Mitigation/defence arguments to TfL when prosecution threatened

[some bloke]

This suggests to me that it may well be worth putting mitigation/defence to TfL twice:

"How many hearings in the last 2-5 years resulted in
a. criminal convictions or
b. no criminal convictions based on mitigating factors

Year Conviction Year Withdrawn

2018/19 29,663 2018/19 1,079

2019/20 22,540 2019/20 1,112

2020/21* 5,212 2020/21* 360

2021/22* 1,529 2021/22* 150

2022/23** 2,960 2022/23** 249

...

All representations, mitigating circumstances are dealt with by our investigators/prosecutors in the first instance. Any subsequence appeals are considered by the Appeals & Prosecution Manager."

FOI request detail

FOI request detail

tfl.gov.uk

 

[some bloke]

Although TfL presented the numbers of "withdrawn" cases above as relating to the question,

"How many hearings in the last 2-5 years resulted in ... no criminal convictions based on mitigating factors",

another part of its response may cast (more?) doubt on what the numbers are of (my emphasis above and below):

"Have there been any appeals, in say the last 5 years, when representations were unsuccessful, and if so, how many appeals were successful, i.e. there was no prosecution.

Each case is considered on its own merits and whether it meets the public and evidential tests. The figures supplied above indicate those cases that were withdrawn from prosecution due to not being in the public interest.

To provide the information you have requested would exceed the ‘appropriate limit’ of £450..."

 

[Fawkes Cat]

This suggests to me that it may well be worth putting mitigation/defence to TfL twice:

"How many hearings in the last 2-5 years resulted in
a. criminal convictions or
b. no criminal convictions based on mitigating factors

Year Conviction Year Withdrawn

2018/19 29,663 2018/19 1,079

2019/20 22,540 2019/20 1,112

2020/21* 5,212 2020/21* 360

2021/22* 1,529 2021/22* 150

2022/23** 2,960 2022/23** 249

...

All representations, mitigating circumstances are dealt with by our investigators/prosecutors in the first instance. Any subsequence appeals are considered by the Appeals & Prosecution Manager."

FOI request detail

FOI request detail

tfl.gov.uk

So cases withdrawn are always less than 10% of those that resulted in conviction? Unless I've misunderstood what you're saying, that doesn't seem to suggest that a second attempt at suggesting mitigation will be a particularly successful route to take.

 

[some bloke]

So cases withdrawn are always less than 10% of those that resulted in conviction? Unless I've misunderstood what you're saying, that doesn't seem to suggest that a second attempt at suggesting mitigation will be a particularly successful route to take.

The main point relevant to a second attempt is that TfL refer to two stages, where "appeals" are handled by a manager.

The context is that TfL indicate a small but non-negligible proportion of cases were "withdrawn". It isn't that writing to them is particularly successful in general - just that success may not be extremely unlikely.

If people have nothing to lose by writing again, especially if the mitigation seems stronger than usual, it may seem worthwhile.

 

[Fermiboson]

But what is the marginal probability of a second appeal being succesful given the first being unsuccessful?

The vast majority of cases regarding TfL we see on the forum really do not have any particularly strong mitigating factors. I think it is unwise to give people false hope that a second appeal has any significant probability of going better than the first, if their reasoning is just "this will impact my career/finances".

 

[some bloke]

what is the marginal probability of a second appeal being succesful given the first being unsuccessful?

To get more information on that, it could be useful if more people tried!

We don't know to what degree successes by solicitors are due to asking a second time, rather than special skill or a sense of authority, or a perception that the person is taking the matter seriously by spending money.

In the case of penalty fare appeals, it seems cases are reviewed in a significantly more competent way at the last stage (though the criteria are different).

Personally I was interested to see second attempts are reviewed by a TfL manager.

I think it is unwise to give people false hope that a second appeal has any significant probability of going better than the first, if their reasoning is just "this will impact my career/finances"

Agreed, though personal finances in particular are not a big consideration against prosecution because courts are supposed to sentence appropriately - and there is an argument that someone should not be let off, for example, just because they are in a responsible job where employers/regulators take such matters seriously.

TfL indicate a small but non-negligible proportion of cases were "withdrawn". It isn't that writing to them is particularly successful in general - just that success may not be extremely unlikely.

== Doublepost prevention - post automatically merged: 25 Oct 2024 ==

Perhaps recent reports, and concern about train company prosecutions as unwarranted, could have an effect on TfL's approach in some cases.

 

[Egg Centric]

But what is the marginal probability of a second appeal being succesful given the first being unsuccessful?

The vast majority of cases regarding TfL we see on the forum really do not have any particularly strong mitigating factors. I think it is unwise to give people false hope that a second appeal has any significant probability of going better than the first, if their reasoning is just "this will impact my career/finances".

In effect we need willing guinea pigs. I don't see why anyone (other than the "I want to put this behind me asap" mob) shouldn't give it a go, given this information - it's got to be worth a try. After we try about 20 or so we can see how it works in practice. Just need informed consent.

TIL of course notoriously didn't settle anything on the first letter to begin with.

 

[Fermiboson]

In effect we need willing guinea pigs. I don't see why anyone (other than the "I want to put this behind me asap" mob) shouldn't give it a go, given this information - it's got to be worth a try. After we try about 20 or so we can see how it works in practice. Just need informed consent.

Ignoring the first sentence which would make a law student blanche, the problem really is that we aren't informed either.

Can we genuinely guarantee, in good faith, that experimentation of this manner won't harm the people who come to us for advice? What if, for example, sending a second letter will increase the prosecution costs TfL claim in court?

 

[Egg Centric]

Ignoring the first sentence which would make a law student blanche, the problem really is that we aren't informed either.

Can we genuinely guarantee, in good faith, that experimentation of this manner won't harm the people who come to us for advice? What if, for example, sending a second letter will increase the prosecution costs TfL claim in court?

We can't guarantee anything, hence why we would need informed consent. But the thing most contributors here are bothered about by far (rightly or wrongly) is the criminal record.

 

[BazingaTribe]

The bulk of TFL cases are such that there was deliberate issues involved and there are fewer cases of genuine mistakes. They're often worried for a good reason, in that they've been caught doing something that they shouldn't have, and the anxiety may well be warranted. While society is much better about acknowledging anxiety and dealing with it (as a sufferer myself it's taken daily medication to relieve a lot of my general anxiety issues and I still get problems, particularly when I'm tired), it is a natural mechanism to warn us when we might be doing something dangerous and fear of consequences should really work to dissuade people from making bad choices in the first place.

It might be worth someone going back over the entire history of the forum here to find the TfL passenger who didn't do something that warrants a discussion with their prosecutions department and do that kind of research to match the statistics in the OP with our sampling of cases here and look at how it was handled. The most common issue is misuse of someone else's Freedom Pass or other discounted card, which rarely will be an innocent mistake like the issue with Anytime tickets matched with railcard discounts or the people caught out with an uncharged phone. The Tube has much brighter lines that people have to cross to get on the wrong side of the law. There have, however, definitely been some warnings issued when the person involved has been contrite and stated the impact a conviction would have on them, but most such cases can't really blame anyone but themselves.

I've only been reading this forum for a few weeks but it seems to me that there's a lot less margin for error with TfL than there is for general rail travellers, because the system is better controlled and simpler to use and thus the possibility for mistakes is much, much lower and the intent of the people misusing passes much higher. The only mistakes I can see being classed as innocent is where someone thinks they've touched in and then accidentally tailgated someone. There's also somewhat of a gnarly situation at the junction between NR services and Tube, but when we're talking about the bread-and-butter cases here, we're normally talking about freedom pass misuse.

(That said, travelling on the DLR for the first time in years, it was very confusing at Canary Wharf where you can access the platforms without touching in and I realised when I got up the escalators to the platform that there weren't any barriers. I retraced my steps and found the reader, but it was a bit of an alien experience despite general familiarity with unbarriered stations on National Rail stations.)

Maybe someone with more time than I have (I did once spend two weeks crunching election result numbers in a similar venture and ended up disproving my own hypothesis, so there's that; anyone doing that needs to be fairly objective and apply the 'reasonable person' standard a judge would rather than be biased towards either prosecution or defendant) could crunch the data from this forum and come up with a chart of how many times people actually committed a crime by using the wrong pass deliberately. Assuming that we have a decent sample size of 300+ pages of cases, that might produce better statistical results than experimenting with advice.

 

[Hadders]

If anyone is going to use mitigating factors to persuade TfL not to prosecute then the first thing they should do is read TfL's Revenue Enforcement & Prosecutions Policy, specifically section 8.

https://content.tfl.gov.uk/revenue-enforcement-and-prosecutions-policy.pdf

8. Prosecution Criteria
8.1 TfL will have regard to the following factors in favour of prosecution:
a) The offender has a previous conviction for a relevant offence or where the offender has committed a similar offence on any of TfL or Train Operating Company services.
b) The offender has previously been issued a Penalty Fare on any of TfL or Train Operating Company services.

c) The offender has previously been issued with a Formal Warning by TfL

d) The offender has committed any of the offences of a serious nature as set out in paragraph 5.1 of this policy.

e) The offender has failed to pay for the service or failed to have sufficient Oyster card or Contactless Payment credit before boarding a relevant service. Where a contactless payment/electronic ticket is concerned, the previous usage history may be taken into consideration.

f) The offender has unlawfully used or transferred a Freedom pass, Staff Pass or other concessionary passes or travel documents issued to named holders other than the offender.

g) The offender has behaved in an aggressive, unacceptable, or uncooperative manner.

h) The offender has used aggressive, obscene, or unacceptable language.

8.2 TfL will have regard to the following factors against prosecution
a) Insufficiency of evidence
b) Where it appears that there has been a genuine mistake of fact 2 by the alleged offender

c) Age of the offender.

d) The offender has pre-existing mental health issues or a disability supported by satisfactory medical proof from a Medical Expert in the relevant field.

e) Where, owing to circumstances beyond the offender’s control, commission of the offence was unavoidable.

f) Where there is no realistic prospect of conviction.

8.3 TfL will have regard to the following factors in the decision to discontinue proceedings:
a) New and compelling evidence not previously available to TfL and l ikely to undermine the case of the Prosecution or assist the Defendant’s case.

b) Insufficient evidence to proceed with the prosecution.

c) Where the continuance of proceedings is likely to lead to an abuse of the process of the courts.

d) Where continued proceedings are likely to be deemed malicious or in fact likely to be prejudicial to TfL’s interest.

e) Exceptional circumstances.
f) Where the decision to discontinue is due to (e) above, the Appeals & Prosecutions Manager may set the terms and conditions for such withdrawal.

 

[Manak]

Whoever made the request used the wrong phrase, instead of stating out of court settlements they should have used the word warning. They should ask the question again with the correct wording to get the correct stats.

This is interesting.

 

[danielnez1]

We can't guarantee anything, hence why we would need informed consent. But the thing most contributors here are bothered about by far (rightly or wrongly) is the criminal record.

Haha I know a University ethical approval committee would love that, so would the insurers. It would almost be like doing research in the 60s in certain areas of psychology.