Recovery and Prosecution Letter

[Nick W]

So the way I see it is as follows

1. The OP requested a ticket to travel from a ticket machine.
2. The ticket machine request money to pay for the fares.
3. The OP happily provided an accepted method of payment (a card) to pay the fare.
4. On entering the correct pin, the OP's card established a connection to the bank and cryptographically signed the railway's request for payment, thus authorising it. The bank authorised and signed and certified the transaction.
5. The railway chose not to "cash in" the transaction but provided no written evidence of this.
6. The OP provided details to the railway company allowing them to invoice the OP and ask the OP to either pay or show evidence of the transaction (which they would not be able to track without the card details).

As far as I can see, the OP has provided means for the railway to accept payment, and the railway has rejected this. The OP has not said he would not pay if the authorised transaction was later rejected by the railway. I don't see how the prosecution could at all be valid!

I think this is another of Norther's unethical antics.

I shall find out from a family member if it's possible to obtain records from the bank of authorised but uncashed transactions. A quick google suggests the merchant has 6 months to claim an authorised transaction. In which case it's reasonable for the OP to wait that long before handing over any further money unless written evidence of the transaction being voided is given.

 

[silencio]

Your last paragraph is true, merchant banks have upto 6 months to draw on those funds - i work for a bank. I have already provided them with any details they require for this which they have seemingly disregarded with the state of the letter I received from them yesterday. As i said, it's a bog standard letter that makes no references at all to my reply, like I hadn't even done so.

 

[DaveNewcastle]

. . . . I tend to agree that a refund of the 'FPN' followed by prosecution would most probably be viewed as an 'abuse of process', but the question is whether this is a risk you are willing to take,. . . .

I similarly cannot give support to that 2-pronged strategy - it has a track record of failures.

If a claim has a robust defence then it should be defended when first prosecuted.

But while generally agreeing with the reasoning of jkdd77 and michael769, I would have little appetite for contesting this without first simply presenting the evidence (by way of a response to the letter received) and allowing the Company's investigator to withdraw the claim for any more than the fare due (which I understand has not been paid). Any escalation of the matter carries risks.

If silenco wanted to make a point and wanted to make if forcefully, then there might be more effective strategies.

 

[island]

It would seem to me prudent to ensure that payment be tendered for the fare due in early course, however.

 

[Ferret]

I agree with Nick W's summary, and I also agree that the relevant department at Northern have not actually read the response provided by the OP, and merely sent out a bog-standard FPN.

I do find myself wondering whether Northern would actually carry out their threat to prosecute here, as from their point of view, there is a very real risk that a persuasive advocate will present a convincing argument along the lines of Nick W's post, and Northern would then risk a defeat, and costs be awarded to the defendant. An expensive way of doing business, when they could just bank the few quid for the fare owed and leave it at that.

 

[michael769]

without first simply presenting the evidence (by way of a response to the letter received) and allowing the Company's investigator to withdraw the claim for any more than the fare due (which I understand has not been paid). Any escalation of the matter carries risks.

Is there not a risk that any response other than paying the demand might prompt Northern to immediately proceed to prosecution in court?

But in general I agree that further negotiation might be the best initial approach, it is somewhat unlikely that Northern would proceed blindly to court whilst refusing to engage with the OPs attempts to resolve the matter.

I do find myself wondering whether Northern would actually carry out their threat to prosecute here, as from their point of view,

I think there are several reasons to suspect that Northern might in the fullness of time prove reluctant to have this matter scrutinized by a court. However simply calling their bluff would represent the highest risk approach to the OP - leaving him no option but to defend the matter in court, albeit in this case he does appear to have a potentially viable defense.

Negotiation remains the best course of action at this point, any continued refusal by Northern to engage in meaningful negotiation can only serve to strengthen the OPs position that Northern has persistently rebuffed his reasonable efforts to pay the actual amount he was due to pay.

 

[jon0844]

Is there not a risk that any response other than paying the demand might prompt Northern to immediately proceed to prosecution in court?

It does seem like a game of poker here.

Northern stands to make an easy £80 + the fare, whereas it might not get that much by going to court. Therefore the TOC really wants you to settle and may well give you another opportunity, or even - potentially - reduce the sum to 'sweeten the deal' by way of a goodwill gesture. Many debt collectors chasing very old debts (often even statute barred ones - but that's another thread) do this all the time to get whatever they can.

Or it may not cave in and go all the way; and so it's a game you don't want to play when it has the upper hand because the court route includes a possible criminal record - which you don't want, and Northern knows you don't want.

At least with a proper penalty fare, you have an appeals process - one of which I used the one and only time I got a penalty fare, and won. A lot more simple and even though the reply was a fairly standard letter (as if they HAD read my appeal but then chosen a 'reason' from a drop-down list to generate a letter), it did address the issue... rather than this letter that has failed to acknowledge anything used in defence by the OP.

 

[michael769]

It does seem like a game of poker here.

That is a pretty accurate characterization.

I have for a little while felt that there is a real need now for some kind of fixed penalty regime to aid ToCs efforts in enforcing fare compliance, albiet one that has a proper statutory and regulatory foundation backed by an effective and independent appeals tribunal. Making the ToCs pay for the appeals would create an effective brake on their willingness to issue demands for cases that were weak (and thus most likely to be appealed).

 

[jb]

In terms of talk about poker and the like, are we perhaps assuming that if it ends up in court that the ToC will go for a RoRA prosecution? (I know that's what the FPN says but that isn't a court summons, is it?)

A Byelaw prosecution looks like a strong prospect (whatever the rights and wrongs of it in the real world) and I wonder if it's entirely wise to be talking simply about "prosecution" without considering this distinction. The OP's hand varies considerably in value depending on it.

 

[Tibbs]

In terms of talk about poker and the like, are we perhaps assuming that if it ends up in court that the ToC will go for a RoRA prosecution? (I know that's what the FPN says but that isn't a court summons, is it?)

A Byelaw prosecution looks like a strong prospect (whatever the rights and wrongs of it in the real world) and I wonder if it's entirely wise to be talking simply about "prosecution" without considering this distinction. The OP's hand varies considerably in value depending on it.

Reading the letter, it puts RoRA at the top but in the body mentions both the RoRA and the Byelaws. By the looks of it they do it that way to scare people into paying up (they can talk about criminal records etc etc etc) but leave themselves the loophole of using the Byelaws (which aren't nearly as scary) if they have to.

All looks very underhand to me.

 

[Ferret]

Michael769 is right - negotiation is the way forward. So long as that negotiation results in the OP paying the fare owed and no more! It just needs to be presented in such a way that Northern are made aware that they stand a very real risk of losing in Court, and it would be in their interests to accept the money for the ticket, and be done without threatening them!

As an aside, I totally support Northern's attempts to reduce fare-dodging, but they do also need to play fair with those who would willingly pay the fare but were unable to do so because of malfunctions/omissions at their end.
--- old post above --- --- new post below ---

Reading the letter, it puts RoRA at the top but in the body mentions both the RoRA and the Byelaws. By the looks of it they do it that way to scare people into paying up (they can talk about criminal records etc etc etc) but leave themselves the loophole of using the Byelaws (which aren't nearly as scary) if they have to.

All looks very underhand to me.

Tibbs - this is poker/brinkmanship. The problem is that Northern clearly don't have the resources to back up what their revenue protection staff are doing.

What has happened is that the OP has been caught up in the faredodger net, and an overworked/understaffed department are sending out standard letters/notices. I fully expect them to back off in the fullness of time, but what matters now is how we reach that particular endgame.

 

[SETCommuter]

OP, don't forget to count up the hours you have spent dealing with this. you can then invoice the TOC for your time.

 

[michael769]

OP, don't forget to count up the hours you have spent dealing with this. you can then invoice the TOC for your time.

You cannot usually reclaim your time (at least in court) as an individual, unless the time spent caused an actual provable financial loss.
--- old post above --- --- new post below ---

A Byelaw prosecution looks like a strong prospect (whatever the rights and wrongs of it in the real world) and I wonder if it's entirely wise to be talking simply about "prosecution" without considering this distinction. The OP's hand varies considerably in value depending on it.

I am not so convinced.

Having offered what purports to be a fixed penalty under the RoR (even though no such thing exists) to then prosecute the same matter under different legislation could be viewed in a quite unfavorable light. I know the letter does allude to the byelaws, but it also quite clearly states that the offence it relates to is one of S5 RoR. At the very least they could be called upon to explain why, if they believed that they had sufficient evidence of S5 offence string enough to justify their "penalty", they then did not feel sufficiently confident to try the matter in court.

I also note that the original letter in post #1 alleges a failure to pay a fare but makes no mention of any allegation of failing to display a ticket on request (which is the byelaw offence), so one could also raise questions as to why this previously unmentioned allegation for a somewhat different offence was suddenly materialized when the OP refused to co-operate with the fixed penalty.

I did allude before to my view that the way Northern has worded this letter could potentially cause them some difficulties. This is just one of those potential difficulties.

 

[SETCommuter]

You cannot usually reclaim your time (at least in court) as an individual, unless the time spent caused an actual provable financial loss.

But there's nothing to stop the op sending an invoice to the TOC.

 

[jon0844]

It seems a lot of the wording is misleading, just like the letters from companies that buy old debts and then chase the money long after they're statute barred and, thus, totally unenforceable.

The letters repeatedly claim you might be visited at the door (you won't be, it would be too costly as these are speculative claims on the off chance) which makes people fear that a bailiff will turn up.

You are then told they might take further action (which will be another letter in a few months) but that makes you fear a court summons.

Then they use other wording to make you think they'll mess up your credit rating (they can't, and won't) and so on. As I've read on another forum, they will also periodically offer to wipe the debt for a much smaller fixed fee, and are always open to negotiation. The most important thing is that no further action is ever taken and they can't add any costs to the debt, which doesn't even exist in a legal sense.

This practice should be made illegal, just like sending out things that look like invoices with 'this is not an invoice' in tiny letters.

Northern is on thin ice I think, by mixing up its own speculative claim for £80 and a possible - separate - legal action, and sooner or later someone will take it to the press - or via a solicitor or organisation that will be able to make it a bigger story - and then we'll see them quickly having to backtrack or even refund some people if it's found that they acted unlawfully.

And that would be a shame in a way, as I do sympathise with the TOCs that want to clamp down on blatant fare evasion. If they wanted to do that, they should have made extra sure they didn't go after the shaky ones by just 'giving it a go' and hoping they'll scare people into paying.

Once it happens to one TOC, it will expose the others too - so FCC should be thinking carefully about the possible repercussions of this being exposed, given that they seem to ask for more than £80.

The question is, who will expose it? The OP is better off sorting out his own situation than making it worse for himself, but it does need looking at. It should also prompt action to see that the current £20 penalty fare is brought up to date and increased to £40 or £80 in like with TfL (but the £80 in London is subject to a 50% discount if paid promptly).

 

[455driver]

I would pay the bill and then sue for its return, as jkdd77 suggests.

At the moment, Northern have the initiative, as this is a criminal matter.

As a civil matter, you will then have the initiative, as it would be costly for them to even defend the case, and the penalties for your losing would only be £25 (the court fee).

The cost/benefit of defending the criminal case is poor, as you have already expended a good deal of time and they clearly don't care because they are able to act in this bullying manner with the backing of the threat of criminal penalties.

Therefore it is likely to be good time after bad in sending them any further correspondence in relation to this. Pay, wait a few months, and then sue.

So its a question of them saving money by not defending the case rather than guilt, wonderful! :roll:

 

[Tibbs]

So its a question of them saving money by not defending the case rather than guilt, wonderful! :roll:

TOCs exist to make profit, not to enforce the law or exact justice. They have to look at profit first, because their only loyalty is to their shareholders.

Which is also exactly why they shouldn't be allowed to enforce the law through private prosecutions, but that's been debated to death on here.

 

[Ferret]

TOCs exist to make profit, not to enforce the law or exact justice. They have to look at profit first, because their only loyalty is to their shareholders.

Which is also exactly why they shouldn't be allowed to enforce the law through private prosecutions, but that's been debated to death on here.

But if you take away a legal right to attempt a private prosecution, you are effectively undermining the principle of access to justice - an essential part of our society.

 

[Deerfold]

But if you take away a legal right to attempt a private prosecution, you are effectively undermining the principle of access to justice - an essential part of our society.

I think it's the combination of their own prosecutions and their own laws that make thier cases unusual.

 

[island]

But if you take away a legal right to attempt a private prosecution, you are effectively undermining the principle of access to justice - an essential part of our society.

They seem to manage quite well without it in Scotland...

 

[Ferret]

They seem to manage quite well without it in Scotland...

Good luck to them. Given the ineptitude displayed by the CPS and BTP south of the border in cases I've been involved in, I'd hate to have to rely on them to deal with every fare evader I find.....

 

[michael769]

But if you take away a legal right to attempt a private prosecution, you are effectively undermining the principle of access to justice - an essential part of our society.

They would still have access to the civil courts, and could submit a case report to the CPS where appropriate.

 

[silencio]

So...just spoke to a lady on the number on the letter. What's really helpful is that she can't really discuss the case as the decisions aren't made by them. They're just some side team that issue the letters. Excellent.

They have given me the number if I wish to discuss this further on 01904568181 however they closed at 4pm and won't be open until 8am Monday morning. Lovely customer service.

It seems that the team who have the letter to me do tend to calculate the costs on a "fare generatot". When I questioned her further on this she backed down and said "in this case we haven't actually used the fare generator, the inspector decided the fare was £5.30." Ha. So the inspector can just make his fares up now.

So, all in all, this team I spoke to are useless and we have an inspector making fares up off the top of his head. Add to that i cannot discuss this until Monday, this makes for possibly the best customer service Ive ever received.

 

[Ferret]

They would still have access to the civil courts, and could submit a case report to the CPS where appropriate.

If you took away the byelaws, what would compel a fare evader to give details? And without that compulsion, how would the TOCs have access to either of the options you describe?

 

[Tibbs]

Good luck to them. Given the ineptitude displayed by the CPS and BTP south of the border in cases I've been involved in, I'd hate to have to rely on them to deal with every fare evader I find.....

Take away the easy option and you force people to become creative.

Prosecution is evidently the most profitable route, because that's the strategy TOCs have undertaken, but is it the best way for the country?

I would argue not, as the best way would be for all people to buy their own tickets. At the moment we rely on those caught to subsidise those who aren't, with the shortfall made up from the legitimate fare paying public.

What's the solution? I don't know, but if you suitably incentivised clever people to come up with a solution, you'd probably get some good ideas.

I'd be in favour of barriering all stations and having them manned first train to last, it would certainly be effective. However with the fragmented railway system as we have it would be cost prohibitive for most TOCs. Maybe renationalise then try it!?

 

[jon0844]

Why not renationalise and then just open all stations, as seemed to be a policy some time ago that probably helped cause this mess...

 

[Ferret]

Why not renationalise and then just open all stations, as seemed to be a policy some time ago that probably helped cause this mess...

Which was perpetuated by private TOCs and the police just abandoning the entire conecpt of revenue protection at one point. There are no easy answers, but I think private prosecutions help, so long as they are done responsibly. Alas, we haven't quite reached that particular point yet, as this thread demonstrates.

 

[silencio]

Ooh, forgot to add, as part of my conversation with the lovely Katie i asked why they had seemingly ignored my letter/hadn't responded to a word on there and she advised me "well yeah, they have assessed your case and rather than take you to court, they have, you know...let you pay the £80 instead...you know...let you off."

I look forward to Monday.

 

[Ferret]

Ooh, forgot to add, as part of my conversation with the lovely Katie i asked why they had seemingly ignored my letter/hadn't responded to a word on there and she advised me "well yeah, they have assessed your case and rather than take you to court, they have, you know...let you pay the £80 instead...you know...let you off."

I look forward to Monday.

Which serves to highlight what I posted just before you - that's irresponsible.

While the OP *may* have committed a technical breach of the law (and even that is subject to debate), the main reason for this issue arising is the failure of the ticket machine. I very much doubt the CPS would proceed on this if it was their decision.

 

[michael769]

If you took away the byelaws, what would compel a fare evader to give details? And without that compulsion, how would the TOCs have access to either of the options you describe?

When did I suggest taking the byelaws away?