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Enchiridion

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  1. I'm intrigued that Nystagmite and Old-CodJA place such weight on its being your responsibility to ensure that you have enough money on your Oystercard. This fails to recognise the unique nature of the Oystercard and the lack of fungibility with cash. If I look at an Oystercard, I can't tell how much money is on it. I can with cash. Admittedly if I look at my credit card I can't tell how much my credit balance is. But if I were to hit the balance for some transaction, I could supplement my payment with another credit card or with cash. This is what makes credit on a credit card fungible with cash. By contrast, with an Oystercard not only can you not tell by looking at it how much the balance is, you can't supplement a payment by making the rest of the payment in cash. This lack of fungibility is masked by the practice of recording the balance on an Oystercard in pounds and pence. It's as though it is ordinary cash. But it isn't. Perhaps the balance should be recorded in Borises. I've got a balance of 8 Borises on my Oystercard. Nice ring to it? Seriously though, I should like to know what would have happened to bigfluffy if everrything else had been the same except that the balance on the Oystercard had been £8.
  2. As will be clear from my previous post, I don't have any experience of Oystercards, least of all on buses (I prefer walking in zone 1 to using public transport). On the tube the impression which I have is that you can't get onto the platform without going through a barrier and the barrier only opens if you touch in with at least the minimum fare. On one-man-operated buses you used to have to pay the driver on entry or show him your pass. Is it the case that with Oystercards that you now board the bus, the doors close and then you are meant to touch in? If so, this is obviously a fail-dangerous system for passengers, especially when the bus is so full that it's hard to reach the touching-in point. Is TfL trying to run a transport system in which it collects the revenues which are its due or is it trying to get extra revenues by providing traps for the unwary? Mobile phones have caused hotels to lose their revenue stream from overpriced telephone calls. Few people now fall for the $10 soda in minibars. But TfL and the railway companies seem to believe that they can run a business in which they charge £250 to travellers who make mistakes.
  3. I have looked on the TfL website about Oystercards. Nowhere could I find any warning about the consequences of having insufficient credit on the card to pay the full fare. In the old days when I travelled on London's buses (more than 40 years ago; they were proper Routemasters then) you got on the bus and waited for the conductor to come round. You said where you wanted to go and he told you the fare. If you didn't have enough money, you would tell him how much you had and he would sell you a ticket for that amount. You would then ask him to tell you where you had to get off. You would then walk the remainder of your journey for which you didn't have the fare. It seems to me that Oystercards are being presented as electronic cash so that people think that they will behave as cash used to do with conductors on buses. But they actually have a very nasty bite, which you aren't told about in advance. It's really rather like swimming off the Seychelles: the sharks are prowling, ready to tear your leg off (or worse) while the management are telling you everything's fine and please keep on using our service. In fact, it's worse than swimming off the Seychelles, because it's the management who have put the sharks in the sea. What actually happens, as bigfluffy has found out, is that management has written a nasty set of rules. These specify that if you haven't got enough credit on your Oystercard when you touch out, you are deemed to be a "fare dodger" and are prosecuted. Never mind that you might have enough cash to pay the balance. They have written the rules so that all that they need to prove is that you didn't have enough credit on your Oystercard for your journey (this is what "strict liability" means). They conveniently ensure that it is the poor who will suffer because those with more money will have set up an auto top-up for their Oystercard or will have a smartphone and the ability to top-up using a credit card where they are, without the need to exit the barrier in order to reach a place where they can top-up. Of course, there is no indication in the guff about auto top-up that it provides this protection: it's just nice of TfL management to ensure that the sharks won't bite those who might be effective in complaining about the shark-infested waters. Note that TfL management could prevent pay-as-you-go users from falling into this trap. They could impose a minimum balance of £8 before you could use the Oystercard. Then if you had enough credit to touch in, you would have enough credit for whatever journey you made. I wonder why they don't. So, bigfluffy, I regret to advise you that the sharks have tasted your blood and they want more. It's grossly unfair, but then fairness is not what the law (at least this law) is about. It's a money-making exercise, pure and simple. You are prey and they have caught you. Although it won't help you directly, write to your MP, explain what has happened and complain about the lack of warning as to what happens if you haven't got enough credit on your Oystercard for the journey you are making.
  4. nick180, Although these are criminal proceedings, your adversary is a business, not a public body. As a business, SWT is engaged in trying to make a profit. Penalty fares and costs which you have to pay represent income to SWT. The costs of running their prosecutions department and costs awarded against them represent expenditure. They don't know what the outcome of the case will be, so they have to make an assessment of the likelihood of each outcome. Think of it as a game of poker. It doesn't really matter how good or bad your hand is, if you raise the stakes, your opponent may consider that the stakes are too high given the quality of his hand and he will fold. In this case the standard "fold" is that they drop the prosecution in return for your paying the equivalent of the standard penalty fare, i.e. £20. You will have seen that Byelaw 18(3) provides a defence and that under the standard rules of evidence you need to show on the balance of probabilities that you were mis-sold the wrong ticket. It seems to me that you will be able to demonstrate: you bought your ticket from the ticket desk at Wallington; the ticket which you bought cost £4.90, compared with the £2.90 cost of the correct ticket (was this the cost of a return to Walton or a single? - you should compare like with like). The question then is: "on the balance of probabilities, were you mis-sold the wrong ticket?" The answer to this may not be clear. This is the point at which you can raise the stakes. Given: the puny nature of your alleged offence (paying £4.90 for the wrong ticket when the correct ticket cost less); the severity of the punishment (a criminal conviction, albeit not a recordable one); the difficulty to you of proving what was said by the railway employee at the ticket office window is it compatible with Article 6(2) of the European Convention on Human Rights that the reverse burden of proof placed on you should be "persuasive" rather than "evidential". In other words, do you need to prove that you were mis-sold on the balance of probabilities or does it suffice for you to show that you have a credible argument? In my previous post I quoted Simester and Sullivan's Criminal Law (2005). In writing to SWT you could also quote Lord Bingham of Cornhill's lead judgement in Sheldrake [2004] UKHL 43 http://www.bailii.org/uk/cases/UKHL/2004/43.html. Paragraph 21 says: 21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea . But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. The stakes here are incredibly high. First, they will cost SWT a pile to argue - this sort of question would end up in the Court of Appeal or the Supreme Court (formerly the House of Lords). Secondly, if SWT were to lose, all the railway companies would find it much harder to prosecute successfully. So it is in SWT's interest to avoid allowing this matter to be raised, even if there is only a minuscule chance that it might succeed. Of course, they could try calling your bluff. But would they? You have a further line of argument, which is the proportionality of prosecution to the alleged offence. Should the courts be spending their time pursuing you when you had paid more for your ticket than the correct fare? The court could dismiss the case as beneath its dignity.
  5. SRPO, I have been looking further into the burden of proof. You are correct (and I have been wrong) that in the case of an exception (which is what Byelaw 18(3) is), the burden of proof lies on the defendant. But the burden of proof is a "persuasive" burden rather than "beyond reasonable doubt". This means that the defendant has to show on the balance of probabilities that the exception applied to him. Even this burden must be hedged around because of the effect of Article 6(2) of the European Convention on Human Rights. This provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” There have been a number of cases concerning the compatibility of the reverse burden of truth (i.e. the defendant has to prove something, as here) with Article 6(2) which have gone to the Court of Appeal or the House of Lords. The position seems to be that a "persuasive" burden is compatible, although some judgements have substituted the "evidential" burden, i.e. sufficient evidence as to raise the issue. Criminal Law, Simester and Sullivan (2005) http://www.hartpub.co.uk/updates/crimlaw/crimlaw_burden05.htm summarises the position thus: Whether or not the reverse burden at issue offends against Article 6 requires a proportionality assessment. In conducting that exercise, one should balance, on the one hand, society’s interest in the effective suppression of the social mischief with which the offence is concerned and, on the other hand, D’s right to a fair trial. When balancing these two competing interests, one should take into account the severity of the offence in terms of sentence, ease of proof for one party or the other in relation to the matter covered by the reverse burden, and (from previous authority) whether the matter to be proved or disproved is related to a definitional element of the offence or to a defence. In the light of these factors, the final judgement must be made on whether the reverse burden in question is a fair and proportionate legislative response, in the circumstances of contemporary society, to the social mischief with which the offence is concerned. To return to nick180's case, I consider that the ticket and contemporary records, i.e. the original statement taken at Walton-on-Thames and any letters which nick180 sent to SWT at that time, would help to settle the matter. Tickets issued by machines are different from those issued by ticket clerks. SWT will, I hope, have retained the ticket as evidence so it should be clear whether the ticket could not have been sold by the ticket clerk. If the witness statement taken at Walton-on-Thames records the assertion that nick180 asked for a ticket to Walton and was sold a Travelcard, that would tend to support his assertion. Equally the absence of such an assertion would tend to undermine it. If nick180 wrote letters of protest to SWT, that would also help his case. Evidence of good character and a prior absence of penalty fares or prosecutions against him would also help to sway the balance of probabilities.
  6. Nystagmite, I agree that there is a problem if you have to prove that you were mis-sold the ticket. But you don't. The thing which I am trying to establish is that if you are sold the wrong ticket, you do not breach the railway byelaws by making your journey with it. Once that is accepted, the basic principles of English law kick in (or at least, they should). It is for the prosecution to prove beyond reasonable doubt that an offence has been committed. If you give a credible explanation as to what happened which involves no offence (and the court will determine the credibility of your explanation), it becomes the prosecution's problem to prove beyond reasonable doubt that the offence occurred. So you don't need to prove that you were mis-sold the wrong ticket. The prosecution needs to prove that you weren't mis-sold the wrong ticket.
  7. Grotesque, I have already told you (post #19) that I am not Engelbert. Now (post #25) Engelbert has told you that he's not Enchridion. Why do you persist in these unfounded allegations which appear to me to be contrary to the rules of this Forum? An apology would be in order.
  8. It seems to me that there is a consensus that if I tell the ticket clerk the journey which I wish to make and he sells me the wrong ticket, there is no offence under the railway byelaws. I believe that this is because the ticket clerk is an authorised person within the meaning of Byelaw 18(3) and by selling me the ticket for that journey he is giving me permission to travel. Is this right?
  9. SRPO, I was trying to protect you. What inference must we draw if (as it now appears) you consider that there is no offence if someone travels on an invalid ticket sold to a passenger who specified to the ticket clerk the journey which he wished to make?
  10. Enchiridion ≠ Englebert While I may have similar views to Englebert, I should have thought that my syntax and semantics were sufficiently distinct for there to be no doubt that we are different.
  11. Given the passage of time, I don't think that it would be reasonable to expect the defendant to supply a signed note from the booking clerk. Nor (regrettably) would I expect a booking clerk to admit to that sort ot mistake even if nick180 had gone back straightaway and asked for a statement. I consider that it is significant, and very much in nick180's favour, that the ticket which he bought, a Travelcard, cost more than the ticket which he should have bought. Of course, it's possible that he was on autopilot and just asked for a Travelcard. But his post says that he asked for the best ticket and was issued with the Travelcard. It would help his case substantially if he corresponded with SWT at the time and asserted then what he is saying now about what happened at the ticket office. I expect that it will end up with the magistrate assessing the demeanour of the defendant and deciding whether he is telling the truth or just trying it on. If the magistrate decides that he's telling the truth, I don't see that there is any offence. Does anyone (apart from SRPO) think that strict liability extends to having the wrong ticket because the ticket clerk sold you a ticket which was not valid for the journey which you had told him you wanted to make?
  12. ABC12, I have looked further into the Equality Act 2010. There is a useful summary, the Disability Quick Start Guide, on the Equalities website. This sets out how people with disabilities, including those with learning difficulties, should be treated. Here are some key points: Who has responsibilities? The Act applies to all service providers and those providing goods and facilities in Great Britain... Who is protected? The Act protects anyone who has, or has had, a disability... What is a disability? Disability has a broad meaning. It is defined as a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities... A mental impairment includes mental health conditions (such as bipolar disorder or depression), learning difficulties (such as dyslexia) and learning disabilities (such as autism and Down’s syndrome)... What is indirect disability discrimination? Indirect disability discrimination happens when there is a rule, a policy or even a practice that applies to everyone but which particularly disadvantages people with a particular disability compared with people who do not have that disability, and it cannot be shown to be justified as being intended to meet a legitimate objective in a fair, balanced and reasonable way. It appears to me that FCC's prosecution of you is indirect disability discrimination and is therefore unlawful. Write to the FCC Prosecution Manager and: offer him the £3.50 difference between the fare you paid and the fare you should have paid; tell him that if he doesn't drop the prosecution, you will report FCC to the Equality and Human Rights Commission for indirect disability discrimination. Best wishes, Enchiridion
  13. SRPO, Are you suggesting that if I tell the ticket clerk what the journey is which I wish to make and he sells me a ticket which is not valid for that journey, I am liable to prosecution under Byleaw 18? I do not think that this was Parliament's intention in establishing the framework of law under which the National Railway Byelaws are made. Although there is strict liability under Byelaws 18(1) and 18(2) it remains the case that the prosecution has to prove beyond reasonable doubt that the byelaws have been breached. Byelaws 18(1) and 18(2) cannot be read on their own. They must each be read with Byelaw 18(3). If one of the conditions in Byelaw 18(3) applies, there is no breach of Byelaw 18(1) or 18(2). It is not the case that Byelaw 18(3) offers a defence or a mitigation. If the defendant asserts that something happened which may have come within the scope of Byelaw 18(3), it is for the prosecution to prove beyond reasonable doubt that Byelaw 18(3) does not apply. The defendant does not even need to cite Byelaw 18(3). It is for the court (including the prosecution) to uphold the law. If the evidence does not achieve the required degree of proof that an offence has been committed, the court must acquit.
  14. nick180, Railway Byelaw 18(3) states: No person shall be in breach of Byelaw 18(1) or 18(2) if: ... (iii) an authorised person gave him permission to travel without a valid ticket. Tht ticket clerk who sold you the travelcard was an authorised person. If you told the clerk what the journey was which you wanted to make and the clerk sold you the travelcard, I believe that by so doing the clerk authorised you to travel with that ticket. So whether the ticket was valid or not, you were not in breach of Byelaw 18(1) or 18(2). Not only do I think you did nothing wrong, I think that SWT are engaged in a malicious prosecution. In order to succeed with this prosecution, SWT need to prove beyond reasonable doubt that you are lying when you say that you told the clerk the journey which you wanted to make and the clerk sold you that ticket. If they can't do that, they don't have a case.
  15. ABC12, In your post of 3rd July you said: The ticket inspector ... said "can you pay the fine of £20 now I think that this is the first time that you have mentioned that the ticket inspector asked for £20. I thought that he just asked you for the £3.50 difference between the off-peak return and the off-peak day return. Please can you clarify what happened on the train? Did the ticket inspector tell you that you could pay the £20 later if you paid the £3.50 then? Did you have £3.50 or were you completely out of money? The offence which you have been charged with is the least serious railway offence. It is also the easiest for the railway company to prove. But because it is the least serious railway offence, I think that you may be able to "trump" the byelaw by invoking the Equality Act 2010. This says that "service providers" have to make due allowance for various groups, one of which is people with learning difficulties. It seems to me that FCC should either make it possible for someone with learning difficulties to buy a ticket from a ticket clerk; or accept that such a person may make a mistake when required to use a ticket machine. This is why I think that it is important for you to tell the court the time of day that you went to Sandy station and that there was no ticket clerk on duty. If you had the option to buy your ticket from a clerk but chose to use a machine, then, to some extent, it's your own fault. But if (as is the case) FCC man the ticket office only in the morning, they are requiring you to use the ticket machines if you turn up in the afternoon. If a person with learning difficulties makes a mistake when he has been required to use a ticket machine, I think that the Equality Act 2010 means that they should only charge you the difference between the fares and not charge you a penalty fare of £20. They should not be prosecuting you. There is a body, the Equalities and Human Rights Commission, which exists to police the Equality Act 2010. I suggest that you telephone them on 0845 604 6610, explain what has happened and try to get them interested in your case. They are far more powerful than you or I and can make a real difference. Ticket inspectors are issued with a "revenue protection handbook". This includes guidelines for when they should use their discretion not to issue penalty fares. One of the groups towards whom they are meant to use discretion is: passengers who are not aware of the scheme because they are blind or partially sighted, are foreign visitors who live abroad, do not speak English very well, or have learning difficulties; I suggest that you write to the Prosecutions Manager at FCC and ask him to send you a copy of that section of the revenue protection handbook about people with learning difficulties. Say that you want to use it in court. It's relevant to your case and the court will take a dim view of FCC's case if he won't send it to you. I'm sorry that there's a lot to do. The most important things to do are to respond to the court promptly when they write to you and to get in touch with the Equalities and Human Rights Commission. Best wishes, Enchiridion
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