WesternLancer
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Not a suggestion but no doubt use their prosecutions office address not customer services etc. I am sure you will have thought of that though.
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Ticket on train confusion - penalty fare
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KirkstallOne
Member
Northern and Greater Anglia both referred to other issues in their submissions to court, namely prosecuting s.5(1) RoRA offences when the defendant had given their name and address, and prosecuting people who had appealed penalty fares. You are correct thought that the main issue being looked at is the SJP.
Belperpete
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So you have been firing off letters to the press and your MP complaining about GTR, without actually contacting GTR first?!!
Direct contact or not, threatening criminal proceedings which cannot be taken isn't a great look for GTR and should be stopped.
Belperpete
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I fully agree, but shouldn't the first step have been to explain the situation to GTR, rather than just ignore their escalating letters and then complain to the press and MP? Perhaps if he had done that, he wouldn't have received the latest threats.
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The OP's course now should certainly be to stop this coming to court. Because if it does, I am not convinced that his argument that he held a valid ticket is going to win. The court would see that four independent adjudicators have now ruled that his ticket was not valid, and I certainly wouldn't want the court to be looking at this thread where the validity question is contentious to say the least. He would need to have a very strong legal argument to counter that, and I am not convinced that his arguments around logical fallicy and binary validity would win much sympathy in a court.
Personally, I agree that he held a valid ticket, but the question is, valid for what? Agreed that it was valid for a journey that day between those stations, but was it valid for that particular journey? The relevant clause states that it must be valid for:
the day and time of the journey that person is making, has made or intends to make;
The contentious bits are those I have highlighted: was his ticket valid for the part of the journey he made before he bought it? Legally, as the ticket didn't then exist at that time, how could it be valid at that time? And if his ticket wasn't valid for that part of the journey, then legally it wasn't a valid ticket for that journey. That is what the arbitrators seem to have been saying, although not particularly clearly.
If he had bought his ticket from the guard on board the train, the fact that they were selling him a ticket for that journey would inherently have made it valid for that journey. However, he bought his ticket on-line. As on line ticket systems won't sell a ticket for a train that has already departed, he either entered a later train time, or he used an app that didn't require the train time - in either case the seller had no idea what train he was actually using (or was even on a train) and so inherently couldn't be validating it for that particular journey.
I suspect that the court would also consider what precedent it would set if they ruled that you could retrospectively buy a ticket, and have it considered valid for a journey you have already made. If you are caught travelling without a ticket, all you would need to do would be to retrospectively buy one - problem sorted!
That I suspect is how it would be regarded legally. He would need a very strong legal (not logical) argument to counter that.
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Just checking this on my lunch break.
My issue is not so much losing a civil case in County Court for civil debt recovery. My issue is being threatened to be 'criminalised' when I am immune and where there was no attempt at fare evasion in the first place. It's the confusion between what is criminal and what is civil that is the problem. Being told in a civil court I owe a debt is completely different to being told I am potentially a criminal and they think I should be fined or imprisoned.
As for the PF validity itself, I simply bought an anytime day single between the two stations. I used the greater anglia app. The ticket itself is indistinguishable in terms of its attributes from one I might have bought by clicking through on a later departing journey in the app before the train I actually took departed. The only distinction is that as a barcode ticket, it has embedded purchase time data. But this doesn't affect whether an anytime day single was valid for that journey or not. I could have clicked through on the app on any timed journey that sold that ticket and it would have been valid. It's not clear why the retroactive aspect affects validity. Also, as you say, tickets bought on trains can be valid, but there is no distinction in the PF law between how tickets are bought on trains. Therefore, if tickets bought from operator personnel are valid on trains, then so must be trains bought via apps; for the purposes of Penalty Fares, there is no distinction between these two methods of purchasing.
There is also the problem that the Penalty Service assessors each issued three separate decisions that contradicted each other, and the final appeal decision basically said 'we think you deserve it because we think you were trying to fare evade', which is completely inappropriate and nothing to do with what they are lawfully required to do, which is determine whether the PF was valid (not assign intentions to me and decide whether on balance I deserve it). Penalty fare validity is defined via statue, as is an appeals panel's duty to assess against those criteria.
I also note I rang the GTR prosecutions line this morning. An administrator answered and said she it was her first day and that she didn't know what the Penalty Fare Regulations were and she had no idea there was any immunity provided by them. I asked to be rang back by a prosecutor. She said she had 'heard of the SJPN thing happening but as far as she knew it had nothing to do with GTR and only involved other operators'. Yes, she really said all of this.
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But if we are getting into an issue of time and validity, then wouldn't the fact they gave me a PF for my entire journey, rather than just from Stevenage (the station I boarded at without a ticket) to the next station on my ticket, be an issue? I had a valid ticket regardless for the rest of the way. This means the PF amount is wrong.
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Belperpete
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The issue is whether that particular ticket was valid for that particular journey. As the ticket didn't exist for a significant part of the journey, I think you would have a hard time justifying that a non-existant ticket was valid. And, as I say (and by your own binary logic) if the ticket was not valid for part of the journey, it is not valid.
The retrospective aspect is important, because if people were allowed to retrospectively buy tickets, then all anyone caught travelling without a ticket would have to do is buy a ticket sometime later that day. I cannot see a court wanting to set that precedent.
Yes I see this, but someone wouldn't have the whole day to buy the ticket to avoid a PF- only before a collector asked to see the ticket. You need a ticket at the point of inspection. And if the collector thought someone bought it just to pass that check, then the collector should be prosecuting them for fare evasion.
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Here we come back again to tickets bought on trains from rail staff. If I buy a train ticket from an inspector during a journey, we assume it was valid for the journey I had made thus far, even when that ticket was non-existent. So I would again apply the fact that there is no provision that distinguishes that purchasing from via an app.
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Yessir!
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The ticket is valid for the whole journey being made. The OP isn't arguing a "non existent ticket is valid", you are quite a long way down a logical rabbit hole here!
They already are allowed to buy after departure, or even after the conclusion of the journey, in very many cases!
No, all that is being asked here is that, in line with the Penalty Fares Regulations, which is existing law, if a passenger presents a valid ticket to an Authorised Collector upon request, they may not be penalty fared. A ticket sold on board a train is valid, regardless of whether one might or ought to have been bought beforehand.
You are arguing here that a person boarding without a ticket, and the guard agreeing to sell one, and then 20 minutes later being Penalty Fared because the guard says "well actually this guy bought it on board, book him". A nonsensical argument.
KirkstallOne
Member
After numerous posts here and three substantial submissions to the incompetent appeals service (in which unwarranted and offensive accusations of fare evasion were made) I can understand the limited appetite for another protracted argument with GTR themselves!
Belperpete
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No I am not. I specifically said that if a guard sells you a ticket to travel on a particular service, then it is inherently valid on that service. In the same way as if you buy a ticket with an itinerary, then the ticket must inherently be valid for that itinerary.
In this case, the OP did not buy a ticket with specific authority to travel on that particular service. So the generic rules on validity apply.
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There is a very big difference. The guard knows that you are buying the ticket for travel on that service, and therefore is inherently giving you permission to use it for that service. The app has no knowledge that you are even on a train, so cannot be giving you permission to travel on that particular service. Indeed, if it did know that you were on that particular service, it should refuse to sell the ticket.
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I agree that this was poor - one would hope that someone new to the job would have suitable mentoring. But I am also somewhat taken aback that you would think that this is the kind of issue that could be resolved by an out of the blue telephone call! Lawyers like things to be in writing.
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What happened to your argument that it is binary - the ticket is either valid or it isn't. IIRC, you put this on record to the appeals panel.
You keep talking about a generic "valid ticket". There is no such thing. The conditions make it clear that validity is conditional on how you use the ticket.
Your arguments that a ticket that didn't exist at the time is valid, and that you shouldn't be in court because they should have taken you to court in the first place, read like something straight out of an A.P. Herbert story. You aren't proposing to pay the fine with a cheque written on the back of a cow are you?
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How does that work? If you buy a ticket without an itinerary, it's not valid? Where's that written down?
Authority to travel is not needed where a passenger holds a valid ticket. That is what they have if they buy one from the guard - whether they have boarded after passing an opportunity to pay, or not. It's not an invalid ticket that then becomes an authority to travel, it is valid, end of. Even for trains that guard is not working. Bylaw 18 criminalises boarding a train without a valid ticket - this is an offence committed the moment a person steps on a train. It is complete at that moment and it cannot be retrospectively authorised.
It is not a sustainable argument to say that a ticket bought after departure, for the correct journey, is magically fine when sold by a guard, or even a TVM or booking clerk at a connecting station, yet not fine when done so on the train company's app or site.
Some things the Conditions definitely do not say:
- That a ticket is invalid if purchased after departure
- That a guard, if they sell a ticket, is, at the same time, giving a retrospective authority to travel whether or not they know if you have committed any Bylaw offences
They could say that, if they chose to, but they do not.
Indeed, the Penalty Fares regulations could say that, if they chose to, but they do not.
We can go back and forth on this, but the facts seem quite clear. The OP committed a Bylaw 18 offence and did indeed do something wrong. They boarded without a valid ticket and then bought one on board. The act of purchasing the ticket later does not provide a defence against a Bylaw 18 charge. But this cannot be disposed of by way of a Penalty Fare; indeed, this has been the subject of successful PF appeals already on this forum, for this exact reasoning.
So how come their appeal worked but mine didn't? Did I make a mess of the appeal?
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Yes, I did say this in the context of how the penalty fares assessors should view their responsibility of determining the validity of the PF. It comes down to ticket validity. The panel had no discretion and was bound to the following logic: if they think my ticket was valid, they must allow the appeal. If they think my ticket was invalid, they must reject it. There is no "your ticket was sort of valid, therefore...." or "we think you were trying to fare evade, therefore...".
But here I was just hypothecating that the journey itself could have been split into two legs where only for the stations visited prior to my purchasing was my ticket invalid. This would reduce the PF amount. Consider this: if upon inspection I spontaneously decided my journey was only to the next stop, I could have alighted the train there with a lower value PF, and then immediately re-boarded with the same ticket I previously purchased!
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My point with this comment in my appeal was that everyone is aware of all the gaps and imperfections with all the laws and regulations regarding correct usage of the railways as a passenger. But one attempt at a solution (penalty fares) cannot be used to plug in the gaps of another. The fact that I boarded without a ticket cannot be addressed with a Penalty Fare. If that is what the rail operators want to prevent directly, the only tool available to them is prosecution. But we all know they don't care really about whether I boarded without a ticket - they were just using the PF as a hedge if I was trying to fare evade knowing they couldn't prove it (I wasn't, obviously). This is why I make the point they should have taken me to court for boarding without a ticket. It's tongue in cheek knowing they wouldn't to expose the absurdity in the system.
Penalty fares are solely for whether the ticket I presented to the inspector was valid. If the inspector thought I bought the ticket just to pass their PF check, then it's fare evasion, which is a much more serious and obvious crime. But it's not for penalty fare assessors to ignore their statutory role and instead to take it upon themselves to decide whether I 'deserved it' or not (and in so doing prescribe criminal intentions to my actions) - two wrongs don't make a right! Especially when they commit a much greater wrong in attempting to address mine!
It's not my fault for pointing out the gaps in the system!
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But my logic is that if this is true, then we know that tickets purchased after boarding are not inherently invalid. We also know that is no discrimination between tickets bought this way and tickets bought on via and app in the context of PFs or explicitly written in any conditions of travel. Therefore, it must follow the ticket bought via an app after boarding is valid. (I don't know what this type of argument is called in logical terms but to me it's analogous to an analytic continuation in mathematics.)
To me, your argument gives a magic power to tickets bought on trains from staff as though they have an extra quality - surely they are just tickets? Perhaps there has been the absurdity this whole time that all those tickets were technically invalid!
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I am not claiming that there are a set a master conditions that determine the validity of all tickets. I am saying that the conditions for a specific ticket to be valid for a particular individual on a particular journey are fixed and predetermined. Moreover, all of these conditions must be satisfied for a ticket to be valid. In that sense, validity is binary. And the fact a ticket was bought on a train is not one of those conditions.
Now, I follow your arguement when you say 'aha! - but it's the fact that it was bought on the train from a guard', which means that inherently in that particular ticket there are extra powers (discharged by the guard? Innately imparted by the circumstances of the sale?) given to that ticket distinguish it from one bought via an app - but where is any of this substantiated? This requires quite an arcane view of how ticket conditions must work. (And this doesn't affect whether a criminal act was committed in boarding without a ticket up to that point). Isn't my argument as follows much simpler?
"Any valid ticket presented for inspection (included those bought by an app before inspection but after departure) is not liable for a penalty fare. But if the guard thinks the ticket was purchased simply because the ticket check was happening, they should prosecute for fare evasion."
Rail operators can't benefit from the force of criminalising powers at the lower burden of proof of the civil level. I think this i) maintains a simple logical test of penalty fare validity, which is surely desirable as PFs are supposed to be the cheap way of recovering some portion of (partially) unpaid for journeys; and ii) maintains a coherence of the tools available to the rail operators as a whole - prosecute the suspected criminals and let the rest just incur a civil debt.
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Because different assessors come to different conclusions. Some are incompetent, as you have found, by seeking to view Penalty Fares as a moralistic judgment when they have no entitlement to do so in law. Your three appeals were rejected all on entirely different merits. The process is less consistent than it ought to be.
Don't get me wrong. I'm wasn't expecting this to work - but I rang GTR prosecutions while walking to the shops and was doing nothing else with that time so it was worth a shot! An email will follow in due course.
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I think the successful ones may have set out the arguments more clearly.
A separate question you might consider is whether the individual members of the final appeals panel discharged their duty in accordance with the law. A certain level of legal competence is necessary to perform their role, and if you consider that no reasonable person performing that role could have reached the decision they did, then you might seek advice as to taking action against them as individuals (civil and/or criminal).
Yes, this is the misfeasance point you made when I was preparing the final appeal. Worth a thought.
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I was on the phone with the prosecutor earlier today (Tuesday). He was exceptionally stern as you might expect.
I asked that I was seeking clarification whether the unpaid PF was considered a criminal or civil matter by GTR in view of the immunity provided under Regulation 11 of the PF Regulations. I said I was confused by the letters I had been sent saying GTR would prosecute me when I thought the matter was one of civil debt recovery. He said that I was looking 'too closely' at the wording of Regulation 11 and that the immunity provided is 'not what you think'.
I asked what they intend to prosecute me for and he said 'Fare evasion. Strict liability under the byelaws.' I asked if he meant the byelaws under Section 219 of the Transport Act and he said, 'Yes, under 219 of the Transport Act 2005. GTR do not prosecute under the RoRA. We prosecute under the byelaws.' (I think this is a slight mistake as the transport act is of 2000 but the byelaws themselves were confirmed in 2005).
He said 'this isn't a Monty Python sketch. I can tell you have done some research online, but we will take you to court if you do not pay and you will have to argue your case there.'
I am trying to wrap my head around this. I have come to the conclusion there are one of three possibilities:
- This is just bluster to get me to pay
- They truly have no idea what immunity Regulation 11 provides
- They think that the PF itself is now the fare I am evading and is therefore somehow not 'the same failure to produce... a valid travel ticket'. (from Reg 11). That is, they are prosecuting me for evading the PF itself as a fare. (How else could they argue I am not immune from what they intend to prosecute me for?) - but wouldn't this contravene Regulation 12?
I suppose I should follow up in writing because as pointed out, phone calls are not ideal.
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Keep a separate written (printed) note of that conversation, and sign and date it.
"not what you think" - You should have insisted that he expand on that. I can only guess that it might be a similar argument to one that Northern was attempting to persuade the Chief Magistrate to comment upon (which he was so far not doing). It would probably have to go to a higher court for a definitive determination but I think it is fundamentally at variance with the starting point for the Penalty Fares regulations, namely that they were created in order to take most low-level fare evasion out of the criminal system. Treated as a civil penalty, everything fits together cleanly and, in practice, consistently. Both a person who appeals and a person who doesn't appeal are pursued for payment identically through the civil courts. Neither is prosecuted unless the original decision to impose a Penalty Fare turned out to be flawed, and where there is an appeal, there is an additional cut-off imposed on the discovery of and any action taken arising from such a flaw so as not to undermine the appeals process.
For reference, in summary, I think Northern raised these two questions, as attempts to find loopholes to get around the problem that after choosing a civil process instead of a criminal one it wanted to change its mind.
- Is regulation 11 limited in scope to the appeals process, such that once that process is complete it has no remaining applicability?
- Does the fact that a PF remains unpaid after an appeal amount to evidence of an original intention not to pay the fare in terms of RORA?
"not what you think" - You should have insisted that he expand on that. I can only guess that it might be a similar argument to one that Northern was attempting to persuade the Chief Magistrate to comment upon (which he was so far not doing). It would probably have to go to a higher court for a definitive determination but I think it is fundamentally at variance with the starting point for the Penalty Fares regulations, namely that they were created in order to take most low-level fare evasion out of the criminal system. Treated as a civil penalty, everything fits together cleanly and, in practice, consistently. Both a person who appeals and a person who doesn't appeal are pursued for payment identically through the civil courts. Neither is prosecuted unless the original decision to impose a Penalty Fare turned out to be flawed, and where there is an appeal, there is an additional cut-off imposed on the discovery of and any action taken arising from such a flaw so as not to undermine the appeals process.
For reference, in summary, I think Northern raised these two questions, as attempts to find loopholes to get around the problem that after choosing a civil process instead of a criminal one it wanted to change its mind.
- Is regulation 11 limited in scope to the appeals process, such that once that process is complete it has no remaining applicability?
- Does the fact that a PF remains unpaid after an appeal amount to evidence of an original intention not to pay the fare in terms of RORA?
KirkstallOne
Member
A few points:
- I recommend you conduct all communication via email so there is a permanent record and so there is less chance of you saying something that is unhelpful to your case
- Did you get the name and position of the person who made these statements?
- Was this phone call recorded?
- Byelaw 18 offences cannot correctly be described as 'fare evasion' as there is no intent required
- They have contradicted the letters you have been sent which specifically say non-payment of a penalty fare is evidence of intent to evade a fare. This strongly implies a s.5(3) prosecution under the RoRA is being considered, which he has now ruled out (<--- exactly the sort of thing you want in writing as this could be important if they subsequently did charge you under s.5(3) as I believe you are entitled to rely on representations such as this)
- They sound like some sort of character from an 80s police drama with lines like 'This isn't a Monty Python sketch [sunshine]'.
- Northern submitted this to the court as an example of one of three categories of potentially erroneous prosecutions:
The may is because Northern Trains Limited (NTL) are holding open the possibility that a valid interpretation of regulation 11 is that the bar on prosecution only applies during the appeal period.
Greater Anglia did not offer this as a possible interpretation (because it seems absurd to most people and something only a highly paid KC would come up with). There is no case law on this to anyone's knowledge.
- I recommend you conduct all communication via email so there is a permanent record and so there is less chance of you saying something that is unhelpful to your case
- Did you get the name and position of the person who made these statements?
- Was this phone call recorded?
- Byelaw 18 offences cannot correctly be described as 'fare evasion' as there is no intent required
- They have contradicted the letters you have been sent which specifically say non-payment of a penalty fare is evidence of intent to evade a fare. This strongly implies a s.5(3) prosecution under the RoRA is being considered, which he has now ruled out (<--- exactly the sort of thing you want in writing as this could be important if they subsequently did charge you under s.5(3) as I believe you are entitled to rely on representations such as this)
- They sound like some sort of character from an 80s police drama with lines like 'This isn't a Monty Python sketch [sunshine]'.
- Northern submitted this to the court as an example of one of three categories of potentially erroneous prosecutions:
The may is because Northern Trains Limited (NTL) are holding open the possibility that a valid interpretation of regulation 11 is that the bar on prosecution only applies during the appeal period.
Greater Anglia did not offer this as a possible interpretation (because it seems absurd to most people and something only a highly paid KC would come up with). There is no case law on this to anyone's knowledge.
Of course not. An authorised official of the railway can give authority to travel (which is effectively what selling a ticket is doing) and by agreeing to sell a ticket from the point of origin has done so. An app is not a railway official so cannot provide that authority.
From the enabling legislation Transport Act 2000 Section 219:
From the OED:
So what is the basis used for the enactment of byelaw 18 if it criminalises actions that are not 'evasion'?
I note that this is explicit in Regulation 12.
Is there not a defence here that if the appeal decisions are all nonsense (even misfeasant), then the reason one isn't paying the fare is because one thinks the appeals process has fundamentally not done its duty? Also, in my case, I am convinced my ticket was valid. How could I have been of a mind to fare evade if I thought my ticket was valid in the first place?
I have never understood this point of view...
A few things from this...
First, there is no paragraph (1)(a) , just (1). Is this an error, or something that changed versus a previous enactment?
Regulation 16 only includes the first stage appeal. This view would mean that prosecution is not barred during either second or third stage appeals, wouldn't it? That's just nonsense.
This has irked me too. Also, if we look at paragraph (1): 'A person who has been charged a penalty fare under regulation 5(1) is not liable to pay where proceedings for any of the offences specified in paragraph (4) are also brought against that person in relation to the same failure to produce a platform ticket or a valid travel ticket which gave rise to that penalty fare.'
Why does paragraph (3) of Reg 11 even need to start with 'Where a person falling within paragraph (1)(a)'? What does it mean to fall within paragraph (1)?
KirkstallOne
Member
Probably because you are not being paid £1000 per hour to do so
16(1)(a)
ahh... 'Where a person falling within paragraph (1)(a) has appealed against the penalty fare under regulation 16'.
So I think the next step is just to send an very polite email to put in writing the clarification I am asking for. I will pretend the call never happened because the person sounded like he was going to slam the phone down and hopefully someone less abrasive answers my email.
Look. The whole thing only arises because the railway is trying to undermine the Penalty Fares legislation by finding or creating loopholes that let it switch back to using the criminal law after a Penalty Fare is not paid. Parliament created Penalty Fares as a completely civil process and never considered the possibility that the railway might try to do that as a matter of routine!
For the newer forum members who might not have seen me post this before, here are some of my favourite quotes from the Parliamentary debates for the original bill:
For the newer forum members who might not have seen me post this before, here are some of my favourite quotes from the Parliamentary debates for the original bill:
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