The difficulty faced by Justices Matthews and Kennedy in Huffam was in the wording of Railway Byelaw No 2 as it was formulated at that time. It was the construction of the Byelaw which was found to be 'bad' on its face, and not the circumstances of the incident involving Huffam. His Offence was already captured by S.5(3) of the 1889 Act (the RoRA). It was not (and still is not) acceptable for a Court to uphold a Byelaw which imposes a penalty for an action which is already captured by Statute; nor to disregard the statutory offence and its penalty in favour of the Secondary Legislation (the Byelaw), when Evidence of an Offence is brought to Court.
Consider : "Parliament did not intend to make a Byelaw which alters the Statutory Offence" - Bentham v Hoyle (1878) 3 QBD 289
It's Huffam v North Staffordshire Railway Co [1894] 2 QB 821 on 3rd August.
Thanks. Some would argue that Byelaw 18, as it stands, is therefore
ultra vires - as not having a ticket where opportunities to buy existed is
prima facie dishonest to a degree, and hence the Byelaw is really a carbon copy of S5(3) of RoRA.
I would of course be delighted if Byelaw 18 were found to be
ultra vires, with the penalty for non-compliance being restored to its pre-2005 version - ejection from the railway. A declaration of
ultra vires would presumably mean that all convictions under Byelaw 18 would be overturned, with fines and costs due to be returned. Would it also mean that TOCs who made settlements out of Court in relation to Byelaw 18 would have to refund the settlement? Some of the TOCs, e.g. FCC, are no longer trading!
In any case, I don't think it right to have a strict liability offence in relation to ticketing - as the overlap is significant with Penalty Fares. Penalty Fares should be used as a replacement for Byelaw 18, now that the new Penalty Fares Regulations mean that the DfT's approval is not required for new schemes to be introduced.