London Midland Penalty Fare Queries

[SnappySam]

Hi.

 

I have been looking into the SRA Rules, Railway By-laws and a friend's Penalty Fare Notice.

 

One or two things aren't covered, as far as I can tell, so I thought I'd see if anyone on here might have an opinion or some references to legislation.

 

My friend doesn't need advice on how to deal with the PFN,

this is simply a theoretical exercise to round off my understanding of the possible consequences of two scenarios:

 

1. A passenger without a valid ticket is stopped by a revenue collector upon attempting to leave a station.

Upon questioning, the passenger provides their name and address, but refuses to comment further.

What might happen?

I understand that refusal to supply details of the journey taken may be detrimental to a defence,

but on the other hand can any journey be proven to have taken place without the passenger's admittance?

Would you be liable to on-the-spot arrest for fare evasion?

 

2. A PFN is appealed, but by then RPSS, on behalf of LM, wants a £20, then a £40 administration charge

just for the privilege of the passenger having to await and then dispute the unfavourable Appeal Decision.

If the PFN is then paid, there will be no chance of prosecution,

 

I assume (as the only unpaid fare was the Penalty Fare), and so if RPSS want their charges paid

they would have to make a civil claim for the admin fees alone.

 

Do they actually ever do that?

 

It could be argued that collection should have been put on hold whilst the PFN was under appeal,

or until at least a few days after the Appeal Decision, as opposed to jumping in straight away with added charges at the same time the Decision was notified.

 

The amount of the fees could be disputed, I would think,

as £20 per standard form letter is obviously a lot more than the admin costs would actually amount to.

 

The PFN was, and is, if they carry on, being fought on three points,

FYI, which were lack of Warning Notices at New Street,

failure to give the passenger a copy of the PFN

(they could and should have posted it after the passenger walked off without taking it according to my interpretation of the Regulations,

'give' being held to its dictionary definition in the absence of a specific meaning in the legislation)

and failure to advise the passenger of their right to appeal the PFN.

 

The Revenue Collection Officer actually said that the passenger had lost their right of appeal due to not signing the PFN

(which isn't a requirement, nor is giving them your DOB, BTW).

[Grotesque]

For a post that began as theoretical it certainly became specific pretty quickly.

 

To suggest some senarioaic answers:

 

1. It is the equivalent to repeatedly 'no comment'ing. Whatever they charged him with, he would have- and could present no defence against- it. And it would probably be the higher offence.

 

2. All pretty irrelevant I'm afraid.

 

Re: the PFN. Since New Street is one of the busiest stations in the country, I'll have to take your word for the lack of signage.

Why should someone have a second chance of taking the notice when they already refused it the first time? Another relevant dictionary definition here: 'choice.'

As to how the Inspector is meant to advise a passenger on his right to appeal when he is walking away, I don't really know. And if he did indeed fail to advise... Then how could he 'advise' that the right of appeal had been lost? Either way, he was effectively correct. To appeal the notice you need to have it in front of you, as you will need certain specific pieces of information from it. Which will not be available if you ain't taken it in the first place. To be brutally honest, if someone walks away, they have lost their right to say what did or didn't occur.

Know wot I mean?

[BazzaS]

As an additional point, since you are talking hypothetically, what if by refusing a PFN the traveller moved the member of rail staff from thinking "no valid ticket held , but not a fare dodger" where a PFN might be issued, to thinking " intent to avoid a fare" where the staff member isn't allowed to issue a PFN, but must make a report for consideration of prosecution?

[SnappySam]

 

1. It is the equivalent to repeatedly 'no comment'ing. Whatever they charged him with, he would have- and could present no defence against- it. And it would probably be the higher offence.

 

 

I've no doubt you're right on the part about being charged with the higher offence. I'm just wondering what the specifics of the charge would entail, as it's either being on a penalty fare train or in a penalty fare zone - and if no evidence shows a presence on a penalty fare train or in a penalty fare area, then is silence alone to be taken as evidence of guilt? I'm interested in the facts that would be presented before a court that would go towards proving an offence. And also if arrest is possible for refusal to give any information beyond your details.

 

 

A Defence actually could be presented, depending on what the summons alleged. if the summons provided incorrect facts the charge wouldn't stand. This does happen when incompetent staff are involved, which is increasingly the case with officialdom.

 

 

 

2. All pretty irrelevant I'm afraid.

 

 

Not sure what you mean - the question was whether RPSS ever pursue their admin charges. The answer would obviously depend on a passenger paying the PFN but not the fees of RPSS, so the question presupposes that course of action having being taken before. Not sure if anyone would bother but there does seem room for dispute in some, maybe all circumstances as regards the implementation of administration fees.

 

 

 

Re: the PFN. Since New Street is one of the busiest stations in the country, I'll have to take your word for the lack of signage.

 

 

Undergoing wholesale refurbishment at the moment - still only half completed. Very few signs and not displayed as per SRA Rule 4.

 

 

Why should someone have a second chance of taking the notice when they already refused it the first time? Another relevant dictionary definition here: 'choice.'

As to how the Inspector is meant to advise a passenger on his right to appeal when he is walking away, I don't really know. And if he did indeed fail to advise... Then how could he 'advise' that the right of appeal had been lost? Either way, he was effectively correct. To appeal the notice you need to have it in front of you, as you will need certain specific pieces of information from it. Which will not be available if you ain't taken it in the first place. To be brutally honest, if someone walks away, they have lost their right to say what did or didn't occur.

Know wot I mean?

 

 

Taking into account that, 'The Revenue Collection Officer actually said that the passenger had lost their right of appeal due to not signing the PFN', and that the passenger walked away only after the end of the encounter, it was unlikely that any amount of hanging about would have resulted in the passenger being verbally advised of their right to appeal, as required by Rule 8.

[SnappySam]

As an additional point, since you are talking hypothetically, what if by refusing a PFN the traveller moved the member of rail staff from thinking "no valid ticket held , but not a fare dodger" where a PFN might be issued, to thinking " intent to avoid a fare" where the staff member isn't allowed to issue a PFN, but must make a report for consideration of prosecution?

 

 

Prosecution would be inevitable, I would think.

[Old-CodJA]

As an additional point, since you are talking hypothetically, what if by refusing a PFN the traveller moved the member of rail staff from thinking "no valid ticket held , but not a fare dodger" where a PFN might be issued, to thinking " intent to avoid a fare" where the staff member isn't allowed to issue a PFN, but must make a report for consideration of prosecution?

 

Whilst you are right that 'intent to avoid a fare' is most likely to be assumed Bazza, the inspector does not need to consider 'intent' to have grounds to report for potential prosecution in this case.

 

Birmingham New Street is a fully staffed station with ticketing facilities available throughout service hours. The act of failing to obtain a ticket before travelling, or failing to present a ticket for examination during or after completion of a journey will give grounds for a prosecution in any case.

Edited January 16, 2014 by Old-CodJA

[Stigy]

 

Not sure what you mean - the question was whether RPSS ever pursue their admin charges. The answer would obviously depend on a passenger paying the PFN but not the fees of RPSS, so the question presupposes that course of action having being taken before. Not sure if anyone would bother but there does seem room for dispute in some, maybe all circumstances as regards the implementation of administration fees.

No. The notice would eventually be cancelled and progressed to the Magistrates' Court as a Byelaw offence (18(1) usually). This being the case, the £20 plus any incurred admin would be wiped, and the initial fare claimed back as compensation, plus a contribution to their costs (around £100). Also the court would impose a fine of around £200, plus a 10% victim surcharge on proving the matter.

 

All in all, depending on the defendants means, it could be an expensive day out.

[SnappySam]

No. The notice would eventually be cancelled and progressed to the Magistrates' Court as a Byelaw offence

 

 

So are you saying that if the PFN was paid, but not the admin fees, that would be reason enough to proceed with prosecution?

 

 

1. You pay the ticket plus the fees = no action?

2. You pay only the ticket = criminal proceedings?

 

 

I understand that criminal prosecution is their choice, but I fail to understand how not paying the admin fees can turn a civil matter into a criminal one. How can you be prosecuted for failing/avoiding to pay when you have actually paid? The admin fees aren't part of any fare, penalty or otherwise, so payment or non-payment of them shouldn't even be a consideration when deciding whether to take action in the Magistrates' Court. I know that they can send you your money back if they choose the criminal route - but are they entitled to do so because you won't pay the admin fees?

 

 

Non-payment of the PFN can be considered as intention to avoid a fare, but even IPFAS says it needs to be an outright refusal, rather than a reasonable dispute under the rules.

[Grotesque]

I saw one of them get thrown out of CoL mag's a few years ago.

[SnappySam]

I saw one of them get thrown out of CoL mag's a few years ago.

Can you tell us more, please?

[Old-CodJA]

So are you saying that if the PFN was paid, but not the admin fees, that would be reason enough to proceed with prosecution?

 

 

1. You pay the ticket plus the fees = no action?

2. You pay only the ticket = criminal proceedings?

 

 

I understand that criminal prosecution is their choice, but I fail to understand how not paying the admin fees can turn a civil matter into a criminal one. How can you be prosecuted for failing/avoiding to pay when you have actually paid? The admin fees aren't part of any fare, penalty or otherwise, so payment or non-payment of them shouldn't even be a consideration when deciding whether to take action in the Magistrates' Court. I know that they can send you your money back if they choose the criminal route - but are they entitled to do so because you won't pay the admin fees?

 

 

Non-payment of the PFN can be considered as intention to avoid a fare, but even IPFAS says it needs to be an outright refusal, rather than a reasonable dispute under the rules.

 

 

 

 

The key thing to remember is that the incident started as evidence of a failure to comply with rule that can be pursued as a criminal offence for which the TOC may be permitted, if they so choose, to accept a civil resolution, which is subject to the alleged offender's compliance with the terms of disposal.

 

If the alleged offender refuses, or fails, to comply with those terms, that option can be withdrawn. It is written into the rules.

 

If you fail to pay, or successfully appeal the notice within the 21 days allowed, the company can cancel the notice as Stigy has said. They can then make an application for the issue of a Summons alleging intent to avoid payment of the fare and criminal proceedings can commence.

 

The relevant section of the Regulation of Railways Act includes the phrase '...having not previously paid his fare...'

 

Paying the fare only after having been reported does not prevent prosecution of the alleged offence

 

If you then send just the fare to the rail company at a later date, outside the 21 days and particularly after the summons is issued, the TOC could simply return your payment as an 'unsolicited sum' because they are never under any obligation to accept an out of Court settlement..

[SnappySam]

The key thing to remember is that the incident started as evidence of a criminal offence for which the TOC may be permitted, if they so choose, to accept a civil resolution, which is subject to the alleged offender's compliance with the terms of disposal. If the alleged offender refuses, or fails, to comply with those terms, that option can be withdrawn. It is written into the rules.

 

If you fail to pay, or successfully appeal the notice within the 21 days allowed, the company can cancel the notice...

 

If you then send just the fare to the rail company at a later date, after the summons is issued, the TOC could simply return your payment as an 'unsolicited sum' because they are never under any obligation to accept an out of Court settlement..

 

 

All taken on board - but where does that leave the civil process? The amount should be recovered as a civil debt, say the rules, so if you dispute their side of the story then it's an argument for the County Court to hear, I would have thought. Is that not compliance with the terms?

 

 

I completely get that they can choose how to deal with it, but if all along they insist on you paying, and you dispute it, and then decide to prosecute simply because you disagree with the facts, then that's just not right. If you had committed an offence they should have accused you of it to start with, not because you disputed the validity of the PFN. A claim for damages in the County Court due to malicious prosecution springs to mind. IPFAS themselves state that the PFN isn't an implication of any offence being committed.

 

 

All parties are entitled to, and should, abide by the Rules under which the PFN was issued - I believe that only an outright refusal to pay, or ignoring all correspondence should lead to prosecution. I could be totally misunderstanding, I know, but that's my reading of the applicable Rules. I don't dispute what they can do, but do dispute the correctness of it in light of what the Rules actually say about recovery of such a civil debt - if that is all that is alleged to be the issue.

Edited January 25, 2014 by SnappySam

[SnappySam]

 

If you then send just the fare to the rail company at a later date, outside the 21 days and particularly after the summons is issued, the TOC could simply return your payment as an 'unsolicited sum' because they are never under any obligation to accept an out of Court settlement..

 

 

Even if it was solicited? £19 would be unsolicited. Non-payment of the admin fees isn't unsolicited because RPSS's fees are their problem - nobody has the right to prosecute on account of failure to pay the debt collector. Hard to prove that they did it over that if they did prosecute afterwards of course. but it's surely against the spirit of the PFN scheme.

[honeybee13]

Hello SnappySam.

 

Is this query still hypothetical please? It seems to have become rather specific.

 

HB

[Old-CodJA]

If you read the Penalty Fares Rules you will see that there is written into them the provision that, if you do not successfully appeal, or pay the sum claimed by the notice within 21 days, the TOC may cancel that option and proceed to prosecution of the original offence, which may be:

 

a) Fail to pay the fare and obtain a valid ticket before boarding a train when pre-purchase facilities were available contrary to National Railway Byelaw 18.2 (2005)

 

b) Fail to show a ticket contrary when asked to National Railway Byelaw 18.2 (2005)

 

c) Travel on a railway without having previously paid the fare with intent to avoid payment thereof contrary Section 5.3.s of The Regulation of Railways Act [1889]

 

It is worth remembering that this scenario has been tested by the Magistrates many thousands of times (including several unsuccessful Crown Court Appeals) since Penalty Fares first came into operation in 1989.

 

If you can find a way to land an alternative judgment, I genuinely wish you the best of luck.

[SnappySam]

Hello SnappySam.

 

Is this query still hypothetical please? It seems to have become rather specific.

 

HB

Yes, still hypothetical as far as the queries go about not paying the admin fees and if you would be liable to arrest for staying silent when questioned.

[SnappySam]

If you read the Penalty Fares Rules you will see that there is written into them the provision that, if you do not successfully appeal, or pay the sum claimed by the notice within 21 days, the TOC may cancel that option and proceed to prosecution of the original offence, which may be:

 

a) Fail to pay the fare and obtain a valid ticket before boarding a train when pre-purchase facilities were available contrary to National Railway Byelaw 18.2 (2005)

 

b) Fail to show a ticket contrary when asked to National Railway Byelaw 18.2 (2005)

 

c) Travel on a railway without having previously paid the fare with intent to avoid payment thereof contrary Section 5.3.s of The Regulation of Railways Act [1889]

 

It is worth remembering that this scenario has been tested by the Magistrates many thousands of times (including several unsuccessful Crown Court Appeals) since Penalty Fares first came into operation in 1989.

 

If you can find a way to land an alternative judgment, I genuinely wish you the best of luck.

 

 

Thanks for that. Though I'm still wondering when the provision that it is recoverable as a civil debt kicks in if you still dispute the facts after 21 days. If it says the amount of the PFN is recoverable that way, and if attempt at recovery has been the process even after the 21 days, thus showing an intention to collect via the civil process, then when does it become criminal? Is it the case that the civil procedure is never used? That would be of interest - because: why not? it would at least seem questionable if the civil recovery process was never used, despite it being the prescribed way to obtain payment.

 

 

I think that IPFAS saying that an 'outright' refusal to pay could be considered to be avoidance of a fare does mean something - it implies that not simply refusing to pay won't be considered as intention to avoid a fare.

[SnappySam]

Just for the record: I have had direct experience with authorities of one sort or another where incorrect application of the law has been questioned and found to be in error. I'm not saying I know I'm right, just that I know that sometimes I have been - despite their protests and useless Defences. I also know that County Court doesn't set any precedence, and that a successful Claim against a miscreant authority doesn't stop them doing to others what you've got a judge to make them stop doing to you. I also appreciate that you'd stand little chance in a Magistrates' Court of getting a not guilty verdict if they summonsed you, but I don't see that that would necessarily stop a civil claim for them doing so.

[Old-CodJA]

Thanks for that. Though I'm still wondering when the provision that it is recoverable as a civil debt kicks in if you still dispute the facts after 21 days.

 

 

The answer is that it does not. The civil remedy option allowed by the Penalty Fares Rules, which form a part of The Railways Act, ceases to exist after 21 days. The payment notice is cancelled and the TOC may move to summons. The TOC were never bound to issue a Penalty Fare Notice in the first place where evidence of an offence is identified.

 

 

If it says the amount of the PFN is recoverable that way, and if attempt at recovery has been the process even after the 21 days, thus showing an intention to collect via the civil process, then when does it become criminal?

 

 

The failure to comply with Byelaw and / or other legislation was the act that might be pursued as an allegation of a criminal offence. The TOC will not charge any loss as the amount of the Penalty Fare, but will charge the failure to pay the actual fare due. i.e: The fare might be £2.50, but the PFN will say £20.00, which is correct. If this proceeds to prosecution the Summons will allege a failure to pay £2.50 as identified at the time of travel.

 

 

The TOC might choose to offer one opportunity to avoid prosecution (a PFN or civil settlement) if they wish and if not taken up, might proceed to prosecute. The TOC are NEVER obliged to offer any such opportunity.

 

There is an opportunity for the person who is in receipt of the notice to promptly refer rejection of their appeal to the Independent Penalty Fares Appeals Service, who may or may not overturn the response, but if that has not been done, or if IPFAS has upheld the liability of the notice and the traveller does not pay, the TOC is at liberty to prosecute in a criminal Courts list.

 

 

Is it the case that the civil procedure is never used? That would be of interest - because: why not? it would at least seem questionable if the civil recovery process was never used, despite it being the prescribed way to obtain payment.

 

 

Pretty well, yes. The point is that the TOC does not have to accept payment at any stage. The offences of either 'fail to pay a fare before travelling', 'fail to show a ticket', or 'travel with intent to avoid payment' are all summary allegations. The prosecutor might truthfully advise the Magistrates that 'The TOC has given opportunities to deal with this matter without troubling the Court, but Mr X has failed to take up that opportunity.'

 

If evidence is gathered, which suggests an offence that might be pursued as a summary allegation in a criminal court list, the TOC, or their appointed agents, may prosecute that offence. All of the legislation makes that clear.

 

If Mr X is given an opportunity to avoid prosecution of a first criminal offence and does not take that opportunity, or challenges the liability and the challenge is rejected, the proper place to determine innocence or guilt in relation to the alleged offence is in the Magistrates Court.

 

The original alleged offence in these cases is never a purely civil matter, it is identified in criminal law as a trangression captured by either an Act of Parliament or by an approved Byelaw.