Court Summons for Fare Evasion - HELP!

[najaB]

The difficulty with verbal permission is proving it.

A verbal agreement is worth the paper it's written on.

As for this guard, if he indeed gave permission to board then wrote up for a prosecution, that is very bad indeed.

As I understand it, guards don't "write up for prosecution" - they fill in a form and the prosecutions department decides what to do with it afterwards. The 'form that allowed issue of a paper ticket' was probably a UFN and it's not a great stretch to suggest that the reason a prosecution is being pursued is that the UFN wasn't paid.

 

[StateOfPlay]

Will the trainline not provide you with evidence that you paid for that ticket, for that journey, on that route, at that time?

 

[najaB]

Will the trainline not provide you with evidence that you paid for that ticket, for that journey, on that route, at that time?

They could, but the T&Cs specifically state that you must be able to present an activated ticket on your mobile phone or else you are to be treated as having boarded without a ticket at all. Similar to how presenting a receipt for a paper ticket isn't the same as presenting the ticket itself.

 

[crehld]

A verbal agreement is worth the paper it's written on.

Correct me if I'm wrong, but railway byelaw 18(3)(iii) makes no distinction between whether such permission is obtained in writing or verbally.
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I would certainly say it does. If a member of staff giving verbal permission is no longer adequate, is it time to give "permission cards" to them so they can be issued as a means of giving that permission formally? The difficulty with verbal permission is proving it.

Of course it's adequate. Proving it will be a simple process of obtaining witness statements from those three members of staff who are alleged to have given permission to travel.

 

[najaB]

Correct me if I'm wrong, but railway byelaw 18(3)(iii) makes no distinction between whether such permission is obtained in writing or verbally.

You are correct. However, as Neil Williams pointed out, proving that verbal permission was given is the difficult part.

 

[crehld]

You are correct. However, as Neil Williams pointed out, proving that verbal permission was given is the difficult part.

But in this case there are three witnesses (the ticket office clerk, the gate line assistant and he guard, the same three who have who have allegedly provided verbal permission) so it can't be that difficult for the investigating officer to gather the necessary statements and evidence from these witnesses, can it?

 

[najaB]

But in this case there are three witnesses (the ticket office clerk, the gate line assistant and he guard, the same three who have who have allegedly provided verbal permission) so it can't be that difficult for the investigating officer to gather the necessary statements and evidence from these witnesses, can it?

Hopefully, they will remember the incident. The problem might be that, weeks or even months after the fact, it is entirely possible that they won't.

 

[Bletchleyite]

A verbal agreement is worth the paper it's written on.

In a court perhaps. But it is other authority to travel - and if the railway does not accept that (and give the passenger the benefit of the doubt, or at least ask the member of staff) its staff should be strictly forbidden for even hinting at it. Thus, "get on and I'll come to you" is no good - he should have refused travel.

As I understand it, guards don't "write up for prosecution" - they fill in a form and the prosecutions department decides what to do with it afterwards. The 'form that allowed issue of a paper ticket' was probably a UFN and it's not a great stretch to suggest that the reason a prosecution is being pursued is that the UFN wasn't paid.

That is indeed a possibility. But it's another case where the system is rather loaded against the passenger. *I* didn't know the mobile ticket apps would no longer work if you deinstalled and reinstalled - that is incredibly bad. The app could, for example, be keyed against the MAC address of the device's network interface, thus requiring it to be that phone but allowing a reinstall, for instance - mobile apps are buggy and often require a reinstall. That is the kind of deficiency in design where it is to me reasonable to expect that a TOC will sort the situation out, not ask for more money when a fare has clearly been paid, nor pursue someone for prosecution for not paying a fare that is legally due but certainly morally is not.
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You are correct. However, as Neil Williams pointed out, proving that verbal permission was given is the difficult part.

Proving that it was not is also difficult. What happened to "innocent until proven guilty"? Why should the railway not have to prove that such permission was *not* given? Or, as that clearly isn't practical (I was playing devil's advocate a bit ) staff should be informed that they must never under any circumstances provide such permission, or in any way imply it, without it being backed up on paper with an authorising stamp.
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So what is the definition of "authorised person"?

So the gateline staff can prevent you from boarding, but not allow you to board?

This to me is a problem which strongly suggests, as above, that the policy should be clearly stated that such permission must be obtained in writing or must be on permanent signage (as is found at stations with no ticketing facility), and that no member of staff should ever otherwise give or imply permission other than in writing. Otherwise we're lead here again.

If we're going to go all zero tolerance (and there is a valid case for it) that needs to be backed up by the railway being totally clear and unambiguous in all communications.
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Gateline staff cannot authorise travel, neither can the cleaner, tea lady etc etc!

It is not for the passenger to have to work out the internal structure of the railway. Thus if someone appearing to act for the railway (wearing a TOC uniform or namebadge, for instance) gives permission, that is permission in any sensible interpretation by a layman.

Thus, staff without authority to give such permission should not in any circumstances give it or imply it. They should clearly state that they may not give that permission. So for instance if gateline staff are not so authorised but they do let someone through, it should be with a clear "I am letting you through so you can go and speak to the Guard before boarding. Do not board the train without his authority, as I am not authorised to give you permission to do so." (Though that isn't so relevant to this case I suppose, as the OP did ask the guard as well).

 

[crehld]

Hopefully, they will remember the incident. The problem might be that, weeks or even months after the fact, it is entirely possible that they won't.

Would it not be the case that three relevant and pertinent witnesses forgetting the details of an alleged crime to which they had front row seats creates enough reasonable doubt to fail the standard of a criminal conviction?

In either case these three witnesses may not have even been asked, and they may well remember, so there's no good reason not to ask them.

 

[najaB]

Would it not be the case that three relevant and pertinent witnesses forgetting the details of an alleged crime to which they had front row seats creates enough reasonable doubt to fail the standard of a criminal conviction?

If the question being asked in court was "Did you give Mr X permission to travel?" The answer "I don't recall speaking to Mr X" hurts the defence more than it does the prosecution.

In either case these three witnesses may not have even been asked, and they may well remember, so there's no good reason not to ask them.

Oh, I don't doubt that they might. I was just pointing out that verbal permission, once given, disappears into the aether never to be seen again.
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*I* didn't know the mobile ticket apps would no longer work if you deinstalled and reinstalled - that is incredibly bad. The app could, for example, be keyed against the MAC address of the device's network interface, thus requiring it to be that phone but allowing a reinstall, for instance - mobile apps are buggy and often require a reinstall.

The app will work perfectly fine and purchased tickets will be available once reinstalled (or even if it is installed on a second device). What is not possible is to transfer an activated ticket from one device to another or to activate the same ticket twice, this is a security measure to prevent the same ticket being presented twice. The instructions for use of the apps suggest only activating the ticket shortly before boarding the train.

 

[Bletchleyite]

If the question being asked in court was "Did you give Mr X permission to travel?" The answer "I don't recall speaking to Mr X" hurts the defence more than it does the prosecution.
Oh, I don't doubt that they might. I was just pointing out that verbal permission, once given, disappears into the aether never to be seen again.

Perhaps, then, the rule should be that verbal permission must never be given or implied by any member of staff regardless of position, then, and staff should be issued with cards permitting travel containing clear text explaining the situation, e.g. which tickets may be purchased, and the action that will be taken if the passenger is not able to do so. A bit like that card upthread, but not for an irregularity.

Then it would always be the clear case that "he said it was OK" was a lie - or a serious disciplinary matter, I suppose, if seen by a supervisor.

The app will work perfectly fine and purchased tickets will be available once reinstalled (or even if it is installed on a second device). What is not possible is to transfer an activated ticket from one device to another or to activate the same ticket twice, this is a security measure to prevent the same ticket being presented twice. The instructions for use of the apps suggest only activating the ticket shortly before boarding the train.

Ah, I see. Not having used one I don't know if I would consider it clear enough or not - but given the reliability or otherwise of devices and connections (and the similar, clunky Arriva bus app which I have used) it would seem not to be an ideal solution. I do still think a move to airline style "the ticket is in the database, any identifier to it plus any item of ID" is the way to go, then there would be no such issues - if it doesn't work, go to a TVM and reprint, perhaps for a small fee.

 

[najaB]

Ah, I see. Not having used one I don't know if I would consider it clear enough or not - but given the reliability or otherwise of devices and connections (and the similar, clunky Arriva bus app which I have used) it would seem not to be an ideal solution.

I understand that both the app and confirmation email make it clear, but like yourself I don't feel that mTickets are the solution for me. One good thing is that once the ticket has been received in the app you don't need a data connection to activate it so it can easily be done at the station while waiting for the train.

 

[HMS Ark Royal]

I understand that both the app and confirmation email make it clear, but like yourself I don't feel that mTickets are the solution for me. One good thing is that once the ticket has been received in the app you don't need a data connection to activate it so it can easily be done at the station while waiting for the train.

Well at least you have learned never to use that service again. Personally, I am a fan of buying tickets from a booking office in person and only purchase online tickets from the TOC's website to take advantage of a cheap LDS - HUL fare on TPE. Heck, I only just recently used the "buy now and collect later" feature on ticket machines for the first time.

 

[najaB]

Well at least you have learned never to use that service again.

Oh, I've never used them at all - I like the funny pieces of orange and green cardboard.

 

[crehld]

If the question being asked in court was "Did you give Mr X permission to travel?" The answer "I don't recall speaking to Mr X" hurts the defence more than it does the prosecution.

I would expect at a criminal trail in court where a witness provides such a statement during the examination-in-chief to be asked the following question (or similar) in cross examination:

"Do you recall not speaking to Mr X"?

 

[Bletchleyite]

I understand that both the app and confirmation email make it clear, but like yourself I don't feel that mTickets are the solution for me. One good thing is that once the ticket has been received in the app you don't need a data connection to activate it so it can easily be done at the station while waiting for the train.

Ah, I did wonder that. Perhaps this sort of problem could be avoided by the activation not being allowed until the day of validity (assuming it isn't already like that) - it's rather unlikely you'll be faffing about reinstalling things on the way to the station.

I think mTickets could work for me (I do still use the Arriva bus ones despite it being a little clunky), but they are still a little rough round the edges.

Anyway, a bit OT so I'll leave it there.

 

[snail]

I would expect at a criminal trail in court where a witness provides such a statement during the examination-in-chief to be asked the following question (or similar) in cross examination:

"Do you recall not speaking to Mr X"?

To which the response is the same. What is your point?

 

[miami]

To which the response is the same. What is your point?

Do you remember speaking to him
No


That is evidence he didn't speak to him, so it's witnesses word against the accused, one is probably lying.

Do you remember NOT speaking to him
No

That is not evidence, it's "I may have spoken to him I may not", so it's just the accused word. As we have innocent until proven guilty and the procescution hasn't proven the defendee didn't have permission (he says he did, none is arguing that fact), not guilty is the only logical outcome.

Now if the the witness says "I have never given permission to anyone" that's a different kettle of fish.

 

[DaveNewcastle]

My opinion on the question of having been given permission to travel without a ticket is simply this:
If that is true, and wholly true, in respect of your entire ticketless journey, and if that is going to be an adequately persuasive reason for avoiding prosecution for ticketless travel, then - you really don't want to be having that argument in a Court, where the prospects of failure are stressful, expensive and long-lasting, and the odds are not encouraging.
That is a simple discussion which a local solicitor who specialises in Criminal Defence work can have with the Company's Prosecutions Manager over the phone. It is quick, very likely to succeed, and is only going to cost you £100 or so.

If the permission to travel given three months ago, which no one dealing with a few million passengers a year is going to remember now, and you didn't get any statements from them at the time, is not available as Evidence, then you shouldn't be relying on it, and certainly shouldn't be expecting a Court to find in your favour. (please disregard suggestions that evidence that is unavailable is Evidence, it isn't, or that answers from people who have not been interviewed is Evidence, it isn't). Where the Evidence doesn't exist, then you shouldn't be considering it as helpful, regardless of what actually happened on the journey in question.

If you take the DIY approach, which some have suggested, of saying 'Not Guilty - I was permitted to travel but I have no evidence' and the Company has whatever evidence it has (you haven't told us, despite my asking twice, so I'm assuming that you don't know), then you are faced not with the odds of succeeding, but with the odds of expense.

I'll guess your odds of success before getting to Court are 80%, with professional assistance.
Your odds of succeeding in Court with a Not Guilty claim are 70% with professional representation and 10% if you adopt the DIY approach.

The odds of expense are, if you succeed : no fine, no costs, but a lot of your time and anxiety.
If you fail, the fine, plus costs, plus Victim Surcharge plus Criminal Conviction Charge will be £1000 to £1500, and a lot of your time and anxiety.

Arguing the same point where it really matters should only be done with well prepared research and evidence, and will come at a high price. I can't advise you to do that.

There is a legitimate concern about the scope of Railway Byelaw 18 (3) iii or 25 (1) i. But it is not appropriate for you (as someone who's counsel comes from an internet forum) to be challenging that at your risk. That is for someone whose costs are properly underwritten by others to argue.

 

[Bletchleyite]

Excellent legal advice from DaveNewcastle as usual.

 

[crehld]

If the permission to travel given three months ago, which no one dealing with a few million passengers a year is going to remember now, and you didn't get any statements from them at the time, is not available as Evidence, then you shouldn't be relying on it, and certainly shouldn't be expecting a Court to find in your favour. (please disregard suggestions that evidence that is unavailable is Evidence, it isn't, or that answers from people who have not been interviewed is Evidence, it isn't). Where the Evidence doesn't exist, then you shouldn't be considering it as helpful, regardless of what actually happened on the journey in question.

Given your sensible suggestion that this case should not see a court room, and at this point in the proceedings, I fail to see why the OP should be discouraged from drawing the investigating officer's(s') attention to the existence of the three members of staff giving permission to travel, especially as it is a crucial part of their defence. It harms the OP in no way to point the investigating officer(s) to the (alleged) facts of the case. Furthermore, there is no good reason why the investigating officer(s) would refuse to explore this avenue, and where attention has been drawn to potential evidence which is pertinent to the matter under investigation I would expect any competent investigating officer to do so. Of course these witnesses might not remember. Yet, it is entirely plausible that they might. Know one will know until they are asked.

You say evidence that doesn't exist shouldn't be relied upon. True indeed, but what about evidence that does exist yet has not been mobilized in a railway company's investigation? Perhaps I'm misinterpreting you, but your definition of 'evidence' always seems to focus exclusively on what the railway company has to offer, and not what the OP's defence might have to offer.

I am in no way suggesting the OP has this fight in court (nor, can I tell, has anyone on this thread so far). Rather that the OP (or their appointed solicitor) should be drawing the railway company's investigation and its prosecutor to all of the available facts.

 

[DaveNewcastle]

Meg90, the CPS will not be involved in the investigation into your incident. It will be handled by the prosecuting Railway Company and their contracted Investigations Company.

I hope my advice to you has been clear, but crehld's response has made me wonder, so for clarity I'll expand slightly :

My advice that where there is possible evidence which you still don't have " then you shouldn't be relying on it, and certainly shouldn't be expecting a Court to find in your favour." I was referring to the prospects of a prosecution in the Magistrate Court. I was trying to discourage you from letting this matter reach that stage if you were hoping for a Not Guilty verdict based on evidence which you still haven't obtained and are only hoping would confirm your innocence at the last minute. That is an unsound strategy and risks a high cost to you.

crehld seemed to think I was discouraging you from trying to negotiate with the company on the basis of the facts as you've presented them here. Far from it. I had suggested that you ask a local solicitor to do that for you, because it seemed to me that your attempt to make that point in writing has already been made and you had not succeeded. But of course you should stick to the facts of having been permitted to board the train; if that is truly what you were told during the incident, then it is crucial to your position.

I'm grateful for having the uncertainty in my advice pointed out and hope you have taken away the 2 points I wanted to put to you (plus the clarification here that you should persist with your defence of being given permission despite having no evidence of it), which are to attempt a negotiation through a local Criminal Defence solicitor, and not to attempt an argument in Court where you have little assurance that there will be Witness Statements to support your defence; I can see that costing you well over the £1500 I'd mentioned above if you fail, (due to the cost of bringing in other witnesses) without the prospects of success that would justify that level of risk.

 

[Meg90]

Dear DaveNewcastle and everyone else who has taken the time to respond, thank you for your help and sorry for the slow reply but I've been busy flying the last couple of days.

Dave - you're advice has been amazing but I'm a little confused as to what evidence I could present? Obviously I don't have CCTV but would hope that if needs be, they could be accessed to help my case but I don't know how long they are held for. Other than that, I did not obtain any names or written permission etc at the time because I truly did not think it would be escalated to this. I took their word when they said I would be fine to travel and when he took my details I didn't question his explanation that it was for "company investigation" I did not challenge this. Should I quote bye laws in my next response, which I need to send on Wednesday latest or should I further just reiterate my points made in my first letter? I'm hoping this is my last chance to stop it going to court and that they will see sense but I have contacted some solicitors anyway but they have told me to wait until the actual summons come through before contacting them. The costs of the court if I was to be found guilty are huge, which is a bit scary as I don't earn very much but CAB have done an assessment to see what repayments would be feasible if I came out of this with a debt.

Neil - the confirmation I received from the TrainLine does not state when to activate the ticket, it just says "before travel" so this is very vague and as a first time user of an e-ticket, I was not aware of any implications of downloading prior to the day of travel.

Once again guys, thanks for your replies and hope you had a lovely weekend.

Best Wishes
Meghan

 

[furlong]

What was the exact ticket type? (Was it valid on only one specific service or did it have more general validity?)

There's a set of technical issues to explore here too regarding what actually happened with the app and whether it is fit for purpose or whether there is a general problem for Transport Focus / ORR / DfT to examine. Why did the app not have a mechanism to unlock tickets as part of its reinstallation? Why did the app not give you advice as to how to rectify the situation if the error message was incorrect and it was actually locked to the same device?

In your situation, I'd be very tempted to see if Transport Focus would take an interest in your case at this early stage, or to attempt to escalate it yourself to a senior level within Crosscountry to make sure it has received adequate internal review.

 

[najaB]

There's a set of technical issues to explore here too regarding what actually happened with the app and whether it is fit for purpose or whether there is a general problem for Transport Focus / ORR / DfT to examine. Why did the app not have a mechanism to unlock tickets as part of its reinstallation?

For the same reason that you aren't allowed a free replacement of a paper ticket if you lose it. If you could install the app on a second device and activate a ticket you've got two valid tickets.

Why did the app not give you advice as to how to rectify the situation if the error message was incorrect and it was actually locked to the same device?

That is a reasonable question. Though, having said that, it isn't necessarily the fault of the app vendor as the device ID for Android devices changes when the device is factory reset.

 

[Meg90]

Hi furlong, it was a specific route on time that I booked 3 weeks in advance and yes I agree, the app definitely has it's faults as it was reinstalled on the same device so it should recognise that. I would have preferred paper tickets, I never have any problems with them and the one time I get an e-ticket it goes tits up haha!

I have already spoken to TF the ombudsmen and they said I definitely have a case for complaint but I chose not to pursue it until I have a resolution for this one as it's too much stress...I already keep crying about everything

I've just finished my second response and have mentioned byelaw 18.3 as well as citing the case ‘Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)’ which sets a past precedent for when a decision made is so unreasonable or irrational that no reasonable person acting reasonably could have made it as it is clear to TIL there was no dishonest intent and the inability to show my ticket was down to mitigating circumstances - fingers crossed they throw it out before the definitely decide to issue a summons.

Thanks again!

 

[najaB]

...the app definitely has it's faults as it was reinstalled on the same device so it should recognise that.

As I pointed out above it is impossible for the app to recognise that it is the same phone as the device ID changes on a factory reset (this is definitely true on Android devices and I'm 99% sure it's true on iOS as well).

 

[319321]

Transport Focus are not an ombudsman. They have no powers whatsoever nor any idea of what they are doing.

 

[furlong]

citing the case ‘Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)’

In what way do you believe that to be applicable? (Could be an expensive line of argument to pursue through the courts.)
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The point about using Transport Focus is for it to use its contacts into Crosscountry to ensure that the right senior people have reviewed the case and support its pursuit before it escalates too far. My concern would be that it might not yet have been reviewed by more senior staff who can take into account the wider picture of where the company's best long-term interests lie.
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As I pointed out above it is impossible for the app to recognise that it is the same phone as the device ID changes on a factory reset (this is definitely true on Android devices and I'm 99% sure it's true on iOS as well).

That would just be an implementation detail for the app writers to deal with - the IMEI would surely not change, so it should be possible to detect and handle a reinstall.

 

[najaB]

That would just be an implementation detail for the app writers to deal with - the IMEI would surely not change, so it should be possible to detect and handle a reinstall.

That assumes the app has the necessary privilege to read the IMEI - as I understand it that is a higher security level than most apps would need. This is precisely why device IDs were invented.