Penalty Fare Notice after trying to pay - ** RESOLVED **

[Nallab]

On Saturday 6th Jan 2013 I paid and parked at Upminster Station and took a train to Hersham to watch a rugby match between Esher and Loughborough Students.

 

I have an automatic top up Oyster card with a senior railcard attached, which I rarely use. I used this card at Upminster, Waterloo Jubilee Line and Waterloo National Rail platforms 1-11. When I reached Hersham I realised that I had made a mistake as there were no Oyster card touch out machine as it is outside the Oyster scheme. As this is an unattended station there was no one for me to contact to rectify my mistake. On my return I caught the 17.49 train from Hersham.

 

When I arrived at Waterloo, without going to the barriers I approached a senior official on the station. I explained the above, stating that I knew I needed to touch out and pay, that I had made a genuine mistake and asked how I could pay/touch out to rectify my mistake. Instead of a helpful, sympathetic response, as I had hoped, the official immediately said that I would have to pay a penalty fare of £20. I reiterated that I had made a genuine mistake, that I had not tried to avoid payment and had been honest in approaching him to do so. I told him that I had ‘‘touched in’’ at Waterloo on the outward journey and asked if he could not be more understanding. The conversation went backwards and forwards but he was intransigent. At one point he checked my oyster card and said that I had not ‘touched in’ at Waterloo. I assured him that I had, asking how otherwise could I have got through the barrier. He then insinuated that I had gone though somehow to avoid payment. I took exception to this, saying that I definitely ‘touched in’, whatever my card had shown, that I was not trying to avoid payment and if I was trying to do so, I would have just gone through the barrier using my Oyster card. When I said I wanted to take the matter further and would not except a penalty notice, he threatened me with a different sanction (I can’t remember the term) which would cost me more money and, I think he said, more time.

 

I had no alternative and gave him my details, and took the Penalty Fare Notice. I immediately went to the station manager to voice my concerns, but was only told to appeal. I continued my return journey to Upminster using my Oyster Card.

 

On checking my Oyster card on Sunday 7th, there is a record of me touching in at Waterloo (platform 1-11) National Rail at 14:15.

The cost of a senior railcard from Upminster to Hersham is only £7.05 which I should have bought if I had realised that Hersham was outside the Oyster scheme. Not only am I disappointed that I might have to pay £20 for trying to be honest(some have said foolish) but I am also concerned that I may now also have a record.

 

Have i got grounds to appeal and any words of advice?

[Guest]

to cag

 

best get your thread question moved to an appropriate subforum

[antone]

I've moved this to the Public Transport forum where it should get more replies. Welcome to CAG.

[Nallab]

Thanks!

[firstclassx]

Bottom line is:

 

a) Penalty Fare is (legally) justified and issued for in appropriate circumstances;

b) An appeal will be refused on that basis;

c) You could have been reported for prosecution under Byelaw 17/18, and you would most likely be found guilty as it is a strict liability offence.

d) "Intent to avoid the fare" does not need to be proved. You either have, or haven't got a valid ticket.

 

My advice:

 

Pay Penalty Fare within 21 days.

Once paid, write complaint to TOC if you are not happy about staff attitude, although I suspect you were not particularly co-operative either. You are quite lucky you are not going to court. My own preference is to offer a Penalty Fare ONCE and once only. If they decline that option, or refuse to co-operative, I will immediately report for prosecution.

 

For £20, you aren't doing too badly really.

£7.05 was the fare due anyway, so your "penalty" is only £12.95, which is positively a bargain when it comes to breaching the terms and conditions of rail tickets/products, as I am sure some of the members on here who are looking at £400-£500 court fines and convictions will tell you.

 

If you do not pay within the 21 day period, (or successfully appeal), then you may find the Penalty Fare is cancelled and you are sent a Summons to appear in court instead, which you could only blame yourself for, if that happens.

 

Take it on the chin, learn for next time.

 

Hersham is staffed until mid afternoon, but when the ticket office is closed, you must use one of the two self service ticket machines to pay.

Edited January 7, 2013 by firstclassx

[Nallab]

Thanks for your advice. I did pay £5.25 on Oyster for the other legs of my journey, however, I appreciate that £20 is not a lot of money to pay. It is just annoying that I was trying to pay, could have just gone through the barrier using my Oyster Card and more importantly will get a record!

[firstclassx]

Thanks for your advice. I did pay £5.25 on Oyster for the other legs of my journey, however, I appreciate that £20 is not a lot of money to pay. It is just annoying that I was trying to pay, could have just gone through the barrier using my Oyster Card and more importantly will get a record!

 

The "record" you mention is just an entry on a database to allow them to process the Penalty Fare. Some people regularly get Penalty Fares, it doesn't really mean much.

[Nallab]

The "record" you mention is just an entry on a database to allow them to process the Penalty Fare. Some people regularly get Penalty Fares, it doesn't really mean much.

Thanks. That makes things a lot better!

[Guest]

nallab

as you said, seems that when they threaten 'further action' (ie a poss prosecution) a penalty fare seems the best option regardless to avoid any poss prosecution.

as said, a penalty fare doesn't involve any criminal sanction/record. but a successful prosecution would result in a record.

in general, there is though a requirement for intent (eg 'deliberate' fare evasion) re a prosecution, so is not quite strict liability re that.

Edited January 7, 2013 by Ford

[Nallab]

nallab

as you said, seems that when they threaten 'further action' (ie a poss prosecution) a penalty fare seems the best option regardless to avoid any prosecution.

as said, a penalty fare doesn't involve any criminal sanction/record. but a successful prosecution would result in a record.

there is though a requirement for intent (eg 'deliberate' fare evasion) re a prosecution, so is not quite strict liability re that.

 

Thanks Ford. I still feel aggrieved so will appeal, although from the previous advice it doesn't sound as if I will be successful. However, after that I will pay as although i was trying to avoid fare evasion,it is not worth risking a prosecution.

[Guest]

as you say, an appeal may not prove fruitful given that the correct due fare wasn't paid, albeit by mistake. unfortunately, the days when could get on a train and then pay the excess fare either on board or at end have pretty much gone. too much staff costs involved, and too much money to be gained from penalty fares. most 'potential' prosecutions would be unlikely due to the relative cost involved and the requirement to prove beyond doubt an intent to evade, which could be challenged.

[firstclassx]

nallab

as you said, seems that when they threaten 'further action' (ie a poss prosecution) a penalty fare seems the best option regardless to avoid any poss prosecution.

as said, a penalty fare doesn't involve any criminal sanction/record. but a successful prosecution would result in a record.

in general, there is though a requirement for intent (eg 'deliberate' fare evasion) re a prosecution, so is not quite strict liability re that.

 

Sorry, absolutely NO intent is required. It is wholly strict liability. (Regulation of Railways Act 1889 is different though, but it wouldn't be relevant to this case anyway).

 

Railway Byelaw 18(1) is clear:

 

(1) In any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel.

 

As you can see, "intent" doesn't come into play at all. You need a ticket to board a train. If you don't have one, (when facilities existed to obtain a ticket), you commit an offence. Simple.

 

As is 18(2)

A person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person.

(Although case law does say that the ticket you hand over does not have to be valid)

 

The ONLY exceptions are:

 

(i) there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey; or

(ii) there was a notice at the station where he began his journey permitting journeys to be started without a valid ticket; or

(iii) an authorised person gave him permission to travel without a valid ticket.

 

Any other defence for a Byelaw offence would fail.

[Guest]

disagree, would think act would be relevant. yes the fact of a fare shortfall is strict, but to prosecute requires an intent to evade.

a penalty notice is issued where there is no 'assumption' of an intent to evade ie is a 'mistake'. your policy says so.

Edited January 8, 2013 by Ford

[firstclassx]

disagree, yes the fact of a fare shortfall is strict, but to prosecute requires an intent to evade.

 

You are incorrect sorry.

 

Railway Byelaw 18 does not require intent in any way whatsoever. Absolutely anyone who receives a Penalty Fare has breached this Byelaw, and is technically liable for prosecution, but the Penalty Fare allows for the matter to be dealt with there and then. If the passenger does not wish to be issued a Penalty Fare, he will be reported for prosecution instead.

 

You can be prosecuted for a "mistake". Ignorance of the law is not a defence.

 

 

Section 5(3a) Regulation of Railways Act 1889 does, however, require intent to be proven. This is quite a serious offence and you can be sent to prison for "intentionally" evading a fare, unlike the Byelaw offence, where you can only receive a maximum penalty of £1000.

[Guest]

..........

 

Section 5(3a) Regulation of Railways Act 1889 does, however, require intent to be proven.

 

there you go, re a 'prosecution'

[firstclassx]

there you go, re a 'prosecution'

 

But as I've said, in this case, you would prosecute using Railways Act 2005, (i.e. Railway Byelaw 18), not the 1889 Act.

 

If no intent - you prosecute using Railway Byelaw 18(1) OR you can offer a Penalty Fare at your discretion (but only within a Penalty Fare area).

If intent is show - you prosecute using Section 5(3a) Regulation of Railways Act 1889.

 

So, intent or no intent, you still commit an offence for travelling without a valid ticket.

[Guest]

w/b no prosecution re byelaw, would need the act as your policy says

Edited January 7, 2013 by Ford

[firstclassx]

no prosecution re byelaw, would need the act as your policy says

 

I give up with you. You can prosecute anybody who is eligible for a Penalty Fare - no intent needed.

 

What policy are you going on about?

 

The law overrules any "policy" regardless.

 

I am sure many, many other members on this forum will tell you the same.

[Guest]

don't give up

intent to evade is required re a prosecution, as the act says.

you don't know your own policy!!!?

yes law overrides, but your policy reflects the law and practice!

fair enough, consult your legal dept.

Edited January 8, 2013 by Ford

[steveod]

no prosecution re byelaw, would need the act as your policy says

 

I have also read case law although cant remember exactly which one that having to wait more than 15 minutes for a ticket and then having to rush off to get the train is also a valid defence to railway bye laws. Will try dig it up.

[firstclassx]

I have also read case law although cant remember exactly which one that having to wait more than 15 minutes for a ticket and then having to rush off to get the train is also a valid defence to railway bye laws. Will try dig it up.

 

Quite simply, that's not true.

 

The only 3 permissible defences to Byelaw 18 are written down in law. This has not changed

 

Most "Customer Charters" produced by the TOCs state that you shouldn't normally have to queue for xx amount of time or that they aim to serve you within xx amount of minutes, but them failing to meet that target does not allow you to simply board a train because of a long queue.

 

If there is a queue at the ticket office can I board the train without a valid ticket?

No. It is your responsibility to allow yourself sufficient time to buy a ticket before travelling. Automatic self-service ticket machines are provided at all stations as an additional method of buying a train ticket. Tickets can also be bought in advance of travel from ticket offices or online.

 

Q: What if there’s a long queue at the ticket office?

A: This is the reason for not purchasing a ticket most frequently used by those with no intention of paying. It makes it impossible for us to distinguish a genuine from a dishonest case and a penalty fare will normally be issued. We monitor queuing times at all of our stations in order to minimise waiting. Revenue protection staff will call our control office to verify there was no opportunity to purchase a ticket.

 

If there is a queue at the ticket office, can I still board the train without a valid ticket?

No, it is your responsibility to allow yourself enough time to purchase a ticket before travelling. Automatic self-service ticket machines are provided at the majority of c2c stations as an additional method of purchase and tickets can also be bought in advance of travel from ticket offices, the tele-sales office on 08457 44 44 22 or via our online booking section.

Edited January 7, 2013 by firstclassx

[Guest]

one recent case, Burns v First Capital Connect [2012] EWHC 1305 (Admin)

 

 

 

(Regulation of Railways Act 1889 is different though, but it wouldn't be relevant to this case anyway).

yes it would, see above case, byelaw w/b n/a. Edited January 7, 2013 by Ford

[Old-CodJA]

don't give up

intent to evade is required re a prosecution, as the act says.

you don't know your own policy!!!?

yes law overrides, but your policy reflects the law and practice!

consult your legal dept.

 

 

Completely wrong I'm afraid

 

firstclassx is correct

 

A Summons can be issued alleging breach of National Railway Byelaw 17 in the case of a traveller in a controlled ticket area, or if not in a controlled ticket area it will be breach of Byelaw 18.

 

Conviction in these cases does NOT require proof of intent to avoid a fare, merely that the traveller failed to pay the fare due before travelling, or failed to show a valid ticket on demand.

 

Thousands of such prosecutions succeed in Courts all across the UK every year.

 

It is only necessary to prove 'intent to avoid a fare' if charging under Section 5 of The Regulation of Railways Act [1889]

 

If the charge is under Byelaw 17, 18.1 or 18.2 there is no need to address the traveller's intention.

 

'Customer Charter documents' are merely a set of aims and do not override the legislation, the TOC will of course consider whether or not they should proceed, but the OP does not suggest there is any reference to charter failures in this instance.

 

It appears to be a clear case of the OP failing to check that Oyster was acceptable means of paying the fare to their intended destination. That is the fault of the OP and no-one else.

 

If charged with a strict liability offence (breach of Byelaw) 'I didn't check' is not an acceptable defence.

 

The 'failure' in the case of FCC v Burns was in the prosecution failing to lay the correct charge.

 

An allegation of breach of Byelaw 18.2 was the charge laid and that was FCC's error and the reason that they did not oppose the appeal.

 

The presidng Judge made clear that if 17.1, or 18.1 had been charged it might have had a different outcome, but because the charge laid was breach of Byelaw 18.2 and Mr Burns did present an Oyster, albeit with no credit value, he was of the opinion that no offence was evident

 

I'm willing to bet that the TOCs don't make the same mistake twice.

Edited January 7, 2013 by Old-CodJA

[Guest]

its not 'completely wrong'!

as i said intention ie section 5 would be applicable in this case if they wanted to prosecute!

ps, i never said that any 'charter' or policy overrides statute.

case above would be transferable.

 

 

It is only necessary to prove 'intent to avoid a fare' if charging under Section 5 of The Regulation of Railways Act [1889]

which is the preferred CPS means where there is such intention. Edited January 7, 2013 by Ford

[Old-CodJA]

which is the preferred CPS means where there is such intention.

 

Correct, BUT it is NOT an essential pre-requisite that there must be evidence of intent in order to prosecute and the CPS recognise the TOC's right to bring private prosecutions.

 

CPS will usually only intervene if a case has a serious public interest element, or is wholly without merit.

 

Please, check the legislation and Court records.

Edited January 7, 2013 by Old-CodJA