Illegal, nineteen thousand times, and not a matter for the courts

The story

Trespassing on rail tracks killed 19 people and injured 85 last year, and caused more than one million minutes of delays, according to figures released by operators' group National Rail to launch its No Second Chances safety campaign. There were more than 19,000 incidents in the year to April, mostly involving people retrieving dropped items, crossing a track to save time, or standing too close to the line. The figures do not include those who took their own lives or attempted to. Delays caused by trespassers cost rail firms around £67million. Dinusha Ilanperuma was 15 when she nearly died retrieving a shoe as she walked back from a party with friends near Shepperton station in Surrey. Climbing back onto the platform, she slipped and landed on an electrified rail, needing skin grafts for third-degree burns to her left arm, back and foot, and having to relearn how to use her arm. Now 26, she said she was lucky to be alive and that it could easily have been much worse. Louise McNally, a trespass prevention specialist at Network Rail, said the campaign was not about criminalising or shaming people, on the basis that people trespass because they do not fully understand the dangers, and that the aim was to make people realise the consequences can be dire. British Transport Police Chief Inspector Joe Gorman said trespassing on the railway is never worth the risk, that it is illegal, and that it puts lives in immediate danger.

The reframe

Two institutional voices appear in this article, thirty lines apart, saying incompatible things about the same conduct. Network Rail's specialist says the campaign is not about criminalising. British Transport Police's chief inspector says the act is illegal. Neither is misinformed and neither has misspoken. Both statements are accurate descriptions of the position, and holding them together is what enforcement of this offence actually consists of.

Trespass on the railway has been a criminal offence in this country since the nineteenth century, and remains one. It was committed on more than 19,000 recorded occasions last year, and the true figure will be higher, because the recorded number counts incidents that came to somebody's attention. Prosecuting even a substantial minority of 19,000 people annually is not a policy option. It would require police time, court time, and prosecutorial capacity on a scale nobody is proposing to fund, for an offence in which the overwhelming majority of participants are people who dropped a phone on the track or took thirty seconds off a walk home. The law is therefore retained in full and applied to a small fraction of cases, and the gap between the two is filled by a poster campaign.

This is the arrangement the book describes as threshold logic, and the railway is an unusually clean example of it because the threshold is not concealed. Network Rail has stated the position openly: the enforcement instrument is persuasion, the criminal prohibition stays in the background, and the offence exists as a fact about the statute book rather than a fact about what happens to people who commit it. What is worth noticing is that this is presented as a kindness, and in the individual case it is one. Dinusha Ilanperuma was 15 and retrieving a shoe. Nobody sensible wants her prosecuted, and the campaign that carries her account is more likely to change behaviour than a magistrates' court would be. The difficulty is not with the decision. It is with the fact that the same reasoning is never extended outward.

An offence committed 19,000 times a year by ordinary people acting carelessly is treated as an education problem. Offences committed at comparable frequency by people without the benefit of a safety campaign are treated as a crime problem, and the difference between the two categories is not a difference in the statute, the harm, or the number of people involved. It is a difference in who the offender is assumed to be. The railway trespasser is assumed to be a member of the public who did not understand the risk. Once that assumption is made, criminalisation looks disproportionate and the institution says so out loud. Where the assumption runs the other way, the same volume of offending is presented as evidence that enforcement must be intensified.

The £67million figure deserves a line of its own. The article gives three quantities: 19 deaths, 85 injuries, and £67million of delay costs to rail firms. Only one of those is expressed in a unit that appears in an operator's accounts, and it is the one in the headline. The deaths are counted separately from those who took their own lives on the network, a category the statistics deliberately exclude, which means the published total is a description of one kind of death on the railway rather than of deaths on the railway. None of this is dishonest, and the exclusions are stated. It does illustrate how a harm becomes tractable to an institution: it is converted into minutes and pounds, because minutes and pounds are the quantities the institution is set up to manage, and the campaign that follows is built around the number that could be managed rather than the number that mattered most.

The pattern is the one recorded here repeatedly this month, most recently in the entry of 24 July on the paused early release scheme. An institution that cannot enforce a rule as written does not repeal it. It keeps the rule, enforces it occasionally, and fills the space where consistent enforcement would go with a campaign explaining why the rule matters.