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Bye-Law 17 (1) and yet another Freedom Pass Case (sorry)

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Hi Guys,

 

It's nice to meet you all. I have been a lurker looking around for months now so have become accustomed to a lot of the regulars on this forum and just want to say thank you before I even start to members such as OC, Underground and others who take time out to give advice and help others.

 

Now for the point at hand, I was stopped at a central london station this year and a family members freedom pass was in my possession, long story short, I was questioned by a TFL member, I had not realised I had used the pass as I also had my Oyster with enough credit to travel however as I have read this does not matter since it is my responsibility to know which card I was using. I got the letter from TFL asking for my side of events, I let them know about the Oyster and the fact it had been topped up that morning, they took this into account with evidence I provided however last week I was sent a court summons for the following:

 

You are hear-by summoned to appear at Magistrates court....

That on (said date) you did entered a compulsory ticket area without having with you a valid ticket..

Contrary to Bye-law 17 (1) of the TFL railway byelaws made under paragraph 26 of schedule 11 to the greater London Authority act 1999, and confirmed under section... of the Transport Act 1962.

 

London Underground will be applying for the sum of ...... and the price for a single ticket.

 

 

Above I have tried to provide as much information as possible, now having read through the statements etc and this forum I understand the the charge is not for the The Regulation of Railways Act 1889 which I understand is worse and relates specifically to fare evasion, it is in-fact for Bye-law 17 (1). I am guessing that due to the evidence I provided they decided not to go with proving intent etc and the RORA but chose a charge I cannot dispute - strict liability as I have read in other threads.

 

My questions are as follows:

 

I have read countless examples on here and other websites about Bye-law 18 etc but not very much on 17 hence am wondering what exactly is 17 (1) all about? and why does it state that it is exempt:

 

"Any person who breaches any of these Byelaws commits an offence and,

with the exception of Byelaw 17, may be liable for each such offence to a

penalty not exceeding level 3 on the standard scale". ?

 

Next I have read countless debates on whether a bye-law and in my case specifically 17(1) relates to a Criminal Record and conviction, I am genuinely confused about this, is it in fact recorded? Is it a criminal record?

 

Finally I am attending court soon and will update everyone as to how it proceeds to help others. I have decided to plead guilty based on what I have read in the summons and go in person. I have spoken to a family friend (solicitor) who is looking into the summons and whether to pursue or even attempt and out of court settlement with the TFL prosecution office. Is this worth following up?

 

Thanks for taking the time to read this.

Edited by josh07

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Sorry to sound aggressive here, but cut the rubbish out, it makes giving advice easier. You tried it on, you got caught, you are facing the consequences. They are the simple facts.

 

My only offer of assistance here is:

 

1) This is a strict liability offence, to which you have no (legal) defence. I would advise a guilty plea at an early opportunity.

2) A conviction at the Magistrates' Court will land you with a criminal record, albeit one that only appears on Enhanced Disclosures. You would still need to declare it though if asked "do you have any previous convictions" on an application form/visa application etc. Travelling to USA etc becomes harder because you are no longer eligible for the visa waiver scheme, but will not necessarily prevent you from obtaining a visa.

3) It is highly unlikely TfL will settle out of court in your case. Misuse of non-transferable tickets and passes is taken extremely serious by TfL, as a Freedom Pass is funded by the taxpayer so vulnerable people can get around.

4) If (when) convicted, assuming an early guilty plea, a fine of around 50% of your weekly income, as long as it comes to more than £200 would probably be ordered. Ancillary costs of around £150. Make sure you attend in person, smart, appear remorseful, don't repeat any of the waffle you've written above, apologies all around etc. Take around £300 cash with you though. You never know if the prosecutor may be "approachable" before trial.

5) You have read the National Rail Byelaws by mistake. TfL have a slightly different version.

http://www.tfl.gov.uk/assets/downloads/TfL_Railway_Byelaws.pdf

 

TfL Byelaw 23 tells us what can happen:

 

23. Offence and level of fines

Any person who breaches any of the Byelaws commits an offence and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale.

Edited by firstclassx

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Ok this is the confusing bit:

 

2) A conviction at the Magistrates' Court will land you with a criminal record, albeit one that only appears on Enhanced Disclosures. You would still need to declare it though if asked "do you have any previous convictions" on an application form/visa application etc. Travelling to USA etc becomes harder because you are no longer eligible for the visa waiver scheme, but will not necessarily prevent you from obtaining a visa.

 

I have read countess examples which state that bye laws lead you to being convicted but this is only recorded at the magistrates court and not on a CRB. I am also then confused as people on this forum have also clearly stated that byelaw 17 will not give you a criminal record, it is not recorded, however is still a criminal offence and recorded at the magistrates but not on the PNC. Whether it appears on enhanced Disclosures etc is there no difference between a criminal record and a criminal conviction? Further to that regarding travelling abroad if this is not a criminal record and not recorded then do you have to declare it? Sorry for the laymans perspective but I genuinely am trying to understand this better.

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It is 100% a criminal conviction.

 

There are differences between National Rail Byelaws and TfL Byelaws as I've explained. It is still a criminal offence on the "big" railway, so I'm not sure what you have read elsewhere.

 

Basically, although convicted, it will not show on a standard criminal record, but it will on an enhanced record check. If you are a policeman, lawyer, nurse, teacher etc, civil service, then they all require an "enhanced" check. Equally, the US Embassy could also check the record if/when you apply for any visas etc.

 

TfL will have already of informed the NPIA that you are being prosecuted. Once you are convicted, the court will confirm the conviction to the NPIA, who then finalise your record.

 

The "criminal record" is simply a note of your conviction but held centrally and readily accessible.

 

A person admitting or being found guilty of a criminal offence is, in most cases, given some form of disposal under the criminal justice system – that is to say some form of recorded intervention or punishment intended as a redress for their act or omission. Criminal records should only cover disposals imposed for breaches of the criminal law.

 

The Home Office say:

 

an individual’s

‘criminal record’ should be defined

as all their convictions, cautions,

reprimands and warnings which are

recorded in central police records

 

Further reading:

http://en.wikipedia.org/wiki/Strict_liability_(criminal)

http://en.wikipedia.org/wiki/Byelaws_in_the_United_Kingdom#Transport_byelaws

Edited by firstclassx

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The penalty for breach of Byelaw 17 is a penalty fare on National Rail, but a fine may be imposed upon conviction by Magistrates if detected and prosecuted by TfL.

 

In the 'scheme of offending' it is a relatively minor matter and there will be a note of conviction with a Magistrates Court, but this is a non-recordable offence.

Edited by Old-CodJA

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OC, when you say penalty fare what exactly does that mean? why is byelaw 17 different in that respect?

 

is it still possible to call TFL and try to settle out of court? and I am still trying to get my head around how a bye law is recorded?

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OC, when you say penalty fare what exactly does that mean? why is byelaw 17 different in that respect?

 

is it still possible to call TFL and try to settle out of court? and I am still trying to get my head around how a bye law is recorded?

 

This was a generalisation in relation to Byelaw 17 on National Rail services - for purposes of your particular case you need to forget about that. I know it can be confusing to those who do not work with this legislation every day.

 

The penalty fare does not apply in your case

 

You have already made clear that you were reported by TfL staff and that you have been charged under TfL Byelaws

 

That on (said date) you did entered a compulsory ticket area without having with you a valid ticket.. contrary to Bye-law 17 (1) of the TFL railway byelaws made under paragraph 26 of schedule 11 to the greater London Authority act 1999, and confirmed under section... of the Transport Act 1962.

 

The penalty, if convicted of this offence is a fine of up to £1000. (Level 3 on the standard scale) The Magistrates then apply various sentencing guidelines to determine exactly what the offender should pay.

 

For example, if this is a first offence the Bench will reduce the fine firstly to what is called 'entry level', equal to the current estimate of the average weekly wage. That is £400 and is the entry level set on 'Band B' of their sentencing guidelines. This is the normal entry level fine for intentional fare evasion.

 

Next, they will use Band 'A' on their sentencing guidelines to arrive at the entry level fine for a strict liability matter, that is a charge where intent to avoid a fare is not a determining factor. This is set at 50% of the 'Band B' level and thus the fine will be reduced to £200

 

Further reduction can be achieved if you plead 'guilty' at the first opportunity and the fine will then usually be reduced by a further third (or thereabouts) as credit for acknowledging guilt at an early stage. This means the fine will probably fall to around £130 or so.

 

You may also be ordered to pay all, or part of the prosecution costs and the unpaid fare as compensation to TfL.

 

This is a non-recordable offence. That means it will not normally appear on a basic CRB check. It is a breach of a strict liability instruction, it is not an offence of dishonesty.

 

is it still possible to call TFL and try to settle out of court?

 

 

Yes, it is always possible to seek an administrative resolution, right up to the Court door. ( It is a fact that some Courts may actively encourage prosecutors to consider this in some cases.)

 

As I have posted elsewhere on this forum, I always advocate doing this by letter, sent by recorded delivery if possible and there are very good reasons for making this request in writing.

Edited by Old-CodJA

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Hello there.

 

As a fellow layman, I understand how confusing it is. It's lucky we have transport guys here to guide us lesser mortals thought the maze.

 

In answer to asking to settle, you can do this up to and including the court date, as OC says. Have a read around the forum, a couple of people have settled recently.

 

My best, HB


Illegitimi non carborundum

 

 

 

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OC/first classx,

 

in regards to trying to settle out of court and sending TFL a letter/email as I tried calling and they stated they would need it in writing with evidence of serious mitigating factors, in regards to this if you settle and you would like to make an offer of "220" for example can that be seen in a negative light, not in the sense the amount is not enough but rather it feels wrong to be trying to buy your way out of the problem? :S

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OC/first classx,

 

in regards to trying to settle out of court and sending TFL a letter/email as I tried calling and they stated they would need it in writing with evidence of serious mitigating factors, in regards to this if you settle and you would like to make an offer of "220" for example can that be seen in a negative light, not in the sense the amount is not enough but rather it feels wrong to be trying to buy your way out of the problem? :S

 

The amount and the actual writing a letter isn't really the problem. Pretty typical for people to throw money at their "problem". TfL aren't interested in using prosecutions to generate profit.

 

It's providing the "serious mitigation" where you will struggle! I'd say serious mitigation would be something like a health issue or if it would/could cause serious damage to a professional career, (solicitor*, doctor, police, judge, teacher type).

 

WARNING! They could use the letter admitting guilt against you in court... should they not be prepared to settle out of court with you. This isn't really a problem if you plead guilty though.

 

*Even if convicted, it is possible that some professions may "overlook" the conviction. Case No. 10466-2010 at the Solicitors Disciplinary Tribunal ruled that a solicitor convicted and fined for intentional fare evasion could keep her job.

 

A conviction is not the end of the world.

Edited by firstclassx

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firstclass i think you are right about the 'serious mitigation' however i may still draft a letter/email. I think its fair to say it will cause trouble for any profession but it may vary depending on what you do..

i understand your example regarding the solicitor who was fined and convicted for fare evasion but from my understanding i would have to be charged with the railway regulation act to be convicted of fare evasion? as opposed to tfl byelaw 17 (1) - strict liability based on entering a compulsory ticket area without having a valid ticket.. a non recordable offence not the same as fare evasion, however still regarding as a criminal conviction as you stated...

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There's no such crime specifically named "Fare Evasion". I personally class Byelaw 17 and 18 as being part of "fare evasion" related family of offences. Perhaps "Ticketless Travel" is another appropriate term.

 

What you are being summonsed for is not saying you intentionally evaded paying the fare, but that you still did not have a valid ticket when required to do so.

 

I do think you have got very lucky though. Most cases of freedom pass abuse/misuse are dealt with under Section 5(3) of the Regulation of Railways Act 1889. I am very surprised that TfL didn't choose to prosecute for this. Perhaps you've already been quite lucky and might not want to push it??

Edited by firstclassx

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Thread tidied up,I hope we can proceed without any more distractions.


Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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OC/first classx,

 

in regards to trying to settle out of court and sending TFL a letter/email as I tried calling and they stated they would need it in writing with evidence of serious mitigating factors,

 

 

 

This is exactly what I expected and is the reason why I always suggest putting such a request in writing.

 

The rail company will need a good reason to settle in this way, your request for an alternative disposal gives them good reason to consider it at this late stage and they will require an explanation of your actions to provide justification for having done so.

 

 

 

in regards to this if you settle and you would like to make an offer of "220" for example can that be seen in a negative light, not in the sense the amount is not enough but rather it feels wrong to be trying to buy your way out of the problem? :S

 

 

If any traveller genuinely does not believe that they have comitted an offence, then they have the right to argue the case, BUT, remember you have not been charged with avoiding a fare. You have been charged with a strict liability breach of Byelaw

 

The only effective defences to this are: a) I did show a valid ticket, or b) I was not the traveller reported. In each case there will need to be conclusive evidence to that effect and if that were so, TfL would not have pursued the charge.

 

Fare Evasion is an entirely different matter, this is what the Home Office / CPS guideline for prosecutors says on the subject:

 

FARE EVASION: (extract)

 

 

Section 5 Regulation of Railways Act 1889 (Stones 7-7043) is usually used for offences of fare evasion on the railways for:

  • travelling/attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof; or
  • having paid the fare for a certain distance, knowingly and wilfully proceeding by train beyond that distance without previously paying the additional fare for the additional distance and with intent to avoid payment thereof or
  • having failed to pay the fare, giving in reply to a request from an officer of a railway company a false name and address.

Section 103(a) Railway Clauses Consolidation Act 1845 (Stones 7-7001) covers a person refusing to quit a carriage on arrival at the point to which he has paid his fare.

Both section 5 and section 103(a) are summary only offences. "Intent to avoid payment" in section 5 does not mean a dishonest intent, but an intent to avoid payment of the sum actually due.

 

There are provisions in bye-laws which cover fare evasion, but in the vast majority of cases it will be appropriate to use the section 5 offence.

Edited by Old-CodJA

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Hi Guys,

 

Just want to say thanks again for all the advice. OC you are indeed correct and I have emailed TFL with a genuine letter. I hope they consider the alternative disposal a good reason to want to settle.

 

I understand my charge is not for avoiding a fare but in fact the strict liability breach of a byelaw and hence much less to argue. I guess I am lucky I was charged with the byelaw as opposed to section 5.

 

Question I wanted to ask was in regards to the court summons it states to get your plea and documents in 3 days prior to the court date, means form etc. If I am attending court is it possible to take all this information, plea, means form etc with you rather then trying to send it in 3 days before? Just wondering.

 

Thanks

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Question I wanted to ask was in regards to the court summons it states to get your plea and documents in 3 days prior to the court date, means form etc. If I am attending court is it possible to take all this information, plea, means form etc with you rather then trying to send it in 3 days before? Just wondering.

 

Thanks

 

Yes, it is helpful for the Legal Advisor & Prosecutor to have the information to hand at the start of a session, but not essential

 

You are Summonsed to answer the charge that ' you did ....' and you are entitled to attend and answer the charge in person.

 

If you do so, and in my experience someone who attends, pleads guilty and apologises personally will always attract maximum credit from the Magistrates, you can take your completed means form etc. with you and hand it to the Legal Advisor on being called into Court or to the Usher when you book in on arrival at the Court waiting area.

 

If the latter, the Usher will take it straight into Court and pass it to the Legal Advisor in readiness for the hearing.

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Hi Guys,

 

TFL rejected the appeal by letter email stating i dont have the circumstances required. You know what I've had enough of this whole mess, i brought this on myself by my own stupidity in not checking what I was using and that is my responsibility. There are no excuses or free rides in this world and making mistakes like that are costly, evidently I have learned this the hard way. I will be attending court in person, pleading guilty to the bye law offence and as a friend of mine would say... 'manning up'.

 

I guess I am v lucky that this is a byelaw offence and prosecution as opposed to section 5 for fare evasion and considering it is a freedom pass case..

 

I have read around this forum for the last 6 months and I have to say it is a ray of light having people like OC and others giving advice to us mere mortals who as honeybee put are lost and confused in this maze. Thank you for all your help and guidance, whether it is deserved for a lot of us posting on here I don't know but the fact we can find help is testament to the people on this forum.

 

My day in court is soon and I will stand there and face what I have to face, a mistake is a mistake and can be very costly but as they say... "Every new day is another chance to change your life"

 

A piece of advice to all those out there in similar positions or situations, all the help you need is right here on CAG, I cant add anything to what is said in these walls besides being grateful regardless of the outcome I face.

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Hello again Josh. Thank you on behalf of the guys for the kind comments.

 

Don't forget that OC says you can continue to negotiate right up to the court date. Maybe he or one of the others has some tips about how to speak to the prosecutor on the day. You would need to have sufficient cash with you.

 

No guarantees obviously, and I know people say TfL take a hard line so your job could be a bit harder.

 

I hope the advice will keep coming for you.

 

Chin up and don't give in yet. :) HB


Illegitimi non carborundum

 

 

 

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Take some cash with you to court, around £300 or so.

 

Ask the court officials where you can find the TfL prosecutor. Just reiterate how sorry you are.

 

Worst case is you end up spending the £300 in the court fines office...

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Hi Guys,

 

TFL rejected the appeal by letter email stating i dont have the circumstances required. You know what I've had enough of this whole mess, i brought this on myself by my own stupidity in not checking what I was using and that is my responsibility. There are no excuses or free rides in this world and making mistakes like that are costly, evidently I have learned this the hard way. I will be attending court in person, pleading guilty to the bye law offence and as a friend of mine would say... 'manning up'.

 

I guess I am v lucky that this is a byelaw offence and prosecution as opposed to section 5 for fare evasion and considering it is a freedom pass case..

 

I have read around this forum for the last 6 months and I have to say it is a ray of light having people like OC and others giving advice to us mere mortals who as honeybee put are lost and confused in this maze. Thank you for all your help and guidance, whether it is deserved for a lot of us posting on here I don't know but the fact we can find help is testament to the people on this forum.

 

My day in court is soon and I will stand there and face what I have to face, a mistake is a mistake and can be very costly but as they say... "Every new day is another chance to change your life"

 

A piece of advice to all those out there in similar positions or situations, all the help you need is right here on CAG, I cant add anything to what is said in these walls besides being grateful regardless of the outcome I face.

 

 

That is indeed 'manning up' Josh.

 

Good luck with your day at Court, what a pity others (especially 'iambilly' ) cannot be half the man you seem to be.

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OC/Guys anything to add in regards to trying to speak to the TFL prosecutor at the court? Are you just supposed to ask for him and state your case? My case is a morning one hence I am guessing they will be very busy and unlikely they will even entertain me, and in regards to £300 or something along those lines are you just supposed to offer it? or state you'd pay the fees as per the letter? Sorry for the layman questions once again, its just that if this is the final chance to try and speak to them I'd like to attempt it correctly.

 

Also just a question once in the court room when the court asks if I would like to say anything, I understand about being remorseful etc but was wondering is that an opportunity to also mention what effect a criminal conviction would have hence asking them to please take that into consideration when making their decision, or is best to not even mention that as it is frowned upon and once you are in there and have admitted your guilt then you 'have to be convicted' anyway regardless of saying it would ahve an adverse effect?

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Good questions. :)

 

I hope the guys will be along later. If they don't turn up fairly soon, I'll try to let them know there's a query.

 

HB


Illegitimi non carborundum

 

 

 

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Thanks HB appreciate your help

 

Just say are you keen to settle the matter out of the court room, and by way of compensation of their time spent dealing with this matter, you would like to offer £300 to cover their costs and by way of an apology.

 

You've got to just go with it. It can feel like you're bribing somebody, but it is perfectly acceptable and gives you one last throw of the dice.

 

If it doesn't work, you can then say to the Magistrates' that you have attempted to make every effort possible to rectify the matter out of court, offered apologies, been completely honest etc etc. All good for reducing the fine.

 

I don't think it is worth mentioning to the court what a criminal conviction would do to you, they can't prevent that from happening. You can tell them how much you've learnt from this experience, the regret etc... Tell the prosecutor about the impact of a criminal record though, before going in!

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