Commentary on Sections
Schedule 5: Powers exercisable by accredited persons
248.This schedule details the powers that can be exercised by an accredited person if specified in his accreditation. The list of powers is more limited than those that can be conferred on community support officers under Part 1 of Schedule 4. Accredited persons can issue fixed penalty notices for offences of cycling on a footway (section 54 of the Road Traffic Offenders Act 1988 in respect of section 72 of the Highway Act 1835); dog fouling (section 4 of the Dogs (Fouling of Land) Act 1996) and litter (section 88 of the Environmental Protection Act 1990), but cannot issue fixed penalty notices under the Criminal Justice and Police Act 2001 (paragraph 1). Under paragraphs 2 and 3 of Schedule 5, accredited persons can have conferred on them the power to require the name and address of a person acting in an anti-social manner, like community support officers under paragraphs 2 and 3 of Schedule 4. However, unlike community support officers, accredited persons cannot have conferred on them the power to detain an individual who does not comply with this request. Nor can accredited persons use reasonable force when exercising their powers (as community support officers can under paragraph 4 of Schedule 4). Under paragraphs 4, 5 and 6, accredited persons can have conferred on them the same powers regarding alcohol consumption in designated places, confiscation of alcohol and confiscation of tobacco as community support officers under paragraphs 5, 6 and 7 of Schedule 4. Again as with community support officers, accredited persons can have conferred on them any powers conferred on designated persons for the removal of abandoned vehicles by regulations under section 99 of the Road Traffic Regulation Act 1984 (paragraph 7). Under paragraphs 8 and 9, accredited persons can also have conferred on them the same powers regarding stopping vehicles for testing, and the escorting of abnormal loads, as community support officers under paragraphs 11 and 12 of Schedule 4. However, accredited persons are not permitted to enter or search any premises for the purposes of saving life or limb or preventing serious damage to property (as suitably designated community support officers can under paragraph 8 of Schedule 4). Accredited persons do not have any of the powers to seize vehicles used to cause alarm etc. (paragraph 9 of Schedule 4). They do not have any of the powers to carry out road checks (paragraph 13 of Schedule 4). Nor do they have any powers under the Terrorism Act 2000 (paragraphs 14 and 15 of Schedule 4).
Section 42: Supplementary provisions relating to designations and accreditations
249.Subsection (1) provides that where a designated or accredited person relies on any power or duty in dealings with a member of the public, he must show that person his designation or accreditation if asked to do so.
250.Subsection (2) provides that persons designated or accredited by a chief officer of police can only exercise powers if they are wearing a uniform endorsed by the chief officer and identified or described in their designation or accreditation. Accredited persons must also wear a badge in a form to be decided by the Secretary of State.
251.Subsections (3) and (4) allow chief officers and Directors General respectively to modify or withdraw a designation or accreditation at any time.
252.Subsections (5) and (6) specify that if a chief officer modifies or withdraws the designation of a contracted-out individual or the accreditation of an individual, he must notify the relevant contractor or employer.
253.Subsections (7) to (10) provide that, for the purposes of determining liability for unlawful conduct, conduct in reliance on a designation or accreditation shall be taken as conduct in the course of employment by the designated or accredited person’s employer – whether that be the police authority, Service Authority or some other entity. Following from that, the relevant employer is to be treated as a joint tortfeasor.
Section 43: Railway safety accreditation scheme
254.This section allows the Secretary of State to make regulations to enable the chief constable of the BTP to establish and maintain a railway safety accreditation scheme. The scheme would be largely modelled on the community safety accreditation schemes of chief officers of Home Office police forces provided for in section 40, albeit that the railway safety accreditation scheme may differ where necessary to meet the specific needs of the railways. For example, it would allow the BTP’s chief constable to accredit suitably trained security staff employed by train operating companies with powers to deal with certain anti-social activity on the railways.
255.Subsection (2) defines the railway safety accreditation scheme by reference to its geographical extent and the powers available to those accredited under that scheme. The scheme is limited to the railways jurisdiction of the BTP, whose jurisdiction is defined in section 53(3) of the British Transport Commission Act 1949 as ‘in, on or in the vicinity of policed premises in England and Wales’. ‘Policed premises’ are in essence the areas of railway property that are policed by the BTP.
256.Subsection (3) allows the regulations permitting the setting up and maintenance of the railway safety accreditation scheme to define its purpose, the procedure to be followed when establishing the scheme and the matters that must be contained in that scheme.
257.Subsection (4) allows the regulations to make provision on who may be accredited under the railway safety accreditation scheme and the procedure and criteria used in their accreditation.
258.Subsection (5) allows the regulations to confer powers on a person accredited under the railway safety accreditation scheme. The effect of subsection (6) is that, with two exceptions, only the powers available to an accredited person under a community safety accreditation scheme, listed in Schedule 5 to this Act, may be conferred on a person accredited under the railway safety accreditation scheme. The two powers, listed in subsection (7), that are not included in Schedule 5 but can be conferred on such accredited persons are the powers to issue ‘on the spot’ fixed penalty notices for the offences of trespassing on a railway and throwing stones at trains.
259.Subsection (8) allows the regulations permitting the setting up and maintenance of the railway safety accreditation scheme to apply to a person accredited under that scheme any of the provisions of Chapter 1 that can be applied to a person accredited under a community safety accredited scheme. The community safety accreditation scheme provisions can be applied with modifications if necessary.
260.Subsection (9) lists those persons whom the Secretary of State must consult before making regulations under subsection (1). He must consult the chief constable of the BTP, and the British Transport Police Committee. He must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the APA and ACPO and/or CPOSA. The Secretary of State must also consult the Mayor of London and those whom he considers represent the interests of local authorities. He may in addition consult anyone else he chooses.
Section 44: Removal of restriction on powers conferred on traffic wardens
261.Under section 95 of the Road Traffic Regulation Act 1984 (RTRA 1984), traffic wardens are empowered to undertake functions prescribed by the Secretary of State. Section 96(1) of the RTRA 1984 provides that for the purposes of carrying out such functions, references in certain specified enactments to a constable shall include references to a traffic warden. Traffic wardens can then exercise the powers of a constable.
262.A limitation is, however, applied by section 96(3). This has the effect of providing that certain powers cannot be conferred on traffic wardens. One of these powers is the general power to stop vehicles conferred by section 163 of the Road Traffic Act 1988 (RTA 1988). At present, traffic wardens can stop vehicles only in a limited range of circumstances. This restricts the functions they can carry out. It means that generally police officers must be employed in undertakings where it may be necessary to stop vehicles, even though their other powers may not be required. Subsection (3) removes the reference in section 96(3) of the RTRA 1984 to section 163 of the RTA 1988. It thereby gives traffic wardens the same power to stop vehicles as that currently held by police officers. As traffic wardens already have a power to direct traffic they will therefore now be able to undertake escorting duties. Subsection (2) makes clear that the power to stop also includes a power to stop vehicles for tests of their roadworthiness and compliance with construction and use regulations.
Section 45: Code of practice relating to chief officers’ powers under Chapter 1
263.This section requires the Secretary of State to issue a code of practice about the exercise of the powers extended under Chapter 1 of Part 4. It provides that he may revise any part or all of the code of practice from time to time; and that chief officers and Directors General must have regard to this code in discharging any function to which the code applies. Before issuing or revising any such code, the Secretary of State must consult the Directors General of NCIS and NCS and the Service Authorities of those two organisations. He must also consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the APA and ACPO and/or CPOSA. In addition, he must consult the Mayor of London, and those whom he considers represent the interests of local authorities. The Secretary of State may also consult anyone else he chooses. The Secretary of State must lay any codes or revisions of codes issued under this section before Parliament. The code will include such matters as appropriate combinations of powers that could be given to the various categories of civilian officers. It is likely to cover issues such as criteria for satisfaction of the tests in sections 38(4), 39(4) and (5), and 41(4) as to the suitability and capability of persons for particular functions and as to adequate standards of training. For example, it is proposed that criminal record checks should be carried out before a person is designated or accredited under the Act.
Section 46: Offences against designated and accredited persons etc.
264.This section sets out various offences relating to assaulting, obstructing or impersonating designated or accredited persons. They parallel the provision for offences relating to assaulting, obstructing or impersonating police officers contained in sections 89 and 90 of the 1996 Act.
265.Subsection (1) makes it an offence to assault a designated or accredited person in the execution of his duty or to assault a person assisting a designated or accredited person in the execution of his duty. The penalty is imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale (currently £5000) or both.
266.Subsection (2) makes it an offence to resist or wilfully obstruct a designated or accredited person in the execution of his duty or to resist or wilfully obstruct a person assisting a designated or accredited person in the execution of his duty. The penalty is imprisonment not exceeding one month or a fine not exceeding level 3 on the standard scale (currently £1000) or both.
267.Subsection (3) makes it an offence, provided there is intent to deceive, to impersonate or pose as a designated or accredited person. It is also an offence for an accredited or designated person to make any statement or act in a way that falsely suggests that he has powers above and beyond those he in fact has. The penalty is imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale (currently £5000) or both.
Section 47: Interpretation of Chapter 1
268.This section defines certain terms used in Chapter 1 of Part 4. Amongst other things it provides that references to carrying on business include reference to carrying out statutory functions. This would include, for example, the functions of a local authority.
