Letter from Debt collection team at Northern rail. Advice needed Please

[DaveNewcastle]

Interesting question. I'll try and answer it as succinctly as I can.

I'm grateful to you for your considered and informative reply.

I have tried to point out, things that seem cut and dried when you walk into a magistrates court as a prosecutor occasionally unravel in ways you don't expect. One or two people have said they don't believe private prosecutors are subject to the Code of Conduct followed by the CPS. That may be so although I don't know if that has ever been tested. As someone rightly pointed out, magistrates have no power under statute to question the merit of a prosecution. However, they are perfectly capable of making their views known either by coming up with a Not Guilty verdict or, as is more usual, imposing a minute fine and awarding minimal costs or no costs at all.

. . . or one of the Discharge options.

Its an interesting question, but I'm unable to find it difficult to address :
- whilst, over the last 5 years or so, our lower Courts have been instructed to become more proactive in requesting effective rationalisation of Evidence by way of Case Mangement before or following a P&D hearing; parties may be penalised if failing to comply, but that failure is unlikely to affect the Court's Decision.
- a Byelaw may be prosecuted by anyone (a citizen of qualifying age and status) and such a citizen cannot be constrained by Polict, custom and practice and certainly not by CPS Guidelines.

I could go on, but will not do so within this thread, simply concluding that these questions are very interesting, and provide real avenues for future Prosecutions (and their Defences) though I remain unpersuaded that they assist in this current thread.

Thanks again for your explication.

 

[island]

Without wishing to muddy the waters further here, the issue of cards being declined is a perplexing one. Bearing in mind that - to the best of my knowledge - no TOC puts up big posters, or indeed any obvious signage, stating that certain cards are not accepted, do they really have a leg to stand on when it comes to chasing people who's perfectly legitimate means of payment is refused through no fault of their own? It is clearly a rather confused policy to invite somebody to pay for a ticket on board, refuse their card regardless of what funds may have been available, and then try to prosecute them for not paying. It is the railway's own decision to use outmoded technology after all, the average person cannot and should not be expected to understand the inner workings of bank transactions!

There is obviously some debate regarding this particular case, as to whether the OP is being accused of not showing a ticket or just not being able to pay for one, but the card declined issue is something well overdue for further investigation I feel.

Ultimately nobody has to accept cards of whatever type.

 

[michael769]

Ultimately nobody has to accept cards of whatever type.

They do if they claim to accept them prior to the contract being commenced!

 

[Fare-Cop]

Interesting question. I'll try and answer it as succinctly as I can.

Any posts I have put on this thread have been specifically in response to the situation described by the OP. I have not been commenting on the overall question of fare evasion or Byelaw 18. Like everyone else who has commented, I have had to accept the version of events put forward by the OP for the purpose of this discussion in the absence of any other evidence.

I appreciate there are members of this forum who have a far greater knowledge of the complexities of railway byelaws than I do and I can understand that some of those people, who work with this day in and day out might feel a bit miffed when they think a rank amateur is posting opinions on the subject.

None of us are required to list our particular areas of expertise when posting, neither would I want people to have to do so. However, in response to a PM on the subject I have said that I do have experience of prosecuting in magistrates courts so I am not entirely ignorant of the subject. I also served for many years as a Special Constable (not to be confused with PCSOs) which means I have direct experience of the process of arrest, PACE, witness statements and court appearances.

My initial post on this thread came after some members seemed to be advising the OP to send money to Northern in a bid to fend off a possible prosecution. I did point out that a) they were just asking for a response at this stage and b) that the threat that, if the matter went to court, the OP would be liable for £150 in costs was completely empty.

Very few people have the inclination, time and, in most cases money to employ professional legal help. So TOCs can usually rely on the fact that, even if their allegation is not 100% watertight, it is unlikely to be challenged by a lawyer in court. This is often because the penalties imposed are less than the cost of the lawyer.

When you are working in any sort of job that involves upholding rules and regulations, whether statute law or railway bylaws, some people do tend to develop a black and white sort of mentality. I was guilty of that myself on many occasions. In many, if not most allegations under Byelaw 18 or fare evasion I would guess that things are black and white and it is pretty obvious an offence has been committed. I have no problem with crack downs on people who don't pay their fare. That benefits all honest fare paying passengers.

However, it would be foolish to deny that there are a minority of such cases that might be an exception to the rule and I don't think anyone suggesting this on this forum should be castigated for it. By all means, let's have a debate. But the response from one or two posters seems to imply that anyone taking a contrary viewpoint does not know what they are talking about.

I have tried to point out, things that seem cut and dried when you walk into a magistrates court as a prosecutor occasionally unravel in ways you don't expect. One or two people have said they don't believe private prosecutors are subject to the Code of Conduct followed by the CPS. That may be so although I don't know if that has ever been tested. As someone rightly pointed out, magistrates have no power under statute to question the merit of a prosecution. However, they are perfectly capable of making their views known either by coming up with a Not Guilty verdict or, as is more usual, imposing a minute fine and awarding minimal costs or no costs at all.

It is one of the great strengths of the criminal justice system that courts don't necessarily have to see things in black and white and can take account of all sorts of circumstances outside the strict content of the prosecution case.

I really hope the OP comes back to us with the progress of the case. If he can produce the evidence that he did buy and pay for the return ticket, will Northern push it to court and, if they do, what was the result?

Sorry this is a bit long. None of what I have written should be implied as any criticism of other posters who may not agree with me. I value each and every single posting on these forums and have learned a great deal since I first stumbled across them. May healthy debate continue.

In terms of clarifying the generality of this process, I haven't seen anything to better this post on this or any other forum. Many thanks.

 

[island]

Ultimately nobody has to accept cards of whatever type.

They do if they claim to accept them prior to the contract being commenced!

But they don't claim to accept Visa Electron!

 

[Hellfire]

If a TOC won't accept Visa Electron, then it needs to make that clear before the passenger boards the train.

Any retailer has the right to refuse card payments as Island correctly points out. Some retailers won't take Amex for example but they have to make that clear at the till. Visa Electron is not popular because the Visa system, as it currently works, does not allow the shop to check there are funds to back the purchase, unlike other debit and credit cards.

Unless TOCs plaster their stations and trains with posters to say they won't take certain cards I think they would have great difficulty proving a case against a passenger who boarded a train and then discovered his/her card wasn't accepted. In this day and age there is an expectation that cards are universally accepted as a convenient method of payment. Even Greggs now take card payments for their greasy sausage rolls.

 

[DelayRepay]

Just to point out, the Electron brand isn't really used any more. Most of the banks re-branded Electron cards as Visa Debit, but they still require online authorisation. Customers may not be aware of this. Unless you know the specific features to look out for, e.g Natwest "online only" cards are blue, offline cards are purple.

 

[island]

Halifax and Lloyds don't make any distinction for theirs, although I have a gadget that can identify the difference.

I disagree with Hellfire; the TOCs do not have to take up advertisements or any other steps to say they don't take Visa Electron any more than they do to say they don't take Polish zlotys, French francs, or Coke bottle caps. The currency of this country is the pound sterling and anybody wishing to use any other method of payment should take steps to establish in advance whether the other party to their transaction will accept such method.

 

[Deerfold]

N

Halifax and Lloyds don't make any distinction for theirs, although I have a gadget that can identify the difference.

I disagree with Hellfire; the TOCs do not have to take up advertisements or any other steps to say they don't take Visa Electron any more than they do to say they don't take Polish zlotys, French francs, or Coke bottle caps. The currency of this country is the pound sterling and anybody wishing to use any other method of payment should take steps to establish in advance whether the other party to their transaction will accept such method.

And if their advertising and my card both say "Visa Debit" on them most people would have thought that would be check enough...

Northern at http://www.northernrail.org/travel/tickets say they don't accept Solo or Electron - but if that branding is no longer used that's not much help.

 

[michael769]

I disagree with Hellfire; the TOCs do not have to take up advertisements or any other steps to say they don't take Visa Electron any more than they do to say they don't take Polish zlotys, French francs, or Coke bottle caps. The currency of this country is the pound sterling and anybody wishing to use any other method of payment should take steps to establish in advance whether the other party to their transaction will accept such method.

As others have noted Visa Electron brand is no longer used, they have been replaced by Visa Debit, and some Visa Credit an Mastercards are set for online authorization.

If a ToC advertises that they accept Visa Credit, Visa Debit or Mastercard without any qualifications then that acceptance becomes part of the essence of the contract that is sealed as soon as a passenger enters a train at a station from which there are no purchasing opportunities.

If the ToC fails to fulfill their contractual obligation to accept that means of payment through no fault of the passenger, they will commit a material breach of the contract and in the case where the ToC was aware in advance that some of these cards could not be accepted they would be deemed to have frustrated the contract in which cases they would be unlikely to be able to lawfully enforce payment by any means.

If a ToC tried to prosecute in such circumstances I can assure you that the court would be bound to view such a case as vexatious. Even if the industry better publicized this issue they would still have to convince the court that the passenger could be reasonably expected to be aware of the restriction and that they could be reasonably expected to understand that it applied to their card.

Based on Deerfold's example I am of the opinion that this would be sufficient to contractually bind Northern into accepting online only Visa Debit and Mastercard cards.

What I fail to understand is why the industry refuses to invest in card processing kit that it fit for purpose. I understand the issues with GSM/3G signals in remote areas but to have kit that cannot cope at all even in Central London is pathetic.

 

[snail]

Some retailers won't take Amex for example but they have to make that clear at the till.

Do they? I can't recall seeing anything but I am frequently told "We don't take AMEX" verbally. There is usually a small sticker showing which cards they do take, but that is hardly definitive.

 

[michael769]

Do they? I can't recall seeing anything but I am frequently told "We don't take AMEX" verbally. There is usually a small sticker showing which cards they do take, but that is hardly definitive.

This is a poor analogy.

In most shops the contract is not completed untilmoney changes hand so until that point retailers are free to reject any transaction. This is because the customer can easily leave the goods they have selected in the shop if a problem with the transaction. This would also be the case where a ticket office refused a card.

Where things are different is where the contract completes before money changes hand. This is the case where a passenger travels on a train from a station with no ticket selling facilities. Clearly the passenger has already recieved the service and cannot somehow "untravel" so the contract completes as soon as the train moves off (or arguably when the door is closed/locked as the passenger is unlikely to be able to get off then), as that is the point where both parties are irrevocably committed to fulfilling at least some part of the contract.

In the retail world tis can occur sometimes for example in petrol sales or a restaurant or hairdresses, and these business must be more careful in terms of how they advertise payment acceptance

 

[island]

N

And if their advertising and my card both say "Visa Debit" on them most people would have thought that would be check enough...

Northern at http://www.northernrail.org/travel/tickets say they don't accept Solo or Electron - but if that branding is no longer used that's not much help.

Now you're changing the subject to hide your mistake. You and I were discussing Visa Electron, not AAT Visa Debit.

I agree that advertised acceptance of Visa and MasterCard without qualification is sufficient to give passengers a reasonable expectation their cards will be accepted. But not Visa Electron cards.

I am not sure about michael769's post. A contract requires an offer, an acceptance, and an agreement on the terms of the contract, and the scenario he describes may not have all those factors. Additionally, he makes an unwise segue from civil to criminal matters; criminal prosecutions do not turn on contract, they turn on the criminal law. A further unwise segue is into the doctrine of frustration, which certainly does not come into play as neither party is prevented from carrying out their obligations under the contract. They may be prevented from doing so at the time, but that is all: the passenger, if he is so insistent on using an AAT card, may use it over the phone to pay a UPFN or at a station booking office after travel.

I can agree with his last paragraph at least, that the reliance on 11-year old technology is not good.

 

[michael769]

A contract requires an offer, an acceptance, and an agreement on the terms of the contract, and the scenario he describes may not have all those factors.

The offer is the invitation from the ToC for passengers to board a train at an unmanned station in return for the payment of the fare at the earliest opportunity, acceptance is by the action of boarding the train and remaining on it when it leaves the station.

While I agree that criminal matters do not usually turn on contract, in the case of railway ticketing issues the contract is relevant as the criminal law offence arises from the failure to pay the contracted fare in full. If the contractual liability to pay the fare is voided no offence can be committed.

Frustration arises as the ToC has wilfully denied the passenger the opportunity to pay by a means that the ToC committed themselves to accepting by advertising that they would accept a card type that they knew they cannot always accept. It is frustration because keeping their adverts accurate and updated is entirely within their control.

 

[reb0118]

Unless TOCs plaster their stations and trains with posters to say they won't take certain cards I think they would have great difficulty proving a case against a passenger who boarded a train and then discovered his/her card wasn't accepted. In this day and age there is an expectation that cards are universally accepted as a convenient method of payment. Even Greggs now take card payments for their greasy sausage rolls.

Good point. My TOC's policy in a "card declined" scenario is to obtain details, then bill for the fare without admin charges, only if that demand is not subsequently paid will further action be taken. Not everyone who has a card declined is at it!

It should be noted that these details will be kept on file and any subsequent "card declined" transaction reports may be used to build a case for persistent fare evasion.

As an aside: over time on one route we had managed to significantly reduce the level of non payment by certain individuals by a concerted effort by guards, revenue, management, & BTP. HOWEVER, since the introduction of basic bank accounts these individuals have returned with a vengeance, same faces, same p*sh, day in day out, the difference being that whereas before they did not offer ant payment now they offer (in most cases visa debit) a card which they know will decline. In can take up to ten minutes to deal with one passenger by the time you go through the chip & pin routine, explain why it has been declined, phone for authorisation (signal permitting), explain that it has been declined by the authorisation service too, obtain details (with no way of verifying them), & issue zero fare. Not an ideal system. This also does not take into account the hidden losses from being unable to collect fares from passengers, who are able & willing to pay, but have boarded and alighted at unstaffed stations and have been unable to pay because the guard has been tied up processing declined card transactions from the usual suspects.

Question: If you put through a transaction on the swipe so to speak without authorisation, does the card holder get a fine from the bank if they have insufficient funds to cover the fare? I assume the retailer (in this case the TOC) may also be fined.

 

[IanXC]

Its worth noting that a merchant (such as a TOC) would be in breach of the Card Scheme rules if they made any distinction in notices/terms/adverts between cards based on whether they are All Authorise or not.
--- old post above --- --- new post below ---

Question: If you put through a transaction on the swipe so to speak without authorisation, does the card holder get a fine from the bank if they have insufficient funds to cover the fare? I assume the retailer (in this case the TOC) may also be fined.

A swiped transaction would be received by the bank much later, the bank may choose to pay the item, if the customer then has funds, if the amount overlimit is small or if the bank decides to allow the overlimit amount. Should that be allowed then the bank will usually apply its standard terms, which yes could well include some kind of Fee.

The bank may choose to decline the transaction, which for the vast majority of banks have no charge for the customer. The merchant however will simply not get their funds, but still have to pay the card acquiring fees. Unlike a cheque a declined card transaction is not (as far as I know) evidence of a debt, so the merchant (if they took no other details) would have to obtain a court order to get access to the cardholders details, which is very rare.

 

[island]

Again, it is not frustration because the passenger can pay by that means at a later stage, either on arrival or by being given a UPFN and then paying over the phone or at a station.

And the offence of avoiding payment of fare does not have an exception saying "unless you had a card which didn't work".

 

[reb0118]

A swiped transaction would be received by the bank much later, the bank may choose to pay the item, if the customer then has funds, if the amount overlimit is small or if the bank decides to allow the overlimit amount. Should that be allowed then the bank will usually apply its standard terms, which yes could well include some kind of Fee.

So seems a win win then? Merchant [TOC] has a chance of being paid but if not the customer [passenger] gets hit with bank charges (at probably more than the fare due) to act as a deterrent to using that card again.

The bank may choose to decline the transaction, which for the vast majority of banks have no charge for the customer. The merchant however will simply not get their funds, but still have to pay the card acquiring fees. Unlike a cheque a declined card transaction is not (as far as I know) evidence of a debt, so the merchant (if they took no other details) would have to obtain a court order to get access to the cardholders details, which is very rare.

With the exception of the card fees (which I assume would be not much) there is not much to lose then. There is a very good chance of getting nothing anyway if a TIR from is issued.

 

[DelayRepay]

Be careful if you're planning to swipe cards. My understainding is that if chip and pin is bypassed, the merchant won't be able to defend any claims of fraud or associated chargebacks. Much better, if you can, to phone for an authorisation code.

 

[island]

So seems a win win then? Merchant [TOC] has a chance of being paid but if not the customer [passenger] gets hit with bank charges (at probably more than the fare due) to act as a deterrent to using that card again.

With the exception of the card fees (which I assume would be not much) there is not much to lose then. There is a very good chance of getting nothing anyway if a TIR from is issued.

A merchant can be assessed a noncompliance fee if they have too many chargebacks.

 

[reb0118]

Be careful if you're planning to swipe cards. My understanding is that if chip and pin is bypassed, the merchant won't be able to defend any claims of fraud or associated charge-backs. Much better, if you can, to phone for an authorisation code.

No you would always go down the chip n pin route first. At the very least you verify that the PIN is known. Then I always verify by phoning the helpline ~ I know others that don't however.

 

[BestWestern]

Ultimately nobody has to accept cards of whatever type.

No, they don't, but that isn't the issue. If you enter a shop and attempt to pay for your groceries with a card which they can't accept due to lack of investment in decent equipment, you put down your basket and go somewhere else, probably with an apology from the cashier for the inconvenience. If you board a train and attempt to buy a ticket with such a card, you can end up being taken to court. Not quite the same!

 

[DaveNewcastle]

I'm surprised to see rhat this thread has picked up again, but I must comment here:-

If a ToC advertises that they accept Visa Credit, Visa Debit or Mastercard without any qualifications then that acceptance becomes part of the essence of the contract that is sealed as soon as a passenger enters a train at a station from which there are no purchasing opportunities.

If the ToC fails to fulfill their contractual obligation to accept that means of payment through no fault of the passenger, they will commit a material breach of the contract and in the case where the ToC was aware in advance that some of these cards could not be accepted they would be deemed to have frustrated the contract in which cases they would be unlikely to be able to lawfully enforce payment by any means. . . . .

That's quite correct. I'm at a loss to understand on what basis island might be relying for his challenge.

What relevant Judgements affecting the rail industry bring this thought to bear on the matter before us? -

. . . . The currency of this country is the pound sterling and anybody wishing to use any other method of payment should take steps to establish in advance whether the other party to their transaction will accept such method.

And again, what relevant Judgements affecting the rail industry helps with this mysterious and confused argument:-

A contract requires an offer, an acceptance, and an agreement on the terms of the contract, and the scenario he describes may not have all those factors. Additionally, he makes an unwise segue from civil to criminal matters; criminal prosecutions do not turn on contract, they turn on the criminal law. A further unwise segue is into the doctrine of frustration, . . . .

 

[34D]

Its worth noting that a merchant (such as a TOC) would be in breach of the Card Scheme rules if they made any distinction in notices/terms/adverts between cards based on whether they are All Authorise or not.
--- old post above --- --- new post below ---


A swiped transaction would be received by the bank much later, the bank may choose to pay the item, if the customer then has funds, if the amount overlimit is small or if the bank decides to allow the overlimit amount. Should that be allowed then the bank will usually apply its standard terms, which yes could well include some kind of Fee.

The bank may choose to decline the transaction, which for the vast majority of banks have no charge for the customer. The merchant however will simply not get their funds, but still have to pay the card acquiring fees. Unlike a cheque a declined card transaction is not (as far as I know) evidence of a debt, so the merchant (if they took no other details) would have to obtain a court order to get access to the cardholders details, which is very rare.

Off-topic, but if and when the various ITSO schemes get off the ground (especially the 'stored cash' varieties), a lot of these issues will disappear. For example, payment on train could be by cash only, and if people want to use a credit/debit card this needs to be by top up at a machine/online.

Anyway, that is for another day....

 

[island]

I'm surprised to see rhat this thread has picked up again, but I must comment here:-That's quite correct. I'm at a loss to understand on what basis island might be relying for his challenge.

What relevant Judgements affecting the rail industry bring this thought to bear on the matter before us? - And again, what relevant Judgements affecting the rail industry helps with this mysterious and confused argument:-

We don't normally come to such disagreement, Dave, and I'd like to clarify the mutual misunderstanding. In particular, are you saying that a passenger who presents a card which the railway says it accepts is permanently excused from paying for his journey if the officer of the railway is for some reason precluded from processing his payment right there and then? I am saying that in such a circumstance the passenger would reasonably be expected to tender payment at a future time such as on arrival or over the telephone.

 

[Deerfold]

Now you're changing the subject to hide your mistake. You and I were discussing Visa Electron, not AAT Visa Debit.

That seems unlikely as that was my first post about this. My only post iin this thread previously was before it diverted into talking about methods of payment. Visa Debit was mentioned in the post before yours that I replied to.

I agree that advertised acceptance of Visa and MasterCard without qualification is sufficient to give passengers a reasonable expectation their cards will be accepted. But not Visa Electron cards.

Fair enough.

 

[Flamingo]

How about if a card is offered and declined by the passengers bank? That would be on open and shut Bylaw 18 (regardless of where the passenger boarded) in my opinion, anybody else think otherwise?

 

[island]

If you've phoned for authorisation and it got declined you mean?

 

[Flamingo]

Yes

 

[island]

I think that could be a byelaw 18. Not an RRA 1889 offence as someone might claim he didn't know he had no money.