Dodgy Fare Advice?

[EM2]

So that's very interesting - anothe load of 'private' prosecutors spinned off from nationalisation.

Except the nationalised railway did exactly the same. So privatisation is hardly relevant to the issue being discussed.

 

[LateThanNever]

I think he could quite safely claim to have been given authority to travel by an authorised person

I think he should sue the Police...

As long as it was against his real will...
--- old post above --- --- new post below ---

Except the nationalised railway did exactly the same. So privatisation is hardly relevant to the issue being discussed.

Sorry it is. Nationalisation at least gives us all the right to complain to the MP/government because we all own it. What happems now if we complain on the same basis is that it is all "commercially confident" so that excludes a public/democratic as opposed to a private complaint.

How many private companies do you know who can bring a public prosecution and why do you think this is reasonable?

 

[transmanche]

Fair enough, but Royal Mail isn't yet private! I sense an opportunity!

Canal & River Trust, National Trust, National Trust for Scotland, Water companies, harbour operators and airport operators - all examples of private organisations which have statutory byelaws.

 

[LateThanNever]

Canal & River Trust, National Trust, National Trust for Scotland, Water companies, harbour operators and airport operators - all examples of private organisations which have statutory byelaws.

Interesting! All still ex nationalised/county councils or old charities. So basicaly an unintented consequence of de-nationalisation. Viz we can't afford the expenses of prosecuitng for murder without sufficient evidence for the CPS but we'll go hell for leather because that's part of our profit if we're a PLC?

Shome mistake surely? as 'Private Eye' would say!

 

[yorkie]

Several years ago, I was present at Southampton Airport Parkway station at about 17:25 in the wake of a Southampton FC Saturday home game when I witnessed police physically drag a male passenger in an 'away' football shirt onto a northbound train against his will and order that the train depart with him on board, notwithstanding the man's shouts that he did not wish to travel.

I have also witnessed this, at Horwich Parkway. Someone was forced to travel towards Manchester, despite the fact he lived somewhere to the west and needed to change at Preston to get home. But he was a supporter of a team based east of Bolton so was forced to travel east. He was then forced to double back (from somewhere like Oxford Road, I think).

 

[PuffingBilly0612]

I'm not sure that there is much I can add to this debate which will be of any use to the OP or indeed to any other passenger, but I will try to clarify the distinction in so far as it applies to railway law.

The strict liability offence but it would be necessary to show that the passenger had travelled (or otherwise incurred an obligation which resulted in the need to present a ticket on demand) - the "causation".

I don't see the causation link at all in this interpretation. Are you saying that if someone has an obligation to buy a ticket; they don't but they travel anyway, and that is enough to prove causation?

What do passengers who must and do encounter technical hitches with their Oyster cards or Oyster touch point station readers do then? Do they just not travel anymore at all? Or do they have to ensure that they do not fall foul of the law by 'successfully' touching in or out their Oyster on green and 'successfully' entering the other side via the barrier (assuming there is one) wbut must still always check with a guard before travelling to make sure their card registered the journey too before boarding the train? This is absurd and would interfere too much with staffing resources. For strict (not absolute) liability law, where the requirement for mens rea is silent (not required for proof) 'mens rea' must still be implicit in the legislation, even if proof of it is not required, for it to give effect unless the statute explicitely says otherwise. Does it?

So I doubt that this is true. But it might be true if they knowingly use a card that they know has experienced a similar fault before (or a station with a similar fault before, and so they have knowingly identified the source of the problem (or there is a sign up alerting them to the problem of Oyster reader problems) but the passenger does not do anything about it and the same problem happens and they still chance it, whether touching in on green or not. That would demonstrate causation, I should think, under strict liability even if it were an honest mistake on a particular journey.

But not in the first example I gave it wouldn't be - where a person is just 'caught out' unawares for the first time at a platform they may or may not be unfamiliar with and, without any chance of foreseeability or expectation to provide for an obligation to take an alternative course of action to pay via another means, and believes that they had to do no more than to touch in/out on green and produce their Oyster on demand of an inspector, believing their card worked properly and registred the journey, but found out that it has not registered the journey at the time of the inspection. What if the RPIs own card checker that is at fault, not the station reader or the Oyster card at all?

I could say that the answer to this might lay in the Oyster card T&Cs. Perhaps there is a specific clause that states a provision to the effect that you use an Oyster card always your own risk, in relation to pay as you go, and any fault with it or any associated machine or reader at a railway station or on a bus, whether known to you or not at the time of boarding, would still result in a breach under the bylaws for strict liability. I will check my T&Cs on this. I suggest you do the same. This may make you decide not to use one anymore, or only load it with pre-paid travelcard, because travelling lawfully would amount to little more than a legal lottery. It certainly would with me. Lightening strike law is bad law.




Can you explain your authority on this matter and what you mean, please? Do you have any cases you can reference too? That would be useful.

 

[34D]

Like some others, I am very interested by the comments and stance of puffingbilly0612.

One thing that was said to me a long time ago was "justice doesn't come cheap".

As already advised, a lot of the advice given to members (generally) is 'commercial' and 'damage limitation' in nature.

If you genuinely want to fight it (and potentially become a test case at third instance) then I am sure many on here will applaud that and offer help.

Be aware that the exposure is 3 months in jail, a £5,000 fine, and an unlimited cost award (iirc). Unless you are impecunious, this latter item should concern you.

 

[island]

I think it might be £1,000 not £5,000, although I can't seem to find the current "standard scale". From memory the RRA says the maximum penalty is a fine not exceeding level 3.

 

[Llanigraham]

So that's very interesting - anothe load of 'private' prosecutors spinned off from nationalisation. So the CPS brings most prosecutions, the RSPCA is next I wonder if the privatised railway, in all its various guises, is next? Are there any others, does any one know, who have the option of bringing a 'public prosecution' when they are in fact private!??

As the ex Court Presenting Officer for a Government Dept:
All Government Depts, from Dept of Work & Pensions through to DVLA, Post Office, Royal Mail, BT, TV Licencing, Network Rail.
The RSPCA certainly bring their own prosecutions.

 

[island]

Except the nationalised railway did exactly the same. So privatisation is hardly relevant to the issue being discussed.

Doesn't stop everyone and anyone ranting on about it!

 

[Tibbs]

Doesn't stop everyone and anyone ranting on about it!

For the simple reason that prosecution decisions are being made for commercial reasons and NOT public interest.

For example, I've not heard of the RSPCA accepting money for not bringing a prosecution.

 

[anme]

I would post this in the original thread, but it's now been closed.

I once had a similar experience to the OP but with a different outcome. I touched in at a National Rail station. I don't remember if there was a beep but the correct balance was shown and the gate opened. Tickets were not checked on the train. When I touched out at a central London terminal, I was charged the maximum fare for an unresolved journey. My Oyster card statement did not show the initial check in.

I complained to TfL and they refunded the maximum fare (I had already reached the daily cap).

 

[island]

For the simple reason that prosecution decisions are being made for commercial reasons and NOT public interest.

For example, I've not heard of the RSPCA accepting money for not bringing a prosecution.

That's because one of the RSPCA's goals in prosecuting is getting publicity. But we're going waaaaay off-topic!

 

[DaveNewcastle]

I'm not sure I can take this much further than I already have:

Can you explain your authority on this matter and what you mean, please? Do you have any cases you can reference too?

I am aware of no Judgements in Railway Law in which the distinction you are grappling with is elucidated. I can find no argument over 'causation' beyond demonstrating that it is the accused person whom is liable in terms of the Contract or Byelaw offence. There are several cases in which the accused travelled with another person's ticket, and the Judgements are clear in establishing the it is the passenger who is liable, the other party also incurring a liability for "aiding and abetting" (Browning v Floyd 1946).
But having said that, we should have no difficulty in importing the general body of Contract Law decisions into railway ticketing matters, though 'causation' in Contract Law is more commonly concerned with questions of damages.

The text book distinction between strict and absolute liability refers to Environmental Law, and is found in Empress Cars v National Rivers Authority, but even that has led to inconsistent subsequent Judgements.

I don't see the causation link at all in this interpretation. Are you saying that if someone has an obligation to buy a ticket; they don't but they travel anyway, and that is enough to prove causation?

Yes, indeed. Not that I expect the argument over 'causation' to arise.
The Contract will have been formed by the act of travelling, it is "inferred from his conduct", and the liability to pay the fare and to to comply with the Byelaws has arisen. (I've provided some authorities, one of the simplest under the RoRA is Reynolds v Beasley [1919] 1 KB 215)
Defences include the honest mistake and having exercised due dilligence in attempting to comply with the obligations; perhaps this is where your thoughts on Oyster can be tested?

As I've mentioned, this is an area of interest more to theorists and academics than the Railway Prosecutor (or passenger); Stuart Green in "Six Senses of Strict Liability" ("Appraising Strict Liability" Simester 2005) remarked that a strict liability offence must contain a material element which does not require mens rea, though it is not a requirement that the mens rea required for the main element of the crime implies any wrong doing. When we combine this condition with the link to the accused, we arrive at Denning MR's summary : "that an offence should be treated as a crime of strict liability if it provides for conviction without requiring fault as to at least one material element.".

I can't assist this enquiry any further in terms of Railway Law for want of decisions that clarify the distinction that interests you.

In respect of Oyster, there have been fewer judgements to consider. I don't think I can add to the references given.

 

[cjp]

I

The Contract will have been formed by the act of travelling, it is "inferred from his conduct", and the liability to pay the fare and to to comply with the Byelaws has arisen. (I've provided some authorities, one of the simplest under the RoRA is Reynolds v Beasley [1919] 1 KB 215)
Defences include the honest mistake and having exercised due dilligence in attempting to comply with the obligations; perhaps this is where your thoughts on Oyster can be tested?

A.

The Relationship?


I feel a point worthy of reiteration concerning advice given is that although it is possible one may win there is always a possibility one may loose - however slight these probabilities might be - which is why, often with some reluctance, even though it is not my money I am spending, I follow the advice of
Settlement for Certainty
even though it rankles.:cry:


Do not fight unecessary battles it is the war that counts.
Life is too short
etc

 

[Deerfold]

Although in a completely different sector, I work for a company (specialised area) regularly dealing with customers who have visited citizens advise for advise and help, and I am truly shocked at some of the poor advise they receive from the CAB.

Although at least they can spell "advice"

 

[PuffingBilly0612]

It really is time to fight back and put these private operators in their place and put a stop to this nonsense whereby innocent people or those who make innocent mistakes are being manhandled, abused, frightened, threatened and extorted from. Otherwise me may as well be living in a police state.

 

[yorkie]

It really is time to fight back and put these private operators in their place...

I am not going to disagree with that specific point, but I would suggest you are not the person to do so, and your case is not a good example of a 'test case' for such a purpose.

You will find that we will defend people who have a genuinely good case, or where the Operator is not behaving as they should. The fact that members didn't feel your case was one of those is something that you just have to accept.

Good example cases could include:

Prosecution from Arriva Trains Wales
(origin station appears to have no ticket office and a card-only machine; the passenger queued at a ticket office to pay but the inspectors stopped him doing so. If what we are told is correct, this appears to be another misuse of powers by the agency staff acting on behalf of ATW)

Reported for prosecution with a valid ticket
(The ticket was valid, and even if the route hadn't been valid the action taken was inappropriate. EMT have also been caught abusing their powers on previous occasions).
​

We will support people who are 'in the right' but if you want to fight your case, that's fine, you're on your own there. Do let us know the outcome though, I'd be interested to hear it!

 

[PuffingBilly0612]

I am not going to disagree with that specific point, but I would suggest you are not the person to do so, and your case is not a good example of a 'test case' for such a purpose.

You will find that we will defend people who have a genuinely good case, or where the Operator is not behaving as they should. The fact that members didn't feel your case was one of those is something that you just have to accept.

What point? I was making several here.

If you are going to make a point of your own, make it: don't just put in unsubstantiated assertions and based on what others have said, by just claiming my situation wasn't a good case and I should accept it. Why isn't it? What have YOU got to say about it for yourself? Who are you quoting to refute my position who has some authority on the matter with legal training? What have your examples got to do with the references you make in your post which has nothing to do with machine failures?

Your response seems to be devoid of all substance.

Also, what others have said before is nothing to do with what I have written here given that I had not yet read up enough on the subject of strict liability or advanced any of these thoughts when they gave their opinion before. Who are these people who claimed my situation was not a good one? What did they base that opinion on? I fail to see what you've added to this debate. Your response sounds more like a rebuttal simply because you don't like what I have written - devoid of all argument that might be helpful to me or to others. You know nothing about me or my capabilities either.

 

[yorkie]

Well the main reason why you're not going to get any help from us, is a failing of what is known as the "attitude test".

You claim we are biased towards the Railway Companies, but the evidence suggests that isn't the case.

If we are "biased" it is towards what we feel is right, and I make no apologies for that!

You know nothing about me or my capabilities either.

Well, go on then, surprise us with a victory in court. I look forward to hearing the outcome. But until then, we're just going to be going around in circles.

 

[bb21]

What point? I was making several here.

Your comment about fighting back. The least you can do before criticising another forum member is to read his quotation and make an effort in understanding what he wrote.

If you are going to make a point of your own, make it: don't just put in unsubstantiated assertions and based on what others have said, by just claiming my situation wasn't a good case and I should accept it. Why isn't it? What have YOU got to say about it for yourself? Who are you quoting to refute my position who has some authority on the matter with legal training? What have your examples got to do with the references you make in your post which has nothing to do with machine failures?

On the balance of probability, forum members generally feel that your case is not one that is likely to win. (Read the responses yourself.) There may not have been a case that involves possible Oyster machine failures, hence the term "test case", however there are some very experienced forum members who have witnessed many ticketing-related cases in court and have huge experience in how these cases are likely to go.

I suggest that you take especially DaveNewcastle's comments onboard. You may have plenty of experience in other areas of law. From what you have written in your original thread, you know very little about railway law and that is not an exaggeration.

Your response seems to be devoid of all substance.

Also, what others have said before is nothing to do with what I have written here given that I had not yet read up enough on the subject of strict liability or advanced any of these thoughts when they gave their opinion before. Who are these people who claimed my situation was not a good one? What did they base that opinion on? I fail to see what you've added to this debate. Your response sounds more like a rebuttal simply because you don't like what I have written - devoid of all argument that might be helpful to me or to others.

You are on an internet forum asking for advice. If you don't like the advice given, ignore it. If your sense of injustice is so strong as to border on being unbearable then go ahead and fight it in court. No one is going to stop you and most people on here would love it if you win the case and set a precedent. However if forum members do not feel that you have a strong case, then no one will tell you to fight it, as that would be irresponsible.

My original advice that you seek professional help still stands.

Since you have not taken heed of my previous advice about reading the forum rules, which clearly state that we aim to create a friendly environment, this thread ends here. The forum membership have delivered their opinion on your case. If you disagree with arguably two of the most experienced members on here, then we are unable to help you any further.

Please also note that any further thread on this topic will automatically be deleted. I have given you a chance to discuss the matter in a calm and pleasant manner in this thread after what happened in your original thread. This clearly has not worked.

If you do not think the advice provided on our forum is good enough for you, then you have other alternatives, such as the MoneySavingExpert forum, or the Consumer Action Group forum, to name two.

You know nothing about me or my capabilities either.

We need to know nothing about who you are or what you do. The only relevant information are facts about the case. Forum members try their best to give their honest opinion whoever you are and whatever you do.