Court date set...advice needed please help

[gt_1892]

Hello all,

In September on a saturday morning my wife used my annual train pass, which is from Haslemere to Waterloo, to travel. She didnt know it was wrong to do so and hadnt asked my permission because I was out the house.

She went to Farnham Station and asked the ticket office if she needed to buy an add-on ticket because the train journey she was about to take was leaving from a different station than the ticket, and they told her that she needed to buy an extra ticket which was a couple of quid. Which she did.

An inspector carried out an inspection and she presented her ticket, she was then pulled off the train, informed that what she had done was fraudelent, had to fill out a form with some person who showed her a badge and then purchase another train ticket, before she got back on the train and carried onto waterloo. The inspector was very harsh to her, telling her that she was comitting fraud and that she would get a criminal record for this.

We then received a letter asking both of us to come in for an interview to South West Trains to be questioned on the matter, which we did. they asked us for detailed information on what happened and we repeated our story. They seemed to keep questioning about whether she had asked me permission to use my ticket and because I wasnt there and she hadnt asked implying that she had committed theft. So now it was theft and fraud.

They told us that this would all take around 4 to 6 weeks to be resolved, we havent heard anything from them since so we called to find out what the status was, they still have my ticket and I have been having to buy more tickets to get to work. Anyway, they told us that a court date has been set and that she has to appear in court. They also said that we would be receiving a letter with the details of the court appearance, which we havent received yet.

A mate of mine had said that we would probably receive a letter being asked to pay a fine and an admin charge, but it looks like they havent even asked for that and want us to go to court.

So my question is what is going to happen in court? Will she get a criminal record now? Is there anyway we can prevent going to court by offering to pay a fine? Do we need to try and get a lawyer? dont even know how expensive that would be, but I would think having a criminal record is probably going to hurt with all sorts of things?

To be honest, I would be happy to just pay a reasonable fine and put this behind us, but not sure what I can do at this point, if anything?

Any help or advice is going to be really appreciated. As you can guess, like most of the people that post in this section, I am stressed about this

Thanks

 

[bb21]

In September on a saturday morning my wife used my annual train pass, which is from Haslemere to Waterloo, to travel. She didnt know it was wrong to do so and hadnt asked my permission because I was out the house.

I can see how SWT might refuse to believe that your wife did not know that it was not permissible for her to use your season ticket, given that the ticket would have your Photocard number on, accompanied by a Photocard with your picture on it, and be clearly marked as "not transferrable".

The inspector was very harsh to her, telling her that she was comitting fraud and that she would get a criminal record for this.

Maybe he told her that she might get a criminal record. Unfortunately whether he was harsh or not is not really relevant.

They told us that this would all take around 4 to 6 weeks to be resolved, we havent heard anything from them since so we called to find out what the status was, they still have my ticket and I have been having to buy more tickets to get to work. Anyway, they told us that a court date has been set and that she has to appear in court. They also said that we would be receiving a letter with the details of the court appearance, which we havent received yet.

How long has it been since the interview? It could simply be that the paperwork is still being processed. If you are worried, give them a ring and see where they are with things.

A mate of mine had said that we would probably receive a letter being asked to pay a fine and an admin charge, but it looks like they havent even asked for that and want us to go to court.

You won't receive a fine as you haven't yet appeared in court. SWT might indicate their willingness to reach an out-of-court settlement, however they are not obliged to do so.

So my question is what is going to happen in court? Will she get a criminal record now? Is there anyway we can prevent going to court by offering to pay a fine? Do we need to try and get a lawyer? dont even know how expensive that would be, but I would think having a criminal record is probably going to hurt with all sorts of things?

Whether she will get a criminal record will depend on which legislation she is prosecuted under. This will be detailed on your court papers. You can always try offering SWT an out-of-court settlement so that the matter does not proceed beyond this stage, however as I said before, they are not obliged to accept it, especially if they feel that they have enough evidence to secure a conviction.

You can try and get professional help, nevertheless it will not be cheap and a specialist in railway ticketing will likely cost upwards of a couple of grand.

Whether having a criminal record will impact on the future is something only you can decide, depending on her age, profession, and a host of other factors.

To be honest, I would be happy to just pay a reasonable fine and put this behind us, but not sure what I can do at this point, if anything?

Out-of-court settlement is one way, although if they insist on going to court then you cannot avoid it. In my opinion, from what you have said, it is pretty much an open and shut case.

 

[Airlink]

If she didn't have permission I can't see how you can be held responsible for that. And as for theft that's not for SWT to decide, that would be the Police.

If it does go to court I would recommend taking legal representatives.

SWT staff are instructed not to say what will happen, they should just say that they are reporting the facts of the matter. By saying that she would get a criminal record, implies that they (SWT) have decided that she will be found guilty, which in my opinion could be construed as not getting a fair trial.

Also keep all tickets you've had to purchase, to be able to claim refunds if or when you get a replacement season ticket.

You mention that she had to purchase another ticket? Does she have that ticket still? That could show that no fare has been avoided, which would mean that she would be just guilty of a byelaw offence.

 

[gt_1892]

Thanks for the information and the input, I appreciate it.

BB21, when you say its an open and shut case, what exactly do you mean? If it is a foregone conclusion what would she be prosecuted under and what would be the consequences? My wife called them today to get an update and all they said was that she had a court date set, no other information

Also, if we were to offer to pay a fine for an out-of-court settlement, what would be the best way to do this?

Airlink, I have kept all the tickets that I have purchased, the tickets that my wife purchased on the day were taken by the inspector on the day. I dont think I am being held responsible, the court date is only for her I believe. Can she get a criminal record from a byelaw offence? What sort of fine/penalty can result from a byelaw offence?

Thanks

 

[Ferret]

This seems so open and shut that I'm not sure they'd accept an out of Court settlement, especially now a Court date has been set. I guess you could try, but it sounds like it would have to be a seriously large offer to convince them to accept.

 

[bb21]

BB21, when you say its an open and shut case, what exactly do you mean?

Essentially what I mean by that is that the evidence is strong and pretty clear cut. You will need a very good defence. If prosecuted under the Byelaws, I can't realistically see how there is a defence.

I believe there is sufficient evidence for a Regulation of Railways Act prosecution, although that also depends on what she said when questioned and exactly what you both said when you went in for the interview. Without knowing these details, it is difficult for any of us to say.

If it is a foregone conclusion what would she be prosecuted under and what would be the consequences? My wife called them today to get an update and all they said was that she had a court date set, no other information

The legislation they intend to prosecute under will be on the court papers. Unfortunately we can't tell you which one it is. You will have to wait until you receive the papers.

Also, if we were to offer to pay a fine for an out-of-court settlement, what would be the best way to do this?

As time is of essence, I would think that it would be best for you to ring the Prosecutions Department and make an offer over the phone if you wish to settle.

Airlink, I have kept all the tickets that I have purchased, the tickets that my wife purchased on the day were taken by the inspector on the day.

I don't think you will get all these tickets reimbursed. I don't think there is any provision for such reimbursement if your ticket is withdrawn pending investigation into fraudulent use (which is what this case is about). (Although there is a small chance that I could be wrong.)

I dont think I am being held responsible, the court date is only for her I believe. Can she get a criminal record from a byelaw offence? What sort of fine/penalty can result from a byelaw offence?

She should not get a criminal record from a Byelaw offence conviction, however administrative mistakes do very occasionally occur. For a first offence, you will be looking at the lower end of a three-digit sum.

 

[Panda]

They seemed to keep questioning about whether she had asked me permission to use my ticket and because I wasnt there and she hadnt asked implying that she had committed theft. So now it was theft and fraud.

Well, if she did it without your knowledge, it would be the same as a stranger who broke into your house and used your travelcard without your consent. SWT can't hold you liable and therefore you would be reimbursed, however, this is then theft on your wife's part.

On the flipside, if she did it with your consent, then you also broke the terms and conditions of the travelcard, so you lose the travelcard and won't see any reimbursement for subsequent travel.

Seems like a catch-22...

 

[Monty]

This seems so open and shut that I'm not sure they'd accept an out of Court settlement, especially now a Court date has been set. I guess you could try, but it sounds like it would have to be a seriously large offer to convince them to accept.

I'm inclined to agree with Ferret on this one, SWT are big on season ticket fraud and I'm fairly confident in this case they could secure a conviction. So I see no real reason why they would settle out of court, you would have to be especially generous for the TOC to even consider it. The OP needs to seek urgent legal advice at once.

 

[gt_1892]

Thanks for all the advice, very much appreciated.

 

[Deerfold]

It may be relevant whether she has done this before - or if her answers when queried might suggest she had. If there's only a suggestion this was a one off, you've more chance of avoiding court.

 

[SussexMan]

You mention that she had to purchase another ticket? Does she have that ticket still? That could show that no fare has been avoided, which would mean that she would be just guilty of a byelaw offence.

But a fare was avoided - the part of the journey covered by her husband's season ticket. Surely SWT could easily show that to be" intent to avoid the fare".

 

[Ferret]

But a fare was avoided - the part of the journey covered by her husband's season ticket. Surely SWT could easily show that to be" intent to avoid the fare".

That will be their case I would imagine! I will be amazed if they go with Byelaw 18 on this one too - the evidence of intent is so clear that I expect it will be an RoR Act case with a criminal record on conviction. Not what the OP wants to hear of course, but it may now be unavoidable.

 

[455driver]

Another fraudulant traveller gets caught and wants to "get away with it", shame really.

Your wife has commited a crime and is being/could be taken to Court, happens to 1000s of people every day.

Why was "The inspector was very harsh to her, telling her that she was comitting fraud and that she would get a criminal record for this."

That is the truth and sometimes the truth is harsh.

 

[Dave1987]

Surely this would come under TWOC - "taking without consent". Like if you child takes your car for a joy ride. The Police will have them for TWOC or you get prosecuted for giving them permission to drive it without insurance.

 

[swj99]

In September on a saturday morning my wife used my annual train pass, which is from Haslemere to Waterloo, to travel. She didnt know it was wrong to do so and hadnt asked my permission because I was out the house.

If you are in any doubt regarding the legal position, please consult a solicitor. Don't wait until the day of the hearing in the hope of getting a duty solicitor. Don't even rely on advice from internet strangers, which despite in most cases being given with the very best intentions, is no substitute for proper legal advice from a qualified person. Many solicitors will provide a free initial consultation during which you can weigh up the options and decide on a course of action which best suits your situation.

Another fraudulant traveller gets caught and wants to "get away with it", shame really.

Not necessarily fraudulent. http://www.cps.gov.uk/legal/d_to_g/fraud_act/#elements

 

[richw]

With regards to the mention of theft, does the OP not need to press charges for that to be pushed through?

 

[michael769]

Surely this would come under TWOC - "taking without consent". Like if you child takes your car for a joy ride. The Police will have them for TWOC or you get prosecuted for giving them permission to drive it without insurance.

TWOC is an offence specific to motor vehicles, it is not applicable to most other goods.

In this case to establsh theft they would have to show intent to permanently deprive or deception. I think you would have an uphill struggle to convince a court that taking one's partner's travel ticket would constitute theft.

Making a case for fraud might be possible but would depend on what evidence was avaiable as to the OPs intent. There is a fine line between the deception and dishonest intent required for fraud and simply breaching the NCoC's non transferrablility rule which more of a civil matter. This in practice will be dependant on exactly what the OP said to the RPI or says to the TOC.

On the other hand making a case under the RoR will be far more straightforwards.

The best thing to do just now is to await the arrival of the summons which will state the offence that is being prosecuted. If it is indeed fraud legal representation will be essential as the penalties are potentially very severe. For the lesser Regulation of the Railways or byelaw offences consideration can be made to if the OP wishes to enter a guilty plea, to attempt to negotiate an out of court settlement. In either case a solicitor would be able to assist and given the circumstances I would suggest that this may be worth considering.

Prior to that if the OP wishes to attempt to negotiate I would caution them to exercise extreme caution to avoid incriminating themselves and possibly making matter worse.

 

[DaveNewcastle]

I deduce from the OP's opening post that the Railway Company has already got all the evidence it believes exists and that it amounts to a fraud. Its not clear under which Act they are prosecuting that fraud, but now that the Court office has determined a date, then the Company will have determined what Offence they are Prosecuting. That should be apparent from the Summons.

However, I'm sorry to tell the OP that if it wasn't clear what was happening during travel, wasn't clear when Interviewed that day, wasn't clear when interviewd in the Inspector's Office, and isn't clear from the Court Summons, then now is not the time to be asking for and more opinions. It is the time to instruct a Solicitor.

I regret that one or to of the other commentators in this thread also appear to be slightly unsure of the situation that has arisen. Please don't delay or bother with any more opinions but speak with a local Criminal Defence Lawyer immediately. They will obtain copies of all the Evidence under the rules of Disclosure and will then be able to take the most appropriate action to limit the damage.

 

[reb0118]

With regards to the mention of theft, does the OP not need to press charges for that to be pushed through?

Does the season ticket not belong to the railway? The railway certainly has an interest in it. I am no expert but the railway may be able to report it as theft.

 

[rdwarr]

There was no theft here as the ticket was clearly borrowed rather than taken on a permanent basis.

 

[DaveNewcastle]

To re-assure the OP, this will not be prosecuted as Theft, and not as 'TWOC'. These are misleading suggestions. It is a fraud.
Whether that fraud is prosecuted under Railway Byelaw 20 (which is possibly the preferred choice if this is a solitary and first incident) or under the Fraud Act.

It's regrettably clear from the OP's report that the Interviewer was at pains to establish whether or not the matter could be captured by Byelaw 21.3 But they appear to have insisted that the ticketholder had not intended to transfer it to their spouce, and thereby failing to conform with the requirements for the Byelaw offence; it gives the Prosecutor less choice. The Fraud Act might, therefore, be invoked.

Please instruct a Criminal Defence Solicitor promptly.

 

[Dave1987]

To re-assure the OP, this will not be prosecuted as Theft, and not as 'TWOC'. These are misleading suggestions. It is a fraud.

Whether that fraud is prosecuted under Railway Byelaw 20 (which is possibly the preferred choice if this is a solitary and first incident) or under the Fraud Act.
It's regrettably clear from the OP's report that the Interviewer was at pains to establish whether or not the matter could be captured by Byelaw 21.3 But they appear to have insisted that the ticketholder had not intended to transfer it to their spouce, failing to conform with the requirements for the Byelaw offence; the Fraud Act might therefore be invoked.

Please instruct a Criminal Defence solicitor promptly.

Sorry Dave it was meerly a suggestion not a statement of fact

 

[Fare-Cop]

To re-assure the OP, this will not be prosecuted as Theft, and not as 'TWOC'. These are misleading suggestions. It is a fraud.
Whether that fraud is prosecuted under Railway Byelaw 20 (which is possibly the preferred choice if this is a solitary and first incident) or under the Fraud Act.

It's regrettably clear from the OP's report that the Interviewer was at pains to establish whether or not the matter could be captured by Byelaw 21.3 But they appear to have insisted that the ticketholder had not intended to transfer it to their spouce, and thereby failing to conform with the requirements for the Byelaw offence; it gives the Prosecutor less choice. The Fraud Act might, therefore, be invoked.

Please instruct a Criminal Defence Solicitor promptly.

Dave is spot-on in my opinion

There is clear case precedent in Browning & Floyd (1946). I think when the Summons arrives RoRA (1889) 5.3.a is the most likely charge, but his other suggestions are a possibility..

You really need to consult a Solicitor, preferably one who specialises in criminal law and who is known at the Court at which the case is to be heard.

 

[Ferret]

Dave is spot-on in my opinion

There is clear case precedent in Browning & Floyd (1946). I think when the Summons arrives RoRA (1889) 5.3.a is the most likely charge, but his other suggestions are a possibility..

You really need to consult a Solicitor, preferably one who specialises in criminal law and who is known at the Court at which the case is to be heard.

I thought RoRA S5 too, surely the OP knows by now anyway if a Court date has been set?! I obviously bow to Dave's specialist knowledge, but I can't help but feel the damage has already been done and a criminal record at least is a near certainty.

 

[swj99]

It might be worth considering how, if at all, this incident relates to the following (from the Crown Prosecution Service - Code for Crown Prosecutors).

Transport Offences - Fare Evasion

Section 5 Regulation of Railways Act 1889 (Stones 7-7043) is usually used for offences of fare evasion on the railways for:

travelling / attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof; or

having paid the fare for a certain distance, knowingly and wilfully proceeding by train beyond that distance without previously paying the additional fare for the additional distance and with intent to avoid payment thereof, or

having failed to pay the fare, giving in reply to a request from an officer of a railway company a false name and address.

Consider using the provisions of the Fraud Act 2006, where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority.

Where tickets have been altered or defaced consider a charge under the Forgery and Counterfeiting Act 1981.

http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_transport_offences/index.html

 

[Fare-Cop]

"travelling / attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof" (S.5.3.a RoRA 1889)

The Appeal Court judgment in the case of Browning & Floyd (1946) determined that; although the rail company may not have lost any money, a traveller who uses someone else's season ticket has not paid their fare.

The act of using that other person's season ticket in order to make a journey rather than pay your own fare for that journey is therefore an act of attempting to avoid payment of the fare that is due, contrary to the said legislation

 

[DaveNewcastle]

It might be worth considering how, if at all, this incident relates to the following (from the Crown Prosecution Service - Code for Crown Prosecutors).

I can't see how it helps the OP, (who appears to have been absent during much of this recent conversation between ourselves).

Firstly, the CPS are not involved.

Secondly, the Prosecutors at the aggrieved Railway Company will have the same range of legislation available to them as the CPS and will have their own reasons (informed by experience and policy, as well as the Evidence and Witnesses) for choosing which legislation applies (we've already seen that there is a choice of three in this matter).

Thirdly (and as I've tried to make clear already), although we (on this forum) cannot be sure what Offence the Company has chosen to prosecute, we can be sure that the Company has already made that decision, otherwise there wouldn't be a listed date for the Court hearing, which is what the passengers appear to have received from the Court Office. Our only uncertaintly arises from the OP not telling us the Offence which, we can be sure, would be apparent from their Summons. The decision has been made, it's just that we don't know it.

Fare-cop has correctly identified the precedent and Offence used for 'casual' or 'first-time' offenders, Sadly, we do not know the full facts, and certainly not what was said during the interview they were both requested to attend. I remain uncertain - if the Company considered it useful to bring the couple in for an interview, and during discussion failed to establish that a mere Byelaw 20 Offence had arisen, then we should keep an open mind about the actual Offence. All it would have taken to escalate matters is a is a simple defensive remark such as : "I really can't see what the problem is, we've been doing this every week for years and never had this trouble".

I thought RoRA S5 too, surely the OP knows by now anyway if a Court date has been set?! I obviously bow to Dave's specialist knowledge, but I can't help but feel the damage has already been done and a criminal record at least is a near certainty.

Perhaps I've read more into the OP's words than the Prosecutor did during the interview, and so I may have made an incorrect assumption (*), but I'll stick with my hunch, based on those few posts, that it merits a Solicitor's assitance to manage the process and perhaps to mitigate the outcome.

* My assumption is that SWT's Investigator would not have devoted an hour or so to an Inquiry with both husband and wife and fail to confrm a Byelaw 20 Offence for just a sinle Saturday morning standard class journey between Haslemere and Waterloo unless there was more substantial evidence.

 

[Fare-Cop]

Anyway, they told us that a court date has been set and that she has to appear in court. They also said that we would be receiving a letter with the details of the court appearance, which we havent received yet.

My wife called them today to get an update and all they said was that she had a court date set, no other information

I think we might all have a little bit of confusion Dave.

I assumed the OP had received a Summons too, but having re-read the whole thread the only reference I can find is that they were 'told a court date had been set', so unless that has changed since the original post, it seems that no Summons has yet been served.

I agree that if a date has indeed been set, then SWT must have already decided on a charge, but if the OP hasn't actually been told what it is, things need clarification. Maybe they were told that a decision to prosecute had been made.

Many TOCs have listing dates for their regular Courts booked well in advance and then populate the lists as necessary.

Perhaps gt 1982 can enlighten us.

 

[AlterEgo]

That will be their case I would imagine! I will be amazed if they go with Byelaw 18 on this one too - the evidence of intent is so clear that I expect it will be an RoR Act case with a criminal record on conviction. Not what the OP wants to hear of course, but it may now be unavoidable.

I am inclined to agree.

Season ticket fraud is very serious. Sure, she was caught this time - but a TOC will naturally think "How many other times has this happened, and how much have we lost?"

If I were SWT I would prosecute under the RoR Act assuming there's no information that's being witheld from us.

 

[snail]

Season ticket fraud is very serious. Sure, she was caught this time - but a TOC will naturally think "How many other times has this happened, and how much have we lost?"

Yes, I wonder about the OP's opening statement including the phrase "She didnt know it was wrong to do so and hadnt asked my permission because I was out the house." Does that mean she has used this or another ticket before? Did the OP know it was wrong and would he have said so?