Prosecution UPDATE

[Sam1364]

Update
On reflection I was clearly in the wrong here, the rules are clear and I would urge people to read the t&c's so that they may not mess up as I have.



Hello everyone, I am in need of some advice relating to a prosecution order I have received.

Sometime in Feb I was travelling from Huntingdon station to Finsbury Park station. I used my mother's Key Smartcard as I am a student and she offered to pay for my journey. Please note that there is no discount applied to the card, it is simply a quicker way of paying compared to giving me cash. Also, this card is a tap, pay-as-you-go type.
I was stopped by an officer on the train who, upon inspection, was seemingly confused by the card, saying there was no season ticket loaded on it. I mentioned it was my mother's and that it was a tap and go type card. He confiscated the card, took details and kicked me off at Finsbury with no ticket. Seems counterproductive as he said I didn't need a ticket to get off at this station.

Following this I have been issued with a court summons, citing the transfer of a ticket as the crime.
Please note, that there has been no loss of revenue, no malicious aim to receive discounts, in fact, had I paid cash I am entitled to a discount (16-25 railcard).

This seems extremely heavy-handed of Govia, this is a first-time offence and I thought they would have issued me with a fine of some sort.

How should I proceed?

Thank you in advance

 

[Mcr Warrior]

Welcome to the forum.

Key Smartcards are not transferable, are they?

And will be retained if found to be used by anyone other than the person to whom it was issued.

Question now is. Where does that leave you?

 

[47421]

Hello everyone, I am in need of some advice relating to a prosecution order I have received.

Sometime in Feb I was travelling from Huntingdon station to Finsbury Park station. I used my mother's Key Smartcard as I am a student and she offered to pay for my journey. Please note that there is no discount applied to the card, it is simply a quicker way of paying compared to giving me cash. Also, this card is a tap, pay-as-you-go type.
I was stopped by an officer on the train who, upon inspection, was seemingly confused by the card, saying there was no season ticket loaded on it. I mentioned it was my mother's and that it was a tap and go type card. He confiscated the card, took details and kicked me off at Finsbury with no ticket. Seems counterproductive as he said I didn't need a ticket to get off at this station.

Following this I have been issued with a court summons, citing the transfer of a ticket as the crime.
Please note, that there has been no loss of revenue, no malicious aim to receive discounts, in fact, had I paid cash I am entitled to a discount (16-25 railcard).

This seems extremely heavy-handed of Govia, this is a first-time offence and I thought they would have issued me with a fine of some sort.

How should I proceed?

Thank you in advance

suggest you write a polite letter to the prosecutions department (1) noting the facts including as you say "there has been no loss of revenue, no malicious aim to receive discounts, in fact, had I paid cash I am entitled to a discount" (2) acknowledging that you now realise using someone elses card was not permitted and was an error on your part and (3) asking if in this case they would be prepared to accept a payment to settle the matter out of court. Suggest you send letter signed for

if they do proceed to summons you, go along to the court early, find the prosecutor and ask then if they are prepared to settle the matter

What offence have they charged you with?

 

[Sam1364]

As I understand it, the specific offence is, 'did transfer an unused or partly used ticket, intending to use it for travel on the railway'
Although in this case is that true? The card is 'live' as in when you tap in you are charged, regardless of whether or not you tap out. Furthermore, only one person can physically use it at a time, and there is no financial gain to using it, it simply makes the process quicker.

suggest you write a polite letter to the prosecutions department (1) noting the facts including as you say "there has been no loss of revenue, no malicious aim to receive discounts, in fact, had I paid cash I am entitled to a discount" (2) acknowledging that you now realise using someone elses card was not permitted and was an error on your part and (3) asking if in this case they would be prepared to accept a payment to settle the matter out of court. Suggest you send letter signed for

if they do proceed to summons you, go along to the court early, find the prosecutor and ask then if they are prepared to settle the matter

What offence have they charged you with?

 

[47421]

Does summons refer to any bylaws, or Regulation of the Railways Act, or are does it use the word fraud?

 

[WesternLancer]

As I understand it, the specific offence is, 'did transfer an unused or partly used ticket, intending to use it for travel on the railway'
Although in this case is that true? The card is 'live' as in when you tap in you are charged, regardless of whether or not you tap out. Furthermore, only one person can physically use it at a time, and there is no financial gain to using it, it simply makes the process quicker.

Whatever the rights and wrongs of being able to share the smart card - if it is not permitted then the Railway have a case against you, however daft that may seem And unfortunately the law allows the railway to take things to court and easily win as it is stacked in their favour. No doubt your mum ticked some obscure T&Cs that explained all about not sharing the card etc as well.

Just goes to show what a good invention cash was.... It seems to me these sorts of smart cards are often there to help the railway rather than to be of great help to the passenger, as you say a different ticket with a railcard for you would have saved you money too.

So the advice from @47421 is def the way to go with this ASAP - good luck with it.

 

[Bertie the bus]

As I understand it, the specific offence is, 'did transfer an unused or partly used ticket, intending to use it for travel on the railway'
Although in this case is that true? The card is 'live' as in when you tap in you are charged, regardless of whether or not you tap out. Furthermore, only one person can physically use it at a time, and there is no financial gain to using it, it simply makes the process quicker.

The FAQs on Thameslink's website state:

Can I lend my Key Smartcard to someone else to use?​

Your Key Smartcard is not transferable and can only be used by the person it was issued to. For your own security, your Key Smartcard will be retained if someone else other than you is found to be using it. If your Key Smartcard is being used fraudulently then those involved could be liable for prosecution.

So you have breached the Ts&Cs. It seems rather harsh to prosecute someone who is using their mother's card with their permission if it is pay as you go. It might be worth ringing them when you are with your mother, giving them permission to discuss the situation with her and let her explain exactly what has happened as it is her card.

 

[Sam1364]

Does summons refer to any bylaws, or Regulation of the Railways Act, or are does it use the word fraud?

It's Byelaw 21(2) of the 2005 Bylaws apparently, had no clue these existed

If I go to court am I likely to be found guilty, even with mitigating circumstances (eg. mothers card with permission, no loss of revenue).
I am not so worried about the fine, it's the criminal conviction that will truly ruin my future

 

[mmh]

No doubt your mum ticked some obscure T&Cs that explained all about not sharing the card etc as well.

Which would be irrelevant, you can't tick yourself in or out of a criminal offence.

I would certainly reply to this before court, but it would be useful to see what the letter says and who it's from. Is it a summons, a notice of intent, and the offence that is alleged.

The optimist in me says there is a realistic chance of stopping this going to court, but the OP shouldn't take advice about their response until they've shared a litlle more detail of the letter they've received.

 

[WesternLancer]

Which would be irrelevant, you can't tick yourself in or out of a criminal offence.

I would certainly reply to this before court, but it would be useful to see what the letter says and who it's from. Is it a summons, a notice of intent, and the offence that is alleged.

The optimist in me says there is a realistic chance of stopping this going to court, but the OP shouldn't take advice about their response until they've shared a litlle more detail of the letter they've received.

These are fair points. The OP has now shared a bit more detail I see. I too would think there is a good chance of stopping court action. I'm less convinced about using the mitigating circs in the court to obtain a not guilty verdict (since the rules always seem to be stacked in the the railways favour - ticket irregularity: automatic guilty type thing) - but the advice from @Bertie the bus is also helpful - ringing them 1st to try and discuss (the card holder, the OP's mum ringing) would seem worthwhile. A follow up letter can then be sent in response following that.

@Sam1364 - you could upload an anonymised copy of the letter you have received if you wish to share it with people asking for more exact details on what they are accusing you of.

 

[47421]

It's Byelaw 21(2) of the 2005 Bylaws apparently, had no clue these existed

If I go to court am I likely to be found guilty, even with mitigating circumstances (eg. mothers card with permission, no loss of revenue).
I am not so worried about the fine, it's the criminal conviction that will truly ruin my future

yes you are (very) likely to be found guilty, the Bylaws offences are so called strict liability, essentially your intentions are not relevant, by travelling on/offering that ticket to the inspector you commit the offence whether you realised you were or whether there was any loss of revenue etc

The good news is (1) this is not a so called Recordable Offence, so conviction is not registered on the Police National Computer and does not show on criminal records checks (or only for a short time or something, google, other threads on here have full info) and (2) it is likely that Govia will settle out of court (assuming facts are as you say and no aggravating circumstances, eg have you ever come to Govias attention before, or did you get shirty with inspector etc?)

If you want to post a draft letter for our review feel free to, but not much to it, keep it brief and to the point, and dont bother going into how unfair it is, they have heard it all before. Let us know how you get on. Even if they dont want to settle at first, decent chance they will do at the court before case is heard, so i would not worry about it too much

 

[mmh]

yes you are (very) likely to be found guilty, the Bylaws offences are so called strict liability, essentially your intentions are not relevant, by travelling on/offering that ticket to the inspector you commit the offence whether you realised you were or whether there was any loss of revenue etc

However, I believe it should hopefully be quite straightforward to write a response which shows that byelaw doesn't apply here, at least to the point of making the prosecutor decide to continue.

If it went to court I do suspect the prosecution would succeed, it will be handled by lay magistrates who rubber stamp. The best chance of stopping that is before it goes to court.

I'd be happy to share what I, as a lay person but experienced, would write, but not without the content of the letter I'm afraid.

 

[Sam1364]

These are fair points. The OP has now shared a bit more detail I see. I too would think there is a good chance of stopping court action. I'm less convinced about using the mitigating circs in the court to obtain a not guilty verdict (since the rules always seem to be stacked in the the railways favour - ticket irregularity: automatic guilty type thing) - but the advice from @Bertie the bus is also helpful - ringing them 1st to try and discuss (the card holder, the OP's mum ringing) would seem worthwhile. A follow up letter can then be sent in response following that.

@Sam1364 - you could upload an anonymised copy of the letter you have received if you wish to share it with people asking for more exact details on what they are accusing you of.

Please find attached a copy of the pack I received. Apologies for the low quality.

 

[WesternLancer]

Please find attached a copy of the pack I received. Apologies for the low quality.

Thanks for scan.
so was that the first you heard from them? No prior letter from Govia Thameslink asking for your side of the events for example, as we often see on this forum?

 

[Sam1364]

Thanks for scan.
so was that the first you heard from them? No prior letter from Govia Thameslink asking for your side of the events for example, as we often see on this forum?

I did previously receive an intent to prosecute letter, to which I wrote a reply, the content followed @47421 's advice minus the out of court settlement part.

suggest you write a polite letter to the prosecutions department (1) noting the facts including as you say "there has been no loss of revenue, no malicious aim to receive discounts, in fact, had I paid cash I am entitled to a discount" (2) acknowledging that you now realise using someone elses card was not permitted and was an error on your part and (3) asking if in this case they would be prepared to accept a payment to settle the matter out of court. Suggest you send letter signed for

if they do proceed to summons you, go along to the court early, find the prosecutor and ask then if they are prepared to settle the matter

What offence have they charged you with?

 

[island]

It does not seem to me that the OP is guilty of the offence they have been summonsed for; they did not transfer any ticket. The correct offence to charge would have been 21 (3) Use a ticket which has been obtained in breach of byelaw 21.

Is this the first correspondence you've received about the matter? Were there no previous letters?

 

[SuspectUsual]

Can I lend my Key Smartcard to someone else to use?​

Your Key Smartcard is not transferable and can only be used by the person it was issued to. For your own security, your Key Smartcard will be retained if someone else other than you is found to be using it. If your Key Smartcard is being used fraudulently then those involved could be liable for prosecution.

Taking these three sentences individually:

Your Key Smartcard is not transferable and can only be used by the person it was issued to.
- Clearly the OP and/or his mother has/have breached the terms and conditions of the product, but is that a criminal offence in itself?

For your own security, your Key Smartcard will be retained if someone else other than you is found to be using it.
- This is what happened

If your Key Smartcard is being used fraudulently then those involved could be liable for prosecution
- If the OP paid a fare equal to or greater than the fare due had he paid himself, and can demonstrate this, then there is no fraud is there?

 

[P Binnersley]

It does not seem to me that the OP is guilty of the offence they have been summonsed for; they did not transfer any ticket. The correct offence to charge would have been 21 (3) Use a ticket which has been obtained in breach of byelaw 21.

Is this the first correspondence you've received about the matter? Were there no previous letters?

Bylaw 21(2) is (my bold)

1. subject to Byelaw 21(4), no person shall transfer or receive any unused or partly used ticket, intending that any person shall use it for travelling unless the conditions of use for the ticket specifically permit such transfer

Railway byelaws

Explains what the railway byelaws are, why they have been made and how they can be enforced and interpreted.

www.gov.uk

The OP received the ticket. Whether a Pay-As-You-Go smart card which has not been tapped in is "partly used" I leave of others to discuss. Bylaw 21(2) does not reference a "valid ticket".

 

[Haywain]

Whether a Pay-As-You-Go smart card which has not been tapped in is "partly used" I leave of others to discuss.

You could certainly argue it is "unused".

 

[Watershed]

The OP received the ticket. Whether a Pay-As-You-Go smart card which has not been tapped in is "partly used" I leave of others to discuss. Bylaw 21(2) does not reference a "valid ticket".

The Byelaw also includes "unused" tickets. Therefore whether it was used or unused is irrelevant - either way it falls within the definition of that Byelaw. "Ticket" is defined in Byelaw 25(1) as including "any type of smart card, pre-pay, or other form of electronic ticket" so a Key smartcard also falls within this.

To prosecute such a minor offence is exceptionally sharp practice, particularly given that no revenue loss has occurred. It serves as yet another example that the TOCs can and will abuse their ability to prosecute whenever they feel like it.

It is possible that the OP may be able to obtain a settlement from GTR, and certainly out of all the kinds of cases which they deal with, this would seem a prime candidate for a settlement. But ultimately it is down to luck as to whether or not they are willing to offer one.

 

[Starmill]

In general, unused tickets are transferable provided they're not being resold for more than their face value. However this doesn't apply under Condition 5.1.1 if the ticket has been "made out in the passenger's name" - this may well apply to this card.

Personally, the main thing I take from this is that those of us who take the position that it should be our right to engage in basic transactions such as shopping for groceries or travelling by public transport without ever having to give our names or other identifying means are absolutely right to do so. We're often derided for taking what appears to be standing on inconsequential principle, but here in this case we see that giving your name alone might lead unintentionally to criminal liability for you or someone else, despite the fact that you paid for the journey correctly.

The customer does not really gain anything meaningful from paying for their journeys with the smarrtcard, and they paid for the journey they made at the correct price. However they're still on the hook for a criminal penalty for no reason beyond that a publicly funded organisation likes the idea of making you pay more.

The Byelaw penalties are in my view fundamentally unjust. They and some of the other historical offences should be repealed and replaced with a different method of calculating penalty fares. However this isn't really for this thread.

 

[Watershed]

In general, unused tickets are transferable provided they're not being resold for more than their face value. However this doesn't apply under Condition 5.1.1 if the ticket has been "made out in the passenger's name" - this may well apply to this card.

Unfortunately the terms of the KeyGo scheme prohibit transferring a Key smartcard to anyone else.

 

[WesternLancer]

I think we need to focus on the advice the OP needs to respond to the documents sent from the court - hopefully people can advise or suggest ref that.

I think also worth the OP still pressing for a settlement / case to be withdrawn despite their original request being turned down, as per the suggestions above (ie phoning and also writing again to the railway).

== Doublepost prevention - post automatically merged: 5 May 2022 ==

Hello everyone, I am in need of some advice relating to a prosecution order I have received.

Sometime in Feb I was travelling from Huntingdon station to Finsbury Park station. I used my mother's Key Smartcard as I am a student and she offered to pay for my journey. Please note that there is no discount applied to the card, it is simply a quicker way of paying compared to giving me cash. Also, this card is a tap, pay-as-you-go type.

also - as you say you are a student - have you sought any help or advice from your student union / university / college advice service - if that is possible I would be seeking their help ASAP - or asking if they have an arrangement with a local solicitor who can help you.

 

[island]

Bylaw 21(2) is (my bold)

Railway byelaws

Explains what the railway byelaws are, why they have been made and how they can be enforced and interpreted.

www.gov.uk

The OP received the ticket. Whether a Pay-As-You-Go smart card which has not been tapped in is "partly used" I leave of others to discuss. Bylaw 21(2) does not reference a "valid ticket".

I’m aware of what the byelaw says, thanks. The OP still did not breach it at Finsbury Park on the given date and the offence should have been charged as 21 (3).

== Doublepost prevention - post automatically merged: 5 May 2022 ==

In general, unused tickets are transferable provided they're not being resold for more than their face value. However this doesn't apply under Condition 5.1.1 if the ticket has been "made out in the passenger's name" - this may well apply to this card.

Yes, “the key” cards are made out in the name of the cardholder.

== Doublepost prevention - post automatically merged: 5 May 2022 ==

To prosecute such a minor offence is exceptionally sharp practice, particularly given that no revenue loss has occurred.

I agree. In fact, it seems the OP paid more than they might have done had they just bought a ticket, given their Railcard.

 

[John Palmer]

At first sight GTR's choice of a prosecution under Byelaw 21(2) appears to make little sense. The specification of the charge incorrectly states that the OP 'did transfer' a ticket, which patently he did not. The charge specification would make somewhat greater sense if the expression 'did receive' had been substituted for 'did transfer' (as provided for in Byelaw 21(2)), but the stilted language customarily used in such specifications would remain hard to reconcile with the fact that receipt of the Keycard took place well before arrival at Finsbury Park. GTR may be relying on proof of the facts discovered by the inspection at Finsbury Park as showing the intent to use the card for travel that is necessary to secure a conviction.

Whilst I agree with @island to the extent that that a charge under Byelaw 21(3) may appear to be more appropriate, in order to make out that offence the prosecution would also need to establish a breach of Byelaw 21(1) or (2). I suggest that GTR may have opted to bring a charge under 21(2) as being the less onerous course.

I do not know what part, if any, it played in GTR's charging decision, but I note that the transferor of a smartcard ticket is as much at risk of prosecution for breach of Byelaw 21(2) as its transferee.

I note that GTR makes no application for compensation (as distinct from costs) notwithstanding its assertion that the 'outstanding fare avoided' is alleged to be £27.40. Should this be treated as an acknowledgment on GTR's part that it has already received in full the due fare for this journey via the pay-as-you-go machinery and that no payment of such fare by the accused is 'outstanding'? Although strictly speaking Byelaw 21(2) has been breached because there has been a prohibited transfer of a ticket and a fine can consequently be exacted, the fact that GTR has apparently received more than the minimum fare the OP might have paid strikes me as being significant mitigation.

 

[CyrusWuff]

Just a thought, but is there potential mitigation given that an Oyster card with PAYG credit on it is transferable (assuming it doesn't have a discount applied), so the proverbial "man on the Clapham omnibus" would reasonably assume the same would apply to similar products from other operators? (Given people rarely read Ts&Cs).

 

[LesF]

All commenters have good knowledge of the T's and C's. The average traveller does not. If the TOC is foolish enough to pursue this case after it's pointed out to them that there was no loss of revenue and therefore no fraud, and that they have used the wrong clause, their unreasonable behaviour should get maximum publicity. The OP should alert their local press and fight the case. Why would anyone give up their car to travel by train when they're treated thus?

 

[Fawkes Cat]

A number of quite sophisticated arguments have been put forward revolving round either
- that the railway has suffered no loss, or
- that the charge is somehow defective

Unless these arguments succeed, then it seems to me that the OP will be found guilty: whether we like what the byelaws say or not (and regardless of whether the charge has been worded correctly or not) the fact is that the byelaws say that the Key is not transferable and is only to be used by whoever it was issued to: this Key card was not issued to the OP, so it wasn’t valid for their use.

These aren’t easy arguments to make, so in practical terms if the OP wants to pursue them, they may want to employ a solicitor.

Practically speaking, it seems to me that the best option is to try to stop this matter going to court. So although the OP hasn’t yet been offered the chance to settle out of court, it’s worth asking now if this might be possible. Do this in writing, and given that the clock is now ticking on this going to court, do this now. Even if a written request is rejected, it’s also possible to approach the prosecutor literally on the day of the court hearing and see if they will agree a settlement - get to court early, if necessary ask court staff to point out who is orosecuting for the railway, and - literally before you all go into the court room - see if it’s possible to agree a settlement.

 

[WesternLancer]

A number of quite sophisticated arguments have been put forward revolving round either
- that the railway has suffered no loss, or
- that the charge is somehow defective

Unless these arguments succeed, then it seems to me that the OP will be found guilty: whether we like what the byelaws say or not (and regardless of whether the charge has been worded correctly or not) the fact is that the byelaws say that the Key is not transferable and is only to be used by whoever it was issued to: this Key card was not issued to the OP, so it wasn’t valid for their use.

These aren’t easy arguments to make, so in practical terms if the OP wants to pursue them, they may want to employ a solicitor.

Practically speaking, it seems to me that the best option is to try to stop this matter going to court. So although the OP hasn’t yet been offered the chance to settle out of court, it’s worth asking now if this might be possible. Do this in writing, and given that the clock is now ticking on this going to court, do this now. Even if a written request is rejected, it’s also possible to approach the prosecutor literally on the day of the court hearing and see if they will agree a settlement - get to court early, if necessary ask court staff to point out who is orosecuting for the railway, and - literally before you all go into the court room - see if it’s possible to agree a settlement.

I think this is very sound advice, and a realistic analysis of the situation the OP is now in and the options available to them.

 

[island]

A number of quite sophisticated arguments have been put forward revolving round either
- that the railway has suffered no loss, or
- that the charge is somehow defective

Unless these arguments succeed, then it seems to me that the OP will be found guilty: whether we like what the byelaws say or not (and regardless of whether the charge has been worded correctly or not) the fact is that the byelaws say that the Key is not transferable and is only to be used by whoever it was issued to: this Key card was not issued to the OP, so it wasn’t valid for their use.

These aren’t easy arguments to make, so in practical terms if the OP wants to pursue them, they may want to employ a solicitor.

Practically speaking, it seems to me that the best option is to try to stop this matter going to court. So although the OP hasn’t yet been offered the chance to settle out of court, it’s worth asking now if this might be possible. Do this in writing, and given that the clock is now ticking on this going to court, do this now. Even if a written request is rejected, it’s also possible to approach the prosecutor literally on the day of the court hearing and see if they will agree a settlement - get to court early, if necessary ask court staff to point out who is orosecuting for the railway, and - literally before you all go into the court room - see if it’s possible to agree a settlement.

I also agree with all the above.