Prepaid Oyster / First Capital Connect

[Mp_13]

Please help- earlier today I topped up my prepaid Oyster at Palmers Green station and as I finished topping up I noticed my train arriving. I completed the transaction but in my rush to make the train I failed to touch my Oyster card, to be honest I didn't even notice whether there was anywhere to touch in and assumed that by topping up in the station I would be covered. It would seem I was wrong.

I arrived at Gordon Hill to be greeted by First Capital Connect inspectors. They checked my Oyster card which I assumed would be ok as I had around £8 in prepaid credit plus my zone 1-3 weekly travel card, which is largely irrelevant as I was outside zone 3.

The inspector advised me that as I had not touched in at Palmers Green station I had to pay a £20 fine. I was surprised as I had just spent £5 to ensure my prepay amount was sufficient for the journey. I did not believe that the inspector was correct so I refused to pay the fine. I explained that I had sufficient money on my Oyster card but my pleas fell on deaf ears. I was cautioned by the inspector and he completed a form in front of me to show I was unwilling to pay the fine.

I am now somewhat concerned re what happens next as despite reading many posts I have been unable to find anything directly comparable to my situation. If anyone could confirm the likelihood that First Capital Connect will pursue the case it would be most appreciated?

If they pursue will I be offered the chance to pay £20 again or is a court appearance more likely? I have had an opportunity to reflect after calming down and despite my frustration with the the fine I would prefer to resolve the issue swiftly and avoid a prolonged dispute. I would be most grateful for your advice. Thanks in advance.

 

[yorkie]

Welcome to the forum.

...The inspector advised me that as I had not touched in at Palmers Green station I had to pay a £20...

Ah, I see. The inspector decided to issue a £20 Penalty Fare, which is higher than normal fare, applied at their discretion, under certain circumstances, when they believe someone has made an honest mistake, as in your case.

However if the passenger refuses to pay this fare, then this leaves them no option but to report the matter for possible prosecution instead.

If they pursue will I be offered the chance to pay £20 again

No, I don't think so. You have declined the offer to pay a £20 Penalty Fare, so ...

or is a court appearance more likely?

... yes, they are likely to prosecute. You may get a letter asking for your version of events, which they will consider along with the statement that was taken at the time. If they proceed with the case, they have a choice of legislation to use, based on the available evidence. Depending on the legislation used, a guilty verdict may or may not result in a criminal record, they would also want to recover the original full fare due, plus their costs, plus whatever fine the Court imposes.

I have had an opportunity to reflect after calming down and despite my frustration with the the fine I would prefer to resolve the issue swiftly and avoid a prolonged dispute. I would be most grateful for your advice. Thanks in advance.

In that case you may wish to consider contacting FCC to negotiate an out of court settlement. Past experience suggests that you may well have the chance to settle, though the settlement will be for greater than the £20 cost of the Penalty Fare.

See the Disputes section of our Fares Guide, which I have given you access to, for much more information.

 

[causton]

Unfortunately, not only do you have to have credit on your Oyster, when using pay as you go you do need to touch in at the beginning of your journey and touch out at the end.

You may wish to read http://www.tfl.gov.uk/tickets/14870.aspx for future reference.

 

[Mp_13]

Thanks.

I feel aggrieved that the inspector failed to clearly notify me that the opportunity to pay a penalty fare would expire following our conversation. However, I'm pragmatic and appreciate that is unlikely to change matters.

Is there any indication of the sum required to settle out of court if I were to offer to pay the train fare plus costs at the first opportunity?

Your assistance is most appreciated.

 

[DaveNewcastle]

I feel aggrieved that the inspector failed to clearly notify me that the opportunity to pay a penalty fare would expire following our conversation.

To be precise, I'd say that the opportunity expired when you refused it.

Is there any indication of the sum required to settle out of court if I were to offer to pay the train fare plus costs at the first opportunity?

We see figures in the range of £100 - £250 quite regularly for 'first opportunity' settlements, but please be prepared for a long wait for even that 'first opportunity'.

 

[Mp_13]

Why should I be prepared for a 'long wait'? Surely it's in my interest to cover myself on costs by offering to settle in my initial correspondence with FCC?

I would have thought that an offer of £20 plus reasonable costs of around £50 should suffice as an immediate attempt to end the situation. I fail to see how additional costs would have been incurred at such an early stage in the process and FCC would be running a risk if the matter went to court as a judge is unlikely to look kindly upon refusal to settle for a sensible sum. I will of course seek appropriate legal advice beforehand.

Alternatively, does anyone have experience in successfully contesting a similar prosecution? The replies so far tend to suggest that I should take it on the chin. I'm considering whether to instruct a solicitor if neccesary.

 

[bb21]

Why should I be prepared for a 'long wait'? Surely it's in my interest to cover myself on costs by offering to settle in my initial correspondence with FCC?

But the system is not designed to revolve around you.

I would have thought that an offer of £20 plus reasonable costs of around £50 should suffice as an immediate attempt to end the situation. I fail to see how additional costs would have been incurred at such an early stage in the process and FCC would be running a risk if the matter went to court as a judge is unlikely to look kindly upon refusal to settle for a sensible sum. I will of course seek appropriate legal advice beforehand.

It might work. There is nothing to suggest that it will not. Cases have been settled for £70 or less before and a one-off simple mistakes with no obvious evidence of any naughty intention don't tend to require a figure much higher than this. One thing to bear in mind however is that you are not the one pulling the strings here so it should not be a surprise if they decide that you need to wait until your case is the one being dealt with.

Alternatively, does anyone have experience in successfully contesting a similar prosecution? The replies so far tend to suggest that I should take it on the chin. I'm considering whether to instruct a solicitor if neccesary.

You do so at your own risk. The purpose of a Penalty Fare is clear. See Question 15 of this leaflet. You were therefore correctly offered a Penalty Fare but you refused to pay. Like the others, I don't think there is any ground for appeal, so I would not recommend this course of action. If you wish to proceed down this road regardless then it is entirely your decision.

 

[island]

I would have thought that an offer of £20 plus reasonable costs of around £50 should suffice as an immediate attempt to end the situation. I fail to see how additional costs would have been incurred at such an early stage in the process and FCC would be running a risk if the matter went to court as a judge is unlikely to look kindly upon refusal to settle for a sensible sum.

To the very limited extent to which I understand court procedure, it doesn't work that way. FCC is not obliged to "settle for a sensible sum" or any sum at all as a criminal offence has been committed. If it were a civil matter, then your logic would hold.

I will of course seek appropriate legal advice beforehand.

Sensible idea, not least because posts here, such as mine, may be wrong!

 

[DaveNewcastle]

Why should I be prepared for a 'long wait'? Surely it's in my interest to cover myself on costs by offering to settle in my initial correspondence with FCC?

Because it might take some weeks for the Company to get round to making their initial assessment of the facts of your incident and then sending their first letter to you. They have a staggering volume of suspected incidences to process every day.

I would have thought that an offer of £20 plus reasonable costs of around £50 should suffice as an immediate attempt to end the situation. I fail to see how additional costs would have been incurred at such an early stage in the process . . .

Perhaps it will, but please do not be surprised if the Company assess their revenue protection costs on a higher tariff than you have presumed.

It is also conceivable that the Company will, either due to kind-hearted sympathy or some administrative error, drop the investigation altogether - though this outcome has a very low probability!

. . . . FCC would be running a risk if the matter went to court as a judge is unlikely to look kindly upon refusal to settle for a sensible sum. I will of course seek appropriate legal advice beforehand.

A Magistrates' bench will be very, very familiar with cases brought before them by Railway Company's prosecutors of suspected fare evasion on the Railways, and have a long record of costs applications against which yours could be compared. Your case will probably be listed in a large bundle of cases to be heard in the same sitting, each with the Company's usual assessment of costs. The figures I quoted are not a-typical. Of course, a bench is under no obligation to award costs following a conviction, but it would be surprising if they did not.

Alternatively, does anyone have experience in successfully contesting a similar prosecution? The replies so far tend to suggest that I should take it on the chin. I'm considering whether to instruct a solicitor if neccesary.

Yes, the costs of instructing a solicitor to defend a Prosecution will depend on the rates of the firm involved and the quality of the evidence available to the Prosecution, though figures of £300 - £1200 for a local firm with general Criminal Defence experience should be expected (figures in the higher range for contesting the claim in a Court appearance), and £2500 - £4500 for a firm with a specialism in Railway Fare Evasion experience.
Those costs would, of course, be quite separate from the Fine, Prosecution Costs and Victim Surcharge which would follow in addition from a Conviction.

A brief interview to obtain initial advice from a local firm working in Criminal Defence may cost you anything from nil to £200, though I have to tell you that there is probably little prospect of gaining any further insight from such an interview than you will be receiving on here.

Passengers defending themselves would benefit from some careful consideration of the applicable Case Law and how the evidence against them is interpreted in the light of that Law. You might, for example, take comfort from Burns v First Capital Connect 2012 in which judgement was given in favour of the Oyster-carrying passenger, but the greater body of decisions, referred to in our Courts every day, were given in favour of the Prosecuting Company. My word of caution to the first time 'litigant-in-person' is to remind them that many others will have argued the same matter before them and that 'fairness' will be abandoned in favour of references to, and guidance taken from, those prior Judgements.

In the light of the above, perhaps you would reach the same conclusion as I do, that after assessing the costs and probabilities, the lowest risk choice would be to attempt to reach an Out-of-Court Settlement at the first opportunity, even if that is still some weeks away, and thereby avoid the risks of both a Conviction AND of the costs that would follow.

 

[Mp_13]

Thanks for the replies.

I have contacted FCC today in an attempt to settle the matter swiftly by payment of the original penalty plus an offer to pay their reasonable costs incurred. I await their response.

It was a genuine error so I hope they will take that into consideration. On reflection I should have paid the £20 penalty fare at the time as whatever happens next it's going to cost me more in terms of time and cold hard cash.

 

[island]

You did not need to pay the £20 on the spot but you would have needed to pay £2.70 towards it there and then.

 

[Mp_13]

You did not need to pay the £20 on the spot but you would have needed to pay £2.70 towards it there and then.

I wasn't told that and if I had been I would have happily paid the fare. I was advised that the minimum payment was a £20 fine.

 

[DaveNewcastle]

I did not believe that the inspector was correct so I refused to pay the fine.

I wasn't told that and if I had been I would have happily paid the fare.

It is immaterial now. As I posted yesterday, the opportunity to accept the £20 penalty passed the moment you refused it.

I suggest you concentrate now on managing your exposure to risks.

 

[Mp_13]

How would you recommend that I manage my exposure to risks?

I have contacted FCC to offer payment of the £20 fine plus costs. Please do let me know if there's anything else I should be doing at this stage.

Thanks in advance.

 

[DaveNewcastle]

Yes, think of a risk assessment matrix. You would plot each option against a range of costs on one axis (draw a line to span the full range of costs) and the probabilities on another (you now have a 2D shape enclosing all the outcomes). You could do a ticket offence matrix in your head, but where a criminal conviction is a possibility, however remote, its probably worth doing it on paper.

The process might help focus your mind on the options that have the lowest probability of incurring any cost over, say, £100-£200.
For example, it will show you that there is little benefit in arguing the circumstances of your journey with the Company, as the outcome for you doesn't get any better than nil cost, but it does create an area of probabilities that includes a high cost if they escalate the dispute. The same risk arises from instructing a solicitor.

That is what I was getting at in my explanation yesterday which concluded : "after assessing the costs and probabilities, the lowest risk choice would be to attempt to reach an Out-of-Court Settlement "

 

[jon0844]

How long have you had an Oyster card? I am confused why you'd think simply topping up and having enough credit would be sufficient to travel when you clearly need to touch in (and out) somewhere if you're using Pay as you Go.

I suspect FCC or a court would struggle to understand this too.

 

[Mp_13]

Fortunately I have been able to obtain some free legal advice. I have been advised to refrain from discussing the matter further with third parties.

Thanks to everyone who has helped.