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    • I remember a similar issue with a customer claiming that 'alexia' had ordered something that wasn't ordered and when it should have been off, .. with Amazon quoting evidence that they had that the customer had said a word 'similar' to the activation word - which 'accidentally' activated it .. followed by 'accidental' ordering due to interpreting what was said   I would not ever consider one of these things in my house.
    • is installing an Alexa type device in your home similar to having bug listening devices installed by Police or security services ?   Woman finds recordings collected by Amazon’s Alexa – and you can hear yours WWW.INDEPENDENT.CO.UK Amazon customers can request all their data from the shopping giant, and can automatically delete voice data in the Alexa app  
    • Yes please I think we would like to know all about it. Saying "I didn't foresee any problems so I didn't bother to…" As I say I didn't bother to look when I cross the road because I didn't think I would be run over
    • My WS as I intend to send it... any problems anyone can spot?         In the county court at Middlesbrough Claim No:  Between Vehicle Control Services Limited (Claimant) V   (Defendant) Witness Statement Introduction It is admitted that the Defendant is the registered keeper of XXnn XXX   Locus standi/bye-laws and Relevant land Schedule 4 of the Protection of Freedom Act 2012 (PoFA) allows recovery of unpaid parking charges from the keeper of the vehicle. However, the first paragraph 1 (1) (a) states that it only applies “in respect of parking of the vehicle on relevant land:”. The definition of “relevant land” is given in paragraph 3 (1) where subsection (c) excludes “any land ... on which the parking of a vehicle is subject to statutory control”.  The bus stop is not on relevant land because the public road on which that stand is on is covered by the Road Traffic Act.  Notwithstanding that the claimant claims that " the claimant has given the Defendant its contractual licence to enter the site", the claimant has not given any contractual licence whatsoever. This is a road leading to/from the airport which is covered by the Road Traffic Act.  A list of highways on the Highways act 1980 does not even exist. The defendant brings the attention of the court that VCS is using this non existent document issue as a deliberate strategy to debunk the fact that this road is not relevant land. VCS are put to strict proof that it is relevant land not covered by the Road Traffic Act nor by Byelaws. While it is true that landowners can bring in their own terms, it is also true that whatever terms they bring  cannot overrule Byelaws and the Road Traffic Act. If Bye Laws are involved then the bus stop is not relevant land and neither is the specious argument about First Great Western Ltd. Is the claimant ignorant of the Protection of Freedoms Act 2012? The road outside of Doncaster Sheffield Airport is not relevant land and is not covered by the Protection of Freedoms Act. That makes the charge against the claimant tantamount to fraud or extortion. The claimant mentions a couple occasions where they have won such cases. It is brought to the attention of the court that none of those cited cases were on airport land. VCS actually has also lost a lot more cases than they have won using their prohibitive signs.  Airport land is covered by Bye Laws and hence the claim by VCS is not applicable in this instance. The remit of VCS ends in the car park and does not extend to the bus stops on public roads or land which they have no jurisdiction over. All classes of people go to the airport. This includes travellers, taxis, fuel bowsers, airport staff, companies delivering food and drink for each aircraft, air traffic controllers and buses with passengers. It is therefore absolutely ridiculous to attribute VCS with any sort of permissions. The defendant submits that VCS should not confuse a major thoroughfare with a car park and presume to act as land owners and usurp the control of any land which is not relevant to them.   Protection of Freedoms Act The clearest point on section 4.1 of the Protection of Freedoms act is that “The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.” Therefore, as this case pertains to an airport, the claimant unlawfully obtained the registered keeper’s details against the defendant’s vehicle. Thus, on this basis alone, the defendant implores the court to throw out this case. Notwithstanding the above point, if perchance Schedule 4 of the Protection of Freedoms act 2012 were to apply, the claimant is put to strict proof that they complied with the requirements of section 7 stating, “(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met. The notice must — (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” Without such proof the court must of necessity throw out this case forthwith.   Deceit, Intimidation and Extortion The Claimant’s Particulars of Claim include £50 legal costs, yet in the letter dated  03/06/2021, the Claimant stated that they were no longer represented by Elms Legal and all further correspondence should be sent to the VCS in-house litigation department. Why should the Claimant be asking the Defendant to contribute to their employee’s salary?  Furthermore, as per another letter dated 30th July 2021, the Claimant wrote, ‘Should you fail to accept our offer of settlement then we will proceed to Trial and bring this letter to the Court’s attention upon question of costs in order seek further costs of £220 incurred in having to instruct a local Solicitor to attend the hearing in conjunction with the amount claimed on the Claim Form.’ I find this an extraordinary statement given the Claimant knows legal costs are capped at £50 in Small Claims Court. I cannot think of any reason why the Claimant would write this letter other than to intimidate the opposing party with the threat of an extortionate sum of money, hoping they would be able to take advantage of someone not knowing the Small Claims Court rules. Given that this letter came from the Claimant’s in-house litigation department, clearly well-versed in the law, this cannot be anything but deceitful and disingenuous behaviour which the court should never tolerate.    Contractual costs / debt recovery charge  In addition to the £50 legal costs, the Claimant is seeking recovery of the original £100 parking charge plus an additional £60 which is described as ‘debt collection costs’. In the Vehicle Control Service v Claim Number: 18 on 4th September 2019, District Judge Jones-Evans stated, ‘Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates […] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law. It is hereby declared […] the claim be struck out and declared to be wholly without merit and an abuse of process.’  In Claim number F0DP806M and F0DP201T, Britannia v Crosby went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of White & Wiltshire. District Judge Taylor echoed the earlier General Judgement or Orders of District Judge Grand stating, ‘It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedom Acts 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…’ Vehicle Control Service v Claim Number: 19 51. Moreover, the addition of costs not specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.  It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4).  The Defendant is of the view that the Claimant knew, or should have known, that to claim in excess of £100 for a parking charge on private lands is disallowed under the Civil Procedure Rules, the Beavis Case, the Protection of Freedom Act 2012 and Consumer Rights Act 2015, and that relief from sanctions should be refused.   Alleged contract The court should consider if there is any contract to start with and if the alleged offence is on relevant land. The consideration will inevitably lead the court to conclude that there is no contract.  Also the court should note that there is no valid contract that exists between VCS and Peel. Under the Companies Act, a contract should be signed by the directors of both companies and witnessed by two independent individuals. This alleged contract, which makes no mention of pursuing registered keepers of vehicles to court, makes its first appearance as a Witness Statement. Thus the alleged contract is null and void.  The Beavis case referred to by the claimant is about parking in a car park. The claimant is here attempting to equate that case to stopping, not parking, in a bus stop and on a road that is covered by the Road Traffic Act. The defendant submits that there can be no contract as there is no offer but there is only a prohibition. Again, it is not relevant land and VCS has absolutely no rights over it. Further, the defendant would like to point out that motorists NEVER accept any contract just by entering the land. First they must read it and understand it and then, and only then can they realise that "No stopping" is prohibitive and cannot offer a contract.   Bus stop signage The signs around the bus stop do not mention who issued the “No Stopping” signs so it could not have been issued by VCS since the IPC CoP states that their signs should include the IPC logo and that the creditor should be identified. Nothing on the signs around the bus stop that says “NO Stopping” mentions VCS or Peel Investments who are now purporting to be the land owners of a public road. As the signage should identify the creditor, since it does not, this is a breach of the CoP.   The Traffic Signs Regulations and General Directions 2016 does not prohibit stopping in a restricted bus stop or stand, it prohibits stopping in a clearway. The defendant would like to ask the court to consider if any clause of the Traffic Signs Regulations and General Directions 2016 that the claimant alleges has been violated by the defendant. There is no mention of permits on the signage. If there were, would it mean that Permit holders were allowed to stop on “No Stopping” roads? Notwithstanding what the claimant calls it, the mentioned signage is NOT a contractual clause. A “No stopping” sign is not an offer of parking terms.  Since the signage around the bus stop is prohibitive, it is as such is incapable of forming a contract. Further, the defendant would like to point out that the prohibitive sign is not actually at the bus stop but a few metres before the stand itself. There is no mention of a £100 charge for breaching the “No stopping” request, or if there is one then it is far too small to read, even for a pedestrian. As already stated, a Witness Statement between VCS and Peel Investments is not a valid document. It will need more than the Claimants feather to outweigh the case against the Defendant regardless of who was driving. There is no law of agency involved. This is not a case of employer/employee relationship. VCS cannot transfer the driver's liability to the registered keeper. There can be no comparison between a railway station and an airport. This is a totally fatuous analogy which cannot be applied to this case.  As stated in the defence, it is denied the Claimant is entitled to the recovery or any recovery at all. The nefarious parking charge notice given for a vehicle on a public road bus stop was ill advised to start with.   Conclusions:   VCS has failed to present ANY reasonable and valid cause to apply to the DVLA for the Defendants details. VCS has failed to provide ANY valid  contract with the landowners. “No stopping” is prohibitive therefore cannot form a contract the event happened on a bus stop over which VCS has no jurisdiction the signage either does not show that there was a charge of £100 for stopping, or the font size was too small for any motorist to be able to read it  the signage does not show the Creditor which fails the IPC CoP and hence the signage is not valid the WS contract does not authorise VCS to pursue motorists to Court Given all these factors it seems that VCS have breached the GDPR of the Defendant quite substantially and it would appear right that an exemplary award is made against VCS in the hope that they will drop all further cases at Doncaster airport where they are pursuing motorists on non relevant land. The Defendant wishes to bring to the attention of the court that the Claimant cites an irrelevant case of a car park and tries to apply its merits to a bus stop. That in itself invalidates the entire fallacious claim. Accordingly, this case is totally without merit. Some statements are pretty close to perjury and others are designed to mislead or misdirect. None of the analogies seem appropriate or relevant. All the false information presented as a statement of truth could have been stated using half the words and without all the repetition which appears to be trying to build a strong case where there is none at all. One particularly bad example of misdirection is in the photographs. The Clearway sign shown near the bus stop is very unclear unlike the Clearway sign two photos before it which may well include terms and conditions. The one by the bus stop is totally different.   47. Lastly I wish to bring to the attention of the court, a systematic pattern of the Claimant’s court action behaviour in several of their cases. They tend to have a VCS paralegal writing a Witness Statement, then mentioning in the last paragraph of the Witness Statement that they may be unable to attend court and subsequently the paralegals never turn up to be cross examined. In the event that Mohammed Wali is unable to attend court to be asked about his claims, then I would like to know why he is not able to attend when the hearing has been scheduled months in advance, is during working hours and as a result of covid, is online, meaning there is no travel involved. Ambreen Arshad, the other paralegal employed by VCS, does exactly the same. 
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special needs discussion thread - re fcc fines


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If you have learning difficulties, the authorised collectors had discretion not to charge a penalty fare but instead to charge the full single fare.

 

When the railway companies implement a penalty fare scheme they have to agree to operate according to a set of rules. I haven't (yet) managed to get hold of FCC's rules but they are based closely on the model rules published by the Strategic Rail Authority and available as Appendix D to the Penalty Fares Policy document on the Department for Transport's website (www2.dft.gov.uk\pgr\rail\legislation\pf\penaltyfarespolicyb.pdf).

 

Rule 8.5 of the Model Penalty Fare Scheme Rules states:

 

8.5 Authorised collectors will be given the discretion not to charge a penalty fare, and either

charge the full single fare in line with National Rail Conditions of Carriage or charge any

relevant discounted fare as appropriate under the circumstances. The instructions will set out

clear guidelines for using this discretion, which will be used towards:

...

• 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;

...

Get someone at your college to write to FCC explaining that you have learning difficulties, ask for the guidelines which have been issued to staff as to how they are meant to deal with people with learning difficulties and ask them to reconsider your case in the light of your learning difficulties.

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This is veering into personal waters ABC12, but before you start admitting guilt in writing (grovelling letters to FCC etc) consider this:

 

Severe dyslexia is covered under the law.

 

The DDA defines a disabled person as someone with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Dyslexia does not always affect a person's ability to carry out normal day to day activities. Dyslexic people can often reduce the effect of their disability if they are able to do things their way. However, if they cannot do this for any reason the effects can be disabling. When the Bill was being debated in parliament, the government made it clear that they thought severe dyslexia was covered under this law.

"In some cases, people have 'coping strategies' which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person's ability to manage the effects of the impairment will break down so that these effects will sometimes occur, this possibility must be taken into account when assessing the effects of the impairment. "

[Paragraph A8, Guidance to the Definitions of Disability]

 

Link: http://www.beingdyslexic.co.uk/pages/information/dyslexic-adults/dyslexia-in-the-workplace/the-disability-discrimination-act.php

 

Now, 'disability' is a legal term in this context. I'm not suggesting you are or that you see yourself like that; but from FCC's point of view, they would not enjoy the media getting hold of a story like that would they...?

 

Hope you see the point I'm making, and with all due respect!

Good luck with it!

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Rule 8.10 of the Model Penalty Fare Scheme Rules states:

8.10 We reserve the right to prosecute passengers if we think they intended to avoid paying their fare. In these circumstances, we will not charge them a penalty fare or, if they have already been charged a penalty fare, we will refund it.

This is the only reference to prosecution in the Model Rules. It suggests to me that when there is no intent to avoid payment they should not be prosecuting. Unfortunately FCC seem to prosecute first and ask questions later (see other threads such as summons-for-fare-evasion-when-there-was-no-possibility-of-buying-a-ticket).

 

I repeat my suggestion to get someone at your college to write to FCC explaining that you have learning difficulties, ask for the guidelines which have been issued to staff as to how they are meant to deal with people with learning difficulties and ask them to reconsider your case in the light of your learning difficulties. It may not succeed, but it certainly won't harm your case.

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With respect, what you are concentrating on is the suggestion that 'intent to avoid a fare' must be a pre-requisite of the right to prosecute. This is not the case.

 

The National Railway Byelaws (2005), which apply to ALL national rail operators make clear the right to bring a prosecution where evidence supports the case. Intent is not a consideration

 

Penalty Fares do not apply to all operators and even where they do, there is never any obligation on staff to accept a penalty or issue a notice if they can show evidence of an offence. I worked with the introduction of Penalty Fares from 1989 and it was never inteded to replace prosecution of offenders.

 

To quote from the training literature of the time:

 

'On routes where a Train Operating Company is permitted to operate a Penalty Fares scheme, this can be a useful tool in helping to control ticketless travel, but should only be regarded as a part of a total revenue control strategy. It should not be used by staff as a 'cop-out' whereby reporting offences might be avoided.'

 

To return to the OP for a moment, no Penalty Notice has been issued and neither was it an obligation of the company to do so. I don't believe that it is always right to prosecute, but I do believe it is always right to argue the relevant case.

 

.

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Before 1989 you could get on a train without a ticket, seek out the guard and buy your ticket from him. If a ticket collector came along and you didn't have a ticket, you could buy one from him. The full range of tickets and discounts were available. It was a prosecutable offence if you sought to avoid buying a ticket but there was no requirement to buy a ticket before joining the train.

 

In 1989 penalty fares were introduced. Where a service was subject to penalty fares (which had to be approved by a statutory instrument), you were subject to a penalty fare if you joined the train without a ticket and without good cause (e.g. the facilities for buying a ticket weren't working). However, I believe that it remained the case that you could be prosecuted only if you had intent to avoid payment.

 

I think (but am not certain) that it was the railway byelaws which were introduced under the 1993 Railways Act which for the first time introduced "strict liability" to travelling on a train without a ticket, and only where penalty fares operated. This meant that, on a penalty fare train, the railway company had the option to prosecute you if you did not have a valid ticket even if you had no intent to avoid payment. But having the right to prosecute does not mean that the railway companies can prosecute willy-nilly or arbitrarily. The courts have rules about due process and railway companies have, historically, rightly been chary of bringing prosecutions where there is no intent.

 

The current penalty fare schemes operate under the The Railways (Penalty Fares) Regulations 1994 while the railway byelaws are made under section 130 of the Railways Act 1993 (as amended by the Transport Act 2000). In order to operate a penalty fare scheme, a railway company must submit its details to, and obtain approval from, the Department for Transport (formerly the Strategic Rail Authority). The details of a penalty fare scheme are set out in its rules, which constitute a legal document. A model set of rules is available on theDepartment of Transport website as Appendix D to the Strategic Rail Authority document "Penalty Fares Policy 2002". Unfortunately it seems to be very difficult to get hold of the actual rules of individual penalty fare schemes so the discussion below is based on the model rules. I understand that in practice the actual rules tend just to "fill in the blanks" in the model rules but otherwise adopt them unchanged.

 

There is one (and only one) reference to prosecution in the model rules. It is rule 8.10:

8.10 We reserve the right to prosecute passengers if we think they intended to avoid paying their fare. In these circumstances, we will not charge them a penalty fare or, if they have already been charged a penalty fare, we will refund it.

This suggests to me that, in return for the right to operate penalty fares, railway companies are in effect surrendering their right to prosecute passengers whom the railway company do not think intended to avoid paying their fares. Whether my interpretation is correct would have to be decided ultimately by the courts (by which I mean the High Court, not a magistrates court, where prosecutions are heard). There are also, of course, other circumstances which may lead to prosecution, such as failure to give your correct name and address when asked. But I consider that a railway company is on legally shaky ground in seeking to prosecute a passenger on a penalty fare train who did not have intent to avoid payment.

 

There are other issues of public policy in relation to prosecutions. Railway companies bring private prosecutions but the courts exist as public bodies to uphold the law. The Crown Prosecution Service, which handles public prosecutions, has a two-stage process in deciding whether to prosecute:

(i) the evidential stage, i.e. whether there is sufficient evidence which will stand up in court;

(ii) the public interest stage, i.e. whether it is in the public interest to prosecute.

The code says this about the public interest:

4.10 In 1951, Sir Hartley Shawcross, who was then Attorney General, made the 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”. He added that there should be a prosecution: “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest

...

Some common public interest factors tending against prosecution

4.17 A prosecution is less likely to be required if:

...

d) the offence was committed as a result of a genuine mistake or misunderstanding;

...

j) the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated.

I am not saying that private prosecutions have to pass the same public interest test as public prosecutions. But the courts exist as public bodies to administer justice and will have regard to the public interest as well as to the private interest of the railway companies.

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Before 1989 you could get on a train without a ticket, seek out the guard and buy your ticket from him. If a ticket collector came along and you didn't have a ticket, you could buy one from him. The full range of tickets and discounts were available. It was a prosecutable offence if you sought to avoid buying a ticket but there was no requirement to buy a ticket before joining the train.

 

In 1989 penalty fares were introduced. Where a service was subject to penalty fares (which had to be approved by a statutory instrument), you were subject to a penalty fare if you joined the train without a ticket and without good cause (e.g. the facilities for buying a ticket weren't working). However, I believe that it remained the case that you could be prosecuted only if you had intent to avoid payment.

 

I think (but am not certain) that it was the railway byelaws which were introduced under the 1993 Railways Act which for the first time introduced "strict liability" to travelling on a train without a ticket, and only where penalty fares operated. This meant that, on a penalty fare train, the railway company had the option to prosecute you if you did not have a valid ticket even if you had no intent to avoid payment. But having the right to prosecute does not mean that the railway companies can prosecute willy-nilly or arbitrarily. The courts have rules about due process and railway companies have, historically, rightly been chary of bringing prosecutions where there is no intent.

 

QUOTE]

 

 

That last part is completely wrong. Many thousands of cases of 'Fail to show a ticket', or 'Fail to pay the fare before travelling' strict liability breaches are prosecuted every year and all where there is no penalty fare scheme. (Byelaw 18.1 & 18.2)

 

Railway Byelaws were first authorised under the Regulation of Railways Act 1840.

 

This allowed Railway Companies to set out strict rules governing the behaviour and conduct of people (including staff) on their trains and on their property.

 

It gave the railway companies the right to impose specific penalties for breaches of these Byelaws. (Strict liability)

 

In 1840 each of the separate Railway Company's Byelaws were authorised by the then Board of Trade and later, with nationalisation of the railways in 1949 The British Transport Commission became involved.

 

The later Regulation of Railways Act (1889) introduced a Criminal offence to deal with those people who deliberately travel, or attempt to travel without paying the fare.

 

The Penalty Fares Act 1989 was introduced as stand-alone legislation, but has been amended several times and now the Penalty Fares rules form a part of the Transport Act. The Railways (Penalty Fares) Regulations were made under section 130 of the Railways Act 1993 and amended by the Transport Act. A Penalty Fare is a civil remedy and that is why there is no fine indicated for breach of Byelaw 17. The remedy is either a penalty fare and the fare due, OR a prosecution for an offence under Section 5 of The Regulation of Railways Act (1889).

 

IF a penalty fare notice has been issued, but not paid or successfully appealed within 21 days, the rail operator can, if they wish, cancel the penalty notice and advise the traveller that they have done so and then proceed to prosecution of the S.5 charge.

 

All of that is irrelevant in the OPs case as NO PENALTY NOTICE WAS ISSUED.

 

I don’t propose to post on this thread any more.

Edited by Old-CodJA
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The issue is not whether strict liability breaches are prosecuted. Of course they are. It is whether they are prosecuted where there was no intent to avoid payment. The use of strict liability makes it straightforward to secure a conviction. The railway companies have to decide whether or not to bring a prosecution when a breach has occurred. I hope that my statement

 

The courts have rules about due process and railway companies have, historically, rightly been chary of bringing prosecutions where there is no intent.

 

is correct. The courts do not exist to support private vengeance. They exist to uphold the public interest. The CPS code sets out the public interest tests in deciding whether or not to bring a prosecution. If the railway companies do not apply those tests (or something very close to them), they are likely to receive their come-uppance from the courts: "Be you ever so high, the law is above you" (Lord Denning, misquoting Thomas Fuller).

 

Where railway companies have obtained permission to operate penalty fare schemes, I believe that by seeking and obtaining that permission they have surrendered their right to prosecute for a strict-liability breaches except where there has been intent to avoid payment.

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Where railway companies have obtained permission to operate penalty fare schemes, I believe that by seeking and obtaining that permission they have surrendered their right to prosecute for a strict-liability breaches except where there has been intent to avoid payment.

 

Well, I wasn't going to comment again, BUT you've forced this one:

 

Exactly how does your belief differ from my specific quote in the previous post and repeated here ???????????

 

A Penalty Fare is a civil remedy and that is why there is no fine indicated for breach of Byelaw 17. The remedy is either a penalty fare and the fare due, OR a prosecution for an offence under Section 5 of The Regulation of Railways Act (1889).

 

FIN.

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:???:. I hope the poor OP is following this, because I'm not sure I am.

 

Enchiridion, maybe you should have your own debating thread where people can choose to come and discuss this with you.

 

ABC, I hope you're OK and know where you're going next with all this.

 

My best, HB

Illegitimi non carborundum

 

 

 

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Enchiridion, what do you think about Fixed Penalty Notices? they were introduced for the same reason Penalty Fare Notices were. To alleviate pressure on the courts.

Following your reasoning, police forces would not be able to prosecute FPN qualifying offences unless there were aggravating circumstances.

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ABC, I hope you're OK and know where you're going next with all this.

My best, HB

 

UNFORTUNATELY the poor s*d, having asked innocently, politely, respectfully, and urgently for advice, has probably seen his request get trolled into the ground and given up on us. I hope not; but I reckon that if in his shoes, I'd be thinking "If I wanted Penalty Fare Regulations quoted to me, I would've got myself a f*cking Penalty Fare!!!"

And if that is the case, then we've* let him down; but also CAG.

 

*we = one particular poster who seems not to understand that by his / her reasoning, if the Police gave you a parking ticket, and you then wheel-spin off at 90 mph, you won't get nicked for speeding! FFS....

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To answer Old-CodJA, "strict liability" has a specific meaning in law. It means that one is liable regardless of whether one has mens rea, i.e. guilty mind or, in this case, intent to avoid payment. Thus speeding offences are "strict liability": you can't defend yourself by saying that you didn't realise how fast you were going. Similarly, on the railways if you travel without a valid ticket you cannot defend yourself by saying "But I intended to buy one on the train".

 

What I have been saying is that, while the railway companies can certainly charge you a penalty fare when you made a genuine mistake, I think that they are on legally shaky ground in prosecuting you if they do not think that you intended to avoid payment. Unfortunately this doesn't stop them from having a go.

 

As some of the other posts on this thread have shown, railway prosecutors may themselves not understand how the various bits of legislation interact and appear to be woefully ignorant of the wider principles of English law. That doesn't help you, ABC12, to whom I apologise for the complexity of some of my posts. I hope that someone at your college will be able to help you through it.

 

For now I have some recommendations for ABC12 apart from getting someone at your college to write to FCC about your learning difficulties:

 

1. Talk to your MP about it.

 

2. Think very carefully as to whether you showed your ticket to someone before you joined the train. If you did, you may have a defence under Byelaw 18(3)(iii) that "an authorised person gave him permission to travel without a valid ticket.".

 

Good luck.

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Enchiridion, you have simply got around to advising exactly what I and others have said from the start and put an enormous amount of superfluous reading in the way to get there.

 

Look back and you will see that my first post was to say this:

 

Nonetheless, there are reasonable tests that should be considered in respect of the company Prosecution Policy. Grotesque's suggestion is a valid example.

 

Grotesque had suggested that the OP might look at the following and I agreed with him/her:

 

Severe dyslexia is covered under the law.

 

The DDA defines a disabled person as someone with "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Dyslexia does not always affect a person's ability to carry out normal day to day activities. Dyslexic people can often reduce the effect of their disability if they are able to do things their way. However, if they cannot do this for any reason the effects can be disabling. When the Bill was being debated in parliament, the government made it clear that they thought severe dyslexia was covered under this law.

"In some cases, people have 'coping strategies' which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person's ability to manage the effects of the impairment will break down so that these effects will sometimes occur, this possibility must be taken into account when assessing the effects of the impairment. "

[Paragraph A8, Guidance to the Definitions of Disability] Link: http://www.beingdyslexic.co.uk/pages...nation-act.php

 

Now, 'disability' is a legal term in this context. I'm not suggesting you are or that you see yourself like that; but from FCC's point of view, they would not enjoy the media getting hold of a story like that would they...?

 

 

How ever you dress it up, penalty fare legislation is irrelevant in this case.

 

The traveller has been told s/he is to be prosecuted, we have said that from reading the OP, we believe there is a defence.

 

By the way, a changed Mens Rea can exist at any time in respect of intent to commit an offence.

 

One might set out with no intention to avoid a fare, but an opportunity not to pay presents itself and the offence may then be commissioned.

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The problem with this case, and I apologise to ABC12 because the point is a subtle one, is that the real issues are not about whether the defendant is guilty as charged but whether the court should be considering this case at all, i.e. whether it should dismiss the case as an abuse of the legal process. That is why I have raised the issues about whether FCC have the right to prosecute where they do not think that the defendant intended to avoid payment. My belief that in this case they do not have that right. That belief is strengthened because FCC have chosen to adopt penalty fares on the train service. By adopting a penalty fares scheme they have bound themselves by the rules of that scheme. As I have explained, rule 8.10 of the model scheme appears to me to amount to a surrender by FCC of its right to prosecute where they do not think that there has been intent to avoid payment.

 

As this is a criminal case, FCC will have to prove beyond reasonable doubt that the offence occurred. As it is a complete defence if an authorised person gave the passenger permission to travel without a valid ticket, FCC must prove that the passenger was not given permission. So, ABC12, if you think that you might have showed your ticket to someone before joining the train, you can ask FCC to prove that you didn't. As they will have retained your ticket as evidence, they should be able to find out from their computer system whether you went through an automated gate to get onto the platform at the start of your journey. If you did, you can't use the defence of 18(3)(iii). If they can't prove that you used an automated gate, I don't see that they can reach the standard of evidence required to convict you.

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Hello again Enchiridion and ABC, who has probably gone off to do who knows what, I hope it's not dangerous. I hope you're OK, our OP.

 

Ench, if I might be so bold, because your username is not easy to remember. Given that you said you're not a lawyer, what would you recommend that ABC should do please?

 

Failing that, I would repeat my suggestion that you start your own thread for discussing matters that us lesser mortals find hard to follow.

 

My best to all, HB

Illegitimi non carborundum

 

 

 

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i have been given a letter that Frist captial connect are going to carring on my case i have rung them up to inform them that due to my learning difficulitys i misread the ticket of a machine a purcase the wrong ticket a off peak day return i brought insead of a off peak return and the inspector was ok with me paying the price diffence of £3 but i had no money on me t the time the women on the phone said i can provide a letter to prove my diffculitys witch i did from the dislyexic co-corditor at my college and wrote posted a copy of the letter and the details of what happen is it lucky that they will dismiss this case or carrying on with the case?

 

Enchiridion, I think that some of us might agree with parts of what you say if you were not reading into this, things that were never said by ABC12 in the original post or for that matter, at any time since.

 

Where in the above does ABC12 say that s/he was given authority to board without a valid ticket?

 

Where in the above does ABC12 say that s/he had the means to pay the fare due at the time of travel?

 

S/he does not say any of this.

 

The post above appears to say that ABC12 admits that s/he obtained a ticket from a self-service machine, which s/he claims to have misread.

 

When challenged to show a valid ticket ABC12 could not do so, having purchased a ticket that was not valid for the journey being made. You will recall the 1881 ruling (Gillingham) that determined to be accepted as valid for any specific journey any ticket shown must be valid for all of the following: the day, date, place, class of accomodation and time of train being used to make that journey.

 

So, ABC12 did not have a valid ticket, but was asked to pay the excess fare to make his/her ticket valid. ABC12 could not pay the difference because s/he did not have the means to do so. This is contrary to S.5 of The Regulation of Railways Act (1889) and raises doubt about the claim that the machine had been misread. If it were misread, why could the traveller not pay the correct fare due on demand??

 

The relevant section says the traveller must show a valid ticket, or pay the fare due if asked to do so and the foregoing illustrates that ABC12 had set off on the journey, intending to travel, but with neither a valid ticket, or the means to pay the fare due.

 

Given that this is the OPs own explanation, it seems clear that FCC are able to bring the prosecution as indicated. Ignorance of a rule is not a defence and it has also been ruled that 'the fare is due at the time of travel and not later' ( Bremme v Dubery 1964.)

 

My point, and that of others is simply that, if ABC12 has since then evidenced dyslexia & learning difficulties to FCC, I am surprised that they are continuing and have not given an opportunity to resolve the case by administration.

Edited by Old-CodJA
improved grammar
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The thing which puzzles me about this case is that they are prosecuting ABC12 when he says that he bought an off-peak day return instead of an off-peak return. The restrictions on different types of tickets are recognised as being confusing, so paragraph 7.6 of the Penalty Fare Rules 2002 stipulates:

 

7.6 An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.

In other words, they can't charge you a penalty fare if you've got a ticket which is sort-of right but actually wrong. It seems to me preposterous that when the legislation tells FCC that this is such a minor infraction that they can't issue a penalty fare, they can then decide instead to start a prosecution.

 

ABC12, what exactly happened with the Inspector? You say that he asked you for £3. This seems to me to be the correct thing to do, assuming that that was the difference between the cost of an off-peak day return and an off-peak return. You didn't have the money to pay. What happened next? Did he ask for your name and address or tell you to pay £3 at the station later? Did he say "OK" or anything like that? If he did, you have a defence under National Railway Byelaw 18(3)(iii). This says:

 

(3) 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.

The Inspector is an authorised person. He recognised that your ticket was not valid. If he said "OK" or "Carry on" or anything like that to you, he was giving you permission to travel without a valid ticket. That means that you are not guilty of anything. Write to FCC and tell them what happened with the Inspector.

 

If they don't agree to drop the case, make an appointment to see your MP.

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So, ABC12 did not have a valid ticket, but was asked to pay the excess fare to make his/her ticket valid. ABC12 could not pay the difference because s/he did not have the means to do so. This is contrary to S.5 of The Regulation of Railways Act (1889) and raises doubt about the claim that the machine had been misread. If it were misread, why could the traveller not pay the correct fare due on demand??

 

If you read the original post, you will see he bought a day return which was invalid: it should have been an (open) return. Thus, until/unless we get further information from ABC12, it is reasonable to assume he was stopped on his return journey which was on a later day than the day he bought his ticket and made his outward journey. So it seems quite plausible that even if he did have plenty of cash when he bought the ticket, he may have spent money between then and his return.

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Yes, that is a plausible assumption, which I can accept, but it isn't clear and can only really be answered by ABC12.

 

I do think this continuation a bit harsh, but not for the reasons being put forward and unless and until ABC12 tells us more, we only know one side of the story as always..

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The restrictions on different types of tickets are recognised as being confusing, so paragraph 7.6 of the Penalty Fare Rules 2002 stipulates:

 

7.6 An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.

In other words, they can't charge you a penalty fare if you've got a ticket which is sort-of right but actually wrong.

Published restriction = time (Peak/Off Peak) or route/TOC restriction. An out of date ticket is out of date. Perhaps you've confused yourself on this matter.

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FCC have complex restrictions on trains leaving London. You can leave London before 16:30 on an off-peak day return. You can leave between 16:30 and 17:30 on an off-peak return (as well as before 16:30). I inferred (wrongly) that ABC12 had left London between 16:30 and 17:30 on the day that he had travelled to London and had therefore required an off-peak return rather than an off-peak day return.

 

I am still interested in how he got onto the platforms when he joined the train for his return journey (and indeed what happens generally at London stations served by FCC). If he went through an automated ticket barrier, why didn't it reject his ticket as invalid? If he showed his ticket at a manned barrier, I believe that when the man let him through the barrier, that man was an authorised person who was granting permission to ABC12 to travel without a valid ticket. So a prosecution under Byelaw 18(1) or 18(2) has a complete defence under 18(3)(iii).

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If he showed his ticket at a manned barrier, I believe that when the man let him through the barrier, that man was an authorised person who was granting permission to ABC12 to travel without a valid ticket. So a prosecution under Byelaw 18(1) or 18(2) has a complete defence under 18(3)(iii).

 

Clutching at straws.

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All of this is guesswork. ABC12 has not come back to clarify and until s/he does there is little point in further guesswork

 

There are a multitude of possibilities

 

Just as one example, what about if the barriers were open as is quite often the case to comply with health & safety requirement when service disruption results in overcrowding on platforms????

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