Desperate for LU advice please; old_codja and undergroud esp pls

[unlucky_1]

Hi there, am brand new to the forum,

after a desperate attempt to rectify a big mistake that happened few weeks ago.

 

I was entering the underground when I got stopped by a plain clothed revenue inspector.

I did not realise this and carried on walking assuming it was just a passing stranger.

 

He then asked to look at my pass and to my disbelief I had used the wrong pass and had my aunt's freedom pass which I had tapped by accident.

I assumed the inspector would have fined me or just taken away the pass but instead started writing notes in his book.

 

I was fully compliant and co-operated as I thought this could be solved on the spot.

 

I am extremely anxious and worried as to what will happen now.

 

I would like to resolve this out of court as it would be detrimental to my future and my job.

 

I also have mitigating circumstances that I have had a lot of stress and pressure from my job which is what had led me to not be extra careful and not thinking straight.

[dx100uk]

as long as it was a genuine mistake

then just await the letter

 

and reply with a pleading letter offering all costs

there are plenty of threads here with such text.

 

dx

[unlucky_1]

hi there

thank you for the reply, the only thing is the inspector took a history of the freedom pass and i had a oyster card with sufficient funds on it too. in the morning i think i had used the same card too as they were both in the same wallets and didn't realise until the inspector asked me and looked on the print out. Will i just get a letter re the mistake i made that time or for the morning incident too? how far back do they start investigations? I am really worried as I have never done anything wrong before, never even had a detention when I was school so this situation is really scary and daunting. Also which "offence" is likely to be written in the letter?

Many thanks

[Old-CodJA]

They will almost certainly write to you regarding the misuse of your aunts' Freedom Pass for the journey on which you were spoken to.

 

they can immediately look back at the most recent 8 weeks history of use and if it shows a pattern of the same journey at around the same time of day, could ask questions about that too

 

I would wait until you get a letter from TfL and then come back and let us know what they allege. Maybe we can give more meaningful suggestions then

[unlucky_1]

Hi there, thank you for the response.

I am really in despair. If possible is there anyway of knowing what the worst case scenario could be. I understand that it's taken more seriously when a freedom pass is used as it is funded by the council. I had no intention of fare evasion as my oyster had sufficient funds on it. I have read on other threads that only the journey that they pulled someone up on is what they can prosecute you for?

I understand I should wait for the letter but I feel my life is on hold until then, what should I be doing in the meantime that could help to rectify the problem please

[honeybee13]

Hello again. I'm sorry, you can't do anything until the letter arrives. If you contact TfL, they won't be able to find your file or papers because you won't be able to give them a reference. It will be on the letter when they write.

 

I don't know which journeys they will take into account, hopefully the guys will. Did you use the Freedom pass more than once?

 

My best, HB

[unlucky_1]

Hello,

What type of offence is it to use a freedom pass?

Also what time frame do they usually give you to respond with your side of the story, I will be away from home for around 6 days and worried the letter may come then and miss the chance to respond.

Reason I ask about if they investigate was because he took the history of the card and was wondering why this was the case, that's all.

Many thanks

[honeybee13]

Hello again. I don't know enough to advise you very much about the type of offence, but maybe the guys will turn up here later.

 

May I suggest you have a read around the forum and on google about misuse of a Freedom pass? I had a look earlier and there are a few to look at.

 

It's taken seriously because it's funded by the taxpayer and is intended for vulnerable people. Speaking as a lay person, which magistrates are if you end up seeing them in court, I don't understand why anyone could have a relative's pass on their person unless they planned to use it.

 

I think you will have more than 6 days to reply.

 

Have you told your aunt that her card has been confiscated, assuming it was?

 

My best, HB

[Old-CodJA]

The misuse of a Freedom Pass by someone who is not entitled to use it is normally charged as 'intent to avoid a fare' contrary to Section 5.3.a of The Regulation of Railways Act (1889)

 

The usual case precedent referred to is the judgement in the matter of Browning & Floyd (1946)

 

Where a traveller uses someone else's pass to travel, it was ruled that; although the railway company may not have lost any money, the actual traveller has not paid and has avoided paying his (or her) fare and is therefore considered guilty of the offence of fare evasion.

 

The rail companies generally consider this a particularly serious issue as the Freedom Passes are publicly funded

 

I am afraid that my gut feeling is that you would be very fortunate if you are able to avoid prosecution.

[unlucky_1]

Thanks for that, so what is the worst that could happen to me? I feel so low and stressed out even more so now this has happened but also was and am having a lot of pressure with work what with jobs being so demanding I have not been in the correct frame of mind for few months now.

[honeybee13]

Thanks for that, so what is the worst that could happen to me? I feel so low and stressed out even more so now this has happened but also was and am having a lot of pressure with work what with jobs being so demanding I have not been in the correct frame of mind for few months now.

 

Hello again. Have a look via google. I typed in 'misuse of Freedom pass' and found cases this afternoon that had fines of £170 plus costs, up to £500 or more. But every case is different and people here can't guess. I don't think prison will happen, but you have done something not very clever.

 

I'm sure the guys will comment for you. I see OC is hovering.

 

My best, HB

[Old-CodJA]

HB is spot-on of course.

 

The most likely result, if you are not fortunate enough to avoid prosecution, is that you will be fined by the Magistrates.

 

If this goes forward to prosecution, entering a 'guilty' plea and putting a sincere apology in person is likely to attract the greatest credit, thereby reducing the financial penalty the court will impose.

 

You are not facing a prison sentence for a first offence.

 

Before you get to that point though, wait until you get the letter from TfL, then write with a sincere apology and give your truthful explanation. See what response you get.

[unlucky_1]

Hi there,

I completely agree I have been very stupid but this has been due to very stressful period of time in my life where I feel the lowest I've ever felt. I want to do all I can to put things right.

Hopefully more advice on it's way. I really appreciate all of this.

Thanks

[unlucky_1]

Also with the nature of the offence if it went to court would I have a criminal conviction, would this ever be wiped off/spent? Is there any hope of conditional discharge ?

[Old-CodJA]

Yes, it would be a conviction in a criminal court, though the record is spent fairly quickly. It isn't a generally life changing event

 

A conditional discharge is a possibility, much depends on what happens at the Court on the day.

[unlucky_1]

It's seems quite ambiguous in terms of an outcome I understand each case is judged on it's on merit, but would you say a conditional discharge is as likely a percentage as being able to settle out of court?

[sta210]

The misuse of a Freedom Pass by someone who is not entitled to use it is normally charged as 'intent to avoid a fare' contrary to Section 5.3.a of The Regulation of Railways Act (1889)

 

I had no intention of fare evasion as my oyster had sufficient funds on it.

 

Hi unlucky_1,

 

You said earlier that this issue arose because you had swiped the wrong card by mistake, that you had no intention of fare evasion and that your own oyster had enough money on it for your journey. I assume this is what you told the inspector when you were stopped and realised your mistake, and I presume you also showed them your own card with the funds on it?

 

If so, it is difficult to see how the rail company could support the charge, the important part from Old Codja's post about the offence being INTENT to avoid a fare (rather than mistakenly avoiding a fare)? Surely they would need to be able to prove that you knew you were using the wrong card? In the circumstances you describe, if the two cards were in the same type of holder etc, such a mistake could be possible, and it sounds like this would be very difficult for them to prove 'beyond all reasonable doubt'?

 

You say it was a few weeks ago already - have you heard anything yet or attempted to contact them? Reading other posts it seems it can take weeks or even months to hear. Unless with some cases maybe the first you hear is directly from a court if they have decided just to go ahead, I'm not sure...

 

I don't know what the worse case scenario would be in terms of time scale, or if there is a cut off point for them to follow up, maybe some of the posters on here can give some idea when the latest you might hear could be.

 

sta

[Old-CodJA]

In fact, the rail company have up to 6 months to put a charge before a Court

 

In practice the traveller will normally receive what is known as a verification letter within about 4 weeks (at busy times this can be six weeks or even a little more)

 

Yes, so far as the charge that I have outlined is concerned the rail company do have to prove intent to avoid a fare, but dependent on where the journey started, could also opt to go for a strict liability breach of Byelaw charge too. The OP did not show a valid ticket. To be accepted for travel, any ticket tendered must be valid for the travellers' use. Someone else's Freedom Pass does not fulfil that criteria and a PAYG Oyster that has not been touched-in is no more a valid travel ticket than a five-pound note.

 

To quote the OP, s/he has consistently asked for information on 'what the worst case scenario could be'

 

In answer to that I have referred to the OPs' admission that s/he used the same pass belonging to his/her aunt earlier in the day and has also expressed concern at how far back the rail company might view history of the use of that Freedom Pass.

 

I simply suggest that neither of these issues should give any real concern if it was a genuine 'one-off mistake'.

Edited October 29, 2011 by Old-CodJA

[unlucky_1]

Good morning

I really do hope they acknowledge it was a one off mistake, I can't eat or sleep properly. I feel like my whole life is on hold until I receive the letter and then fear that my life will be over afterwards regarding travelling and job situation all over absent minded mistake. I would have never dreamt that this could have happened.

You say six weeks for the letter to arrive Iam worried that on the 6 th week maybe the week I will not be at home for 8 days. Will I still get a chance to put my views across and try to settle out of court?

[MrGates]

Sorry but you were in possession of another persons freedom pass, do they no you had the pass, and are they aware of this issue? If has been used more than once then you could be in a sticky situation.

[Old-CodJA]

unlucky_1, you really need to get some perspective in this,

 

Serious though it is in terms of rail fares, it is definitely not a life threatening issue.

 

The worst possible scenario for a first time offender, and then only if it goes to Court and results in a conviction, is that you will face a fine.

 

Yes, there may be a record that needs to be declared, but this is normally only a problem in the rare cases, such as if you are employed in a professional capacity that requires an entirely unblemished character, for example; a lawyer or similar.

 

I honestly believe that the best suggestion that anyone can make is, stop panicking and wait for the letter

[unlucky_1]

Thanks old_codja

In the meantime I will read all the other threads of people's situation too as the advice given on this forum is so important and valuable.

As soon as I receive the letter, which may be soon, I will write it on this thread, am hoping that you and the rest of the experienced guys wil stilll be around when I do :s

Many thanks,

[sta210]

In fact, the rail company have up to 6 months to put a charge before a Court

 

Yes, so far as the charge that I have outlined is concerned the rail company do have to prove intent to avoid a fare, but dependent on where the journey started, could also opt to go for a strict liability breach of Byelaw charge too.

 

Old Codja,

 

In the case of a mistake then, are you saying that they wouldn't be able to use the intent charge if the OP had shown it was a mistake and maintained their position when questioned, because they couldn't prove intent?

 

You say there is an alternative of a strict liability byelaw charge, but that this is only available in certain places? What kind of stations does this apply to? The OP was on the tube by the sound of it - would this apply at a 'bog standard' tube station with no national rail interchange, eg. Piccadilly Circus or Marble Arch?

 

Are there any other options in terms of offences/charges which the rail company (or the council who issued the pass?) could use in the OP's situation?

 

Are both of the offences you have mentioned considered the same in terms of (a) penalty and (b) implications for criminal record etc?

 

I saw an article a while back which seemed to give a thorough and balanced view of the reality in terms of the impact of a criminal record. It related to the riots but I would imagine is applicable in most situations. It was on the BBC news website 17 August 2011, called "What is the impact of a criminal record?" - a search on the BBC news site brings it up, I can't post the link here, but maybe someone else knows how to?

 

sta

[MrGates]

At the end of the day being in possession of another persons freedom pass or season ticket is either theft without the holder knowing or transfer of pass/ticket, both in my view are classed as intent the OP still hasnt explained why they were in possesion? Intent could surely be proved as the OP was in possession of a pass that wasn't intended for their use.

[Old-CodJA]

The mere possession of another persons' pass isn't actually an offence, unless it has been stolen.

 

Byelaw 22.2 makes it an offence to transfer a ticket to another person with the intention of enabling that person to travel without having paid their fare. It is up to the inspector to prove that intention.

 

However, if a traveller has another persons' card, but has no valid ticket for their intended journey, the failure to meet the strict liability requirement to show a valid ticket on demand contrary to Byelaw 18.2 might be charged regardless of the travellers' intention.

 

If evidence can be produced to show the traveller had used, or intended to use the other persons' pass in order to avoid a fare, then the 'intentional fare evasion' charge contrary to Section 5 of The Regulation of Railways Act (1889) will be appropriate.

 

In answer to sta210, Yes, there are alternative charges that may be considered as outlined above, though if the matter occurred wholly within a controlled ticket area (CTA), the Byelaw 18 charge could not be alleged.

 

Within a CTA, Byelaw 17 applies and that has a prescribed fixed penalty, being a £50 Penalty Fare. However, there is nothing to stop TfL (or a TOC is appropriate) ignoring Byelaw 17 altogeter and alleging the Section 5 RRA charge then attempting to prove intent. That is why the evidence from a check of the historic use of the Freedom Pass would also be important in this case.

 

As an example, let's a ssume you are the proverbial 'man on the Clapham Omnibus'.

 

If you were faced with deciding whether a traveller intended to avoid a fare and had on the one hand a traveller who

 

i) held a Freedom pass, issued for the sole use of a deserving person, but who was not the traveller

ii) who did not have a valid rail ticket of their own

iii) who gave no acceptable reason for holding someone else's concessionary pass when questioned

iv) who admitted to having used that Pass to travel earlier in the day

v) denies intending to use the other persons' pass to avoid paying a fare

 

and on the other hand, a prosecutor who

 

a) shows evidence that full pre-purchase facilities were available to the traveller

b) shows evidence that the traveller failed to show a valid ticket of their own when asked to do so

c) shows evidence that the traveller was in possession of a pass issued for the sole use of someone else

d) shows evidence that the traveller had no entitlement to concessionary fares

e) shows evidence that the traveller admitted using the other persons pass to make an earlier journey

f) produces expert witness evidence to show that historic data records confirm the pass had been used to make the same journeys during the past 8 weeks

 

What conclusion do you think you are more likely to arrive at ?

Edited October 29, 2011 by Old-CodJA