First capital connect prosecutions

[AP]

Dear All,

I was recently caught using my girlfriend's season ticket at Potters Bar Station. I went through what they called an MG11. The inspector said that I would probably receive a letter warning me that further action would be taken if I was to commit any further offences.

However, I then received a 'Notice of Intention to Prosecute' letter from First Capital Connect asking for information from my point of view. I explained that I was extremely sorry and didn't realise the seriousness of the offence and used the ticket without thinking of the consequences. Also that I have never been in trouble with anyone before and if this could be resolved before the matter went to court.

Today I received a letter from FCC saying that my comments have been taken into consideration but they will be going forward with this case.

Please could you advise if there is anything I can do to stop this proceeding any further? I have tried ringing the Prosecutions Dept but there is no answer.

What can I expect if the case goes to court?

Thank you very much.

[Wriggler7]

It depends a bit on what charge FCC 'lay'. There are Byelaw offences which are normally punished at what is now called 'Band A' and Regulation of Railways act offences, normally punished as 'Band B'.

 

For the 'defendant', it means potential fines in the region of £175 (band A) and £350 (band B), which are then adjusted to reflect whether an early guilty plea was received or whether 'means' were higher or lower than normal. Long and short of it, until a Court announces sentence, we would be guessing. I was in Court yesterday, and sat through 20 or so 'railway prosecutions'. The fines were between £66 and £350, and the Court awarded full costs on each of £110, plus the 'victim surcharge, £15.00 and compensation equal to the avoided fare.

[Wriggler7]

In the round, it meant that the fines were a lot more than the fines handed down for 'failing to send children to school' a bit more than 'no fishing licence' but a lot less than breaches of food hygiene regulations. I doubt if I will ever fully understand the logic!

 

You could try writing to the prosecutor, include a cheque to the value of the costs claim and the avoided fare, but the choice is 'theirs'. Season tickets are the biggest part of the income for most railways, and I understand that as a result, they tend to prosecute 'to send a message'.

[AP]

Thanks for your prompt reply. Seems very harsh for a first offence even though I admit I am fully in the wrong. Did any of these 20 cases result in a crimonal record? What is a victim surcharge? Thanks again.

[Wriggler7]

Yes and no! All cases heard in open Court where there are no reporting restrictions can be 'discovered', as the public have a 'right to know'. (The 'fail to send children to school cases are subject to reporting restictions to protect the kids) The Regulation of Railways Act offences are 'recordable' on the 'criminal record', but some are not recorded, purely out of administrative difficulty.

 

The 'victim surcharge' is simply £15.00 added to the penalties. It could be (but isn't) described as a tax. It is £15.00 on every proved case, or set of charges. If you are 'up for' three separate cases on one visit to Court, it is 'just' £15.

[Wriggler7]

When a Court sentences for 'fare evasion', they will start to consider a fine according to the 'guidelines' for each band. When a person pleads guilty at the 'first opportunity', the fine is reduced by a third. If there are 'mitigating features' supplied by 'the defence', which in most 'railway' cases is the passenger himself, the fines may be further reduced. If 'the defence' gives good reasons, then the 'costs' of the prosecution may also be reduced.

 

If there are 'aggravating features' to the offence, the fines may go up. This may be that the passenger lied about something, or was unduly rude.

 

If FCC do not allow you to settle this matter, I would recommend pleading guilty, and telling the court a bit about why you did it. Unless of course you did it 'out of spite!' Also, make sure and complets and send in the form MC100 which is called something like 'paying your fines'. It is waht we used to call a 'statement of means'.

[AP]

In your experience, what would be the most likely outcome if I pleaded guilty? I was co-operative with the ticket inspector and did not lie about anything. If I mention that the card was paid for by my girlfriend, and because she was not using it that day, in effect, they have lost nothing, will this help?

[Wriggler7]

I also recommend attending Court if you can, it generally earns 'respect', and can end up with 'cheaper' fines. You might also be able to speak with the prosecutor, and explain face to face why a conviction would be overly damaging to you. He might settle at the last moment. Might, might not.

 

However, one chap who turned up was such a 'likeable' chap that I formed an instant dislike, and so did the 'Bench'. Words like arrogant came to mind. His attendance did not save him anything, he was fined £200.00 and ordered to pay costs of £200.00. He had earlier pleaded not guilty, and changed his plea after 'advice'. (For all the people who ask what a fare dodger looks like, he was what is euphemistically called a 'suit'. Told anyone listening that he is a professional, and that he earns enough that he doesn't need to avoid fares)

[Wriggler7]

No! I don't like the 'lost nothing' argument. Up until then, you were doing fine. 'Co-operative' is good, gave right details is good, embarrassed, extremely sorry for wasting the Court's time, would like to apologise to FCC.

 

You have to understand that prosecutors and Courts have (between them) heard 'it all before', and they dispense 'justice' very rapidly. Courts are there to punish wrongdoers, but the main aim is to make sure 'it doesn't happen again', so they do like to hear that you are not a habitual criminal, that you are 'sorry' and that you promise never to suffer such a lack of judgement again. And they have built in bull**** detectors. Stretching your mitigation beyond beleivability will lead to 'questions', and then 'dis-belief'.

 

People who know me will expect me to say 'consult a solicitor'. After all, solicitors have to pay for their kids to go to Uni too. The 'normal' truth with offences of this nature is that a solicitor will cost you more than any potential saving. If this case does end up in Court, write down the things you want to say. Read them to your girlfriend, ask her if they sound arrogant or over the top, and then write a letter of mitigation to the Court.

 

Magistrates are 'your worship', judges are 'your honour', but as a lay person, you will be fine calling them 'dear sir or madam'.

[AP]

That makes sense! Sounds like a pretty poor defence when you put it like that. You recommend attending court. Does that mean there is an option to attend or not? Apologies for the 1000 questions. This is all new to me. I was hoping that FCC could settle this before court. As you mention, I am extremely sorry and will never repeat this. I could go on about 'sob stories' about finances etc, but I think this would sound corny as I have committed an offence and any 'reasons for doing it' could be looked at as irrelevant. Another corny comment is that I have punished myself over this daily due to my nature. As mentioned before, I would never have done this if I knew what I know now.

[Wriggler7]

This type of offence can be dealt with 'in absence', either as a result of the defendant writing to the Court, indicating 'guilty' or 'not guilty'. If the plea is guilty, the court will hear 'brief facts' from the prosecutor, and then move on to sentence after hearing any written 'mitigation'. If the plea is 'not guilty', it should be accompanied with a reason why the def. claims 'not guilty'. The case will be adjourned to a date when the witnesses are available.

 

If the def. does not respond, the case is normally 'proved in absence'.

 

Defendants have a right to attend, but the potential 'saving' is normally less than a day's pay, so the choice is yours!

[AP]

Thank you very much for your time. I will let you now how it progresses.

[Wriggler7]

We have a private joke amongst the regulars in South Essex. Essex man gets out of his pit in time to go and sign on, then he goes to Court. It means that most of the attenders are people that have nothing better to do than go to Court. For a 'fare dodge' charge, the worst fine is not normally more than the 'lowest fine + what it will cost you to go to Court in terms of loss of pay/parking near the Court and so on, but, it is your right to attend, and it does normally work out 'cheaper'.

 

For people that have not previously been to Court, and don't know anyone that has, it can be an eye-opener. It will show you what your 'neighbours' are like. I am planning to move abroad at the earliest opportunity!

[AP]

Are you serious!?! About the moving abroad bit. I have thought that many times, that if I didn't have my family and friends here, I'd be off like a shot!

 

Thanks again Wriggler7. You've been a real help!

[AP]

Today I have received a date for my magistrates court hearing. I have filled out the form saying I will plead guilty by post. They say if I am found guilty court charges of £110 and £20 will be requested. Is this as well as a fine?

On the mitigation form, do I write similar comments to the letter I wrote to First Capital Connect explaining how sorry I am?

I am assuming by your previous comments, that I can choose whether to attend or not attend court without either affecting the decision.

I have also filled out the form regarding my outgoings and earnings.

[Wriggler7]

The prosecution have indicated that they will apply for costs £110.00 and compensation, £20.00.

 

You may challenge both, firstly on the grounds that the costs are not warranted, but frankly, I doubt if that would get very far, the administration and presentation does take time and, increasingly, 'paper'.

 

Check the fare for the journey made. £20.00 sounds a bit 'convenient'. Go to your nearest station and ask what the cost of the journey specified in the charge is. The compensation claim should not be for more than the actual standard fare.

 

You can also appeal against costs on the grounds of 'means'. If you are (genuinely) poor, of low income, the Court might reduce them. Again, I would be surprised if they did, the 'claim' is petty much in line with this sort of case.

[Wriggler7]

There will also be a fine, which is entirley at the discretion of the Court, anywhere between 'nothing' and £1,000.00, generally nearer £150.00 to £200. This also depends on your income, and whether 'mitigation' is seen as 'reasonable' or whether there are aggravating features to the case. For example, calling the Inspector a jobsworth might feel like 'fun' at the time, but in Court may increase the fine.

 

The Court are likely to want to know why you travelled. To an important event, a medical procedure, an important exam, is seen as 'better' than just going out on the lash with mates, so tell them the purpose of your journey. (Unless it was to attend Court for fare dodging, that would be seen as 'bad)

 

You can do all this by post. Even if you do, you can still attend.

[Wriggler7]

If you attend Court, think about how you want to look. A T shirt saying 'F' the system would be bad, in fact, bad enough to get you locked up for contempt, a smart suit is 'good'. (A horribly expensive suit might be a mistake!) If you go to Court, it is good to arrive early, tell the Usher who you are and why you are there. If possible, it is worth a shot at getting the prosecutor to consider withdrawing the case. He might, he might not. Last time I saw an FCC prosecutor, he was a tall gentleman, very easy to talk to, of course, that was some time ago, things may have changed.

 

(I was in Court this week where one of the prosecutors, for an entirely different type of matter, was a very humourless and dark character. Hole in his chest that he had pulled the wooden stake from so that he could leave the crossroads and get to Court, true to say he was prosecuting one of the nastiest subjects that we sometimes have to sit through, but I wouldn't fancy my chances of getting him to 'settle')

 

In the grand scheme of things, whilst being a 'defendant' is not 'fun', it is not something to be totally scared about. The court staff will point you to where you need to stand/sit, and the Magistrates will listen to you, even if your story is very bizarre.

[AP]

I believe the £110 and £20 are both court costs as one is for the charge of receiving a ticket with intent and the other to do with not paying the fare. I think I will write a letter to the court along with a guilty plea. Fingers crossed and hope for the best. The fare was £6.30 which I did pay afterwards.

[Old-CodJA]

Wriggler has 'covered all bases' so to speak and if I can add one crumb, I also know some of the FCC prosecutors and would say that they are pretty human bunch in my opinion

 

I think it's always worth attending Court early enough to get a chat with the prosecutor if you can. If possible have a hundred and fifty quid cash in your pocket and ask again if you can be allowed to settle by paying him the company's full claim before the matter is put before the Magistrates.

 

If it's true, say that it was a moment of stupidity, finances are tight, but you know it was wrong and immediately you were questioned you co-operated fully because you recognised that you had acted foolishly. Say that you want to pay the full costs claim and the fare there and then if he is able to accept that on behalf of the company.

 

Like Wriggler7, I also suggest that you check that fare too.

[JennyWren21]

Section 130 (8) of the Railways Act 1993 states 'Apart from subsection (7) above (dealing with giving your personal details on request), nothing in this section creates, or authorises, the creation of any offence'.

 

Surely this is a civil matter, rather than a criminal matter? How come the Magistrates Court system is being used as a debt collection agency in this way?

[Old-CodJA]

No. Both 'fare evasion' contrary to Section 5 of the Regulation of Railways Act (1889) and breaches of Railway Byelaws are criminal, not civil matters.

 

They are summary only offences to be heard by a Magistrates Court.

 

This is not a 'debt collection' matter as you put it

 

Section 5.3.C of the Regulation of Railways Act (1889) deals with the matter of any person who does not pay the correct fare and does not show a valid ticket on demand and then fails to give a correct name and address to an 'officer of the railway' (ticket inspector or any employee of the rail company)

 

This is considered the more serious of these allegations and could ultimately result in a term of imprisonment.

[JennyWren21]

This article suggests differently (sorry, can't provide link as I'm new to the site, but it's by Andrew Gilligan & appeared in the Evening Standard on 9 August 2009 entitled '10 Ways to Avoid Penalty Fares on Trains') - penalty fares under the 1993 Act are civil, not criminal. Only the 1889 Act applies a criminal sanction if the Railway company can establish an intent to avoid payment. Most people who get on the train intending to pay at the other end do not intend to avoid payment.

[Old-CodJA]

Yes, the article by Mr Gilligan has been misquoted many times. It was linked to by a user on this site in 2009 and removed by request from Mr Gilligan if I remember rightly

 

I am not saying that you have misquoted anything, but there is a common misunderstanding regarding Penalty Fares. That article was concerned only with Penalty Fare matters.

 

Every traveller, or intending traveller is obliged to pay the fare before travelling in accordance with the strict liability requirements of National Railways Byelaw 18 (2005) where facilities for them to buy a ticket are available. Not wanting to queue, or arriving late at the station are not acceptable reasons for not getting a ticket before boarding a train.

 

If that traveller does not do so, they may be charged with a breach of Byelaw or an attempt to avoid a fare, dependent on the evidence gathered and the report made by rail staff. If the more serious matter of 'intent to avoid payment of a fare' is alleged, this will normally be charged under Section 5.3.a of The Regulation of Railways Act (1889)

 

In certain circumstances, staff who are authorised to do so, may issue a penalty fare notice, BUT it must be noted that Penalty Fare Notices cannot be issued by all rail staff, nor on all trains nor all rail companies.

 

No rail staff are ever obliged to issue such a notice where the member of staff concerned genuinely believes that a fare was in jeopardy and/or more serious action is warranted. Where that is the case a statement giving evidence to support that allegation may be given. In these circumstances a report of an alleged offence may be made out and a summons issued to have the evidence heard & tested by a Magistrates Court

 

On those occasions where a penalty Fare Notice has been issued and not paid, or successfully appealed within 21 days, the rail company may choose to cancel that notice and issue a Summons to proceed with prosecution of the Byelaw Offence. There is specific provision in the legislation to allow for that.

 

If a traveller is on the railway and does not show a valid ticket on demand when ticket facilities were available to him before getting on the train without authority, he may be charged with the strict liability offence of 'Fail to show a ticket' contrary to National Railways Byelaw 18.2 (2005)

 

There is no requirement to prove intent to avoid any fare in these circumstances. The penalty may be a fine of up to £1000 upon conviction. All such matters are heard before a Magistrates Court and thousands of these cases are heard by Courts across the country every year.

 

.

Edited February 18, 2011 by Old-CodJA
corrected grammar

[JennyWren21]

Why then, does S.130 of the main statute, the 1993 Act, state that nothing in the section (on penalties) creates or authorises the creation of any offence? I have looked up the statute & confirmed that this is indeed what it states.