my son purchased a train ticket to Tygwyn from Winchester on the 27/10/2014 not realising his rail card had expired, yet had selected to use the 16-25 railcard discount. A few days before travelling to Wales he realised his serious error and purchased a new railcard online on 2.11.14.He travelled on the 3.11 and was found to only have his out of date railcard. He attempted to show his receipt for the new railcard but this was not valid. He was unable to pay the fine on the spot. he received a letter from cross country rail asking him to contact them, which he did the teenager thing of ignoring. The stuff was passed to Transport investigations ltd who have been emailing /writing for more info like copy of his railcard & letter. Complicated by the fact that he is on his gap year in SE Asia so everything has be scanned in and emailed to him.He has on email been keen to seek resolution but at no stage was payment asked for again. He has now been summoned to magistrates court. I have contacted them and explained he is out of the country and ask for the case to be adjourned. He is only 18 and obviously desperately keen to avoid prosecution and a criminal record. Any thoughts please?
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potential prosecution over not yet activated railcard
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bb21
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Had he purchased his Railcard at the station on 2nd November, he would have had no problem whatsoever as the Railcard would have been in possession when he travelled. Buying online meant that his tickets were not valid technically as both during the purchasing process and in the confirmation he would have been reminded in bold font that his tickets would not be valid before the Railcard has arrived in the post. Of course hindsight is a wonderful thing and why he elected to buy online is beyond me as he could have visited the ticket office at Winchester station either the day before or on the day of travel to sort out his Railcard.
What legislation is he being summoned under, and what is the wording of the offence?
What legislation is he being summoned under, and what is the wording of the offence?
To expand on bb21's question, does it say anything like "Entered a train for the purpose of travelling on the railway without a valid ticket entitling him to travel" or "Attempted to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof" - this would make it clearer what the next steps should be.
That's not good news - that is the wording of the Regulation of Railways Act, a prosecution would be recordable. You primary goal now is to try your best to avoid this going to court. This may require a fair amount of money.
DaveNewcastle
Established Member
I do wish that he had not
Sadly, that opportunity is long past.
The Company will now have incurred real costs in attempting to investigate the incident, in attemptng to recover their losses, and in paying into Court for a Prosecution. The 'starting-point' for any negotiation has already become expensive.
Now, you've asked for an adjournement. I'm interested to know what the grounds are. Clearly, your son could instruct any local solicitor to speak for him whilst he's out of the country, without any adjournment.
Alternatively, it could be to investigate any new evidence (which isn't clear to me from what you've posted).
Or, it could be to recover lost time while no actual work was being done by the Defence (i.e. your son) - a reason which will need some impressive persuasion to convince. And raises the question of what additional work might then be done that is of any consequence or benefit?
It is apparent to me there is a technical opportunity to challenge this prosecution (if there is nothing else relevant that you've not told us), though I have no intention of publicising it on here. It relates precisely to the RoRA S.5 Offence quoted: "did travel . . . with intent to avoid payment thereof", though the challenge will need a little knowledge of the specific Railway statutes and case law to argue successfully. It will NOT require your son to be be in the Court, nor even in the UK.
You should be very clear about your grounds for an adjournment and how the procedure of Justice wil be assisted by that adjournment.
Hope that helps.
and I say that because Railway Companies have tendency to show sympathetic leniency towards their fare paying passengers who (on a single occasion) have failed to produce their Railcard to support the discount, but who can provide the Evidence to confirm their ownership of the qualifying Railcard in a timely manner.
Sadly, that opportunity is long past.
The Company will now have incurred real costs in attempting to investigate the incident, in attemptng to recover their losses, and in paying into Court for a Prosecution. The 'starting-point' for any negotiation has already become expensive.
Now, you've asked for an adjournement. I'm interested to know what the grounds are. Clearly, your son could instruct any local solicitor to speak for him whilst he's out of the country, without any adjournment.
Alternatively, it could be to investigate any new evidence (which isn't clear to me from what you've posted).
Or, it could be to recover lost time while no actual work was being done by the Defence (i.e. your son) - a reason which will need some impressive persuasion to convince. And raises the question of what additional work might then be done that is of any consequence or benefit?
It is apparent to me there is a technical opportunity to challenge this prosecution (if there is nothing else relevant that you've not told us), though I have no intention of publicising it on here. It relates precisely to the RoRA S.5 Offence quoted: "did travel . . . with intent to avoid payment thereof", though the challenge will need a little knowledge of the specific Railway statutes and case law to argue successfully. It will NOT require your son to be be in the Court, nor even in the UK.
You should be very clear about your grounds for an adjournment and how the procedure of Justice wil be assisted by that adjournment.
Hope that helps.
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I don't know how it works when a railcard is issued online. Had the validity of the new railcard started on the date of travel (even though he wasn't physically in possession of it)? If so, the "intent to avoid payment" seems too strong as he had actually paid the correct amounts before travelling. It would feel more like a bylaws offence of failing to produce a valid ticket, which doesn't carry a criminal record.
Having said that, he didn't help his case by ignoring the first letter, which has led the rail company to assume the worst.
--- old post above --- --- new post below ---
My previous post raises an obvious theoretical question... Assume a similar situation - i.e. a person is guilty is a lesser offence (e.g. failing to produce a ticket under the railway bylaws), but because of a lack of co-operation, ignoring letters, etc ends up being charged with a more serious offence (e.g. intention to avoid payment under the railways act). This person can show in court that they did not intentionally avoid the payment, so are not guilty of the offence they were charged with. Do they get off 'scot free'? Could the rail company still pursue them for costs via some other route? Could they still be charged with a bylaws offence - or is that 'double jeopardy'?
Having said that, he didn't help his case by ignoring the first letter, which has led the rail company to assume the worst.
--- old post above --- --- new post below ---
My previous post raises an obvious theoretical question... Assume a similar situation - i.e. a person is guilty is a lesser offence (e.g. failing to produce a ticket under the railway bylaws), but because of a lack of co-operation, ignoring letters, etc ends up being charged with a more serious offence (e.g. intention to avoid payment under the railways act). This person can show in court that they did not intentionally avoid the payment, so are not guilty of the offence they were charged with. Do they get off 'scot free'? Could the rail company still pursue them for costs via some other route? Could they still be charged with a bylaws offence - or is that 'double jeopardy'?
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Llanigraham
On Moderation
When you apply for a Railcard on-line there is an very obvious warning given that you cannot apply the discount until you physically hold the Card. I seem to remember you have to tick an "Agree" box with that statement on it.
Whether people bother to read that, however.......................
Whether people bother to read that, however.......................
gray1404
Established Member
If ever anyone does not have a Railcard on them for their journey they can actually pay the excess fare for travel without the Railcard. This MUST be done however at the ticket office BEFORE they start their journey. Cross Country are one of the most understanding TOCs when it comes to forgotten railcards. They will allow you to buy a full priced ticket on the day and then if you send them both the railcard discounted ticket and the full price ticket afterwards, along with a copy of the railcard - they will actually send you Rail Travel Vouchers to the value of the full priced additional ticket you had to buy. This is very decent of them. In this case it would be best if your son pleads guilty by post and does not been to be present in court. This is most likely result in a fine which you can pay for him while he is away. In doing plea by post he'll just need to sign the form himself and send it to the court. You might have had something like this with the summons.
EMT refuses to (or atleast did, not sure if it has changed) excess railcard discounted tickets to non railcard prices. They insist on selling new undiscounted tickets instead. According to ATOC there is nothing in the rules to say they HAVE to excess to get rid of the railcard discount even if it is BEFORE travel has commenced.
I know because it Pi**ed me off as a Guard, asthere was no longer any incentive for honest people to own up to leaving their railcard at home etc and sorting it out at the ticket office. Instead they may aswell chance it and board the train if they were going to end up having to buy a new ticket anyway, as they may well get away without having their ticket/railcard checked or get excessed up by the Guard making it cheaper.
plastictaffy
Member
It is not allowed (as my Conductor manager once explained to me) to excess up from 16-25 railcard or equivalent to full fare, a new ticket must be sold.
Flamingo
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I do it all the time (or used to)...
Thanks you for all your feedback. we are stressed parents trying to find a way of son avoiding a criminal charge at this late stage.It reveals a complete lack of understanding , naivety and immaturity on his part- not least by not even telling us he had been stopped on the train or about the first letter before he left to go volunteering. Dave if the goal was to avoid a criminal charge and putting cost one side how would you proceed if you were in our position?
plastictaffy
Member
DaveNewcastle
Established Member
I would commence a dual-stranded simultaneous strategy. One strand would be to negotiate with the Railway Company's Prosecutor (informing them of the other strand) hoping to reach an agreement to abandon the Prosecution; the other would be to prepare to contest the Prosecution in Court (knowledge of which would immediately trigger the prospects of further costs to both parties).
This is something that could be put in motion by a local solicitor with an established track-record in defence work in a firm which specialises in Criminal Law. A cost of just a few hundred pounds should cover their fees. You will agree a basis of fee payments, and these might range from 'no-win-no-fee' to costs payable if unsuccesful and costs claimed against the Company if successful. (The popular interest on here for an 'Out-of-Court' settlement usually incurs a loss of costs which the desperate passenger usually overlooks at the time of seeking an agreement but does come along as another cost quite rapidly!). I would respectfully suggest that having instructed that local solicitor to act for the overseas son, and managing to take instruction from him directly and providing their proof of identity (as will be required by all solicitors), then a specialist advisor with knowledge of railway law might be able to point them towards the line of reasoning which undermines the charge as presented in the documents received (and leads, either, to the Prosecution being abandoned, or, to a decision in Court in your son's favour - with recovery of all costs fron the Company).
I disourage threads being taken off-topic, in compliance with this sub-forum's rules. If you wish to pursue this interesting question, then please start a dedicated thread.
It is common for Prosecutors to list more than one offence in the claim form sent to the Court (and which will then appear on the Summons to appear). Some Offences might not be pursued with evidence, while the most persuasive will be developed.
It is not uncommon for a Prosecutor to provide evidence in Court for an offence which is not as listed and Summonsed. Often the Defence will notice the 'switch', but sometimes they don't. I guess it is more often a blunder by the CPS than a ploy to secure a Prosecution on alternative grounds (e.g. the offence was commited every day of the week, the evidence is of the offence on Tuesday, and the Summons is for the offence on Thursday).
But to answer your strict question, then NO. It will never be possible for a Prosecutor who is struggling in pursuing a Prosecution for a RoRA Offence to switch, during the proceedings, to pursuing an alternative, Railway Byelaw, Offence.
Both the Court and the Defendant must be on proper notice of what the accusation is. I've often heard Judges proposing that the Offence being Prosecuted in front of them might be more successful if it had been Prosecuted as an alternative Offence, but that doesn't mean the Court has any jurisdiction to hear that alternative Offence without proper process. They won't.
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222007
Member
And it states on the railcard leaflet/website that you will be sold a new full priced ticket if you fail to carry your railcard
Whether you can excess away the railcard discount at the ticket office appears to vary by TOC e.g. FGW have always been willing and happy to do this in the past for me. However, there is nothing in the rules to say that they have to do this.
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gray1404
Established Member
There is clearly a lack of standardization across the network and that, for one, I find very annoying!
Haywain
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It's called discretion.
Railcard Terms & Conditions
Conditions of issue and use of the 16-25 Railcard and reduced priced tickets ('discounted tickets') bought with a 16-25 Railcard
ATOC Ltd enters into the contract for the issue and use of the 16-25 Railcard on behalf of the Train Companies. Reference to a Train Company or the Train Companies means those Train Companies which, pursuant to a franchise agreement, operate Passenger Railway Services in Great Britain. Any other licensed passenger train operators that may join the arrangement will accept the 16-25 Railcard for travel on their services.
Condition 6
6.You must carry your Railcard with you on your journey and when asked by rail staff, you must show a valid ticket and valid Railcard. If you fail to do so, you will be required to pay the full price Standard Single fare for your journey as if no ticket was purchased before starting the journey and in some cases a Penalty Fare.
Thank you Dave, we intend to follow your advice but wondered if you had any knowledge of Gray Hooper Holt- lawyers who specialise in this area of the law? Can you clarify that we should write to the railway companys prosecutor or transport investigation ltd who they seemed to pass the case on to?
A way to get around that is to excess to a First Class fare.
Hi. Just to clarify our post yesterday. As we would like to proceed with the two pronged approach suggested by Dave, has anyone had contact with individuals/firms with specialist knowledge of railway law? Or alternatively any ideas on who could represent us? We have looked online & there are several firms saying they have experience in 'fare prosecutions' but recommendations would be really helpful, please. Thanks
DaveNewcastle
Established Member
Yes, they do have extensive experience in representing passengers accused of fare evasion.
It would be improper (and foolish) of me to say anything about that which might be misconstrued, but I would suggest that you might be facing fees and costs well into four figures.
My advice to you had been to speak to a local law firm specialising in Criminal Defence work - the fees and costs might be substantially different.
Both. I would address the letter to the Company with a copy to their agents.
I don't believe that will be necessary (as explained in my post of 26th March). If you can engage a Criminal Defence solicitor based nearby, who is willing and able to take instructions from your son who is overseas (you will have to assist this procedure), then a little technical assistance on defending the accusation can be provided through here.
--- old post above --- --- new post below ---
East Coast (VTEC) are happy to do this at the station Booking Office. I put it to the test today and was helped in a very willing and cheerful way. But the result was not exactly as expected. The originally Railcard-discounted tickets had also been reduced in cost by another 11% web-booking discount. The 'excess' procedure also removed that 11% from the overall cost.
With the usual rounding adjustments to the nearest 5p, the calculation was:
Discounted ticket value : £9.95
Removing 11% on-line booking discount PLUS one third Railcard discount =
Excess to undiscounted ticket : £6.90
Discounted ticket value : £29.35
Removing 11% on-line booking discount PLUS one third Railcard discount =
Excess to undiscounted ticket : £20.65
Investigating the idea of using 'local' solicitor. However, we are in Hampshire & the court in Wolverhampton. Local solicitors here indicated not keen as a result & hard for use to locate a suitable solicitor in Wolverhapton. Think will have to proceed with the fixed fee people who are familiar with this countrywide issue?
DaveNewcastle
Established Member
I hadn't realised the distance involved. With your son being overseas, and taking instruction from him while satisfying the anti-money-laundering protocols (don't ask!) then I am trying to help you to minimise costs.
I'm going to send you a private message about this.
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