ALthough if this is a point where the onus is on the prosecution to prove their case, the obvious follow-up question is ‘do you remember refusing permission?’ If the answer to that is ‘no’, then it’s hardly beyond doubt that the OP wasn’t given permission to travel.
Indeed. And if the "only" evidence is the OP's witness testimony, I would not necessarily be 100% confident of their success at Court
It falls upon the defendant to show that, on the balance of probabilities, any defence they allege is proven. They could of course request the attendance of the Train Manager as a witness, but if they simply say "it was too long ago - I cannot recall anything other than what was in my report", and the report is silent on the issue of permission...
But in this case there are there are 3 potential witnessIndeed. And if the "only" evidence is the OP's witness testimony, I would not necessarily be 100% confident of their success at Court
Indeed it would be. But without having access to the report, we cannot know. And it would seem bizarre for the TM to be happy for the OP to board and yet seek to issue them with a TIR.
But both the first and last people would only be able to confirm that the OP had difficulties collecting their ticket (for "self imposed" reasons, i.e. nothing which could negate a Byelaw 18 charge), something which I don't think is in dispute.
Indeed, and this all militates against any intent to avoid payment existing. But a RoRA offence isn't really in question, since the OP had paid for their ticket prior to travel. Instead, the Byelaw 18(1) offence is not concerned with whether someone had paid for their fare, but rather whether they have a ticket on them when boarding.
As the basic elements of the offence are made out, it would be for the OP to successfully raise a defence under Byelaw 18(3)(iii). I have heard of much less 'ambitious' TIL prosecutions in the past!
There is certainly no harm in doing so - I don't think it will cause TIL to withdraw their offer of settlement and proceed straight to prosecution. And there is a chance, albeit small (in my view), that this could cause the matter to be dropped.
The fact that the payment card is required is never shown before purchase in case of Trainsplit, so this is just an internal railway matter irrelevant to customers.
There is no guarantee that this would be successful, since the TOC could quite rightly argue that the passenger "freely" entered into the settlement and that this is non-rescindable - just as TIL/XC can't refund the settlement and proceed to prosecute once payment has been made.
Of course, but it would be in the interests of customer service. Say that the TOC will miss out on future revenue if they don't give the money back. If that doesn't work then make formal complaints.
As I’ve outlined in the previous post, I’d also advocate for contacting XC - but I’d hesitate on the chances of this getting past a Customer Service bod who is likely to have been trained not to interfere with any TIL cases. I’d advocate trying to reach a much higher level in the first instance.
In a sensible world, TOCs wouldn't even dream of threatening their customers with prosecution. Can you imagine BA doing that? I hardly think so.
Exactly my thoughts. If you board the train for the purposes of finding and speaking to a member of staff, so as to obtain the necessary consent under Byelaw 18(3)(iii), I think that could avoid liability. But either way it is a question of the evidence the OP is able to produce of asking for and obtaining that permission - which may significantly depend on what the TM can remember.
I would definitely try and appeal to their better nature but stick to the point that, you collected your tickets eventually and that they haven't lost any money.
Agreed.
But that is precisely what the OP's duty is. Once guilt, in line with the basic definition of an offence, is made out the burden of proof shifts to the defendant to raise a defence, and prove it on the balance of probabilities.
I appreciate what you are saying, but legally speaking that is not how the test works. I would be wary of giving Magistrates any credit in terms of erring on the side of generosity to defendants.
TIL are unlikely to have even considered the possibility of permission. It is quite simply a very unusual situation for a TM to invite someone onto the train and yet issue them with a zero fare and TIR.
That is a separate argument and one with which I would be more inclined to agree.
As I said in post 44, to establish a defence under byelaw 18 (3), the authorised person's permission must be held at the point of boarding the train. Obtaining permission afterwards does not undo the offence.
I'm not 100% sure that this argument holds up to scrutiny - you can quite validly say that you are boarding simply because that is where the TM is and you do not intent to travel, at the moment of boarding, because you might well be refused permission.
It is simply the normal procedure to issue someone with a zero fare when an irregularity of any sort is encountered. This is to prevent them from being stopped again later on in the journey. Whilst it implies consent to continue the journey (as opposed to throwing them off at the next stop for example), this consent is only given after boarding. So if you have boarded with the intention of travelling, you have already committed the offence at that point, and any consent given later in the journey is immaterial.
As far as we understand from the OP's account, it was not a single interaction with the TM. The OP first "approached her", was advised to take a seat and that she would return to speak again after departure of the train. It was only when she returned and spoke to the OP again that the zero fare was issued and TIR made.
Even then, TIRs are usually reserved for people who have 'failed the attitude test'. Most other people would, in this situation, be allowed to travel on the basis of the booking confirmation or be sold a new ticket.
