Tarquin88
Member
On this side of the pond the equivalent is a quote (sometimes disputed) attributed to a Victorian judge: "The law courts of England are open to all men, like the doors of the Ritz Hotel".
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Is it right that being able to afford a solicitor seems to improve the chances of avoiding prosecution?
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Mattplans
Member
But with this message, a disclaimer is usually applied that it could potentially disqualify one from many professions.
johncrossley
Established Member
That can't be right. Otherwise suicide could possibly be the result of a rogue RPI or an innocent mistake. A £10,000 fine (for example) and no criminal record would make more sense.
Fawkes Cat
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It rather depends on the OP's approach. Sometimes we see 'I've been caught fare dodging once; my life is over': for those I tend to explain that a minor criminal conviction won't be disastrous. Against that, when I see 'I've fare dodged every day for the last five years, just to check that if I say sorry nicely I should be able to keep going ' I am inclined to emphasize the problems that a criminal record will produce. In both cases it's about making expectations rather more realistic.
LYradial
Member
What I would like to know is what does a solicitor do to persuade tfl not to prosecute even in a case of deliberate misuse of a freedom pass when other similar cases are prosecuted almost automatically.
not in the public interest?
compelling mitigation?
waste of resources?
or something else
not in the public interest?
compelling mitigation?
waste of resources?
or something else
I suppose it depends what the purposes of justice are. The classical answer (OK, I checked online but it fits with my memory of lectures....) is
Retribution - Deterrence - Rehabilitation - Public Protection - Reparation.
In the case of the railway, I suggest that Deterrence and Rehabilitation (ie persuading the offender to mend their ways and making others aware of the risk is the railway's primary aim rather than Retribution, though Reparation has obviously become more prominent over the years.
So how do the 3 routes (warning via solicitor, settlement, conviction) pan out?
Retribution: someone who is let off with a warning has still paid a hefty price, as has someone who receives an out-of-court settlement through our good offices.
(the settlement will generally be lower than the solicitor's fee OR a conviction!)
Deterrence and Rehabilitation: are achievable to a similar degree via all 3 routes (I'm not suggesting 100% successfully, but given the number of unpaid fines we read about I wonder how effective a conviction is?)
:
Public Protection: not relevant here, unless it's the public purse being protected
Reparation: the OOC settlement benefits the railway more than a conviction, and using a solicitor obviously doesn't (!). (TfL take a different view from NR, which may reflect respective fare levels.)
Overall, the 3 different routes produce broadly similar effects, so I don't think the original premise is sound - no great wrong is done by employing a solicitor (nor by using our services!).
Retribution - Deterrence - Rehabilitation - Public Protection - Reparation.
In the case of the railway, I suggest that Deterrence and Rehabilitation (ie persuading the offender to mend their ways and making others aware of the risk is the railway's primary aim rather than Retribution, though Reparation has obviously become more prominent over the years.
So how do the 3 routes (warning via solicitor, settlement, conviction) pan out?
Retribution: someone who is let off with a warning has still paid a hefty price, as has someone who receives an out-of-court settlement through our good offices.
(the settlement will generally be lower than the solicitor's fee OR a conviction!)
Deterrence and Rehabilitation: are achievable to a similar degree via all 3 routes (I'm not suggesting 100% successfully, but given the number of unpaid fines we read about I wonder how effective a conviction is?)
:
Public Protection: not relevant here, unless it's the public purse being protected
Reparation: the OOC settlement benefits the railway more than a conviction, and using a solicitor obviously doesn't (!). (TfL take a different view from NR, which may reflect respective fare levels.)
Overall, the 3 different routes produce broadly similar effects, so I don't think the original premise is sound - no great wrong is done by employing a solicitor (nor by using our services!).
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Mattplans
Member
We've been seeing more and more freedom pass cases recently where a solicitor is used and then dealt with by way of a warning. Granted, these cases may all have factors we are unaware about, but it's definitely becoming more common, and undermining the standard advice given that 'A solicitor might help but it's unlikely because TfL take these cases so seriously that they are almost always prosecuted'
I would love to know also. I don't imagine we'll ever find out as that will severely undermine Manak's business!
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Egg Centric
Established Member
How many staff actually process these things at TfL? I imagine not that many. Perceived change could be as simple as one "hardline" team member being replaced with one "softie". Especially if in a management/team-leader type role.
JohnofWessex
Member
I wonder if there needs to be a review of the law around railways and how it is implemented?
This might lead to a better idea of what we are trying to achieve, what the 'offences' are and how they are dealt with.
Also of course why is there no CPS involvement in private prosecutions? I suggest that at least they should approve them.
Also worth pointing out that in most European Nations investigations are directed by a Judge who directs the investigations that The Police have to make rather than the defence having to do it
Perhaps some sort of standard submission provided by the 'Authorities' might do this?
This might lead to a better idea of what we are trying to achieve, what the 'offences' are and how they are dealt with.
Also of course why is there no CPS involvement in private prosecutions? I suggest that at least they should approve them.
Also worth pointing out that in most European Nations investigations are directed by a Judge who directs the investigations that The Police have to make rather than the defence having to do it
Perhaps some sort of standard submission provided by the 'Authorities' might do this?
This is going to sound really cynical but, if I was a solicitor, I would consider seeding forums with seemingly intractable problems and then come back six weeks later saying 'xxxxx Solicitors solved it for me and I was let off with a warning'.
Not saying it has happened here, obviously, but sometimes you need to keep aware that not everything online is what it seems. I just don't see what extra levers the solicitor can pull when it is a clear cut case.
Not saying it has happened here, obviously, but sometimes you need to keep aware that not everything online is what it seems. I just don't see what extra levers the solicitor can pull when it is a clear cut case.
Fawkes Cat
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Being a solicitor is a competitive business, and under the supervision of the Solicitors Regulation Authority. I strongly suspect that if Jo's Solicitors tried this, then Fred's Solicitors wouldn't hesitate to report them, and Jo's would find themselves out of business in short order.
Dave W
Member
This part of the forum does do a pretty good job of adapting as circumstances change - which of course they are wont to do - but inevitably there's a time lag from the "truth" on the ground and the advice provided... The advice that TfL always prosecute is from a bulk of evidence built up over a long period, but if that policy has even subtly changed in TfL Towers recently (perhaps a very slightly more lenient approach to mitigating circumstances?), it won't be until a few cases have come through where the forum can reasonably advise that.
Not to mention all the other variables in play (this forum only sees a cross section of cases; perhaps there's a lot more use of mitigating circumstances out there that we're unaware of?)
pdq
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I have a theory...
TfL see that a solicitor has been engaged. They then infer that, if it goes to court, representation will continue. Therefore, TfL would need to ensure their case is absolututely watertight, so would need to get their legal team spooled up, checking everything. The cost of prosecuting against decent legal representation isn't worth the effort, so the final warning route is taken.
LYradial
Member
You may not wish to answer this but do you think that it is advantageous to you that clients can give you a truthful full story
whereas we have only half a tale and a string of feeble excuses.
It's not especially 'right' in the sense of justice, no.
But it basically boils down to how well you present your argument. There is nothing stopping an average Joe Bloggs writing the same letter a solicitor does and potentially avoiding prosecution. It's just that they don't have the skills and experience to do this.
Legal representation costs money. The Altnabreac couple know this all too well.
For criminal cases, I do believe Legal Aid should be expanded.
But fundamentally I believe the problem with fares prosecutions is that they shouldn't be strict liability criminal offences to begin with. Most countries manage to deal with these as civil matters. If they're to remain criminal, I would at least remove the strict liability aspect, which would force operators to prove there was intent involved. An average member of the public would have a better chance of planting doubt that intent was involved than whatever letter solicitors are currently sending to TfL to convince them to drop the matter with a warning.
But it basically boils down to how well you present your argument. There is nothing stopping an average Joe Bloggs writing the same letter a solicitor does and potentially avoiding prosecution. It's just that they don't have the skills and experience to do this.
Legal representation costs money. The Altnabreac couple know this all too well.
For criminal cases, I do believe Legal Aid should be expanded.
But fundamentally I believe the problem with fares prosecutions is that they shouldn't be strict liability criminal offences to begin with. Most countries manage to deal with these as civil matters. If they're to remain criminal, I would at least remove the strict liability aspect, which would force operators to prove there was intent involved. An average member of the public would have a better chance of planting doubt that intent was involved than whatever letter solicitors are currently sending to TfL to convince them to drop the matter with a warning.
While l agree with you the nasty fact is that has always been the case. It's effectively no different to those with money being able to take a settlement offer which those who are poor can't.
cactustwirly
Established Member
Technically speaking the Regulation of Railways act requires intent. This requires a higher standard of proof and would be easier for a solicitor to argue a case.
That said, there are still ways of arguing cases, for example did the RPI follow the correct procedures when interviewing a suspect? Were they cautioned? How was this recorded etc etc.
A good legal representation can question the admissibility of the evidence.
I highly doubt an RPI interview at a station is PACE compliant
This of course being why most TOCs and TfL prefer to use the relevant bylaw offences. No intent required...
Basically what I was going to say.
The same reason the railways only exceptionally pursue Fraud Act cases.
They've got easier options for most offenders under the bylaws.
Fawkes Cat
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Do we know when the byelaws came in without a need to show intent? I've just spent a few minutes trying to find old byelaws on the internet but haven't come up with anything.
I ask because it's my understanding (but at present I cannot provide evidence to support) that this strict liability arrangement is long standing, precisely because many people will assert that it was always their plan to pay - and realistically, we all know that a lot of the time this assertion isn't true.
This should ideally be the case, but I suspect an identical submission, one on solicitor's headed notepaper vs one from Joe Public will result in different outcomes.
Haywain
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For a byelaw prosecution, none of that has any real relevance. Strict liability makes the questions very simple with black and white answers.
I believe this is something that @Watershed has looked into but I believe the present wording goes back to 2005.
The wording, AFAIK, is the same as before. The only thing that changed in 2005 was that boarding without a ticket became punishable for the first time. It had previously been an offence, like Byelaw 17 is now (being present in a CTA without a ticket), which purely allowed for removal from the railway but no actual penalty.
It is unclear why this change was made and whether it was even intentional.
cactustwirly
Established Member
Even when byelaw offences are prosecuted, the witness statement is used in evidence?
Then the correct process needs to be followed, or else it can become inadmissible in court
Been reading this particular forum but nothing of much note to add . But I'm personally not too worried if someone gets off of prosecution by paying a large sum of money. If someone has evaded enough fares to try and save a few quid , by my reckoning I think paying handsomely for solicitors and whatever fines they get will probably sting.
Haywain
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Rarely to the extent of covering any questions about intent, because the offence is strict liability and the content of the statement is unlikely to affect that. The only real defence is that a valid ticket was held at the time of boarding the train. I don't believe it is even important to have conducted an interview under caution for a byelaw case.
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