When is prosecution the "right" resolution?

[Haywain]

where I would be concerned that the magistrate(s) would lack the knowledge to challenge the railway if they were taking an incorrect position.

That isn't the role of the magistrates, they (should) have trained legal advisers to appraise them of matters of law but challenging the prosecution is the role of the defence.

 

[AdamWW]

That isn't the role of the magistrates, they (should) have trained legal advisers to appraise them of matters of law but challenging the prosecution is the role of the defence.

If the defence challenges the prosecution's interpretation of the rules, is anyone in the court likely to have the expertise to decide who is right?

The law may be straightforward but ticket validity depends on contractual documents and can be quite complex.

Will the "trained legal advisors" be able to decide (on the spot?) who is in the right?

 

[island]

The legal adviser can (and will) request a recess to consult the relevant laws, or where a complex point of law is raised, the case can be adjourned and relisted before a district judge (magistrates courts) so that it can be properly handled.

 

[AdamWW]

The legal adviser can (and will) request a recess to consult the relevant laws, or where a complex point of law is raised, the case can be adjourned and relisted before a district judge (magistrates courts) so that it can be properly handled.

That's good.

But how do I have the assurance this is what will actually happen?

The Rail Ombudsman claims to make fair impartial decisions but when I tried it I was ulimately told that actually all they do is see if the ToC has followed its own internal procedures, and they determine this by asking them if they did so....

 

[Deerfold]

The legal adviser can (and will) request a recess to consult the relevant laws, or where a complex point of law is raised, the case can be adjourned and relisted before a district judge (magistrates courts) so that it can be properly handled.

With the defendant having to take (at least) two days off work.

 

[43066]

They aren't necessarily prosecuted, no, but they are threatened. And that causes a lot of stress for people, as we've seen here repeatedly in many of the threads.

In my view threatening people for prosecution for forgetting their railcard/to renew their railcard is incredibly authoritarian. Just invoice them for the debt, plus give a non-criminal penalty (i.e. a Penalty Fare) if the desire is to ensure they don't do it again. Why not, in cases like this, treat them like a parking ticket, in fact, where a fixed penalty is given out for cases where people forget that their ticket has expired?

If people feel stress then perhaps that’s a good thing. If they’ve forgotten to renew their rail card it’s their fault and nobody else’s!

It strikes me that the opposite is the problem; people don’t get stressed enough to ensure they don’t make the mistake in the first place. Rather too many people no doubt realise they’ve forgotten to renew their rail card but chance buying a discounted ticket to save a few quid and then play the “sorry I forgot” card when caught.

Really people just need to take responsibility for themselves and remember that some mistakes have quite serious consequences.

I myself have been in this kind of situation, in that I somehow mislaid the return portion of a ticket and only realised when I got on the train (barriers not present/not working). As soon as I realised I went straight to the guard and got a new ticket (a single), and didn't attempt to claim it back. The guard was reasonable when I explained what had happened, as most staff are, thankfully. T

I agree that’s a sensible and appropriate outcome. This is the way most of these matters are dealt with under the current system, so I simply don’t see any good reason to change it.

Working barriers at every station would help prevent innocent mistakes, for one thing.

It probably would. So would a properly staffed railway, with those staff being properly trained. Of course nobody is going to be willing to pay for that.

But how do I have the assurance this is what will actually happen?

You don’ t! It’s no different to any other area of the law; you just have to have faith that the criminal justice system works properly. The best way to avoid it is not acting in a way that gets you in front of a magistrate in the first place!

With the defendant having to take (at least) two days off work.

Which should be the least of their worries. The justice system isn’t intended to run at the convenience of the accused.

 

[Bletchleyite]

Which should be the least of their worries. The justice system isn’t intended to run at the convenience of the accused.

Given how a lot of people who are accused are in fact not guilty, perhaps this should be revisited. Why should defending oneself against a false or vexatious allegation come at great personal cost?

This in the railway's case is why a system solely based around Penalty Fares with a statutory appeals process (other than stuff where you'd get a Fraud Act prosecution to stick) would be the best option. No different from parking; sending people to Court for forgetting to pay and display would be regarded as silly, and so it should be for rail fares which are typically, when you look at the majority of shorter journeys at least, of similar magnitude.

 

[AlterEgo]

Given how a lot of people who are accused are in fact not guilty, perhaps this should be revisited. Why should defending oneself against a false or vexatious allegation come at great personal cost?

This in the railway's case is why a system solely based around Penalty Fares with a statutory appeals process (other than stuff where you'd get a Fraud Act prosecution to stick) would be the best option. No different from parking; sending people to Court for forgetting to pay and display would be regarded as silly, and so it should be for rail fares which are typically, when you look at the majority of shorter journeys at least, of similar magnitude.

Of course parking is an open system ripe for abuse and which only has civil penalties. It’s one of a number of businesses at similar exposure to lost revenue than the railways, but this comparison falls on deaf ears I’m afraid.

 

[Bletchleyite]

Of course parking is an open system ripe for abuse and which only has civil penalties. It’s one of a number of businesses at similar exposure to lost revenue than the railways, but this comparison falls on deaf ears I’m afraid.

Private parking is a mess, I'd agree, but statutory parking (i.e. Council enforcement) is a system that could be implemented for the railway pretty much verbatim. It is fair, has statutory appeals processes, has legal backing and generally works provided enough wardens are out.

It's basically the same as Penalty Fares, indeed. Which is why my view is that for anything that wouldn't succeed under the Fraud Act, a PF is the right answer. You'd just need a minor tweak to the PF law to allow an MG11 to trigger one to be sent out rather than them only being issuable on the spot, and maybe more cases where the full £100 can be charged, e.g. only allow one discount to £50 per person per 12 month rolling period, and if you decline to provide appropriate verifiable proof of identity then it's just £100+fare, and possibly to allow them to be applied to a wider range of offences e.g. minor ASB such as feet on seats and bicycles on banned trains at the "base" (no added fare) rate.

 

[AdamWW]

You don’ t! It’s no different to any other area of the law; you just have to have faith that the criminal justice system works properly.

But (as I said at the start) it is different to Penalty Fares, where there is a very clearly laid out multi-stage appeals process.I don't need any faith in order to appeal a penalty fare if I think the railway has got it wrong - I have nothing to lose other than the time to put the appeal together and also a reasonable expectation that the people dealing with the appeals will have some experience in the area and so it will be worth it.

I don't know the history of the Penalty Fare legislation and why so many safeguards were thought necessary, but it seems inconsistent to consider them necessary for Penalty Fares when prosecution (or threats thereof) can have much higher consequences and lacks such safeguards.

As for belief that the justice system will work properly when a large organisation chooses to privately prosecute individuals, the Post Office Horizon scandal suggests that such faith may be misplaced.

This in the railway's case is why a system solely based around Penalty Fares with a statutory appeals process (other than stuff where you'd get a Fraud Act prosecution to stick) would be the best option. No different from parking; sending people to Court for forgetting to pay and display would be regarded as silly, and so it should be for rail fares which are typically, when you look at the majority of shorter journeys at least, of similar magnitude.

A system of prosecuting (or threatening to do so) only where there is clear intent to evade the correct fare would seem the correct approach to me - in fact I used to think that was how it worked. It would need expansion of the penalty fare system though.

 

[Bletchleyite]

A system of prosecuting (or threatening to do so) only where there is clear intent to evade the correct fare would seem the correct approach to me - in fact I used to think that was how it worked. It would need expansion of the penalty fare system though.

I don't think the railway acts responsibly enough for even that, hence why I would limit it to very serious stuff that would prosecute under the Fraud Act, which is going to mean things like persistent "doughnutting"/short faring and actual falsification of tickets.

Anything else should be decriminalised. I'd have no issue with ideas like stepped penalty fares though, e.g. £50 for the first one in a 12 month period, £100 for the next, £200 for any further ones. Anyone who's getting PFed three times a year is clearly trying it on. Obviously the higher one if one declined to identify oneself.

 

[AdamWW]

I don't think the railway acts responsibly enough for even that, hence why I would limit it to very serious stuff that would prosecute under the Fraud Act, which is going to mean things like persistent "doughnutting"/short faring and actual falsification of tickets.

Views clearly vary on how responsible the railway is - but even if the ability to prosecute without intent were removed it would be an improvement in my view.

Anything else should be decriminalised. I'd have no issue with ideas like stepped penalty fares though, e.g. £50 for the first one in a 12 month period, £100 for the next, £200 for any further ones. Anyone who's getting PFed three times a year is clearly trying it on. Obviously the higher one if one declined to identify oneself.

The argument against that I've seen is that as nobody is required to carry ID you couldn't make this scheme work. I could see that if PF's were just charged on the spot, but as they don't have to be I'm not sure quite how that argument works because if you can avoid being identified you can avoid paying penalty fares at all or being prosecuted.

 

[Bletchleyite]

Views clearly vary on how responsible the railway is - but even if the ability to prosecute without intent were removed it would be an improvement in my view.

The problem with repealing the Byelaws is that the railway would probably put more effort to getting people under RoRA which as it's recordable is more of an issue. I think it's necessary to repeal both.

Like any other business, the Fraud Act exists to prosecute people who have clearly and wilfully obtained financial benefit by way of deceit.

 

[AdamWW]

The problem with repealing the Byelaws is that the railway would probably put more effort to getting people under RoRA which as it's recordable is more of an issue. I think it's necessary to repeal both.

Perhaps but I would hope that it would be difficult to do so for an honest mistake.

 

[pedr]

Why is it that most guards cannot issue penalty fares? I’d support a change to enable guards’ reports to lead to penalty fares, but I don’t know that I can see the difference in time or potential for dispute/disruption between reporting someone and issuing a penalty fare.

 

[Bletchleyite]

Why is it that most guards cannot issue penalty fares? I’d support a change to enable guards’ reports to lead to penalty fares, but I don’t know that I can see the difference in time or potential for dispute/disruption between reporting someone and issuing a penalty fare.

Assaults are the risk, but this would be solved as you say by allowing an MG11 to be turned into a Penalty Fare sent by post. It'd also make the whole "don't worry, you can appeal it if you feel it's wrong" thing a little bit more honest.

 

[pedr]

Yes I started to type that point about (sometimes misleading) reassurances about appeals. I think “I have to issue this penalty ticket because you don’t have one that I think is valid but if I’m wrong/there’s a good reason here’s how you appeal” can be relatively de-escalating.

 

[Bletchleyite]

Yes I started to type that point about (sometimes misleading) reassurances about appeals. I think “I have to issue this penalty ticket because you don’t have one that I think is valid but if I’m wrong/there’s a good reason here’s how you appeal” can be relatively de-escalating.

And if the thing that appeared through the letterbox was a Penalty Fare rather than a blackmail* letter, then it'd actually be honest, too.

* Yes, in my view it is. "Pay us £100 or we'll make your life really hard even if you win in Court" is blackmail almost to the textbook definition. Most people are unwilling to go through all that and will just cough up even if they feel it unfair; with a PF or Council parking fine with its proper appeal process most people who believe they are right will appeal.

 

[nw1]

If people feel stress then perhaps that’s a good thing. If they’ve forgotten to renew their rail card it’s their fault and nobody else’s!

True, but is the threat of prosecution appropriate?

As you imply lower down, having to buy a new ticket and/or payment of a Penalty Fare (which could be increased from the current level if need be) would act as a deterrent.

I just think that if you retained RoRA and abolished the bylaws, you'd still be able to prosecute for actual wilful fare dodging, while Penalty Fares would give the railways some extra income and provide an appopriately-pitched motivation for people to ensure they remember they have the correct railcard/ticket.

It strikes me that the opposite is the problem; people don’t get stressed enough to ensure they don’t make the mistake in the first place. Rather too many people no doubt realise they’ve forgotten to renew their rail card but chance buying a discounted ticket to save a few quid and then play the “sorry I forgot” card when caught.

Maybe but appropriate Penalty Fares would be a method by which the railway could "hedge their bets" in this case.

Really people just need to take responsibility for themselves and remember that some mistakes have quite serious consequences.

Perhaps, but criminal ones? It's one thing getting the time of your flight wrong and missing it, quite another to face the threat of prosecution for an innocent mistake. In general, not just in the railway, prosecution should really be reserved for either malevolent intent or wilful negligence (and I'm not sure leaving your railcard at home can be considered wilful negligence)

I agree that’s a sensible and appropriate outcome. This is the way most of these matters are dealt with under the current system, so I simply don’t see any good reason to change it.

Such an outcome could still be achieved with the abolition of the Byelaws, though.

It probably would. So would a properly staffed railway, with those staff being properly trained. Of course nobody is going to be willing to pay for that.

Perhaps the money saved by having more people with correct tickets would mean it's worthwhile though.

You don’ t! It’s no different to any other area of the law; you just have to have faith that the criminal justice system works properly. The best way to avoid it is not acting in a way that gets you in front of a magistrate in the first place!

I'm not sure whether simple mistakes should have you in front of a magistrate. That's the thing.
You're unlikely to be in front of a magistrate for speeding or even for (a first offence of) drink-driving, so why for forgetting your railcard?

 

[Haywain]

You're unlikely to be in front of a magistrate for speeding or even for (a first offence of) drink-driving,

I'm no expert, but I would fully expect a drink driver to be up before the mags.

 

[nw1]

I'm no expert, but I would fully expect a drink driver to be up before the mags.

Firstly I don't drive, so can't comment directly - but is the normal penalty for a first-time offence, and being slightly over-the-limit, not a fine plus X points?

 

[Watershed]

The reason very few risk court is because the small number of people actually reported for prosecution are overwhelmingly as guilty as sin.

Small number of people actually reported for prosecution? Pull the other leg. Tens of thousands of people are prosecuted by the railways each year. Many more, possibly even into the seven figures, are threatened with it. The railway is one of the biggest prosecutors in the country, by case numbers.

In any event the power differential is enormous. It's no skin off the TOC's nose whether they prosecute one case more or less - the same staff will be working the same hours either way, and it's just one case on a long list. They'll be able to claim back their costs, win or lose.

By contrast, for someone to effectively defend themselves, they would have to take time off work, pay hundreds of pounds for a solicitor and hope that the Magistrates don't just rubber-stamp the conviction. And even if they win, they might not be able to recover their legal costs fully or at all.

So to claim that people are choosing to pay a settlement solely because they're guilty is missing the point. It is likely the cheapest option whether they are guilty or not!

The railway is funded by fare payers and taxpayers, and loses a cool quarter of a billion annually through evasion, so it’s desirable that money is recouped from malfeasors, whether that’s by penalty fares or settlements. It’s notable that people on here who moan about TOCs’ efforts to combat fare evasion are also quick to criticise fare rises, and don’t seem to have any answer as to who should cover the cost.

You can't argue it both ways - that it's OK that few people are actually wrongly prosecuted because 95% of people agree to a settlement under the extreme duress that the railway exerts. It would be ludicrous to suggest that "muggings aren't a big problem as they rarely lead to injuries"; that's only the case because 95% of victims cooperate with the attacker!

Why is it that most guards cannot issue penalty fares? I’d support a change to enable guards’ reports to lead to penalty fares, but I don’t know that I can see the difference in time or potential for dispute/disruption between reporting someone and issuing a penalty fare.

It's the perception that issuing Penalty Fares would lead to too much abuse and anti-social behaviour. The thing is that guards issue Penalty Fare equivalents in other countries all day long, so why should we be so different? I am unconvinced that passenger behaviour is so much worse here that it couldn't be done. It's a matter of inertia and "this is how it's always been done".

 

[island]

Firstly I don't drive, so can't comment directly - but is the normal penalty for a first-time offence, and being slightly over-the-limit, not a fine plus X points?

Not in England. Drink-driving is a mandatory court appearance and if convicted a mandatory disqualification For at least a year.

 

[Haywain]

Not in England. Drink-driving is a mandatory court appearance and if convicted a mandatory disqualification For at least a year.

You mean a sort of strict liability?

 

[Deerfold]

Firstly I don't drive, so can't comment directly - but is the normal penalty for a first-time offence, and being slightly over-the-limit, not a fine plus X points?

I'm not a lawyer, but I thought any drink driving offence resulted in a short ban and a fine, at least.

 

[island]

You mean a sort of strict liability?

Well, indeed

[I did say "mandatory" disqualification though this may be reduced, including to zero, where "special reasons" are presented, but this is a very high bar to clear and would generally only apply in cases such as a spiked drink or a life or death emergency.]

 

[Bletchleyite]

You mean a sort of strict liability?

I don't think you can really compare drink-driving to railway fare evasion, even wilful fare evasion, not even actually falsifying tickets. Nobody dies if I don't pay my £350 Manchester to London Anytime Return and hide in the bog.

Offences putting lives at risk have to be considered much more seriously than ones that don't.

I know you were being flippant, but I don't think it should even flippantly enter comparison.

 

[Krokodil]

Rather too many people no doubt realise they’ve forgotten to renew their rail card but chance buying a discounted ticket to save a few quid and then play the “sorry I forgot” card when caught.

In my experience that would be unusual. Most expired railcards I come across have either just gone (in which case I just tell them to renew ASAP which with digital railcards can be done on the spot), or are senior ones where they get checked so infrequently that the passenger is less likely to notice an upcoming expiry date.

The two different expiry dates of the 16-17 Saver can be a trap for the unwary but it's clear how they work if you pay just a moment's notice. Most railcard misuse is where they don't have the correct railcard altogether, discounts such as 16-17 vice 16-25, or the JCP discount are the most misused, probably in part because they offer a greater discount.

I don't know the history of the Penalty Fare legislation and why so many safeguards were thought necessary, but it seems inconsistent to consider them necessary for Penalty Fares when prosecution (or threats thereof) can have much higher consequences and lacks such safeguards.

PFs are a substitute for taking someone through court. You have the opportunity to appeal if you lose at court.

 

[Bletchleyite]

PFs are a substitute for taking someone through court. You have the opportunity to appeal if you lose at court.

Court is costly, inconvenient and not really aimed at the "little people" appealing against unfairness. Like with Council parking (not the shysters) this is why it's the wrong route for fare evasion.

 

[Krokodil]

You're unlikely to be in front of a magistrate for speeding or even for (a first offence of) drink-driving, so why for forgetting your railcard?

Others have pointed out what the real consequences are, but I'd just like to add that I'd gladly throw the book at drink drivers. Possibly even mandatory prison sentences, it's usually pure luck that they don't kill someone.

I don't think you can really compare drink-driving to railway fare evasion, even wilful fare evasion, not even actually falsifying tickets. Nobody dies if I don't pay my £350 Manchester to London Anytime Return and hide in the bog.

Offences putting lives at risk have to be considered much more seriously than ones that don't.

I know you were being flippant, but I don't think it should even flippantly enter comparison.

I always found "you wouldn't go to prison for X, so why should you go to prison for Y?" a very poor argument. My answer is always "it's about time we had stiffer sentences for X, it's not an excise to make sentences for Y more lenient"

(substitute "prison" for whatever is applicable to the crimes being compared)