Northern Rail - Non payment of Fare

[cuccir]

It's diluting the message and giving a false impression - you either stand by the bylaw or you don't, Northern or any other TOC shouldn't give a conflicting message as they are doing - in two years of travel, I've nearly always bought a ticket on the train from Meadowhall or Sheffield after walking straight past ticket machines and the booking hall - only once has a guard ever told me that I should have a ticket before I board - 99% of the time they have freely sold me a ticket.

Without wanting to highjack this thread - I'm aware that it's best to keep threads asking for advice separate from discussions - I agree that Northern are far from consistent in their practice and this is bound to trip people up. In the North-East ticket machines have recently appeared on the Tyne Valley and Durham Coast Lines, but people still buy on the train in large numbers - partially, because one machine, on one platform, which only takes card, really shouldn't be considered adequate for some of theses stations. On these trains guards have long sold tickets on-board when departing from Newcastle, where there are clearly numerous opportunities to pay.

In many parts of Yorkshire/Lancashire they seem to have operated similarly for some time, and have only recently started enforcing the rules. That's their right but unless accompanied with information telling people that long standing practice is being revoked, it's at best morally dubious.

Again, though, I'd emphasise that in this case, there seems to be a high likelihood of successful bylaw prosecution if it went to court; but similarly a high likelihood of accepting an out of court offer of around the £80 mark if offered.

 

[AM1]

Without wanting to highjack this thread - I'm aware that it's best to keep threads asking for advice separate from discussions - I agree that Northern are far from consistent in their practice and this is bound to trip people up. In the North-East ticket machines have recently appeared on the Tyne Valley and Durham Coast Lines, but people still buy on the train in large numbers - partially, because one machine, on one platform, which only takes card, really shouldn't be considered adequate for some of theses stations. On these trains guards have long sold tickets on-board when departing from Newcastle, where there are clearly numerous opportunities to pay.

In many parts of Yorkshire/Lancashire they seem to have operated similarly for some time, and have only recently started enforcing the rules. That's their right but unless accompanied with information telling people that long standing practice is being revoked, it's at best morally dubious.

Again, though, I'd emphasise that in this case, there seems to be a high likelihood of successful bylaw prosecution if it went to court; but similarly a high likelihood of accepting an out of court offer of around the £80 mark if offered.

Agree totally, if there were to be blanket communications on the trains over the tannoys and guards selling tickets informing customers face to face then within weeks 90% of commuters would know.....on the Warrington to Liverpool Lime Street line i'm not aware of a station that DOESNT have a manned ticket office so strictly by the rules maybe the guards shouldn't be selling anyone a ticket on this service and therefore sending these threatening letters to EVERYONE without a ticket at Lime Street?

 

[185]

Agree totally, if there were to be blanket communications on the trains over the tannoys and guards selling tickets informing customers face to face then within weeks 90% of commuters would know

I am often accused of being a rocking-chair rattling old dinosaur by many, but what's bothered me most here is the way bylaws are interpreted and applied....

The person running Northern Rail Debt Recovery & Prosecutions was infact the person who ran my retail course many years ago, and it was him who taught me the application of the bylaws for ticketing matters. Our dear leader specifically mentioned "common sense should always be used in interpreting the bylaws" and mentioned that "whilst bylaws are totally watertight, they are generally used as a final resort to ensure prosecutions succeed against those who've deliberately and persistently tried to avoid paying".

I have a lot of time for this chap and can only assume he has either gone as crazy as me in his old age, or more likely faced pressure from people above, often with little or no experience in the railway. Whilst I am accused of being the keenest in my depot in terms of revenue protection and prosecutions, I always consider what he taught me in deciding whether to report a passenger, or use discretion, which here I would have used.

 

[AM1]

Update on this, Northern have written back today with an £83.40 fixed penalty notice.....a blessing in our eyes as we did offer £150 plus the fare!

Thanks for the people who replied with the guidance on how to respond!

 

[bb21]

That's good. No matter what you think of their new practice, it is a good result.

 

[Anvil1984]

Without wanting to highjack this thread - I'm aware that it's best to keep threads asking for advice separate from discussions - I agree that Northern are far from consistent in their practice and this is bound to trip people up. In the North-East ticket machines have recently appeared on the Tyne Valley and Durham Coast Lines, but people still buy on the train in large numbers - partially, because one machine, on one platform, which only takes card, really shouldn't be considered adequate for some of theses stations. On these trains guards have long sold tickets on-board when departing from Newcastle, where there are clearly numerous opportunities to pay.

In many parts of Yorkshire/Lancashire they seem to have operated similarly for some time, and have only recently started enforcing the rules. That's their right but unless accompanied with information telling people that long standing practice is being revoked, it's at best morally dubious.

Again, though, I'd emphasise that in this case, there seems to be a high likelihood of successful bylaw prosecution if it went to court; but similarly a high likelihood of accepting an out of court offer of around the £80 mark if offered.

Well unfortunately the Durham Coast and Tyne Valley machines (along with machines at Northerns unstaffed stations) are card only so you have to sell large amounts of tickets on train as a lot of passengers have NOT had an opportunity to pay. Also passengers boarding at Newcastle and other manned stations can purchase undiscounted tickets on train otherwise do you expect the conductor to do 5 / 6 travel incident reports by the time he gets to Heworth / Metrocentre. The issue and consistency arises when a passenger arrives at a station after having a minimum of 1 opportunity to by and not taking it.

 

[AM1]

That's good. No matter what you think of their new practice, it is a good result.

At least she won't do it again, I haven't took offence to the rules or their right to enforce them it's the lack of consistency. I'm on a service right now where the conductor is selling tickets to anyone who needs one, no message that he doesn't have to or they're randomly taking details at main stations.

I agree in the specific situation it's a good result but with a clearer message regarding buying before boarding she could be 80 quid better off! Not to mention the uncertainty since the incident in October!

 

[cuccir]

Well unfortunately the Durham Coast and Tyne Valley machines (along with machines at Northerns unstaffed stations) are card only so you have to sell large amounts of tickets on train as a lot of passengers have NOT had an opportunity to pay.

Yes, as I said in the post that you quote.

Also passengers boarding at Newcastle and other manned stations can purchase undiscounted tickets on train

In some parts of the country, on some TOCs

otherwise do you expect the conductor to do 5 / 6 travel incident reports by the time he gets to Heworth / Metrocentre. The issue and consistency arises when a passenger arrives at a station after having a minimum of 1 opportunity to by and not taking it.

The problem is not doing this, per se, but that:
1. It directly contradicts what Northern are doing elsewhere in the country
2. Northern have operated this way in Lancashire/Yorkshire until recently, and has since started (threatening to) prosecute passengers acting in this way under Bylaw 18. This sudden change is catching a lot of people out, and usually this is people who are a bit disorganized/unfamiliar with regulations, rather than fare dodging.

If Northern want to run penalty fares schemes, or to crack down on people not buying before boarding, then they need to:
1. Offer adequate facilities for buying before people board
2. Significantly increase posters/information to regular passengers that practice has changed
3. Be more consistent across their network

 

[michael769]

If Northern are calling these offers fixed penalties then they are setting themselves up for a nasty fall as they have no lawful authority to issue fixed penalty notices!

 

[jb]

If Northern are calling these offers fixed penalties then they are setting themselves up for a nasty fall as they have no lawful authority to issue fixed penalty notices!

I would think it more likely the OP is being imprecise.

 

[johnb]

In reply to AM1's earlier point about PFs:

Penalty Fares can only be applied if you're in a designated Penalty Fares Area, which wasn't the case for your sister.

That's because for most of the last 25 years or so, most rail companies were relaxed about you starting your journey without a ticket unless they thought you were intending to avoid payment. Introducing Penalty Fares areas was a way of saying "you always need to buy a ticket in advance for this journey, even if you're not being dodgy".

The current zealous use of 18(1) prosecutions is having the perverse effect of making the punishment for travelling without a ticket *stricter* in non-Penalty Fare areas than in Penalty Fare areas, which is obviously not the intent of the legislation.

 

[AM1]

I would think it more likely the OP is being imprecise.

As the letter is headed "FIXED PENALTY NOTICE" in red bold type, you would think wrong.

 

[W230]

As the letter is headed "FIXED PENALTY NOTICE" in red bold type, you would think wrong.

Nope, jb thinks right. A "fixed penalty notice" is not the same thing as a "penalty fare".

johnb (apparently not the same person as jb ) states what a penalty fare is above. Whereas, a fixed penalty notice is a means to finalise an offence without it being taken to court. Much the same as the police, council etc use to avoid sending people to court over minor maters.

 

[sheff1]

Nope, jb thinks right. A "fixed penalty notice" is not the same thing as a "penalty fare".

AM1 consistently refers to the notice as Fixed Penalty Notice as this is what Northern have seemingly sent, apparently without lawful authority according to michael769's post.

 

[island]

Yes, a fixed penalty notice has a specific legal meaning.

 

[michael769]

The $64,000 question is how a court would react to Northern dressing up what may be a civil invoice issued as part of an offer for an out of court settlement as a criminal Fixed penalty?

Could this be viewed as sufficient to prejudice a trial? Or even as a procedural impropriety?

I honestly don't know, as Northern still have the Railway Byelaws to back them, so this cannot be easily compared to other private companies, who have used similar terminology on their invoices in the past. it would be interesting to know if there are any court precedents where bodies supported by byelways or statute have tried this one.

I would be equally interested to know if there is some statutory authority for the notice of which we are unaware. Can I ask the OP to review the notice that they have received for any mention of particular Acts of Parliament, Regulations or Byelaws that may be mentioned?

I hesitate to advise that the OP seeks legal advice before paying - as the costs of that advice and what might be required to answer the questions I raise in what I have a feeling might turn into a test case ($$$$) , may in the end be noticeably higher than simply the invoice. (And it will definitely involve a lot more stress and effort for the OP).

 

[W230]

AM1 consistently refers to the notice as Fixed Penalty Notice as this is what Northern have seemingly sent, apparently without lawful authority according to michael769's post.

I should add, I wasn't debating whether Northern specifically had the power to issue such a thing (I have no idea!), just that a fixed penalty notice and a penalty fare are not the same thing.

 

[DaveNewcastle]

I have kept out of this thread for fear of pulling it further off-course - some threads do become more of a discussion among forum members rather than a direct and appropriate response to the OP, and I would prefer not to perpetrate that trend.

However, now that AM1 has received a reply with a proportionate settlement, and which I hope will be settled to conclude the matter, then I won't apologise for an off-topic conversation any longer!

The $64,000 question is how a court would react to Northern dressing up what may be a civil invoice issued as part of an offer for an out of court settlement as a criminal Fixed penalty?

. . . . it would be interesting to know if there are any court precedents where bodies supported by byelways or statute have tried this one.

As I'm sure you are aware, the framework for creating and enforcing Byelaws is also available to many other bodies, most notablyto Local Authorities, as is the power to issue Fixed Penalty Notices and collect the monies due. Section 237A of the Local Government Act 1972 refers, in fairly clear English.

I will say that many, many minds have been applied to trying to challenge the legitimacy of these Notices (often aggreived motorists).

Turning to the Railways, it is my reading of the Railway Byelaws that they do authorise the issue of a Penalty.
Whether the precise wording of the Fixed Penalty Notice received by AM1 is or is not compliant with the powers granted under the Railways Acts and Transport Acts, as amended, I cannot guess.
But it certainly will not represent good value for money to attempt a challenge!

 

[michael769]

As I'm sure you are aware, the framework for creating and enforcing Byelaws is also available to many other bodies, most notablyto Local Authorities, as is the power to issue Fixed Penalty Notices and collect the monies due. Section 237A of the Local Government Act 1972 refers, in fairly clear English.

I will say that many, many minds have been applied to trying to challenge the legitimacy of these Notices (often aggreived motorists).

I am indeed aware of both S237A of the LGA and also Ss51-90 of the Road Traffic Offender Act 1988 as a,ended which sets out the statutory basis for motoring offences, both of which set a sound statutory authority, within primary legislation for the issuance of fixed penaltys in their specific spheres of influence. i hope I already made it clear that I was distinguishing between the lawful statutory authority given by these and other statutes, and where such authority may not exist.

Turning to the Railways, it is my reading of the Railway Byelaws that they do authorise the issue of a Penalty.

Alas I cannot share your interpretation having re- read both Byelaw 18 and more importantly byelaw 24 which sets out the availale penalties I can find no mention of fixed penalties as an availale punisment. Indeed my interpretation of bl 24 is that the only available penalty is the level 3 fine set out in 25(1) or (if it can be considered a punishment) the powers of (forcible) removal from the railway set out in 25(2). If I have overlooked a glaringly obvious provision I'd be interested to have my attention drawn to in.

In any event, for the benefit of those interested members not so familiar with our legislative framework, I would point out that byelaws cannot have any authority on their own, but must take their authority from their authorising primary legislation in this case S 219 and Schedule 20 of the Transport Act 2000. In my view Sched 20 is quite clear in that while it authorises the level 3 fine, it, in my view, provides no powers for the byelaws to include provisions for a fixed penalty regime.

Personally I find a comparision of with your example of the LGA quite instructive with S237A quite explicitly spelling out a fixed penalty regime and the absence of anything similar in the Transport Act as quite instructive, and based on my personal interpretation of the two I am inclined to conclude that the intent of parliament, as set out in the relevant Acts, that Local Councils be permitted to operate a fixed penalty scheme but that the beneficiaries of the railway byelaws should not enjoy such a privilage.

Of course this is very much an interpretation of what I see, as I cannot point to any relevant binding rulings to support this view.

But it certainly will not represent good value for money to attempt a challenge!

In this I agree wholeheartedly. I do not consider exploring this avenue as being a productive route for the OP. And I should perhaps point out that there is no realistic prospect of a magistrate or their legal adviser being willing to engage such an argument meaning that to have it considered would involve a long, stressful and potentially extremely expensive appeals process in a higher court.

I would cerainly echo the advice of others to AM1 that the most appropriate course of action is to pay the request from NR and put the matter behind them.

But I do forsee that the day will come when someone with the confidence, or perhaps a stong sense of outrage, combined with perhps a little more cash than good sense, may seek to explore this avenue. It may be that the outcome will support Northern Rails approach, but if it does not it will not reflect well on Northern especially if there is widespread attendant pulicity, and could eventually damage their goal of reducing ticket fraud.

It just seems to me to be a high risk approach, especially as the approach of offering out of court settlements seems to be working for other TOCs.

 

[DaveNewcastle]

I won't disagree. However, I'm unpersuaded that the imposition of a Penalty in the form of a so-called 'Fixed Penalty Notice' is necessarily ultra vires if it is not expressly specified in the enabling Act (as it is in the LGA) while other form of Penalties are, where all the conditions set out in the Byelaw are satisfied and none of the prerequisites in the enabling Act is violated.

Alas I cannot share your interpretation having re- read both Byelaw 18 and more importantly byelaw 24 which sets out the availale penalties . . . .
. . . . .If I have overlooked a glaringly obvious provision I'd be interested to have my attention drawn to in.

*
I had been consdering the penalties permitted to be imposed under Railway Byelaw 14.4 which does not appear to refer to a tariff nor to a prosecution.

I remain wanting for further clarification.

* While michael769 was retrospectively inserting the above paragraph, I was attempting to resolve the same question, and in that attempt, had typed the next sentence referring to Byelaw 14.4, perhaps not answering the question, but rather, compounding it.

 

[jkdd77]

I won't disagree. However, I'm unpersuaded that the imposition of a Penalty in the form of a so-called 'Fixed Penalty Notice' is necessarily ultra vires if it is not expressly specified in the enabling Act (as it is in the LGA) while other form of Penalties are, where all the conditions set out in the Byelaw are satisfied and none of the prerequisites in the enabling Act is violated. *
I had been consdering the penalties permitted to be imposed under Railway Byelaw 14.4 which does not appear to refer to a tariff nor to a prosecution.

I remain wanting for further clarification.

* While michael769 was inserting this paragraph, I was attempting to resolve the same question, and in that attempt, had typed the next sentence referring to Byelaw 14.4, perhaps not answering the question, but refining it.

Byelaw 14.4 states:
"4) In England and Wales
(i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area....[snip- relates to parking only]"

I don't see how this authorises the charging of penalties in relation to ticketless travel.

 

[island]

Ultimately, I suspect that whether or not there is some defect in the notice it is unlikely to result in a Northern prosecution for non-payment failing.

 

[DaveNewcastle]

I wonder if I haven't been clear.

Byelaw 14.4 . . . .
I don't see how this authorises the charging of penalties in relation to ticketless travel.

Self evidently it doesn't. That is not the issue we're examining.

But I referred to it in order to develop the line of thinking which emerged through the preceeding 4 posts, inspired by michael769's doubt about the "Fixed Penalty Notice": "what may be a civil invoice issued as part of an offer for an out of court settlement as a criminal Fixed penalty?".

To summarise the argument:- we agree that the enabling Act authorises the Railway undertakings to impose penalties, and while michael769 correctly noted that the Transport Act did not specifically state 'fixed penalties', and we both acknowleged that the LGA does (in S.237A); he also relied on two Railway Byelaws (18 & 24) which referred to penalties on the Standard Scale following conviction, as if to suggest that the Railways may only have authority to impose fines through prosecutions. I'm sympathetic to that assumption, but it appears to be undermined by Byelaw 14.4 which authorises a penalty which could take the form of a fixed charge. Byelaw 14.4 is significant in that it does not state ". . . . may be liable to pay a penalty following summary conviction . . . ".

If you agree so far, then you may be able to see that, by inference, the Railways are not disbarred from imposing Fixed Penalty Notices by virtue of any provision (or more to the point, any lack of provision) in the Transport Act.

That was the issue we're considering. Hope that's clearer.

Now, to develop the argument a little further, I have taken the opportunity this morning to re-read the original enabling Act which authorised the first Railway Byelaws, the Railway Clauses Consolidation Act 1845, to see if there may have been an historical authority for a penalty other than a fine following a prosecution. There was. It states:-
"any Person offending against any such Byelaw shall forfeit for every such Offence any Sum not exceeding Five Pounds, to be imposed by the Company in such Byelaws as a Penalty for any such Offence"
It is interesting that when this same authority was updated by the British Transport Commission Act 1949, then the requirement for a conviction is introduced:-
"Any byelaws made under this section may provide that any person contravening them shall be liable on summary conviction to a penalty not exceeding twenty-five pounds for each offence."
We must note that this requirement for a conviction applies to byelaws made under that provision and not to any Railway Byelaws already created.
In other words, the original enabling Act, unlike our current statute, does not refer to penalties following conviction. The penalty in Byelaw 14.4 does appear to arise under such authority, as does a Fixed Penalty Notice issued to a passenger. Byelaws created after 1949 would, it appears, only impose penalties following conviction. However, we have not shown that Northern Rail relies on the Railway Byelaws to authorise its Fixed Penalty Notices.

 

[snail]

This is an interesting discussion of the technicalities. I wouldn't attempt to pretend I understand the intricacies of railway law but the comparison with parking notices is an obvious one. There is one significant difference I can think of here, in that the issue of notices by private parking companies is thought to be invalidated because there is no contract between the motorist and the party issuing the notice (ie they are parking on third party land and the enforcement contract is between the third party and PPC). With rail travel the TOC issuing the notice is a party to the contract.

There is still the argument as to whether Northern are allowed to issue a 'Penalty' that is disproportionate to the loss incurred (the fare) without published byelaws or legislation. That is thought to be the reason few parking penalty cases ever get to court.

 

[cuccir]

I have kept out of this thread for fear of pulling it further off-course - some threads do become more of a discussion among forum members rather than a direct and appropriate response to the OP, and I would prefer not to perpetrate that trend.

Given that the OP's case has been closed with all relatively satisfied, I think this is less of a problem - it's an issue only if the discussion drowns out advice.

 

[island]

There is still the argument as to whether Northern are allowed to issue a 'Penalty' that is disproportionate to the loss incurred (the fare) without published byelaws or legislation. That is thought to be the reason few parking penalty cases ever get to court.

I don't see anything wrong with it, since a passenger of whom such a payment is demanded and who does not believe it due is fully entitled to defend himself against the relevant criminal charge in Court. Payment is entirely optional.

 

[michael769]

I don't see anything wrong with it, since a passenger of whom such a payment is demanded and who does not believe it due is fully entitled to defend himself against the relevant criminal charge in Court. Payment is entirely optional.

Will someone who is not familiar with the legal system understand that though? My concern is that by dressing it up to appear as an official statutory notice it might lead some people to assume that they have no alternative but to pay up. The risk is that we get to a situation (as is the case with private parking tickets and similar examples of speculative invoicing) where the chances of a penalty being paid is based on the recipent's knowledge and confidence rather than their guilt!

One question I would like to know is do these notices make it clear that the recipient can opt for the matter to be independantly reviewed by a court?