Help! Court Date imminent

[9mcbrides]

My daughter has been given a court date for not having a ticket when she was travelling on South Eastern. She has dyspraxia and had lost her ticket but had the email to prove she'd bought the ticket.
The inspector humiliated her on the train, she telephoned me to ask me to search her coat indoors. The inspector insisted she must have the physical ticket and issued something.
He told her to present her evidence at StPancras, who could waive it. At.Pancras staff said no, and gave her a phone number. She called and was told they'd call her back. They didn't.
Now she has a court date.
She has asked for the recording of the telephone call, and has it. Plus the email showing she had bought the ticket in her name.
What action do they hope to achieve? She requires clean DBS for work, and she'd provided evidence of buying a ticket. She also has evidence of her dyspraxia.
TIA

 

[mikeg]

A little vague as to what is going on here. What is mentioned on the court summons in terms of legislation?
Have you any idea what the something was? An unpaid fare notice, perhaps? A permit to travel? In either case it could be argued that any further travel was by an authorised person, on the condition that the fare is paid within time limits in the case of the former. As a dyspraxic myself I fail to see the relevance of the condition, but agree she has been treated harshly.
That said it is true that you must have the actual ticket there and then.

 

[Fawkes Cat]

Welcome to the forum.

We can probably help best if we know exactly what your daughter has been charged with. The easiest way of doing this may be for you to post a redacted copy of the letter that she has received here (redact it so that we don't know your daughter's name, address and so on). That way, we will know what charge she is facing, the timescale and so on. But for the moment, there are a couple of points I'd make:

- as @mikeg has already pointed out, the law for railways is that a passenger must have their ticket with them. Having bought it isn't good enough. (Why is this? Because otherwise people who were intending to shortchange the railway would buy one ticket between two: one person would travel on the ticket, and the other on the receipt on their phone 'having left the ticket at home'.)
- your daughter's job may not be at as much risk as you fear. Our experience is that there are very few jobs where one criminal conviction (especially for something fairly minor such as a railway ticketing matter) leads to dismissal. For those jobs where it may be an issue, there is generally a regulator (the Nursing and Midwifery Council for example, or the Solicitors Regulation Authority) and their rules will be clear and public. So it's worth having a look at the regulator's website to see what they have to say. It may well also be worth your daughter having a word with someone at work who would be on her side: a trade union rep is good if she is a member of a union, or if she is a student then her students union may have a welfare officer who can help.

 

[9mcbrides]

Thank you. She was given unpaid fare notice and told to show her evidence of buying a ticket at the station.
Then commenced a number of calls the last of which is transcribed by South Eastern and confirms they were looking into the matter and would call back. Then the summons.
Being disorganised, misplacing things and taking longer to process auditory information is all part of her dyspraxia, making this difficult to sort.

 

[Fawkes Cat]

Please could you let us know what your daughter has been charged with? It may be useful if you can also tell us what legislation is in play (broadly, it's likely to be either the Regulation of Railways Act or the railway byelaws: it can make a difference which it is).

 

[9mcbrides]

Fare evasion, railway bylaws...

 

[furlong]

And which byelaw(s) exactly?

Problems like these do not go away and it is necessary to engage with the processes and that can certainly take a lot of time and effort!

The exact wording is important because that determines what the prosecution would have to prove beyond reasonable doubt, and accordingly what sorts of facts might raise relevant doubts. In particular precisely when (in terms of the journey) is the offence alleged to have occurred (at the point of boarding the train? during an encounter with an on-train inspector?) and what is the range of possibilities for when the ticket was lost (when it was last seen, when it was first discovered lost)?

Was the ticket ever found?

 

[9mcbrides]

Thank you, I'll ask my daughter. I know it was during the journey and she thought the ticket was in her purse. It wasn't. She checked her phone and showed him. He was rude and she felt humiliated by the way he spoke to her, telephoned me in tears asking if I could check her coat pockets indoors while he stood waiting. I couldn't find it. He produced the unpaid fare thing although she'd shown him the email and ID.

== Doublepost prevention - post automatically merged: 5 Oct 2020 ==

 

[furlong]

So it appears that the prosecution would present evidence to prove that she boarded the train without the ticket - but how likely is it that she had the ticket while boarding but lost it later while on the train?
(The date the court was informed by the company also need checking - COVID-19 might have delayed things, but there's normally a 6 month time limit.)

 

[Fawkes Cat]

(Edit: while I saw the text of OP’s post number 8 of 22.33 on 5 October when writing this, somehow I didn’t see the image with the information that added, which clarifies the charge and date of offence.)

On what you have told us, I think that it’s most likely that your daughter has been charged under railway byelaw 18:

18. Ticketless travel in non-compulsory ticket areas

1. in any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel
2. a person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person
3. no person shall be in breach of Byelaw 18(1) or 18(2) if:
   1. there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey or
   2. there was a notice at the station where he began his journey permitting journeys to be started without a valid ticket or
   3. an authorised person gave him permission to travel without a valid ticket

(source: https://www.gov.uk/government/publications/railway-byelaws/railway-byelaws)

If this is not the charge, then please (a) put me right and (b) ignore the rest of this post.

You will see that byelaw 18(1) says that any traveller must have a valid ticket with them. Nothing about having proof of having bought a ticket, and nothing about intent to avoid the fare. If this is what your daughter is charged with then on what you have told us she is guilty. (N.b. This written before seeing Furlong’s post #9 above - but failing then to produce the ticket would breach byelaw 18(2).)

That’s the bad news. But there may be some better news. It is sometimes possible to get the railway to agree to settle out of court: they will expect to see evidence that your daughter knows that it is important to make sure she has her ticket with her in future, and to cover the railway’s costs (likely to be in the low hundreds of pounds). It can’t hurt for your daughter to write to ask for a settlement like this - and from time to time we do hear of settlements agreed with the prosecution at the door of the court. And this sort of settlement means that your daughter will not have been convicted of an offence.

 

[9mcbrides]

Thank you.
Furlong... Why do you mention 6 months?

 

[furlong]

In normal circumstances, the company must inform the court within 6 months (i.e. start of July) - that's a crucial date to check for in the paperwork. It can take time after that for the papers to be issued. I can't spot an extension to that time limit in England but someone else might know better. In any event, you should consider getting legal advice, so a professional can look over the totality of the paperwork and evidence and represent your daughter. Southeastern is known to settle out of court sometimes - for a price that covers their sometimes surprisingly substantial costs which are sometimes negotiated down from their initial offer. (Lost ticket situations are difficult because, although theoretically losing a ticket isn't an offence, the law tends to prefer the train companies so that people can't use "I lost my ticket" as an excuse - so it can be a bit of a lottery in court and years of privatisation seem to have tipped the balance away from the theory that the rail companies exercise restraint in situations where there is clear evidence of purchase and no reason to suspect fraud.)

 

[mikeg]

The date this was laid before the court is key. There is a chance it is out of time, how recent was the correspondence and the decision to prosecute?

 

[9mcbrides]

Offense was 6th January 2020, summons 18th June. But changed to 11th November.
We really don't have the money for solicitors, costs or fines. My daughter proceeded with not guilty because she had bought a ticket, it wasn't an unpaid fare and she'd shown the inspector. He was rude, she thought he was having a bad day, put in a complaint afterwards and provided evidence. The last contact was a phone call saying they were investigating and would be in touch. Then a summons.
Honestly, I despair that all of this is happening when all she's done is lost a ticket.

 

[Haywain]

all she's done is lost a ticket.

The train company issued an unpaid fare notice which provided an opportunity to regularise the situation by paying the fare due. If that has not been done they will, inevitably, take further action.

 

[9mcbrides]

But she provided evidence that she'd bought it. The inspector told her to show it at the station. The station told her to phone.
She phoned.
They were investigating and were going to call back.
She had evidence that the fare wasn't unpaid.
The fare was paid.

 

[Fawkes Cat]

Offense was 6th January 2020, summons 18th June. But changed to 11th November.
We really don't have the money for solicitors, costs or fines. My daughter proceeded with not guilty because she had bought a ticket, it wasn't an unpaid fare and she'd shown the inspector. He was rude, she thought he was having a bad day, put in a complaint afterwards and provided evidence. The last contact was a phone call saying they were investigating and would be in touch. Then a summons.
Honestly, I despair that all of this is happening when all she's done is lost a ticket.

The timing means that the summons was issued in time.

I must confess that I cannot think of a way to conclude this which won't cost money, so you and your daughter need to brace yourselves for that. I would again suggest that you try to agree an out of court settlement, but if the case does go to court, then it may help to know that fines are based on the defendant's income. So your daughter should find her payslips so that she can demonstrate how much she is paid; if she can't do this then the court will assume a weekly income of £440 (source - https://www.sentencingcouncil.org.u...nes-2/3-definition-of-relevant-weekly-income/):

The seriousness of an offence determines the choice of fine band and the position of the offence within the range for that band. The offender’s financial circumstances are taken into account by expressing that position as a proportion of the offender’s relevant weekly income.

Where:

an offender is in receipt of income from employment or is self-employed and
that income is more than £120 per week after deduction of tax and national insurance (or equivalent where the offender is self-employed),
– the actual income is the relevant weekly income.

Where:

an offender’s only source of income is state benefit (including where there is relatively low additional income as permitted by the benefit regulations) or
the offender is in receipt of income from employment or is self-employed but the amount of income after deduction of tax and national insurance is £120 per week or less,
– the relevant weekly income is deemed to be £120.

Additional information about the basis for this approach is set out in Approach to offenders on low income.

In calculating relevant weekly income no account should be taken of tax credits, housing benefit, child benefit or similar.

No reliable information

Where an offender has failed to provide information, or the court is not satisfied that it has been given sufficient reliable information, it is entitled to make such determination as it thinks fit regarding the financial circumstances of the offender (CJA 2003, s.164(5)). Any determination should be clearly stated on the court records for use in any subsequent variation or enforcement proceedings. In such cases, a record should also be made of the applicable fine band and the court’s assessment of the position of the offence within that band based on the seriousness of the offence.

Where there is no information on which a determination can be made, the court should proceed on the basis of an assumed relevant weekly income of £440. This is derived from national median pre- tax earnings*; a gross figure is used as, in the absence of financial information from the offender, it is not possible to calculate appropriate deductions.

Where there is some information that tends to suggest a significantly lower or higher income than the recommended £440 default sum, the court should make a determination based on that information

 

[Haywain]

But she provided evidence that she'd bought it.

As has already been indicated, the ticket MUST be carried at the time of travel, evidence of purchase just isn't enough. As such, the fare is due and was not paid. This isn't, I'm afraid, a matter of opinion but a matter of law. It is possible that the ticket that was left at home may have been refundable but the time for that has long since passed.

 

[cakefiend]

But she provided evidence that she'd bought it. The inspector told her to show it at the station. The station told her to phone.
She phoned.
They were investigating and were going to call back.
She had evidence that the fare wasn't unpaid.
The fare was paid.

As others have said, your daughter is guilty by default on account of not having a ticket to present when requested for the journey being made. She will be found guilty should this reach a court.

The fact your daughter called to speak with the prosecutions team and was promised a call back - which she didn't receive - is a failure on the part of the train company, but it remains the fact that she was already guilty of the offence before this point.

If she hasn't already, your daughter should phone that number back and speak with the prosecutions team. It may (I'm not a lawyer) be sufficient to argue that the fare went unpaid for so long only, because she was under the impression that the issue was in hand, to get the court date cancelled. However, train company will still expect payment of the fare (I fear simply producing the ticket will not be enough at this stage) in addition to a reasonable sum to cover their costs.

It would be prudent to speak with a solicitior.

 

[Islineclear3_1]

I really do feel for you and your daughter and in my own personal opinion, I think the "railway" needs to take a more lenient view on those who genuinely lose their ticket and can prove payment was made

Unfortunately, the "railway" does not think or work in this way and bludgeon on about having a physical ticket. Seems very unfair I know.

If your daughter has an audit trail she can bring to court (e.g. receipts, recording of telephone calls etc), I am hopeful leniency will be shown. It does amaze me that an officer of the railway (i.e. an inspector) can tell her one thing and another officer (at another station) tell her something else - in all effect, your daughter only did what she was told to do.

At least your daughter is not being charged for deliberately intending to avoid paying the fare due - this would be far more serious

Can she contact the court before the hearing to plea for an out of court settlement (and thus avoid the hearing)?

 

[ainsworth74]

an she contact the court before the hearing to plea for an out of court settlement (and thus avoid the hearing)?

The court doesn't handle out of court settlements (clue is in the name ) she would need to speak to the prosecuting authority (seem to be the TOC) and see if they'll agree to drop the action.

[Usual proviso that I'm not a lawyer, this isn't legal advice and I'm just a bloke on the internet]

@9mcbrides I think it's perhaps worth clarifying something (and let me preface this by saying I do not support, at all, the present regime when it comes to fare evasion). There are two main piece of law that are used when it comes to fare evasion on the railway. There is the Byelaw 18 of the Railway Byelaws (what your daughter has been charged under) and there is Section 5(3) of the Regulation of Railways Act 1889 (that's not a typo the law really is from 1889!).

Whilst fundamentally both deal with fare evasion there is a fairly fundamental difference between them. Byelaw 18(1) requires that "no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel" and 18(2) requires that you show that ticket on demand. That's basically it. If you cannot show a ticket on demand you have committed an offence (unless one of the limited exemptions in 18(3) apply). It is for all intents and purposes a strict liability and binary choice. Were able to show a ticket entitling you to travel? Yes, no offence committed. No, offence committed.

RoRA 1889 S5(3) is a slightly different kettle of fish however. It requires that intent avoid the fare be shown "If any person travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof". This is higher bar for the prosecuting authority to jump over than the simple "Yes/No" question that Byelaw 18 poses. And one which you daughter would likely have been able to mount a reasonable attempt of defending herself against with the available evidence (nothing is certain however).

So effectively by choosing the Byelaw offence rather than RoRA they are conceding that your daughter probably wasn't intentionally evading her fare and that they certainly couldn't prove that she was.

My personal view is that Byelaw 18 is a terrible rule and should be ditched immediately (indeed the whole way we deal with fare evasion should be subject to a fundamental overhaul). However the world is not what we would like it to be in this case. My view is that your daughter is, no matter how unjust it is, guilty of breaching Byelaw 18 and if she goes to court she will most likely lose (unless she pays for a very good solicitor to represent her).

My recommendation, therefore, would be to contact the prosecuting authority and apologise for what's happened, that your daughter will take care to ensure that she doesn't misplace her ticket again in the future and will be willing to pay for any reasonable admin costs incurred and for the outstanding fare. Which, without swearing, is rubbish. But I don't personally see another way around it as I have very little confidence that showing up at court and presenting the evidence that the fare was paid will actually be sufficient to prevent a conviction due to the appalling way that the Byelaw is drafted. Meanwhile paying for a solicitor who might be able to get her out of this predicament I would bet will end up being more expensive in the long run.

I would also suggest she write to her MP to tell them what's happened to her. It is the Government through the DfT which sets the laws and Byelaws the railway uses so they are the ones with the power to change it...

 

[WesternLancer]

All of the above posts are clear and helpful, esp post #21.

It may be worth a try in following advice given in @cakefiend's post #19 - ie appealing to the Train Company's better nature, but if done by phone this MUST be followed up in writing in my view. Make the following points:

ie -

• made a mistake (nature of disability is mitigating circs)
• Given contradictory information and advice on the day by staff, or misunderstood their advice
• Tried to follow this up by phone after the event and believed someone was going to get back to me
• Thought it was in hand after that
• Thus did not expect to go to get court summons 'out of the blue'
• Never had any intention to avoid payment and am able to demonstrate payment for the journey
• Ask them if they can look again at the sequence of events and resolve the matter without court action

Keep it brief and to the point (so sadly do not get into issues about the rudeness of the staff member on the day - follow that up later and separately with customer services if desired)

I can't see why this is not worth a try - all it will cost is the time to compose the letter / e-mail.

You can even post a draft of a suggested letter on here for comment and advice, people do.

And good luck with sorting this out.

 

[Fawkes Cat]

My daughter has been given a court date (...) She requires clean DBS for work

Is anyone able to comment on the DBS position should this matter end in a conviction for breaking the byelaws? This is an area where I always get confused so I would rather not comment.

 

[crablab]

Is anyone able to comment on the DBS position should this matter end in a conviction for breaking the byelaws?

A summary conviction of this type is not recordable and would not appear on a DBS check.

If you're doing BPSS, SC or DV and above, total transparancy and honesty is what they are looking for.

 

[30907]

May I offer a couple of tweaks shown in bold below ?

• made a mistake (nature of disability is mitigating circs)
• Given contradictory information and advice on the day by staff, or misunderstood their advice
• Tried to follow this up by phone after the event and believed someone was going to get back to me
• Thought it was in hand after that and therefore did not need to pay the fare requested in the UFN
• Thus did not expect to go to get court summons 'out of the blue'
• Never had any intention to avoid payment and am able to demonstrate payment for the journey and collection of ticket from machine at N station at about X on Y date
• Ask them if they can look again at the sequence of events and resolve the matter without court action

(The second is to help convince them that you didn't buy the ticket for someone else, an issue mentioned upthread. Obviously not proof.)

 

[WesternLancer]

May I offer a couple of tweaks shown in bold below ?

(The second is to help convince them that you didn't buy the ticket for someone else, an issue mentioned upthread. Obviously not proof.)

Thanks. Very helpful suggested tweaks, hopefully of use to the OP.

 

[furlong]

Recent posts haven't mentioned my point that you can't rule out there being a defence if there's reasonable doubt as to when the ticket was *in fact* lost and specifically whether or not it was before or after boarding (which is the point in time at which an 18(1) offence occurs). But small details may be crucial and an argument like this is better made by a professional who can see all the evidence.

 

[ainsworth74]

Recent posts haven't mentioned my point that you can't rule out there being a defence if there's reasonable doubt as to when the ticket was *in fact* lost and specifically whether or not it was before or after boarding (which is the point in time at which an 18(1) offence occurs). But small details may be crucial and an argument like this is better made by a professional who can see all the evidence.

The OPs daughter would still fall foul of 18(2) however though wouldn't they?

 

[furlong]

The OPs daughter would still fall foul of 18(2) however though wouldn't they?

That doesn't appear to be in the photograph, so not relevant at this stage. And note it states clearly an offence is alleged to have occured "at Ramsgate" - not at some later time during an encounter with the inspector.

 

[eoff]

Perhaps it would help to get the media involved but that means going very public and hoping someone takes an interest. It seems ridiculous that losing a ticket can open you up to a conviction expecially as they seem to have offered a way to resolve this initially.

I need to be careful with these byelaws, jumping on the train before someone has left could get me in court.