Criminal record for train fare evasion??

[Davidp77]

Hi

 

Was hoping someone could clear something up or point me in the right direction.

 

In May 2006, i was caught without a ticket on a train. My own fault i know but had money problems at the time and thought i would chance it. Eventually I received court summons and was due in court of Dec 2006. I was found guilty and had to pay about £100 fine and £100 court costs.

 

I had not thought anymore about it until my family have booked a holiday to USA next year. Does anyone know how I can find out if this has led to a criminal record? There were no police involved so believe there may be a chance that it is just a civil matter? Also, don't now know if I am being completely paranoid but have been reading that having any sort of criminal record will lead problems into getting into the USA which seems a bit unfair for a minor offence like this?

 

Would appreciate any advice on this?

 

Many thanks

 

Davidp77

[Guest Old_andrew2018]

I dont know the answer so my reply will BUMP your thread

[Old-CodJA]

Firstly let's get rid of the misunderstanding that is so commonly held.

 

Police do NOT have to be involved for any reported matter to result in a criminal conviction.

 

The ultimate answer to your query is found in determining what you were actually charged with.

 

Were you charged with 'intent to avoid a fare' or, a Byelaw offence?

[Davidp77]

Hi

 

Yeah I was charged with the 'intent to avoid a fare'.

 

I have tried looking into this further and just keep being given different people to call or the more websites I read some say I should be fine getting into the US and then some others say I could have problems.

 

Does anyone know the best way to find out if I have a criminal record, if this hasn't led to one then obviously I should be fine but if I have then i'm not too sure what is best to do.

 

Thanks for any help/advice you could give.

 

Davidp77

[SRPO]

Deleted.

Edited September 23, 2009 by SRPO

[pebblespop]

Please can you come back and let us know how you get on.

 

I am sure many others would like to know the answer to this problem.

[Scaredsheep]

Nacro is very helpful in providing (free) advice on whether or not you need to disclose convictions, as the Rehabilitation of Offenders Act 1974 allows for convictions and cautions to be spent for certain purposes after a certain period of time. Standard and enhanced disclosure is only required for certain purposes e.g if you wish to work/volunteer with children, the elderly or otherwise vulnerable people.

 

There is a link to Nacro on the link I have posted below to the criminal records bureau. The crb link tells you how to find out what information is held about you ( and any offences you may have committed) and who it can be disclosed to. There is a small fee payable to access your records, but this does enable you to find out what is recorded against you, and gives you the opportunity to challenge any data held that you think is wrong.

 

Good luck and let us know how you get on.

 

 

 

Data Protection

[SRPO]

Deleted.

Edited September 23, 2009 by SRPO

[VyeKing]

Not necessarily true in all cases. Even if the application form asks if you have ever been convicted of a criminal offence, you can legally answer "No" if the conviction is spent, provided the position applied for is not exempt from the act.

 

(Taken from Rehabilitation of Offenders Act 1974)

 

Applying For Jobs

 

Applicants with a criminal record who are asked on an application form or at an interview whether they have any previous convictions can answer 'no' if the convictions are spent and the job applied for is not excepted from the Act.

Exceptions To The Act

 

There are some situations in which people will be expected to declare their convictions, even if they are spent. Some of the principal ones are:

Appointment to any post providing accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training to people aged under 18. Such posts include teachers, school caretakers, youth and social workers, child minders.Employment involving providing social services to elderly people, mentally or physically disabled people, alcohol or drug misusers or the chronically sick.Appointment to any office or employment involving the administration of justice, including police officers, probation officers, traffic wardens.Admission to certain professions which have legal protection (including lawyers, doctors, dentists, nurses, chemists, and accountants).Appointment to jobs where national security may be at risk (for example, certain posts in the civil service, defence contractors).Application forms for posts which are excepted from the Act should always make this clear, although some employers claim posts are excepted when they are not. If in doubt, seek advice.

[SRPO]

Deleted.

Edited September 23, 2009 by SRPO

[Zamzara]

No that's completely wrong. An employer cannot ask about spent convictions unless it is an exempt job. They way they word the question is irrelevant.

[SRPO]

Deleted.

Edited September 23, 2009 by SRPO

[Old-CodJA]

Spot on SRPO.

 

Perhaps this will help,

 

The wording below is taken from a UK DWP approved employment application form template:

 

 

Section 2 Rehabilitation of Offenders

 

Have you ever been convicted of a criminal offence? YES NO

 

Do you have any offences pending? YES NO

 

If yes, give description:

 

 

Of course the employer can ask the question and if it is shown that an applicant is less than truthful in their reply, act accordingly.

 

It does say 'have you ever..'

Edited September 5, 2009 by Old-CodJA

[Zamzara]

Have you researched the question at all? Dismissal for failing to declare a spent conviction is automatically an unfair dismissal unless the job is exempt.

 

edit: I suppose techically you're right in that they *can* terminate the employment; it's just that the dismissal will be automatically unfair.

Edited September 5, 2009 by Zamzara

[Old-CodJA]

Have you researched the question at all? Dismissal for failing to declare a spent conviction is automatically an unfair dismissal unless the job is exempt.

 

edit: I suppose techically you're right in that they *can* terminate the employment; it's just that the dismissal will be automatically unfair.

 

Semantics it may be, but it's all about being factually correct. Not me, not SRPO, but all of us.

 

I agree with you, an automatic dismissal for failing to declare would be automatically unfair according to the legislation, but that wasn't the point and perhaps any subsequent tribunal might be asked to consider the question of contributory culpability in respect of negligence.

 

Your earlier quote was that "An employer cannot ask about spent convictions unless it is an exempt job."

 

My point was only that, factually, the question can be asked and of course, the applicant should answer honestly unless he or she wishes to be considered to be dishonest when found out.

 

You will also note that I never said the employee should be dismissed, I said that the employer might 'act accordingly'.

 

That does not automatically mean to dismiss someone.

Edited September 5, 2009 by Old-CodJA

[joeblogs]

Hi David

 

You can get visa entry clearance to the USA online and usually get an immediate answer, simply log onto https://esta.cbp.dhs.gov and enter your details as prompted. I personally dont think you will have a problem getting clearance, evading a train fare is hardly in the same category as the Brinks Matt robbery. Good luck and have a nice holiday. Joe

[SRPO]

Deleted.

Edited September 23, 2009 by SRPO

[VyeKing]

Applying online through the ESTA process and being accepted is absolutely no guarantee you will be let into the USA, with or without, a criminal record. The ultimate decision will lie with the Immigration Officials at the Point of Entry. And remember, to be accepted through the ESTA process you would have to tick no to the question:

 

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

 

As for train fare evasion, I believe it would be classed as Moral Turpitude but would fall under the "petty offense" exception if this is your one and only crime.

 

Criminal Inadmissibility and the "Petty Offense Exception"

INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY=

 

There are broadly 3 school of thoughts surrounding how you claim the petty offence exception.

 

1. You can legitimately tick "No" to the above question and not even mention it to American Customs, unless asked the question "do you have a criminal record?" during the entry interview.

2. You must tick "Yes" and declare it to customs with relevant paperwork.

3. You are not except from the US but cannot travel on the Visa Waiver Program and must apply for a B-2 Visa at the embassy.

 

I'd imagine it all depends how brave you are! For peace of mind, despite the hassle, option 3 would be best. (Also option 2 would deny online authorisation on ESTA anyway, although believe Canadians could use this option at land crossings)

 

Also, to add -I don't think the ESTA authorisation checks against the Police National Computer (in fact I would be amazed if it did), so ultimately an acceptance does not mean they have checked your criminal record and take you to be OK. You still have an obligation to properly disclose to the authorities, or risk the consequences of not doing so.

 

However, backing up slightly, what is worth further investigation, and I admit to being no expert here, is the following part of INA:

 

Under INA §212(a)(6)©(i), an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under the INA is excludable. The determination of materiality is a fact which would make an alien excludable or shut off a line of inquiry which may have resulted in exclusion

 

Following this through:

a) a single case of rail fare evasion being a one and only criminal record does not cause an individual to be inadmissable since there is the petty offence exception.

b) Therefore this is not a material fact.

c) Which seems to suggest that if asked by an Immigration official "Do you have a criminal record?" or similar, even if you said no, you are not making yourself inadmissable, though granted you'd probably have some awkward questions and they might find another reason to refuse you entry.

Edited September 6, 2009 by VyeKing

[Zamzara]

I dont need to research the question, I have terminated someones contract for lying about a spent conviction and it was upheld at the tribunal.

I will reiterate my point again, the conviction is not the problem, being untruthful is.

 

I've no idea what happened in your proceedings but here's the law:

 

Rehabilitation of Offenders Act 1974 (c.53)

 

(2)Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—

(a)the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and

(b)the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.

 

 

Seems pretty clear. Perhaps you got lucky.

[chris.stacey]

Hi,

 

I have been meaning to respond to this thread for some time now.

 

Firstly, in response to the question "does anyone know the best way to find out if I have a criminal record?", to best way is to undertake a Police Subject Access Request (it costs £10) at your local police HQ and you will find out all the information they hold on you. You don't necessarily have to have a criminal conviction to have a criminal record. The PNC record will include "additional information" - there is a link to what is on one at Welcome to unlock.org.uk.

 

On the point of SRPO regarding dismissing someone for having a spent conviction, this can only be done if the position is exempt from the ROA 1974. Otherwise, it would be a breach of statutory duty under the ROA and breach the Police Act 1997. Of course, anybody could try and dismiss somebody, and it would depend on the dismisee challenging this - this is often very rare given that they probably won't want to shout to the rooftops about their criminal conviction.

 

On finding out whether you have any "unspent" convictions which need to be disclosed, the best way to go about this is by applying for a Basic Check through Disclosure Scotland. Although this costs £23, it will provide a certificate with only unspent conviction information on it. The English CRB have been planning, for some time now, to implement this provision in England, but it is yet to happen!

[hm_murdoch]

I don't think train fare evasion gives you a criminal record?

 

Its like having a speeding ticket or a driving conviction and you pay a fine. Or not paying your council tax and goingto the magistrates court.

 

Having no tv licence is a fine and you don't get a record also.

 

I did get a penalty fare ticket once but it was my own fault and paid it. I had worked the days out wrong when the ticket was still valid.

 

I got a copy of my police record for my US Visa and it was clean and im now a green card holder.

 

As for entering the US not paying for a train ticket or tv licence is not classed as a crime in my opinion as you have not been arrested.

[Old-CodJA]

This subject comes up regularly and factually you are wrong to compare fare evasion with not having a TV licence.

 

The only real similarity is that they will both be heard in a Magistrates Court and are both likely to be brought as private prosecutions.

 

You do not have to be arrested to be convicted of a crime.

 

TV Licencing cases always are private or, non-CPS prosecutions and Rail fare evasion cases almost always are. The only change is on the rare occasions that the British Transport Police bring a fare evasion charge and then the CPS may present the case.

 

The fact that these are private prosecutions does not prevent a record of criminal conviction for fare evasion being made. The ultimate penalty that could be applied for conviction in a deliberate railways fare evasion case is a custodial sentence. It is a serious matter.

 

Please do not confuse the issue of a Penalty Fare Notice with a report of an allegation of fare evasion. They are not the same thing. The penalty fare is an option of settlement without further action. It is a civil remedy.

 

If a penalty fare notice remains unpaid and not successfully appealed, the rail company can take action for an allegation of intentional fare evasion arising from the original incident

 

A penalty fare is a tool by which some rail companies are permitted to manage revenue loss through minor transgressions of ticket legislation.

 

Deliberate fare evasion is a criminal act and specific legislation allows for that to be dealt with by the Courts

Edited October 23, 2009 by Old-CodJA

[Davidp77]

Hi

 

Just wanted to give you an update as I sent off my subject access form a few weeks back and have just received a letter stating that the PNC holds no information on me. I thought this might be the case as there was no police involved in my situation.

 

I believed that the courts etc reported things like this so the PNC had a record of convictions etc. Does this mean that perhaps my fine has not lead to a criminal record or do I still need to check elsewhere?

 

Thanks

 

David

[Scaredsheep]

David,

 

I think that the answer lies in whether an offence is recordable or non recordable and it is only recordable offences that are recorded on the PNC.

There are hundreds of non recordable offences - like breach of byelaws - which don't make it on to the PNC as if the police aren't involved and your fingerprints aren't taken there is no way to confirm the identity of the person committing the offence. ( A mere matching of details is insufficient.)

This sort of makes sense, given that many byelaws are strict liability with no dishonesty or bad intention needed.

 

You may want to contact nacro for some advice on whether you have a criminal record. The short answer seems to be "no" but the question you are most likely to be asked is whether you have ever been convicted or cautioned for an offence. Most employers are concerened about offences of dishonesty or those that put others at risk, and are unlikely to be put off if you declare that you were fined for a breach of railway byelaws.

 

The whole thing is very muddled - speak to nacro and let us know how you get on. Happy New Year

[Davidp77]

Hi

 

I have just spoken to Nacro and they said any criminal convictions should have made it on to the PNC so it would suggest that my record is clear?

 

Fingers crossed I won't have any problems in the future because of my mistake. I was concerned for now for visa reasons for a holiday but also for future job opportunities but as said previously hopefully if I do own up to future employers about this conviction they will not consider it to be to serious.

 

Thanks

 

David