious concerns relating to safeguarding issues) and have seen hundreds of CRB results.

 

[snail]

I think it needs reviewing by a superior court.

I refer to my earlier statement and look forward to reading about your challenge.

 

[wintonian]

Well, actually that isn't correct any more, they are made under the Section 46 Railways Act 2005, but moot point.

Section 219 Transport Act 2000 has been repealed in full.

He only refers to Byelaw 20 for the altering a ticket, he hasn't mentioned the "intent to avoid" legislation yet.

Fair enough then.

 

[Swirlz]

It may be worth investigating pleading not guilty to the (Byelaw) S219/Schedule 20 offence on the basis that the legislation no longer is in force, and the fact no Byelaws have been created or confirmed by the SoS using the Railways Act 2005.

 

[DaveNewcastle]

are both offences for Byelaws, or just the second one?

The first is under S.5 of the RoRA and the Second is under S.20 of the Railway Byelaws.

If it is an offence under secondary legislation, (i.e. the Byelaws), my understanding is that there will still be a record of conviction, that would show up if you applied for jobs with kids/disabled etc.

This is quite wrong. As I have remarked previously, there have been instances when a Byelaw Offence is inadvertendly entered into the PNC by the back office staff after a day's caseload of Criminal cases, but it should not.

Actually I'm not sure any valid Byelaws actually exist at the moment!

Let me assure you that they do.

It may be worth investigating pleading not guilty to the (Byelaw) S219/Schedule 20 offence on the basis that the legislation no longer is in force, and the fact no Byelaws have been created or confirmed by the SoS using the Railways Act 2005.

I refute this advice. It will waste time, money and will fail. We do no service to the OP seeking reliable advice by such a proposal.

I also expect that the OP made a Statement to the Inspector at the time the incident was detected and which will form a Witness Statement. I do suggest that any oral evidence presented to the Magistrates (with prepared mitigation), is either consistent with that Statementm or is supported by robust evidence (if attempting to sustain a plea of Not Guilty).

 

[Flamingo]

Can any employer ask for a CRB check, or only for certain jobs?

Also, I was under the impression that cautions / spent convictions did not turn up on CRB checks, only if the job was exempt from the rehabilitation of Offenders act.

 

[SussexMan]

Can any employer ask for a CRB check, or only for certain jobs?

Also, I was under the impression that cautions / spent convictions did not turn up on CRB checks, only if the job was exempt from the rehabilitation of Offenders act.

Depends what you mean by "a CRB check" as there is more than one sort.

The CRB (Criminal Records Bureau) do Standard and Enhanced. There is also a Basic check which can be done by Disclosure Scotland (not just for Scotland).

See my earlier post for details of the differences.

With a Standard and Enhanced CRB check, cautions, warnings and reprimands will show up - doesn't matter when they were as Std and Enhanced checks will show every conviciton, caution, warning and reprimand - spent or unspent.

A CRB check can ONLY be done if the employer has a legal right to ask about spent convictions under the Rehabilitation of Offenders Act. If the work being undertaken is a regulated activity then they can request an Enhanced CRB. Loads of employers do CRBs when they have not legal basis to do them. The problem is that if you as an applicant question what basis they are doing the check, then guess what - they won't offer you the job because they wil be convinced that you have something to hide.

CRBs whilst giving factual information can easily give a false sense of security. Whilst they should form part of a recruitment process regular supervision of a person in their job is equally as important.

From 1st Dec 2012 the CRB is merging with the Independent Safeguarding Authority to become the Disclosure and Barring Service (DBS).

 

[maniacmartin]

An employer who offered me job wanted a CRB check to vet that I was "honest" and I don't believe it was a regulated industry (IT admin for tabloid press). Whether they had a right to or not or whether they were just bluffing I don't know, as I rejected the offer due to their one-sided employment contract.

 

[Flamingo]

Surely whoever gives the information will only give it to employers who are entitled to ask for it?

 

[ralphchadkirk]

In certain jobs, the Police will notify your employer if you are arrested/cautioned/charged as well as enhanced disclosures.

 

[SussexMan]

Surely whoever gives the information will only give it to employers who are entitled to ask for it?

No, because the CRB rely on the employer confirming that they do have a right to ask for it. The employer has to Counter-sign the application and confirm that the applicant meets one of the criteria in this document.

Problem is that some employers think that a worker who might very occasionally come into contact with a child should have a CRB check whereas the legislation doesn't say that. I think the CRB did accept at some point that about 20% to 25% of CRBs were done without correct legal authority but I'll have to see if I can find that link.

 

[Flamingo]

No, because the CRB rely on the employer confirming that they do have a right to ask for it. The employer has to Counter-sign the application and confirm that the applicant meets one of the criteria in this document.

Problem is that some employers think that a worker who might very occasionally come into contact with a child should have a CRB check whereas the legislation doesn't say that. I think the CRB did accept at some point that about 20% to 25% of CRBs were done without correct legal authority but I'll have to see if I can find that link.

That seems to be a huge breach of the data protection legislation! Is there no consequences to them over it?