any appetite for a test case

[lejog]

A barrister has given his supportive view on the Northern Rail FPN scheme after DfT raised concerns. His only concern is the use of the word "fixed penalty" instead of "fixed payment", but the substance of the scheme isn't really affected by that.

https://www.whatdotheyknow.com/request/151812/response/375054/attach/5/Document 4b.pdf

I find it a convincing read.

So we have different legal views from a QC, a barrister and a contributor to this board. It certainly seems to me that the barrister was discussing a different letter to that described in the programme. It is difficult to believe any lawyer would miss the errors on unspent convictions and travel visas which Northern have accepted are wrong and have apologised for.

 

[Bletchleyite]

I would say have the PF as a supplement, so it would be £80 reduced to £50 for prompt payment PLUS the relevant walk up fare.

 

[furlong]

Generally, people are being given a "first warning", and given the opportunity to pay the fare.

I don't think so It's easy to fall into that trap on a first reading, but try reading it again, paying particular attention to the conditions under which the different parts of their system apply. See now why this forum only seems to hear about the £80s?

 

[crehld]

Generally, people are being given a "first warning", and given the opportunity to pay the fare.

This is not what happens on the ground.

It's people who are either:

1) Deliberately avoiding or;
2) Repeat offenders;
3) Don't use the opportunity to pay the outstanding fare

Who are being taken to court.

I completely agree. It's a shame this does not happen in practice.

This whole issue surrounds Byelaw 18 primarily, not offences under the scope of the Regulation of Railways Act 1889 (who clearly won't get just a "warning".

Where is the evidence that suggests that for simple, co-operative genuine customers, that they aren't getting a first warning and offered to pay the Condition 2 fare?

I can testify to four wasted months of my life trying to convince Northern that there are no ticket issuing facilities at Hellifield (one of their own stations), while they continued to insist that there were and threaten me with prosecution! Being unable to purchase a ticket at Hellifield and from the guard en route, I actively approached staff at my destination, cash in hand, to request the necessary fare. I was then taken aside, informed that I had committed a deliberate act of fare evasion. No opportunity to pay the appropriate fare, no first warning (which would have been irrelevant in my case given I had not done anything wrong) - just a straight move to taking down my details followed, a couple of weeks later, by the letters threatening me with a criminal record, court appearances and the rest of it.

Quite frankly, the constant lectures that there is no such thing as an incorrectly issued PF or wrongly pursued prosecution and that train companies are infallible (and of course the implicit assumption that I and the many others who raise such issues are lying about the whole thing) despite empirical evidence to the contrary is starting to wear rather thin. The system can and should be improved. Sticking one's head in the sand and pretending it's a resounding success when it isn't is clearly unsustainable and, quite frankly, ridiculous. Perhaps if those in the industry spent more of their time addressing these issues rather than arguing with those who have genuine complaints the problem would have been solved by now?

Sorry for the rant - it is now over.

 

[furlong]

So the assessment offered by these experts is based on a false account of what actually happens on the ground.

No reason to consider any of it false, but misdirection by placing emphasis on a rarely-applied part of the system, perhaps.

 

[DaveNewcastle]

I'm responding to these posts only because they seem to be a challenge to mine, though I strongly suspect that I hadn't made myself clear, and so shouldn't compound any misunderstanding by taking these points any further:

I can only speak of my experience. However, after two £80 fines which should not have been issued . . . . .

Northern have offered a few thousand of their FtP settlements each year since the scheme began. In contrast you have referred to 2 of them on four occasions in the thread now (from your own experience). This is in response to my view that their probably is an appetite for a 'test case'.

Perhaps Northern would welcome vindication of their scheme. Equally if a ruling went against them, perhaps it would focus their attention to implement the scheme in a more professional manner. Perhaps it would have no effect all. I know nothing about the impact of legal challenges! Only one way to find out!

Another way is to take legal advice.
While I champion access to justice, I see many people make a fool of themselves and waste money and hope in ill-founded challenges with little or poor advice but a strong sense of 'what is right'. (I saw 2 more fail today, one was a matter of great public concern about 'neither admit nor deny' secrecy over abusive practices by the Police).

If this debate is to move forward constructively, then it would gather a body of expert opinion and analyse the documented facts as thoroughly, dispassionately and critically as possible, and then apply them to the law. The answer should become clear without much uncertainty when taking the question to a Court.

This doesn't strike me as a 'balanced assessment'. In fact lauding Northern's approach without reference to the wider issues of implementation is anything but balanced.

I wasn't presenting an assessment. I said that I had previously done so and was making a contrast with the present view, a view which appeared to be unbalanced (in terms of evidence).

To claim the scheme is perfect in every way is, quite simply, an unsustainable argument.

I can't see where that claim has come from (it certainly wasn't from me).

. . . . Quite frankly, the constant lectures that there is no such thing as an incorrectly issued PF or wrongly pursued prosecution and that train companies are infallible (and of course the implicit assumption that I and the many others who raise such issues are lying . . . . .

and I'm at a complete loss to see where that view or those lectures have come from and more to the point, I don't see where that objection gets us in terms of the question asked.

 

[crehld]

I'm responding to these posts only because they seem to be a challenge to mine, though I strongly suspect that I hadn't made myself clear, and so shouldn't compound any misunderstanding by taking these points any further:

Thank you for taking the time to clarify some of your points.

Northern have offered a few thousand of their FtP settlements each year since the scheme began. In contrast you have referred to 2 of them on four occasions in the thread now (from your own experience). This is in response to my view that their probably is an appetite for a 'test case'.

For the record I have referred to my 2 £80 fines only once in this thread (not sure where your figure of 4 comes from), in the very passage you quoted. Anyway, they were offered as supporting evidence (for want of a better term) for two broad points:

1: as a possible explanation for your observation that many are vociferous in their outrage and objection to the scheme; and
2: that the implementation of this scheme is so problematic that it appears to be targeting legitimate passengers with valid tickets.

An n of 2 is admittedly a small sample size. So, do we know how many of the thousands have been issued incorrectly? Perhaps it's a relatively small percentage, but is it disproportionate when compared to penalty fares issued by other TOCs (not that the two can be compared of course)? The answers to these questions may, or may not, provide some explanation for the big level of dissatisfaction with the scheme.

Another way is to take legal advice.
While I champion access to justice, I see many people make a fool of themselves and waste money and hope in ill-founded challenges with little or poor advice but a strong sense of 'what is right'. (I saw 2 more fail today, one was a matter of great public concern about 'neither admit nor deny' secrecy over abusive practices by the Police).

If this debate is to move forward constructively, then it would gather a body of expert opinion and analyse the documented facts as thoroughly, dispassionately and critically as possible, and then apply them to the law. The answer should become clear without much uncertainty when taking the question to a Court.

As I clearly stated I'm not expert in the matter, so I defer to your expertise. That said given you raise the scenario of people making fools of themselves and wasting money in ill-founded challenges, what's your opinion on issuing £80 fines to and pursuing prosecution of passengers in possession valid tickets?

I wasn't presenting an assessment. I said that I had previously done so and was making a contrast with the present view, a view which appeared to be unbalanced (in terms of evidence).

Many apologies. I had incorrectly made the assumption that when you said you had "expressed a more balanced assessment", some form of assessment had taken place. I obviously misunderstood your point here!

I can't see where that claim has come from (it certainly wasn't from me).

This I think is related to the above point where I incorrectly read you to be providing an unbalanced assessment which in fact only appeared to be unbalanced, nor apparently was an actual assessment. In complimenting Northern on their innovative and pragmatic system without reference to the issues surrounding implement ion, I incorrectly took this to mean you thought the scheme was a great and had no problems. I obviously read too much into posts. So apologies again.

and I'm at a complete loss to see where that view or those lectures have come from and more to the point, I don't see where that objection gets us in terms of the question asked.

This is a more general observation and, if you look at the context of the post, quite clearly wasn't a challenge to anything you said. It's an opinion formed after reading observing many posters on this forum who seem to object when legitimate disputes are posted, including about Northern's scheme. One could even say some are vociferous in their outrage and objection to such legitimate complaints!

 

[34D]

Perhaps you could finance someone else so that there can be a test case without your direct involvement?

Absolutely! If a case appears that seems to be a good candidate for this I shall put at least a three figure sum of money into a fighting fund.

Obviously, significant discussion would be needed beforehand.

 

[cjmillsnun]

They could of course issue small claims court proceedings for the £80 (which depending on the parking case, they may well decide to do).

I doubt it. The £80 is an offer of an out of court settlement. By not paying it, the accused is saying they are not willing to settle out of court. Therefore Northern's next action is a Byelaw or RoRA prosecution.

 

[First class]

As there appears to be NOBODY who has actually paid the £80 when they have been "innocent" - I suggest you will never have a test case. By it's very nature, if you are innocent, you would refuse to pay and plead not guilty in the subsequent trial. I agree with the barrister that such a scheme does NOT force anybody to pay it - it's just an offer which can be accepted or refused without any pressure being put on the customer. They weigh up the facts in their own mind and make a decision that is best for them.

In fact, I imagine most people are DESPERATE to have the £80 FPN opportunity.

HMCS would probably support the fact that such a scheme minimises the amount of cases being brought- and attest to that in any proceedings.

 

[bb21]

It isn't as simple as that though.

Consider the scenario. You arrive at the station with an hourly service 10 minutes before the train was due to leave. There was only one man serving the passengers and one ticket machine, both with long queues.

Train arrives, you are still third in your chosen queue. What do you do? Most people I know would choose to get on the train, unaware that it was still technically a Byelaw breach, despite having already tried paying.

Busy service, guard could not make it through to serve everyone, and at the other end, Kerching!!

Not unheard of. Do you pay up rather than risk going to the court where the judgement is likely to be against you on a Byelaw charge anyway? I know someone who ended up paying up because technically he was supposed to have waited in the queue for however long it took for him to get his ticket, even if that meant missing the hourly service.

Unlike the South East, it is well documented that Northern lack adequate ticket issuing facilities at many of their stations.

 

[First class]

It isn't as simple as that though.

Consider the scenario. You arrive at the station with an hourly service 10 minutes before the train was due to leave. There was only one man serving the passengers and one ticket machine, both with long queues.

Train arrives, you are still third in your chosen queue. What do you do? Most people I know would choose to get on the train, unaware that it was still technically a Byelaw breach, despite having already tried paying.

Busy service, guard could not make it through to serve everyone, and at the other end, Kerching!!

Not unheard of. Do you pay up rather than risk going to the court where the judgement is likely to be against you on a Byelaw charge anyway? I know someone who ended up paying up because technically he was supposed to have waited in the queue for however long it took for him to get his ticket, even if that meant missing the hourly service.

Unlike the South East, it is well documented that Northern lack adequate ticket issuing facilities at many of their stations.

But from what is normally disussed in industry, 99% of the "genuine" customers in this instance are being given first warning letters, NOT fixed penalties.

The only first timers being sent £80 FPNs are those that "forget" their origin station, attempt to walk away completely, are uncooperative or commit other Byelaw offences.

Like anything, occasionally a very, very small percentage may be incorrectly issued an FPN, but even then, how many of them haven't been corrected when identified?

Finally, Northern have safeguards built in to their scheme:

1) Northern do not carry out this "operation" at locations where there is only a TVM.
2) In advance of an exercise, at one week before, "Buy before you ride" posters are prominently displayed at the target stations.
3) Some locations will have leaflets physically given out to them by staff in advance.
4) On the day of the operation, the Supervisor will inform the relevant booking offices.
5) The revenue operation supervisor is directly notified of any "breaks in service" (machine faults/PNBs etc).
6) Revenue staff with Avantix will be deployed to certain origin locations to assist in queue busting on the day of the operation (if anticipated to be an issue) to ensure maximum opportunity to obtain a ticket. (But will not check tickets there).
7) Customers with restricted mobility/disabled will not be penalised.

https://www.whatdotheyknow.com/request/151812/response/375054/attach/4/Document 4a.pdf

 

[bb21]

But from what is normally disussed in industry, 99% of the "genuine" customers in this instance are being given first warning letters, NOT fixed penalties.

I can only hope that what you are saying is true.

 

[DaveNewcastle]

Ah! It's so gratifying to read informed posts on this forum:

As there appears to be NOBODY who has actually paid the £80 when they have been "innocent" - I suggest you will never have a test case. By it's very nature, if you are innocent, you would refuse to pay and plead not guilty in the subsequent trial. I agree with the barrister that such a scheme does NOT force anybody to pay it - it's just an offer which can be accepted or refused without any pressure being put on the customer. They weigh up the facts in their own mind and make a decision that is best for them.

In fact, I imagine most people are DESPERATE to have the £80 FPN opportunity.

HMCS would probably support the fact that such a scheme minimises the amount of cases being brought- and attest to that in any proceedings.

Of course, I equally enjoy reading the opinionated posts on here. But there is a huge difference in the reliability of 'advice' taken by concerned passengers on this sub-forum taken from informed and from opinionated replies.

 

[furlong]

Finally, Northern have safeguards built in to their scheme:

You're referring there only to the occasional exercises (described at length) and typically prior to introduction of the main part of the scheme, not the day-to-day operation which sees a likely offence and therefore jumps straight to the £80 step.

I expect we'd see that clearly if someone leaked to us the average number of warning letters issued in a week versus the number of £80 letters.
--- old post above --- --- new post below ---

HMCS would probably support the fact that such a scheme minimises the amount of cases being brought- and attest to that in any proceedings.

Absolutely. The problem I see is that the scheme lacks many of the safeguards of a statutory Penalty Fares scheme and it would be interesting to see how a court would deal with a case that would have been covered by an exemption were it a Penalty Fares situation. (An update to the Penalty Fares rules is long overdue, from both passenger and TOC points of view - passengers caught unfairly and loopholes that should be closed - but that would be a separate thread.)

 

[Starmill]

I'm curious, Collector - have you ever actually passed through one of these revenue checks, or seen spoken to or dealt with Northern's STM contract staff? If not, how much of a resemblence to what you describe do you think the exercises bear? And how many times have you tried to buy a ticket from one of Northern's Parkeon machines?
--- old post above --- --- new post below ---

It wouldn't be problematic, it would be impossible! Northern's ticketing provision doesn't meet the minimum standards required for a proper Penalty Fares scheme.

Which is the crux of the matter. They should improve, and quickly, and then I think neither side would be especially unhappy with this state of affairs.

 

[Greenback]

It is the scenario described by bb21 that leaves a bit of a sour taste in my mouth. The passenger wants to pay, has tried to pay, but in the face of a significant delay if they don't get on the train they want, they are unable to pay due to a lack of facilities to do so. In effect, these people are then being penalised financially for Northern's inability to provide adequate ticket purchasing facilities.

No doubt some of them are more than happy to pay up and avoid the possibility of legal action. Others may get Northern to reconsider, I don't know. All I can say is that while I appreciate the reasons behind the scheme, I don't like injustice, and that's what it seems to me to be when a passenger has made genuine efforts to buy a ticket before boarding but has been unable to do so.

It's hard to know what's genuine and what isn't. It's hard to tell when someone has been queuing for ten minutes after arriving 15 minutes before their train, or whether they just saw a queue, decided not to bother, 5 minutes before the train's arrival.

I do suspect that a significant proportion of those who do pay up will switch to an alternative mode of transport.

 

[34D]

I do suspect that a significant proportion of those who do pay up will switch to an alternative mode of transport.

Agree fully! And when you run a no growth franchise..... this is a symphony to your ears!

 

[crehld]

Ah! It's so gratifying to read informed posts on this forumf course, I equally enjoy reading the opinionated posts on here. But there is a huge difference in the reliability of 'advice' taken by concerned passengers on this sub-forum taken from informed and from opinionated replies.

I agree, and collector's input is valuable. Nevertheless, the process and situation that collector describes is what should be happening. It is not, however, what is actually happening on the ground.

You may object to what you perceive as opinionated posts from myself and others (although I will grant you there is a certain amount of passion behind them). Nevertheless experiences described in such posts are informed by empirical reality. The descriptions of the squeeky clean and robust process outlined by collector are not; they are an aspiration of how the scheme should work (or perhaps a TOC management's perception of how it is working).

Having a legal opinion on the scheme it's all very well and good, but is only of value if scheme on which the opinion was offered is the actual scheme in operation on the ground.
--- old post above --- --- new post below ---

I expect we'd see that clearly if someone leaked to us the average number of warning letters issued in a week versus the number of £80 letters.

As I mentioned above I believe seeing such figures would be of great value to this discussion, assuming of course such data is collected and kept in the first place.

 

[najaB]

As I mentioned above I believe seeing such figures would be of great value to this discussion, assuming of course such data is collected and kept in the first place.

Of course it's collected - how would they know how many stamps to buy otherwise?

 

[clagmonster]

It is the scenario described by bb21 that leaves a bit of a sour taste in my mouth. The passenger wants to pay, has tried to pay, but in the face of a significant delay if they don't get on the train they want, they are unable to pay due to a lack of facilities to do so. In effect, these people are then being penalised financially for Northern's inability to provide adequate ticket purchasing facilities.

No doubt some of them are more than happy to pay up and avoid the possibility of legal action. Others may get Northern to reconsider, I don't know. All I can say is that while I appreciate the reasons behind the scheme, I don't like injustice, and that's what it seems to me to be when a passenger has made genuine efforts to buy a ticket before boarding but has been unable to do so.

It's hard to know what's genuine and what isn't. It's hard to tell when someone has been queuing for ten minutes after arriving 15 minutes before their train, or whether they just saw a queue, decided not to bother, 5 minutes before the train's arrival.

I do suspect that a significant proportion of those who do pay up will switch to an alternative mode of transport.

As a matter of interest, I wonder what the response would be to a claim for an hours delay if a passenger decided to remain in the queue and miss the hourly train, having arrived with longer than the sum of the stated queuing target time and the minimum connection time for the station.

 

[Greenback]

As a matter of interest, I wonder what the response would be to a claim for an hours delay if a passenger decided to remain in the queue and miss the hourly train, having arrived with longer than the sum of the stated queuing target time and the minimum connection time for the station.

I expect that they would refuse to pay out and tell the passenger they should have jumped on the train and purchased a ticket form the guard!

 

[Kevin_Brum12]

Interesting thread, but is a test case really the best avenue?

I'd have thought it would be more effective to raise this issue with either a sympathetic MP in the north, who could initiate an adjournment debate and get the Minister to the table and DfT looking at the issue, or by raising the matter in the media, through a programme like the BBC's Watchdog or the Look North regional programme.

Both of those involve minimal risk to the individual, avoid a criminal record or expensive legal costs and may serve to embarrass both Northern and DfT.

The parliamentary route could also lead to a change in the law. Whilst the current railway bye-laws were introduced post privatisation most of the other legislation dates from well before 1994. I recall BR introduced the Penalty Fares Regulations in the late 80's well before the current fragmented system was dreamed up. It is perhaps time that a "Railways Fares (Consolidation) Bill" was put before parliament to do the following:

To consolidate the current provisions regarding fare evasion;

To require a train operating company to provide a facility to sell a "ticket for travel today" at a station, unless it is unreasonable to do so (for example because of accessibility issues);

Where it is unreasonable, for a train operating company to be required to sell a ticket for "travel today" to a passenger, providing the passenger attempts to make the purchase at the first available opportunity, such as to an authorised fare collector (guard/conductor) on a train, or at an interchange or destination station;

To allow TOC's to establish Penalty Fares areas on services they operate, provided that:

1. They provide a Permit to Travel Facility at each station in the area, which is required to take legal tender, and where it is not possible for one to be installed allow purchase from an authorised fare collector on a train;

2. They are required to obtain approval from the Secretary of State for transport;

3. The Rail Passengers Council (Transport Focus) are given powers to become the arbiters in disputes between passengers and TOC's regarding penalty fares. TOC's are required to provide funding for an arbitration service administered by the RPC.

4. Such schemes become part of a franchise agreement and continue until further order from the Secretary of State.

 

[Deerfold]

1. They provide a Permit to Travel Facility at each station in the area, which is required to take legal tender, and where it is not possible for one to be installed allow purchase from an authorised fare collector on a train;

I don't think legal lender means what you think it means.

If you are talking about the usual coins and notes there's a good few locations where these would routinely disappear before Northern could collect them which is presumably why so many of their machines are card only.

There's plenty of their trains where staff cannot get through the service, so presumably there would have to be some provision for buying after leaving the train (the Skipton to Leeds line is particularly fun when the machines at a couple of stations are down).

 

[CockneySparrow]

Except when you can't

Or don't want to