That's an interesting point, is "trying it on" with a wrong-time Advance actually fraud? I wouldn't say it was - you aren't deceiving[1] anyone, just asking to be allowed to get away with something that you aren't entitled to.
Fraud would be modifying the ticket or attempting to hide the time on it - some means of deceiving the guard into thinking it was valid. Or deliberately buying that cheaper Advance on the assumption you would get away with it e.g. because tickets were rarely checked on a given train.
Did the passenger perhaps do something like that?
[1] Fraud is "obtaining pecuniary advantage by deception" - for a fraud charge to stick there *has* to be wilful deception involved, i.e. an intent to mislead in some way leading to the financial gain.
For the purposes of fraud, it does not matter if anyone is as a matter of fact deceived. The offence is entirely focused on the conduct of the defendant.
The offence of fraud by false representation is made out if the defendant:
- made a false representation;
- dishonestly;
- knowing that the representation was or might be untrue or misleading; and
- with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.
A representation may be express or implied and can be communicated by conduct. Therefore, proffering an invalid ticket may constitute a representation for the purposes of the offence.
A representation is "false" if:
- it is untrue or misleading; and
- the person making it knows that it is, or might be, untrue or misleading.
The test for dishonesty is that set forth in
R v
Ghosh [1982] 1 QB 1053 and has two limbs:
- was what was done dishonest by the ordinary standards of reasonable and honest people?
- must the defendant have realised that what he was doing was, by those standards, dishonest?
Actual knowledge that the representation is or might be untrue is required, not awareness of a risk that it might be untrue.
Intent to make a gain includes keeping what one has and intent to cause a loss includes depriving the other person of what he would otherwise have had (i.e. not having to pay for a new ticket).
Therefore, if the jury concludes that as a matter of fact the Defendant knew that the ticket was invalid on that service, but proffered it anyway with the intent that he would not be charged for a new ticket, this is perfectly capable of constituting a fraud.
Fiddling about with the ticket provides evidence on which the jury could in theory infer:
- dishonesty, because ordinary people don't fiddle with tickets;
- knowledge, because why would he fiddle with the ticket unless he knew it was invalid; and
- intent, because why would he fiddle with the ticket unless it was an attempt to get out of buying a new one.
On a practical level, I can't really see why a prosecutor would rely on a fraud charge when the railway legislation provides a much simpler means of pursuing fare evaders.
