So far as I can see the offence with which the OP has been charged has yet to be identified. If, as seems likely, it is one of those specified in Regulation 11(4) of the Railways (Penalty Fares) Regulations 2018 (
https://www.legislation.gov.uk/uksi/2018/366 ), then I certainly agree that there may be grounds for arguing that her prosecution is barred by Regulation 11(3). However, GTR may well try to meet that argument with a reference to the recently published ruling by the Chief Magistrate of in
Monteiro (
https://www.judiciary.uk/judgments/...mited-v-nana-monteiro-and-also-v-lejhae-levy/), in which he held that appeal against a penalty fare does not create a lasting bar on prosecution for an offence arising from the same incident as led to the penalty fare's issue.
It is noteworthy that the statement of GTR's witness makes no reference to the OP having appealed the penalty fare, though it is quite clear from the uploaded copy of Appeal Services' communication that the OP
did submit an appeal, the final outcome of which has yet to come to light. If GTR knew that an appeal had been submitted to Penalty Services, you would have expected its witness to refer to that and in addition to state that, as a preliminary to prosecution, it had cancelled the penalty fare. The present status of the PF is therefore also in doubt.
Paragraph 4 in Schedule 2 to the 2018 Regulations sets out an exhaustive list of the particulars that an appeal must contain. Representations made in support of the appeal may give rise to an inescapable inference as to the ground of appeal relied upon, so failure to state explicitly which of the grounds in Regulation 16(3) applies need not necessarily be fatal to an appeal's validity. Anyway, in the OP's case Penalty Services did not reject the appeal as one that fails to comply with Sched.2 Para 4(c) and Regulation 16(3); instead they treated it as one that is “incomplete and temporarily closed but is not rejected at this time.” I struggle to see a basis on which Penalty Services can now resile from its acceptance of the appeal and assert instead that it failed to meet the Regulations' formal requirements.
Previous cases have come to this board where a penalty fare appeal body has placed an appeal in a state of suspense whilst it seeks further information from the appellant, The Regulations do not prohibit it from doing so, but a request for further information does not displace an appeal body's obligation to reach a decision on an appeal within the prescribed period for doing so – 21 days from the appeal's receipt in the case of an appeal under Regulation 16 or 17 (for a Reg.16 appeal see Regs 16(11) and (11A) and Schedule 2 Para.6). So, if an appellant fails to provide information requested by an appeal body, that body's proper course is to decide the appeal within the time allowed for doing so on the basis of such information as the appellant
has provided (however disadvantageous to the appellant the absence of the information requested may be). The appeal body has no power to postpone indefinitely its decision upon an appeal.
I don't see that Schedule 2 Paragraph 4(d) and Regulation 16(5)(a)(i) of the Regulations compromise the appeal. The terms of the appeal body's communication indicate that
some form of representations were made that were potentially capable of meeting Para. 4(d)'s requirements, but that begs the question of whether the nature of the appeal was in any case such to raise an issue under Regulation 16(5), which only pertains to shifting of the burden of proof in certain cases. At this stage there is insufficient information from which to conclude whether that is so.
If the appeal body fails to to decide the appeal within the time allowed for doing so, strictly speaking the obligation to pay the penalty element of the penalty fare falls away, which will usually have the effect of leaving due the 'full single fare applicable' element. That's not quite the same as saying that failure to decide in time leads to the appeal being upheld, though the result is similar.
GTR prosecution department's statement to the court that
“the penalty fare was not appealed correctly we can see in the history there was a note on the 12th saying appeal is not an appeal entered by penalty services” is misleading, as it is contradicted by the terms of Penalty Service's communication to the OP. There's also a direct conflict of evidence between the OP's account of having sent proof of ticket purchase to GTR in December 2024 and GTR's 12 May witness statement that the fare had not been paid and that there had been no response from the OP.
Without further information of what became of the appeal it's not possible to say whether it was upheld or rejected, or whether liability to pay the penalty element fell away because it remained undecided after 21 days from receipt. Regardless, the pre-eminent issue now is whether Regulation 11 of the 2018 penalty fares regulations prohibits the prosecution the OP faces.
It's important first to establish whether the penalty fare was cancelled before expiry of the time for deciding the appeal against it. If it was not, and if the offence charged is one of those set out in Regulation 11(4) of the 2018 Regulations (e.g. if a Railway Bylaw 18 offence is alleged), the OP should immediately submit a 'not guilty' plea in response to the SJPN and should write to the court requesting it to hear an application for a preliminary ruling that her prosecution is barred by Regulation 11(3) of the 2018 regulations because she had appealed the penalty fare, as revealed at least by the one communication from Penalty Services so far made available. In connection with any such application she should apply for a representation order (i.e. legal aid). She should do so on the basis that she satisfies the 'public interest' element of the legal aid eligibility test because it is one involving a significant question of law that has been rendered controversial by the Chief Magistrate's ruling in the
Monteiro case, a ruling which conflicts with the contrary arguments put forward by Northern Trains in the earlier case of
Ballington (
https://www.judiciary.uk/wp-content/uploads/2024/08/Railway-Ruling-Final-Judgment-1.pdf)
, those contrary arguments having been disregarded by the Chief Magistrate in his
Monteiro ruling. Even if such a pre-trial application fails the bar on prosecution is potentially also available as a defence.
Quite a few legal issues to unpick here, some a result of the unsatisfactory way in which the Chief Magistrate addressed Regulation 11's interpretation in his
Monteiro ruling. It is a great pity that he chose to entertain South Eastern Trains' application for a declaratory ruling in a form that could not set binding legal precedent, and in which he disregarded all contrary views of the Regulation's meaning even though he was well aware of them through having presided over the hearing of the
Ballington case in which they were put to him by Northern Trains' experienced counsel.
For more background the OP may wish to refer to posts on the
https://www.railforums.co.uk/thread...-appealed-penalty-fares-february-2025.287394/, to the
https://www.railforums.co.uk/threads/amended-title-sjp-after-penalty-notice-cancelled.283802/, and recent posts on the
https://www.railforums.co.uk/thread...ies-for-section-5-1-rora-prosecutions.269410/ thread.
which might give you some sort of benchmark for what they ask for if they act on this in time to stop the court action (if you get the not guilty plea in from what I have read on here then that sets an in person court date inevitably down the line so the window to get it sorted with the railway company then gets bigger with more time)