Discussion thread on railway prosecutions

[CRblogger]

I'm not sure we are in agreement.

 

You want the OP to send a "without prejudice" letter.

I think that is a bad move as I think it will make the TOC more likely to move to prosecution.

 

You "want people to go for the substance of what's in the videos". I think trying to exercise (non-existent in the UK) rights to a 5th Amendment is a bad move.

WHEN guided by a lawyer (which I'm not!) a "no comment" at PACE interview might become appropriate : the OP isn't being questioned under PACE.

 

You (not I) raised ss34-38 CJPO 1994.

I pointed out it was irrelevant to the OP and why.

It was never "my starting point " : I'm still unclear why you brought it up , other than as a "Stalking horse "

( If I agree with you about it I'm wrong : If I disagree with you about it you can say that you thought I was considering it relevant but you may have been mistaken). Poppycock again : you raised it, not me.

 

I reject that the key issue for the OP is "right to silence ". That is a topic you have raised. I suggest the key issue for the OP is avoiding prosecution if possible. I suggest your posts are obscuring that.

 

You now "want to avoid specifics". OK, how are you planning that your posts will help the OP?

 

Thanks, hope you slept well.

 

Fair enough, taking your final request I'll briefly try to close off the rest, then let's try to move forward and focus on the OP.

 

(If it makes you feel better mentioning the 5th amendment in every post, keep going, it was never part of my "case" as I said before. Nor was misquotes and quoting out of context...)

 

(On the video substance (not 5th amendment label) - I think it useful in the UK generally, you disagree, I think we're pretty clear on that but let's adopt your position, but again you can keep mentioning it as you wish)

 

On the CJPO I thought you might have specific law on different to the CJPO, and you thought I was raising it as a new point, and we were both wrong, so let's set that one aside, but again you can keep mentioning it.

 

On the right to silence that is the substance of the videos, and you "reject" it, ok, let's take your case at its highest.

 

I think from your current post that leaves only the without prejudice issue, and I think that is where we may be able to help the OP. So let's agree something. I'll try to avoid annoying you, and you try to avoid thinking I'm trying to annoy you. Please.

 

So let's start with *why* WP exists. I think we can both agree that we get nowhere talking about its meaning, fine, so let's talk about where it might have a practical use for the OP: settlement.

 

Let us start with earlier mention by someone (probably you, all credit) that an "final warning" administrative settlement in this context is truly an administrative settlement rather than the police version of a "final warning" criminal record - that it doesn't go to the Court OR to the police. That is fine and whatever will promote that I agree is a good result. Likewise any administrative informal/nonfinal warnings (no matter what the police treatment).

 

Let us assume that we want to settle, and that they *seem* willing to settle if the price is right. Then some form of negotiation is feasible. We want to offer a figure that will be some % of the potential penalty - which might of course exceed 100%. (yes, it happens, great if you're on the right side of it, not so good otherwise).

 

If we can settle, great, so well and good, fixed. But what if we don't?

 

Let us even assume for the time being that no facts are in contention, so it's impossible for us to incriminate ourselves whether or not we tell them anything. It's just money, horsetrading. you offer that, I want a bit more, and so on. Let's just say we're so desperate to avoid Court we end up offering them 100% of the maximum penalty? They scent desperation and hold on. We offer 120%. There is no double-dealing, but unbeknownst to us, when our letter arrives a few days before Court, the negotiator on the other side has gone on holiday, or got married and distracted, or because of a new policy they now decide they actually want to prosecute everyone this month, or...

 

Ok. We go to Court. The case is presented but let's say it's sort of marginal. We never knew that (they're the experts or think they are, but why would they tell us? Bluffing is all until the cards are all face up on the table). Then the advocate draws the Court's attention to your 120% offer. "Guilty" thinks the tribunal of fact. "Innocent people don't make open offers, not even 10% to say up yours, and such a huge one is decisive". Done deal.

 

Alternative: actually the witness is off sick, or the prosecutor gets some of the evidence mixed up, or they can't find the file, or whatever. What evidence do they have left? Nothing really. Except the letter that just came in... same result.

 

Now we come back to how we communicate with the other side. Can we honestly negotiate, with binding consequences upon agreement, without the Court being able to see into that negotiation whether or not agreed? Yes. That's why "without prejudice" exists. So people can negotiate freely with each other in confidence, in the certainty their good faith words can never come back to be used against them in Court. (remember we're not communicating material facts here so we can't even tip them off as to our case). And the Court, in its own interests, will try to protect such good faith efforts.

 

Now. The jurisdiction *ought* to be able to able to cope with it. Whether or not the jurisdiction *does* cope with it is quite another matter, and if your practical expertise says otherwise, that's fine. So if you can tell the OP from personal experience on the other side of the courtroom that without prejudice communications will not be respected by you or by the Court, ok. Your *is* will trump my *ought*: but customary law always was alive and well and living in the provinces...

 

Are we good?

[honeybee13]

New thread started so we can keep this debate off and advice thread for someone else.

 

HB

[BazzaS]

Thanks, hope you slept well.

 

Fair enough, taking your final request I'll briefly try to close off the rest, then let's try to move forward and focus on the OP.

 

(If it makes you feel better mentioning the 5th amendment in every post, keep going, it was never part of my "case" as I said before. Nor was misquotes and quoting out of context...)

 

I find much of your posts not irritating, but disingenuous.

 

I'm not clear if you are suggesting I have misquoted or quoted you out of context : if so, "put up or shut up" and give examples (which I feel you'll struggle to do), or if not : why even mention it?.

 

(On the video substance (not 5th amendment label) - I think it useful in the UK generally, you disagree, I think we're pretty clear on that but let's adopt your position, but again you can keep mentioning it as you wish)

 

On the CJPO I thought you might have specific law on different to the CJPO, and you thought I was raising it as a new point, and we were both wrong, so let's set that one aside, but again you can keep mentioning it.

 

Where was I wrong?. You introduced the sections of CJPO you quoted.

Of course, you did so by claiming "you thought I was referring to it" but I never did so initially, I only responded pointing out the error(s) of you introducing it when it wasn't applicable.

 

A bit like the "5th Amendment" : you were wrong. You then try and claim I was wrong, or that I "keep bringing it up". I keep bringing it up only to highlight that you still seem to want to blame me for your errors.

 

On the right to silence that is the substance of the videos, and you "reject" it, ok, let's take your case at its highest.

 

I think from your current post that leaves only the without prejudice issue, and I think that is where we may be able to help the OP. So let's agree something. I'll try to avoid annoying you, and you try to avoid thinking I'm trying to annoy you. Please.

 

I don't think you are trying to annoy me - yet again you are deciding you know what I'm thinking, and yet again you are getting it wrong.

 

I think you are trying to cloud your errors by somehow attributing them to me.

 

People can review the previous thread :

http://www.consumeractiongroup.co.uk/forum/showthread.php?400229-IRCAS-Prosecution&p=4342328#post4342328

and make their own minds up who has been caught out in bringing forward irrelevant legal argument.

 

So let's start with *why* WP exists. I think we can both agree that we get nowhere talking about its meaning, fine, so let's talk about where it might have a practical use for the OP: settlement.

 

Let us start with earlier mention by someone (probably you, all credit) that an "final warning" administrative settlement in this context is truly an administrative settlement rather than the police version of a "final warning" criminal record - that it doesn't go to the Court OR to the police.

 

It wasn't 'probably' me who corrected you. It was me. You even thanked me for doing so :

 

Yes I am confusing "final warning" with the criminal offence final warning. Thank you for your correction.

 

You recall posting that?. It isn't a misquote, nor is it out of context. It was your reply to me when I corrected one of your errors.

 

That is fine and whatever will promote that I agree is a good result. Likewise any administrative informal/nonfinal warnings (no matter what the police treatment).

 

 

Let us assume that we want to settle, and that they *seem* willing to settle if the price is right.

 

Leaving aside the fact that the police were never involved (so why bring them into it again?)

You have made a massive, and likely erroneous, assumption.

There have been a number of posts on CAG where people have said "I've offered large sums to settle".

The TOC's don't make any money on prosecutions, yet often still proceed when there is a case to answer when offered large sums : I suggest this is where they haven't received (a heartfelt apology, and plausible explanation for events as reasons not to prosecute) and the absence of these makes them want to prosecute as a means of discouraging other offenders and the original offender, not as a means of income generation.

 

By the way, in the event of a guilty (plea or verdict) : The TOC gets the original fare and prosecution costs. The court gets the fine & victim surcharge. It isnt an income generation exercise for the TOC, they may get less money than offered by the alleged offender, but to the TOC it isn't all about the money ....

 

What does that mean for the OP on the original thread?. Sending a "without predjudice" letter (as you advised) makes the TOC more likely to prosecute, not less likely, which is why I still believe your advice is poor.

 

Then some form of negotiation is feasible.

Ok. We go to Court. The case is presented but let's say it's sort of marginal.

Then the advocate draws the Court's attention to your 120% offer. "Guilty" thinks the tribunal of fact. "Innocent people don't make open offers, not even 10% to say up yours, and such a huge one is decisive".

 

Unlikely it will ever happen. In the OP's case all the TOC would need to do is bring a Byelaw 18 prosecution, a strict liability matter, and all the bench need consider to determine guilt or not is if the OP produced a ticket when one was was demanded by an officer of the railway (there are a few statuatory exemptions, but the OP hasn't given any indication these apply).

 

Alternative: actually the witness is off sick, or the prosecutor gets some of the evidence mixed up, or they can't find the file, or whatever. What evidence do they have left? Nothing really. Except the letter that just came in... same result.

 

If the TOC loosing the case file (or suchlike) is what you are advising the OP to rely on (and that is taking an awful risk), he is better sending no reply at all.

 

But you haven't suggested that, have you?. You suggested a "Without prejudice" letter - the worst of both worlds.

 

Now we come back to how we communicate with the other side. Can we honestly negotiate, with binding consequences upon agreement, without the Court being able to see into that negotiation whether or not agreed? Yes. That's why "without prejudice" exists. So people can negotiate freely with each other in confidence, in the certainty their good faith words can never come back to be used against them in Court. (remember we're not communicating material facts here so we can't even tip them off as to our case). And the Court, in its own interests, will try to protect such good faith efforts.

 

Now. The jurisdiction *ought* to be able to able to cope with it. Whether or not the jurisdiction *does* cope with it is quite another matter, and if your practical expertise says otherwise, that's fine. So if you can tell the OP from personal experience on the other side of the courtroom that without prejudice communications will not be respected by you or by the Court, ok. Your *is* will trump my *ought*: but customary law always was alive and well and living in the provinces...

 

Are we good?

 

I don't think your advice is good at all for the OP.

 

I'm sure it applies somewhere, to someone, in the right circumstances ; but not to the OP of the thread which (between us) we were at risk of obscuring.

 

I'm grateful to the site team for opening this thread and moving the relevant posts : so I can explain why your advice is bad, without cluttering that OP's thread with your (inevitable) waffly reply trying to blame others for your poor advice and lack of understanding of the TOC's process and of lack of relevance (to that thread's OP) of the law you cited.

Edited September 15, 2013 by BazzaS

[Old-CodJA]

I find much of your posts not irritating, but disingenuous.

 

I think you are trying to cloud your errors by somehow attributing them to me.

 

People can review the previous thread :

http://www.consumeractiongroup.co.uk/forum/showthread.php?400229-IRCAS-Prosecution&p=4342328#post4342328

and make their own minds up who has been caught out in bringing forward irrelevant legal argument.

 

Having read through this thread twice, I am bound to say that I have to agree with Bazza

 

 

You have made a massive, and likely erroneous, assumption. There have been a number of posts on CAG where people have said "I've offered large sums to settle".

The TOC's don't make any money on prosecutions, yet often still proceed when there is a case to answer when offered large sums : I suggest this is where they haven't received (a heartfelt apology, and plausible explanation for events as reasons not to prosecute) and the absence of these makes them want to prosecute as a means of discouraging other offenders and the original offender, not as a means of income generation.

 

By the way, in the event of a guilty (plea or verdict) : The TOC gets the original fare and prosecution costs. The court gets the fine & victim surcharge. It isnt an income generation exercise for the TOC, they may get less money than offered by the alleged offender, but to the TOC it isn't all about the money ....

 

 

Exactly right. The aim of the TOCs is to re-educate and discourage ticket-less travel in all circumstances where there are no infrastructure shortcomings or failure by the company to provide a facility for travellers to comply with the law.

 

The various legislations are framed in such a way as to make that clear and there should never be a system whereby the primary objective is to allow those who can afford it to 'buy off' justice, whilst those who cannot are left to face more severe punishment. Where the evidence in any case merits prosecution the TOCs should continue to do so.

 

That is not to say that there should not be provision for the TOC to allow closure by mitigated penalty or administrative disposal where exceptional circumstances give rise to such consideration.

 

 

Sending a "without predjudice" letter (as you advised) makes the TOC more likely to prosecute, not less likely, which is why I still believe your advice is poor.

 

Exactly right. In such circumstances the 'without prejudice' letter suggests to the TOC the alleged offender is saying 'I don't believe that you're right, but I want to pay you off and get rid of this'.

 

Why should that be accepted as reason to allow law breaking?

 

 

In the OP's case all the TOC would need to do is bring a Byelaw 18 prosecution, a strict liability matter, and all the bench need consider to determine guilt or not is if the OP produced a ticket when one was was demanded by an officer of the railway (there are a few statuatory exemptions, but the OP hasn't given any indication these apply).

 

Correct. You may not like it, but it doesn't make the prosecution wrong nor unlikely to succeed.

 

 

If the TOC loosing the case file (or suchlike) is what you are advising the OP to rely on (and that is taking an awful risk), he is better sending no reply at all.

 

Quite so, advising someone that they might escape the effects of contravening a legislation by relying on a third party making a mistake is a perverse logic to say the least!

 

 

But you haven't suggested that, have you?. You suggested a "Without prejudice" letter - the worst of both worlds. I don't think your advice is good at all for the OP.

 

I couldn't agree more.

[CRblogger]

"disingenuous". Right.

 

You know you've crossed the line. And you know what you have to do.

[CRblogger]

In brief: thanks for your *substantive* points, with which I have no difficulty and do not, I think, contradict what the reality of what I have said. Take care!

[CRblogger]

(Apologies, I can't seem to edit. The immediately preceding post was a reply to Old-CodJA. The one prior to that was to BazzaS. Apologies for any confusion)

[BazzaS]

"disingenuous". Right.

 

You know you've crossed the line. And you know what you have to do.

 

I don't have to do *anything* (and I don't know what imaginary line you think I've crossed, making it hard for me to comment on "the line").

 

What I choose to do is to:

a) keep highlighting where you are just plain wrong,

b) call you disingenuous, explaining why I believe that (you being wrong and trying to deflect it on me, you raising the spectre of misquotes but not actually accusing me outright [since you'd struggle to do so, as I previously noted]), and you quoting non-applicable statute would all be starters for your disingenuity.

 

You also replied to OCJ:

In brief: thanks for your *substantive* points, with which I have no difficulty and do not, I think, contradict what the reality of what I have said. Take care!

 

Re-read OCJ's post. They were agreeing with me, disagreeing with you, on every point I made that they commented on. You know, where they said :

 

Having read through this thread twice, I am bound to say that I have to agree with Bazza.

 

 

 

That "contradicts what the reality of what" you "have said", or at least I think it does (you've used lots of 'clever words' just not in an intelligible way) so it seems you think they are agreeing with you, when in fact they weren't.

For you to state otherwise suggests your tenuous grasp on reality.

 

Taking (for the original thread's OP) the key issue:

You said a "without prejudice" letter was a good idea.

I said it was an awful idea.

 

OCJ "couldn't agree more" that your advice wasn't good for the OP.

How is that in any way suggestive OCJ and your approaches are anything other than opposed?

Edited September 16, 2013 by BazzaS