Vaping Allowed on Network Rail Properties

[whole diary]

[CJB666]

Got this statement from NR^» (Network Rail - home page) staff at Paddington the other day when I complained about passengers smoking on the non-smoking side of the main entrance road. They have been told to move real smokers to the smoking side, but apparently vapers are not deemed to be smoking and may vape anywhere on NR property. What next vaping on trains too?

[ChrisB]

Not sure that is right. There are many notices in and around stations that include vaping or 'electronic cigarettes' usually, banning both.

However, I have always wondered whether vaping has ever legally been included in the relevant byelaw that bans smoking? Anyone got a link to this byelaw that is current? Maybe someone challenged NR^» (Network Rail - home page) on this, so until sorted, they've been told to leave the vapers alone?

[JayMac]

Railway Byelaw 3 says:

"No person shall smoke or carry a lighted pipe, cigar, cigarette, match, lighter or other lighted item on any part of the railway on or near which there is a notice indicating that smoking is not allowed."

The Byelaw has not been amended to include vaping, which is neither smoking nor a lighted item.

British Transport Police are of the belief that vaping on trains or in stations is not a criminal offence, nor is it covered by existing Byelaws. They say:

"An e-cigarette does not fall within the definition of a lighted item and so would not be covered by Byelaw 3"

However, if someone who has been asked to stop vaping refuses to do so they maybe commiting (high evidential threshold though) a breach of Byelaw 6(8 ):

"No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway."

BTP^▸ (British Transport Police) say:

"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."

In summary, vaping on trains and stations is not, prima facie, an offence.

Attached is a FOI^▸ (Freedom of Information) response from BTP regarding vaping on railway property.

[ChrisB]

As I thought.....thanks!

[BerkshireBugsy]

Railway Byelaw 3 says:

"No person shall smoke or carry a lighted pipe, cigar, cigarette, match, lighter or other lighted item on any part of the railway on or near which there is a notice indicating that smoking is not allowed."

The Byelaw has not been amended to include vaping, which is neither smoking nor a lighted item.

British Transport Police are of the belief that vaping on trains or in stations is not a criminal offence, nor is it covered by existing Byelaws. They say:

"An e-cigarette does not fall within the definition of a lighted item and so would not be covered by Byelaw 3"

However, if someone who has been asked to stop vaping refuses to do so they maybe commiting (high evidential threshold though) a breach of Byelaw 6(8 ):

"No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway."

BTP^▸ (British Transport Police) say:

"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."

In summary, vaping on trains and stations is not, prima facie, an offence.

Attached is a FOI^▸ (Freedom of Information) response from BTP regarding vaping on railway property.

I am fairly certain I have heard a "human" announcement asking a passenger on a station platform to refrain from using an e-cigarette on station property. I think it was Newark (North Gate) but use so many stations at the moment it could be anywhere.

[ChrisB]

Yes, operators have generally lumped e-cigs in with the smoking rule - indeed, as an eg, Chiltern even have it spelt out on their website.

I challenged their ability to do this legally, but I think they are relying on peoples good faith in general. Now there's some proof that the BTP^▸ (British Transport Police) won't step in, I might push it further (except that I hate the smell of these vapers - anything from bubble gum to strawberry smell)

[Tim]

I challenged their ability to do this legally

just because vaping is legal doesn't make it illegal to ask people to stop.  Plenty of signs ask people to stop doing things which are perfectly legal.  And most people comply.  Which is usually sufficient. 

[ChrisB]

If you want to *ban* something that is generally legal elsewhere (outside buildings re smoking & vaping), then to be able to enforce it (in this case, BTP^▸ (British Transport Police) ejecting you from said private land where you have implied permission to be there), you need a legal ability to do so.

Hence the railway bylaw number 3. But that only covers smoking.

So yes, they can ask - not demand or tell you not to).

[didcotdean]

The primary legislation under which the bylaws are allowed to be made by statutory instrument is the 1964 Transport Act, viz section 67 1(c):

"with respect to the smoking of tobacco in railway carriages and elsewhere and the prevention of nuisances;"

I guess vaping could come under the prevention of nuisances under a suitably-worded bylaw in the future. Or is it already covered under not carrying anything that 'may threaten, annoy, soil or damage any person or any property' ... maybe a bit of a stretch without being specifically mentioned though and whether it can be considered to be potentially dangerous for Bylaw 2.

[ChrisB]

"An e-cigarette does not fall within the definition of a lighted item and so would not be covered by Byelaw 3"

However, if someone who has been asked to stop vaping refuses to do so they maybe commiting (high evidential threshold though) a breach of Byelaw 6(8 ):

"No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway."

BTP^▸ (British Transport Police) say:

"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."

In summary, vaping on trains and stations is not, prima facie, an offence.

[Tim]

So yes, they can ask - not demand or tell you not to).

They can ask, demand or tell you not to.  But you can ignore them.  Simply telling a lie ("Vaping on these premises is illegal",  "you must stop that, it is illegal", "I shall call the police if you continue vaping") is not in itself a crime.   

[JayMac]

If it becomes a problem, and BTP^▸ (British Transport Police) are routinely telling TOCs^▸ (Train Operating Company) and Network Rail that they can only request that people stop vaping, the TOCs/NR^» (Network Rail - home page) may lobby the DfT^» (Department for Transport - about) for a Byelaw change.

However, changing a law, even just a Byelaw, is a long drawn out process. The status quo of a reasonable request to desist is more likely to stay.

[didcotdean]

As one of the odd coincidences in life I was at the cinema early this evening and the GWR^▸ (Great Western Railway) Famous Five advert was played ... followed by one for a supplier of vaping paraphernalia. 

[ChrisB]

So yes, they can ask - not demand or tell you not to).

They can ask, demand or tell you not to.  But you can ignore them.  Simply telling a lie ("Vaping on these premises is illegal",  "you must stop that, it is illegal", "I shall call the police if you continue vaping") is not in itself a crime.  

My point being that many folks will assume its included within the bylaw....

[Marlburian]

Online vaping shop: Can I use my vaping device on a train in the UK^▸ (United Kingdom)?

Dunno how up to date it is.

Marlburian