Penalty fares vs prosecution

[Dima]

Hello,

I am wondering what are the rules regarding issuing penalty fares vs prosecution.

My understanding is that penalty fares are usually for lesser offences, like forgetting to buy a ticket, while prosecution happens for when there was some deliberate action to avoid paying a fare (like using someone else’s season ticket or pass), especially if it’s done repeatedly.

But where exactly is the line between the two? Can a train company theoretically prosecute someone who they caught without a ticket for the first time, or who traveled beyond the validity of their ticket as they missed their stop?

 

[glasgowniteowl]

Many of the offences you will see on here are strict liability offences, so simply being there without a valid ticket is enough for an offence to be complete regardless of the reason

Should they be strict liability? now that's a whole different conversation.

As for where the line between penalty fare or prosecution is, unfortunately there is no such line, it is all down to each individual train company to decide what they want to do.

Again should it be up to them to decide is another whole conversation.

And these conversations are long over due

 

[skyhigh]

Can a train company theoretically prosecute someone who they caught without a ticket for the first time, or who traveled beyond the validity of their ticket as they missed their stop?

Yes, they can.

 

[AdamWW]

Yes, they can.

And they do.

 

[Birmingham]

You also get situations where staff are about to issue a PF and the passenger protests (or the member of staff convinces them to choose this option i.e. "you can pay now or we can just send you a letter to explain"), so it progresses to details being taken to go down the prosecution pathway - when the passenger would probably have been better off just paying the PF to start with. This is just from what passengers who have come on this forum asking for help have said to us.

 

[Dima]

And they do.

This doesn’t make me too comfortable…

So does this mean that any genuine mistake can result in prosecution at the whim of a train company? Like a person sitting in the first class with a second class ticket thinking it’s declassified, or travelling at peak times with an off-peak ticket or using a ticket which is valid only for journeys though X on a train that doesn’t go through X, or forgetting to tap in with a KeyGo?..

 

[ainsworth74]

So does this mean that any genuine mistake can result in prosecution at the whim of a train company?

Yes, absolutely. There are some scenarios where they can't but there are plenty of genuine mistakes which could lead to a prosecution if the TOC wishes.

 

[Dima]

There are some scenarios where they can't

May I ask what are those scenarios?

And besides, if a company decided to play a bad cop for some reason and brings a case of a minor violation to court, is there a chance of it being dismissed there on a basis that giving a criminal convention to someone who missed their stop would be disproportionate? Or there’s no wiggle room in the law so the court basically has to rubber-stamp the conviction once the fact that the offence has occurred has been established?

 

[AdamWW]

This doesn’t make me too comfortable…

So does this mean that any genuine mistake can result in prosecution at the whim of a train company? Like a person sitting in the first class with a second class ticket thinking it’s declassified, or travelling at peak times with an off-peak ticket or using a ticket which is valid only for journeys though X on a train that doesn’t go through X, or forgetting to tap in with a KeyGo?..

And using an advance ticket on the wrong train (even if due to delays it left at the time that the one you were supposed to be on should have left). Elsewhere on this forum you'll even see someone who was threatened with prosecution for taking a bike on a train in a peak period when they weren't permitted.

It doesn't make me very comfortable either...but it does make me very careful.

The "good" news is that so far as I know the strict liability offences don't lead to a formal criminal record.

Another thing that's relevant to your original question is that penalty fares do not apply everywhere.

Where they don't, then instead operators can (and do) use the threat of prosecution to "fine" passengers by getting them to agree what is effectively an out of court settlement.

I suspect that in the vast majority of cases staff use sensible discretion. But even allowing for the fact that people posting on this thread might not always be entirely truthful, it does seem that there are occasions when people get treated unnecessarily harshly for a genuine error.

== Doublepost prevention - post automatically merged: 1 Feb 2023 ==

May I ask what are those scenarios?

And besides, if a company decided to play a bad cop for some reason and brings a case of a minor violation to court, is there a chance of it being dismissed there on a basis that giving a criminal convention to someone who missed their stop would be disproportionate? Or there’s no wiggle room in the law so the court basically has to rubber-stamp the conviction once the fact that the offence has occurred has been established?

My understanding (as ever, happy to be corrected by those who know more than me) is in the UK the flexibllity in the legal system (which I'd argue any system needs) largely comes in at the start, with the descision to prosecute.

The police certainly don't deal with everything they come across that is technically criminal, and the DPP use a public interest test in deciding whether to prosecute.

Once it comes to court, the question is only whether the person committed the exact offence they are being accused of. If that offence is failing to show a valid ticket and there is good evidence that they failed to do so, it doesn't matter that they have what might be a good reason not to have done so. (On the other hand, if it's clear they've done something criminal but it's not the crime they are being prosecuted for, then they can't be found guilty).

I think the only real flexibility once it's come to court is in sentencing, where this could be an absolute discharge (which I believe still gives a criminal record where the crime provides for such, but one that is "spent" immediately).

Now...the railways get to choose whether to prosecute or not without having to consider the public interest, and having done so that just leaves the somewhat inflexible bits of the legal system.

 

[ainsworth74]

May I ask what are those scenarios?

For instance those circumstances laid out by Condition 9.5 of the NRCoT:

9.5 Where you:

9.5.1 are using a time-restricted Ticket (such as an “off-peak” or “super-off-peak” Ticket) that is correctly dated but invalid for the service on which you are travelling; or

9.5.2 are using a route for which your Ticket is not valid; or

9.5.3 break your journey when you are not permitted to do so; you will be charged the difference between the fare that you have paid and the lowest price Ticket that is valid for the train you are using.

For instance I will semi-regularly travel on a ticket routed "Not Via Darlington" but go via Darlington. An RPI could only issue me an excess not report for prosecution even though my ticket isn't technically valid as the NRCoT provide that I should be charged an excess.

 

[pedr]

Parliament has (tacitly) authorised the creation of railway criminal offences which can be committed by accident and without knowledge or fault. In theory a train company could prosecute someone who has had their ticket stolen while they were on a train - though I expect that’s something even the most prosecution-minded companies would avoid.

This can lead to significant unfairness, and very different treatment of the same behaviour/events depending on the company and the training and attitude of the staff making decisions.

This does not seem to me to be a satisfactory state for the law to be in, but it is the current law and it is difficult to see that the railway or government would take action to reduce the tools available to companies to deal with the revenue loss caused by unticketed travel, even if sometimes those tools cause unfairness.

 

[Watershed]

Hello,

I am wondering what are the rules regarding issuing penalty fares vs prosecution.

My understanding is that penalty fares are usually for leaser offences, like forgetting to buy a ticket, while prosecution happens for when there was some deliberate action to avoid paying a fare (like using someone else’s season ticket or pass), especially if it’s done repeatedly.

But where exactly is the line between the two? Can a train company theoretically prosecute someone who they caught without a ticket for the first time, or who traveled beyond the validity of their ticket as they missed their stop?

It is entirely down to the discretion of the TOC (or, more practically speaking, the individual member of staff concerned) as to how they resolve any given irregularity. The law does not require them to wait until a second or subsequent offence to prosecute. If they operate a Penalty Fares scheme and have compliant signage, they can issue a Penalty Fare; otherwise they can choose to take details for a potential prosecution.

Most TOCs offer out of Court settlements, but there is no entitlement to them and plenty of people do get prosecuted and convicted for a first time offence.

The law is extremely harsh in both the offences it creates (it should not be an absolute offence to board a train without a ticket, in my view) as well as the way that it works in practice (TOCs can conduct their own private prosecutions without needing to satisfy any public interest test, and indeed we have heard of many cases of wholly unfounded prosecutions).

Unfortunately nobody is really interested in solving these problems because of the perception that enhancing passenger safeguards will increase the level of fare evasion.

 

[Fawkes Cat]

It is entirely down to the discretion of the TOC (or, more practically speaking, the individual member of staff concerned) as to how they resolve any given irregularity. The law does not require them to wait until a second or subsequent offence to prosecute. If they operate a Penalty Fares scheme and have compliant signage, they can issue a Penalty Fare; otherwise they can choose to take details for a potential prosecution.

Most TOCs offer out of Court settlements, but there is no entitlement to them and plenty of people do get prosecuted and convicted for a first time offence.

The practical upshot of all this is, of course, that there's no (or perhaps very limited) space for passengers to play the system - anyone who uses the logic that they needn't buy a ticket for their daily commute because they'll only risk a penalty fare which will be less than the fares they have cumulatively avoided may get a nasty surprise if they are prosecuted on the first time that they're caught.

 

[Dima]

they needn't buy a ticket for their daily commute because they'll only risk a penalty fare

In all honesty, it’s a pretty easy assumption to made given all the warning about the penalty fares at the stations and trains. A frequently used phrasing “you may have to pay a penalty fare” suggests that a penalty fare is the worst-case outcome of being caught without a ticket. And yes, more than once I’ve caught myself looking at the “£20 penalty fare” signs and thinking to myself why am I even bothering with tickets (though I’ve never acted on this).

My naive understanding that for simply not having a ticket a penalty fare will be issued, while a criminal fare evasion would mean something more serious, like forging tickets. Apparently I was wrong, and the signage on trains and stations didn’t do much to help me understand this - as I said before it was rather reassuring that a penalty fare is only £20.

 

[AdamWW]

I suspect there i

My naive understanding that for simply not having a ticket a penalty fare will be issued, while a criminal fare evasion would mean something more serious, like forging tickets. Apparently I was wrong, and the signage on trains and stations didn’t do much to help me understand this - as I said before it was rather reassuring that a penalty fare is only £20.

I used to think the same (well maybe not forging tickets to prosecute, but something with clear intent to defraud like doughnutting, not merely having a railcard that's expired).

This forum has enlightened me!

 

[pedr]

It is ironic that everyone in the UK is conclusively presumed to know the details of the criminal law, including by-laws specific to particular activities or areas, and no signs or public information campaigns are required, but the for the less significant imposition of a penalty fare there are strict rules on how the potential for a penalty fare is advertised to travellers.

Nevertheless, that’s the way the law works.

 

[Dima]

It is entirely down to the discretion of the TOC (or, more practically speaking, the individual member of staff concerned) as to how they resolve any given irregularity.

May I ask how it happens in practice?

If a ticket inspector (are they all called Revenue Protection Officers?) issues a Penalty Fare, does it guarantee that they are not going to prosecute the passenger for this offence? What happens if the passenger later disputes the Penalty Fare - can it escalate to prosecution at that stage?

And if an inspector says “you will get a letter” - does it necessarily mean prosecution? Will it be possible to later negotiate to get a penalty fare instead, or once the prosecution department is informed there’s no way to “downgrade” to it? I imagine out of court settlements, if offered, would be more expensive than a penalty fare, is it usually true?

And last but not least - what what are the consequences of getting a conviction for fare evasion? Is it always a fine or can there be an actual prison sentence? What are the limits on the amounts and/or terms?How and for how long is it going to impact one’s life?

It all doesn’t sound great - looks like a private train company has a power to act as a prosecutor, jury and a judge while being one of the sides of the claim without any checks and balances, as the role of an actual court is reduced to a formality. I would definitely support a campaign to reform it.

 

[AdamWW]

It is ironic that everyone in the UK is conclusively presumed to know the details of the criminal law, including by-laws specific to particular activities or areas, and no signs or public information campaigns are required, but the for the less significant imposition of a penalty fare there are strict rules on how the potential for a penalty fare is advertised to travellers.

Nevertheless, that’s the way the law works.

Or indeed just that (when penalty fares were £20) there were strict requirements on signage and other things before they could be implemented, but in their absence you could be "fined" a lot more in a settlement to avoid prosecution for the same things that could otherwise have attracted a penalty fare.

When the law came in that required no smoking signs to be put up in various places my ISP at the time objected on the grounds that you aren't required to put up signs informing people of other laws, and made some rather silly signs that kept to the letter but not the spirit of the law in protest (some including the phrasing "The Health Act 2006 - making money for sign makers").

== Doublepost prevention - post automatically merged: 1 Feb 2023 ==

And if an inspector says “you will get a letter” - does it necessarily mean prosecution? Will it be possible to later negotiate to get a penalty fare instead, or once the prosecution department is informed there’s no way to “downgrade” to it? I imagine out of court settlements, if offered, would be more expensive than a penalty fare, is it usually true?

It's clear from reading this forum (so far I have no direct experience and hope to keep it that way) that ToCs will often agree to a settlement. They generally seem to be a lot more than the £20 a penalty fare used to be.

 

[Fawkes Cat]

May I ask how it happens in practice?

If a ticket inspector (are they all called Revenue Protection Officers?) issues a Penalty Fare, does it guarantee that they are not going to prosecute the passenger for this offence? What happens if the passenger later disputes the Penalty Fare - can it escalate to prosecution at that stage?

And if an inspector says “you will get a letter” - does it necessarily mean prosecution? Will it be possible to later negotiate to get a penalty fare instead, or once the prosecution department is informed there’s no way to “downgrade” to it? I imagine out of court settlements, if offered, would be more expensive than a penalty fare, is it usually true?

And last but not least - what are the consequences of getting a conviction for fate evasion? How and for how long is it going to impact one’s life?

It all doesn’t sound great - looks like a private train company has a power to act as a prosecutor, jury and a judge while being one of the sides of the claim without any checks and balances, as the role of an actual court is reduced to a formality. I would definitely support a campaign to reform it.

Please could you be rather clearer about why you're asking?

If this is entirely hypothetical, then the answers to almost all of these questions are 'it depends', as has already been discussed in this and other threads.

If you've had cause to cross the railway's ticketing system and are worried about what might happen, we would be able to give much better advice if you can let us know specifically what has happened so far.

If you're trying to size how far one might be able to run outside of the law around railway tickets without getting into trouble ('game the system') then some of us will not want to comment further.

Or if it's somewhere else that you're coming from, then please let us know where so that we can work within that spirit!

 

[Watershed]

are they all called Revenue Protection Officers?

There are many job titles used for this sort of role. Most companies call them something along the line of 'Revenue Protection Inspector', hence the common term RPI. Other members of staff such as conductors or gateline staff may also be able to take details for prosecution or issue Penalty Fares, depending on their training.

issues a Penalty Fare, does it guarantee that they are not going to prosecute the passenger for this offence?

It 99.9% guarantees that if the Penalty Fare is paid, that is the end of the matter. The 0.1% would be in cases such as where the company later discovers that the passenger was lying about an important detail (such as where they started their journey).

What happens if the passenger later disputes the Penalty Fare - can it escalate to prosecution at that stage?

This is one of the few areas where there are (at least on paper) reasonable passenger protections. There are three stages of appeal against a Penalty Fare; once the passenger raises a first-stage appeal, the TOC is barred from prosecuting the matter unless they cancel the Penalty Fare (e.g. as described above) before a decision is made on the appeal, or 21 days elapse, whichever comes first.

Therefore if a passenger disputes a Penalty Fare through the correct processes, the TOC will no longer be able to prosecute. However, we have heard of cases where TOCs have disregarded this protection, or have even prosecuted offences that have plainly not been committed - see for example this case, where the OP was falsely prosecuted for failing to provide her name, even though she was issued with a Penalty Fare which showed her name!

And if an inspector says “you will get a letter” - does it necessarily mean prosecution?

In 99% of cases, that's the process it would lead to. However, many operators would offer an out of Court settlement, either proactively or if the passenger grovels.

Will it be possible to later negotiate to get a penalty fare instead, or once the prosecution department is informed there’s no way to “downgrade” to it?

Penalty Fares cannot retrospectively be issued - they can only be issued on the spot. There will be some cases where prosecution departments will accept payment of just the fare owed, or even drop the matter entirely, but these will be far and few between.

I imagine out of court settlements, if offered, would be more expensive than a penalty fare, is it usually true?

Up until the recent increase to the value of Penalty Fares, I would definitely have said so. However, now that Penalty Fares are £100 + the single fare (reduced to £50 + fare if paid within 21 days), that could be much closer than before. Most settlement offers have historically been for around £80-120 + the fare outstanding. I expect that some TOCs may increase their use of Penalty Fares now that their value has increased.

And last but not least - what are the consequences of getting a conviction for fate evasion? How and for how long is it going to impact one’s life?

If convicted under Byelaw 18 (which is the absolute offence - i.e. requiring no evidence of intent to avoid the fare), it is a non-recordable offence and so whilst in theory you still need to declare it for most purposes for a year after conviction, you will generally not actually have a criminal record.

A conviction under section 5(3)(a) of RoRA (the offence requiring evidence of intent to avoid payment of the fare) would be recordable and so would definitely appear on your criminal record.

In both cases, you would no longer need to declare anything for most purposes after a year - but you may need to declare the conviction for the rest of your life for certain, limited purposes (such as visa or security clearance applications).

A one-off conviction under either offence is unlikely to be a serious issue for most people, but obviously this will depend on individual circumstances.

It all doesn’t sound great - looks like a private train company has a power to act as a prosecutor, jury and a judge while being one of the sides of the claim without any checks and balances, as the role of an actual court is reduced to a formality. I would definitely support a campaign to reform it.

It is an absolutely insupportable state of affairs but frankly, nobody in the government cares; to the extent that anybody recognises there's a problem, they probably think there are a million other things that take priority

 

[Llanigraham]

It is ironic that everyone in the UK is conclusively presumed to know the details of the criminal law, including by-laws specific to particular activities or areas, and no signs or public information campaigns are required, but the for the less significant imposition of a penalty fare there are strict rules on how the potential for a penalty fare is advertised to travellers.

Nevertheless, that’s the way the law works.

And is different in any other country? Even under the Napoleonic system in France, ignorance of the Law is not a defense.

 

[Dima]

@Watershed thanks for your very detailed answer.

One last question - how the severity of the conviction is determined when a case goes to court? How large can the fine be? Can there be a real prison sentence, and if so, how long?

 

[Watershed]

@Watershed thanks for your very detailed answer.

One last question - how the severity of the conviction is determined when a case goes to court?

I'm not 100% sure what you mean by this. The Court doesn't decide the offence that is prosecuted - it is down to the prosecutor to decide what offence (if any) they wish to prosecute.

If a defendant is convicted under the Byelaws, it's a non-recordable offence; if they are convicted under RoRA, it's a recordable offence.

How large can the fine be?

The maximum fine for either offence is £1000, but that would only be imposed in exceptional circumstances. Most offences are likely to fall into 'category 3', unless there was aggressive, abusive or disruptive behaviour or high revenue loss.

For a category 3 offence under Byelaw 18, the Sentencing Guidelines give a starting point of a Band A fine (25-75% of the defendant's weekly income), and a sentencing range of between a conditional discharge (no fine so long as you stay out of trouble for X months/years) and a Band B fine (75-125% of weekly income).

So as you can see, you would have to have a rather substantial income to receive a £1000 fine.

On top of the fine, the defendant would tend to be ordered to pay the prosecution's costs (typically £100-200) as well as the Victim Surcharge (40% of the fine) and any outstanding fare(s).

Can there be a real prison sentence, and if so, how long?

A prison sentence is not within the range of available sentencing powers for a Byelaw 18 conviction. It is not even available for a first RoRA conviction. It is only legally possible after a second or subsequent RoRA conviction - and even then, the highest sentence that the Sentencing Guidelines advises, in the most serious category 1 RoRA case, is a low level community order. A judge would have to have very good reasons for departing from the Sentencing Guidelines.

The only cases where prison sentences ever occur is where defendants fail to pay the fine that has been imposed. They're usually not even being imprisoned for the original offence - but for contempt of Court for failing to pay the fine. Again, it takes exceptional circumstances for this to be imposed; in most cases, the sorts of people who end up in that situation have tens, if not hundreds of convictions to their name and are unlikely to be particularly pleasant characters.

 

[Dima]

Please could you be rather clearer about why you're asking?

Apart from simply being curious I am trying to protect myself from mistakes, either mine or those of railway staff members.

I have no intention to game the system - I have a season ticket that I use for my daily commute (I’ve asked some question about it here), so doing anything dodgy would make no sense to me. I don’t spend too much on public transport anyway, so even if somehow avoided paying for it altogether I wouldn’t gain much to justify the risk.

I have never had any issues with revenue inspectors - during my four years in London which includes a daily commute I’ve encountered them two or three times where they simply checked my card and moved on.

But we are all humans and we can make mistakes. I can mistakenly travel outside the validity zone of my season ticket by simply boarding a train, which is going to the same destination as mine from the same platform, but doesn’t stop at my station. I can touch in with a wrong card and then travel on a route where the card that I used to touch in is not valid, but the other card would be valid if I touched in with it. I normally travel in a declassified first class compartment with my second class ticket, which is OK, but if one day the declassification is cancelled or due to a disruption a train with a “legal” first class stops at my station I can travel there without realising I am legally in the wrong. Or even if I travel in a declassified first class, the display may still show “this area is only for first class ticket holders” and I think that there’s a change that an inspector may try to wrongfully issue a penalty fare.

And I have no desire whatsoever to get a conviction. I am in the UK on a visa and having troubles with the law enforcements is the last thing I need.

So I was under impression that I was protected from being disproportionally penalised for such mistakes. Apparently, I am not, and there’s nothing stopping a train company from launching a prosecution. Now I am trying to figure out what would be the best course of action if I ever get in troubles with an inspector if any of the situations above arises, especially if I think that they are in the wrong, not me. Should I just shut up and pay whatever they tell me? Should I dispute a penalty I don’t agree with or should I be more careful not to aggravate the situation? This is what motivated me to start this thread and ask follow up questions.

I don’t like walking in a minefield without knowing the chances of stepping on a mine and the damage it may cause.

 

[AdamWW]

The only cases where prison sentences ever occur is where defendants fail to pay the fine that has been imposed. They're usually not even being imprisoned for the original offence - but for contempt of Court for failing to pay the fine. Again, it takes exceptional circumstances for this to be imposed; in most cases, the sorts of people who end up in that situation have tens, if not hundreds of convictions to their name and are unlikely to be particularly pleasant characters.

Although I did hear a guard once, who had been going down the train being very friendly and offering helpful advice for people on where to change etc., suddenly change mood when she came across an elderly couple who didn't have their railcards and started telling them that they were risking prison.

 

[Dima]

I'm not 100% sure what you mean by this.

Sorry for being unclear, I meant the severity of the punishment.

Thank you very much for answering my questions!

 

[Watershed]

Sorry for being unclear, I meant the severity of the punishment.

Thank you very much for answering my questions!

No problem! It truly is a minefield as you say above. These 'worst case scenarios' are unlikely to arise, but it is always worth knowing what the legal position is.

Now I am trying to figure out what would be the best course of action if I ever get in troubles with an inspector if any of the situations above arises, especially if I think that they are in the wrong, not me. Should I just shut up and pay whatever they tell me? Should I dispute a penalty I don’t agree with or should I be more careful not to aggravate the situation? This is what motivated me to start this thread and ask follow up questions.

Regardless of what happens, it will almost certainly be in your best interests to cooperate in terms of giving your name and address. You will usually be committing an offence if you refuse to give these details. If the inspector proposes to issue a Penalty Fare, it will also likely be in your interests to cooperate, because (as described above) appealing this is the only way to get legal protection against being prosecuted. You also don't have to pay a Penalty Fare on the spot; you can always appeal it afterwards.

 

[Dima]

It’s interesting how it’s different to driving.

While driving you don’t need to hold your driving licence, or proof of insurance or anything else on you - the police can check everything electronically if they need or issue a “producer” where you will need to present your documents within 60 days.

You cannot get a criminal conviction from a council for not paying for parking - they can only issue civil penalty charge notices, and even that is subject to some strict regulations, especially when using CCTV, which limits their ability to enforce the parking rules.

Apparently rail passengers are not allowed the same benefit of the doubt as drivers (speaking as a rail passenger and a driver myself)…

 

[Haywain]

It’s interesting how it’s different to driving.

While driving you don’t need to hold your driving licence, or proof of insurance or anything else on you - the police can check everything electronically if they need or issue a “producer” where you will need to present your documents within 60 days.

You cannot get a criminal conviction from a council for not paying for parking - they can only issue civil penalty charge notices, and even that is subject to some strict regulations, especially when using CCTV, which limits their ability to enforce the parking rules.

Apparently rail passengers are not allowed the same benefit of the doubt as drivers (speaking as a rail passenger and a driver myself)…

Speeding is, however, a strict liability offence.

 

[Dima]

Speeding is, however, a strict liability offence.

True, though I think it’s justified as it poses danger to the speeding driver, their passengers and other road users. I think it’s more comparable to trespassing on the railway than to travelling without a ticket. But it’s off topic of course…