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Everything posted by Engelbert

  1. MedStudentUK, I agree with all your points, and good on you for standing up to the bullies. Please don't listen to all the people here telling you to give up your fight for a fairer system. Don't forget that many of the regulars here work in the rail prosecutions industry and thus have a vested interest in the continuation of the status quo. I also can't help feeling there's something dodgy about the following process: Passenger makes ticket mistake RPI refers to prosecution department Get scary prosecution letter in post Google for help and find this forum Get advised (often by rail industry insiders) to pay £100+ to avoid prosecution Pay the ££££££ Rinse and repeat. Do please keep us updated.
  2. Welcome to Britain! where honest and well-meaning passengers on the railway who make a mistake end up being prosecuted. Maybe all trains should have signs on the doors "Mistakers will be prosecuted".
  3. If there is no ticket desk and no machine that accepts cash then I think that counts as no facilities to purchase a ticket. If there is a machine that takes only cards and other people's cards work but yours does not you still have grounds for an appeal. There is no legal requirement for you to have a credit/debit card as a means of paying, indeed some people do not and only use cash. Leighton Buzzard station used to have a ticket machine that accepted cash and cards. It has recently been replaced with one that only accept cards. When the ticket office is closed a notice is attached to the machine instructing people with only cash to purchase their ticket on the train. They should not receive a penalty fare. When the ticket office closes on an ad-hoc basis (such as for assisting disabled people to cross the tracks, there is no lift on the bridge across the platform) the RPIs on the trains are not notified of such closures, in breach of the Penalty Fare Rules. So the key issue is, did the ticket machine at Sutton Common accept cash?
  4. If there were no facilities at Sutton Common for you to buy a ticket (and I don't think a machine that only accepts cards counts) then that seems to be the case. I suggest you quote the relevant part of the penalty fares policy I pasted above in your appeal. Do not "state that I was advised at station B to pay for the fare at station C" as that is a lie and lying is wrong.
  5. The rules for interchange from the Penalty Fares Policy: 4.29 When a penalty fare cannot be charged. The instructions must make clear to authorised collectors when they can charge a penalty fare and when they can’t. In particular, the instructions must remind authorised collectors of situations where passengers are not liable to a penalty fare under the Penalty Fares Rules, for example in circumstances where the National Rail Conditions of Carriage allow the passenger to pay an excess fare. The instructions must cover the following instances. • Interchange . A passenger who changes onto a penalty fares train at a penalty fares station may normally be charged a penalty fare if ticket facilities were available at the interchange station and warning notices were displayed where they could be seen by anyone changing onto the penalty fares train. However, under condition 7 of the National Rail Conditions of Carriage, the full normal range of tickets must be made available to any passenger who started their journey at a station where no ticket facilities were available. In these circumstances, a passenger should not be expected to buy a ticket at the interchange station if they do not have enough time to do so without missing their connection. If it is not possible to check whether or not ticket facilities were available at the station where the passenger started their journey (which may be a station run by a different train company), a penalty fare should not be charged.
  6. You are correct that breach of the railway byelaws are non-recordable offences and thus do not go on the Police National Computer as part of your criminal record. They are, however, a criminal conviction so can still cause problems with applying for jobs/travel etc, depending how the "are you a criminal" question is phrased.
  7. I had read what you wrote, even if I didn't respond to all the points. The point of the House of Commons extract was to show "fare evasion" is only a subset of all ticket infractions (so perhaps your CPS quotes about fare evasion are "muddying the water"). Regarding the CPS not taking over prosecutions because of alleged misconduct, fair point, and that was never my suggestion. I suggested going for the approach of a failure to correctly apply the public interest test, notably 17b and 17d. Yes, my posts are based on what Podworthy says. Maybe he is a liar, but his story seems eminently plausible to me and I see little point assuming otherwise, or prefixing every post with "Based on what the OP says...". If the traveler purchases a cheap day return with the intention of using it at a time it is invalid, but is of the genuine belief it is valid, then there is no mens rea so no fare evasion. If FCC allege intent and the OP doesn't then he has to convince the court he didn't know about afternoon peaks. This seems perfectly reasonable to me and I would hope he succeeds. On the other hand, if you said you genuinely held the belief that the piece of paper with "ticket" scrawled on in crayon you bought from a guy in the car park for £1 was a valid ticket... Let's see if he comes back...
  8. It is not the same thing as a police caution, as in http://en.wikipedia.org/wiki/Police_caution. What happened to you is a "statement taken under caution" (under Police and Criminal Evidence Act 1984) which is essentially the reading of your rights "You do not have to say anything but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence. Do you understand?". The first might show up on a CRB check, the second won't. In my experience, some RPIs are either ignorant of the difference, or purposefully let the passenger think it is the more serious 1st type of caution they are giving. (I was stopped for not having a valid ticket and told I must either pay the penalty fare immediately or be "cautioned". When I expressed surprise he had this power and asked if this was a caution like a police officer gives I was told "yes", which I later learned was wrong). A "fine" can only be issued by the court (or some other agent of the state), not the train company. A penalty fare is not a fine. After issuing a notice of intention to prosecute sometimes the TOC will drop the prosecution if you pay them some money. This is not a fine either (though I do wonder if it counts as a bribe under the Bribery Act 2010!). I am rather puzzled that the letter from the TOC mentions a fine, though that may just be their imprecise wording. Does their letter make any mention of prosecution? To add a few of my thoughts to Old-CodJA's already fairly comprehensive answers to your original questions: I'm afraid your belief in the reasonableness of TOC prosecuction departments is misplaced and there is a fair chance you will be taken to court (and I share your thoughts about the OTT nature of it). Based on the threads on this forum (so not definitive stats!) First Capital Connect seem to be the most trigger-happy, with Southern in 2nd. A lot of it is down to the judgement of the RPI who stops you. Being human, I expect if the RPI takes a dislike to you you are more likely to get prosecuted. In my case I don't think he liked me treating him as an equal rather than a superior or that I took some time to get advice on the phone so rescinded the option of a penalty fare and went for prosecution. You being "guarded" sounds similar. There are also some situations in which a penalty fare cannot be charged because of the minor nature of the ticket infraction (e.g. ticket used outside "published restriction" i.e. certain time/train). Rather perversely, this exception does not apply to the strict liabilty byelaw offences. But I don't think this applies in your case.
  9. Podworthy has NOT committed fare evasion. Fare evasion is the deliberate action of avoiding paying the correct fare. An honest mistake is not fare evasion, and is not a dishonesty offence. I'm rather disappointed an expert in the industry makes this mistake. The following from the House of Commons Transport Committee's 5th report of 2007/8 "Ticketing and Concessionary Travel on Public Transport" is pertinent: 54. Too much revenue is being lost through a failure of the transport operators to provide the appropriate ticket sales facilities, to sell tickets on-board, and to carry out basic checks. This is not the same as fare evasion. It is simply non-collection of fares.
  10. I never claimed there was, apologies if my point was not clear. I was simply saying that if you have signed a statement which is inconsistent with the story you now give, it's a harder case to fight.
  11. Podworthy, Firstly, keep calm and try to keep your spirits up. I know it's a very unpleasant experience to receive a court summons (I got butterflies in my stomach for several days) but "illegitimi non carborundum". Yes, FCC can still drop the prosecution right up until you go into the courtroom (indeed I even went to court once for an initial meeting with them before they dropped it) but will need persuading. I'm not an expert in the procedural matters, but i think the wrong DOB won't save you, it will just cause FCC a little bit of administrative hassle. I'm not surprised the comments on the report are wrong, they made stuff up in my case too. The court summons should contain a photocopy of the inspectors report/witness statement which you both signed. Do you have this and does it look as you remember? I know that in the heat of the moment and under pressure from an authority figure it is very easy to sign things you shouldn't. If you have signed something that says things you now dispute that does make it trickier. I had signed something that was literally correct, but misleading in its implications and disputed the evidence as such. The summons will likely also include a "Statement of Facts" which is their paraphrasing of the event which will be read in court if you plead guilty by post. They can lie as much as they want here and you can reject it easily as it is not primary evidence with your signature on it. You could phone them up and let them know you've got a letter on the way and hope they offer to settle, and don't ask for a too extortionate amount of money to do so. But you need to plan what to do if they continue with the prosecution. One options is to plead guilty, with the mitigation that you are an honest person who did not intend to buy an invalid ticket and was unaware of the afternoon peaks (do mention this, if the magistrates are similiarly unaware it will buy you sympathy). The bit about the inspector misleading you about the threat of prosecution might help a little too. The problem with this approach is FCC have got what they want, a guilty plea, and you are likely to get a criminal conviction. There is a (small) chance, having heard your mitigation, the magistrates feel nice and give you a discharge instead. There was a case involving a girl in Liverpool prosecuted under the railway byelaws for putting her feet on the seats who was given an absoulute discharge. It probaly helped that she was a pretty girl who helped disabled children in after school clubs. If, like me, you really don't want a criminal conviction (the stain on reputation, difficulties with career, travel, CRB clearance for voluntary work etc.) and are prepared to put in time and effort (and possibly money too for legal help, a legal friend helped me pro bono) you can fight to avoid the case going to court. My summons included a form with 3 options accept their evidence and plead guilty by post accept their evidence and plead guilty in person plead not guilty and appear in person later I was not sure what to do as, like you, I disputed their evidence but recognised I was nonethless guilty. I asked the court which of these 3 options I should pick and did not get a satisfactory answer. It seems that by disputing their evidence I am assumed to plead not guilty. That seems to be a reflection of the adversarial nature of the British courts, the truth doesn't matter as much as A vs B. This means the case will be delayed and you will be asked if you wish to call witnesses. You have to think whether you wish to call the inspector as a witness: he will likely stick to FCCs story and be well-practiced at lying in court, whilst you are not. I decided I was most effective arguing my case in writing rather than standing up in court. Back to the CPS angle. Just because you have technically commited an offence does not mean you should be prosecuted for it. To quote Sir Hartley Shawcross's classic statement on public interest "It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution". A Prosecution must only be brought if it satisfies the CPS's Full Code Test, details at http://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html. This includes "Some common public interest factors tending against prosecution" such as 17.b. "the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies" and 17.d. "the offence was committed as a result of a genuine mistake or misunderstanding". These appear to apply to your case so I think it's definitely worth a shot. Good luck!
  12. It works because you have failed to read what he said carefully "not not".
  13. They most certainly can, whether they will I don't know. In my case I had drafted but not yet sent a letter to the CPS when FCC dropped the prosecution.
  14. Yes, I think it's a good idea to take a conciliatory tone initially. At the same time, I would also encourage you to write to your MP about this. Another approach, should they continue with the prosecution, is to write to the Crown Prosecution Service and ask them to take over and halt the prosecution as it is not in the public interest. There are details of this at http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/#an06. MPs and the CPS actually have power, so the more they are made aware of the FCC bullies the more likely something will be done about them.
  15. The afternoon peaks are an invention of the last few years on commuter lines into London that are poorly advertised (trying to find out when they are even when you know they exist from FCC's website is impossible), it's not a surprise you weren't aware of them. When a ticket is invalid due to off-peak restriction such as this, the train company are not allowed to charge you a penalty fare, as a recognition this is a minor mistake. However, that they are allowed to and then choose to bring a criminal prosecution under the railway byelaws instead is peverse and cruel.
  16. Indeed, I doubt the Crown Prosecution Service would bring a prosecution in this case. The CPS is staffed by higher calibre lawyers than train companies' prosecution departments who will have a greater appreciation of the wider principles of law, remembering that the mere commission of an offence does not warrant a prosecution unless it is in the public interest. It is this public interest judgement that I believe the TOCs fail at, being an interested party out for vengeance. Am I being unusually lenient in thinking leaving a railcard at home does not deserve to make you a convicted criminal? I think not: everyone I told that I was facing a criminal prosecution in a similar situation to holaboo's (my railcard had expired rather than left at home) laughed incredulously "They prosecute you for that?!". But having a criminal conviction is no laughing matter: the TOC's are ruining the lives of honest citizens who, after years of paying thousands of pounds for the correct fare, make a simple mistake.
  17. In the 19th Century it was not a criminal offence to not have the correct ticket if that was the result of an honest mistake, intent was required. It was only recently that the strict liability byelaw offences were created, abandoning the centuries-old principle that mens rea is a fundamental requirement of a crime. The manner in which rail companies use the threat of criminal prosecutions (and indeed scaring people into thinking they will get a criminal record for the byelaw offences) to extract sums of money entirely out of proportion to a mistake such as leaving a railcard at home does appear tantamount to extortion to me.
  18. Have you been told what criminal offence they are charging you with? I suspect it will be breach of Railway Byelaw 18, which is a criminal offence, but not serious enough to go on the police national computer which is what a "criminal record" usually means. This is a "strict liability" offence which means you do not need to have intent (mens rea); simply making an honest mistake such as yours is enough. The other, more serious, offence is section 5 of the Regulation of Railways Act which requires intent to avoid the fare and does result in a criminal record. Legally speaking, "fare evasion" requires intent and is only this 2nd case. Sure, welcome to the train companies' legalised extortion racket. Other people pay hundreds of pounds to avoid a criminal prosecution for ticket problems, so you could count yourself lucky they "only" want £35.
  19. Indeed, if you don't pay your fare the railway company has a right to collect it. But if the sole concern is to collect the correct fare, why not allow the passenger to pay when the mistake is realised? Or sue for damages in the civil court? By bringing criminal charges they are seeking to impose serious additional punishment on top of recovering the lost revenue and for this the public interest must be considered. I would also add that "Revenue Protection Inspector" can be a rather ironic name. Due to FCC's action, I now boycott FCC trains, so they have lost a lot of potential revenue!
  20. bigfluffy, regarding the cost of an out of court settlement, maybe my experience can offer a little (false?) hope. I was recently the subject of a criminal prosecution by First Capital Connect under railway byelaw 18(2) for travel without a valid ticket (I had a ticket, but using a railcard which I hadn't realised had expired). Rather than writing a grovelling letter and offering to pay several hundred pounds of costs for an out of court settlement (which seems to be the standard advice here), I stood my ground, pointing out how they had breached the penalty fare rules in varied and repeated ways, had not followed the correct procedure for taking a statement under caution, and various other legal arguments (details of my case that probably won't apply to you). After much correspondence, including a 7 page letter drafted by a trainee solicitor friend of mine, which included an offer to resolve the matter by a penalty fare, FCC offered to drop the prosecution in exchange for £20, which I accepted. What I take from this is it is like a game of poker, with a lot of bluffing. If you can persuade them that you have a strong case and give them the impression you have incurred thousands of pounds of legal costs which they are likely to have to pay if you are found not guilty (or have the case dismissed as an abuse of process which was my argument), they will fold. I intend to post details of my experience in the future when I have the time. Best wishes, and keep your spirits up. Don't let them get you down
  21. The criminal courts do not exist to allow private companies to exact vengeance. They exist to uphold the law in the public interest. If one thinks that a private prosecution is not in the public interest one can apply to the CPS to take over and halt a private prosecution. http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/#stop
  22. Ummmmm, no I'm not, though I do commend him on his choice of name, particularly the first 2 letters.
  23. The Railways (Penalty Fares) Regulations 1994 says: So whilst this is not directly revlant to the OP's case (as it is now a byelaw prosecution not a penalty fare), I think it serves as a good reminder of the general principle of innocent until proven guilty, and that the burden is on the train company to prove the defendant is lying, not for him to prove he is telling the truth.
  24. Hello nick, sorry to hear of your plight. I must say I find the way you have been treated absolutely disgusting. First of all, we need a few more facts. As well as SWT's prose of the charge, they must cite which law you are alleged to have broken, please say exactly what this is (my guess is it is Railway Byelaw 18, and not Regulation of Railways Act section 5, see my post #11 on thread 309720 for details). Also, did you pay a penalty fare at the time and get a receipt? It's not necessarily a good thing to appeal a penalty fare once the train company have your money: if they have a penalty fare they are not allowed to bring a prosecution against you (unless they refund it). It is rather bizarre that if you pay a penalty fare, but then succesfully appeal it (e.g. because the train company broke the penalty fare rules), they are then allowed to turn around and bring a more serious criminal prosecution against you (nevermind the fact they themselves broke the rules!). As the railway byelaws are "strict liability" offences there is no requirement of intent on your part, so unfortunately if the ticket clerk makes a mistake of selling you the wrong ticket (and you then make the mistake of assuming the ticket clerk is competent) and travel with that invalid ticket you may have commited a criminal offence (doesn't seem fair does it?!). I only say 'may' because byelaw 18.3 says "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.". Also it could well be argued that selling you the wrong ticket and then letting you travel is entrapment. It is in the interests of SWT to scare you into sending them a big fat cheque instead of going to court so take anything they say such as "you're sure to be found guilty" with a pinch of salt. You don't need to prove you are innocent; they need to prove, beyond reasonable doubt, that you are guilty. Regarding a criminal record, if you are prosecuted under the railway byelaws these are not "recordable" offences so will not get you a criminal record (of course it is in SWTs interests to mislead you into thinking so with scary letters). They are, however, criminal convictions so it depends on the wording of the 'Are you a criminal?' box of application forms etc. whether you need to say yes. Note that I am someone who belives in justice and fairness, and that many prosecutions brought by railway companies over invalid tickets are neither just nor fair, and wish more people would stand up to the bullying train company prosecution departments. [edit]. The courts are supposed to administer justice in the public interest (and that doesn't mean bringing a prosecution whenever an offence is committed), not let railway companies have their vengeance. I'm probably being rather too idealistic here: my faith in the justice system took a dent when I read on this forum that the Prosecutions Manager of First Capital Connect is also a magistrate, as I cannot see how someone can both be in charge of a department that brings malicious prosecutions (see thread 211114) and also be a good magistrate. Of course standing up for yourself does carry more risk than buying off the railway company, so which route you choose is really down to you. Best of luck!
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