Dodgy Fare Advice?

[PuffingBilly0612]

Owing to my own predicament, for which I am righteously furious, I have been trawling these threads and examining the nature of the advice being given here, no matter how well intentioned it may be. And I am sure it is, in most cases and perhaps correct in some cases too.

Nevertheless, the term highway robbery springs to mind in the case of some that make innocent mistakes and those I am about to talk about now....

I want to say this because desperately worried posters do come on here seeking impartial and accurate 'free' advice (is there such a thing?) and end up with what I can only describe as a grovellers manifesto and an empty bank balance to try to avoid being taken to court. This is hard on those already finding times are hard financially. I can't see that this is the correct or reliable advice always. It just encourages these rail companies to keep bullying and harassing people for innocent oversights on erroneous zero tolerance nonsense.

Zero tolerance, by the way, merely encourages further crime from furious innocents who pay disproportionately high for mistakes they have made and results in disproportionately low penalties for those with a guilty mind.

How fair (fare) is that? :roll:

So I have been doing a bit of scouting about and have found out a little more about the Railway laws in relation to 'fare dodging' cases - and some interesting things about 'strict liability', which is not aired on these forums from what I have noticed so far.

According to my legal sources (reliable ones that is - not consumer chat forums) a strict liability offence is not the same as an absolute liability offence. For strict liability offences (under the s.17-18 by-laws, often quoted on here) the prosecutor must be able to show 'causation' even if they need not prove mens rea (intent, essential under the s.5 RA legislation). This is not the same as with 'absolute liability' whereby the the literal erroneous act is all that the prosecution needs to prove. You had not/or had, therefore you are guilty and its a done deal you will be sentenced..etc.

Yet, I read on here that you are guilty under the s.17-18 bylaws just by dint of not having a valid ticket on the train. That is all that is said. But that sounds much like absolute liability to me, not strict liability that necessitates proof of direct causation. So if the prosecution side cannot prove causation (there is a direct correlation between you travelling without a valid ticket and the circumstance or scenario that brought that situation about (whether you intended to has not bearing on the matter for SL) they have no chance of winning -even under strict liability laws.

I thought this was worth posting. For most people, I doubt that is the case, but for some others, they may need to examine their chances of success more closely.

Here are two examples I can think of....

Example of no strict liability under s.17-18:

There is no causation that can be proved, if you touched the Oyster reader and the station barrier still opens simultaneously to let you through to the platform, and you honestly believed you had paid the ticket to travel and had not reason at all to believe an alternative way of paying was warranted. On the train, you are clobbered by the RPI for 'not having a valid ticket' - it turned out you hadn't paid after all becuase the reader didn't work as you thought it had, and it was the train guard at the barrtier to had, in some way, and without your knowledge, or someone else behind you, had touched the reader and opened it for you - unaware to you at the time you touched in for you - unbenown to you at the time. That is one such example. In a busy rush hour this could happen quite easily, I should imagine. There is no causation here and no SL offence. for not having a valid ticket The prosecution would have to prove that this did not happen and that you were lying to win. Could they do that? I doubt it.

Example of strict liability: You tell the train operator in your 'grovel letter' that you touched the Oyster reader and the train guard shouted across and tells you that the reader is not working and he will let you through to pay on the train. So you seek out a guard to pay but he clobbers you for a PF or prosecution under the bye-laws not not having a valid ticket. You still have no chance of winning because you know full well that you had alternative more reliable ways of getting your ticket - the ticket window was open, the permit to travel machine and ticket machines operated etc, and you chose the path of least reliability and resistance and risked human error or guard carelessness or not-care-lessedness. It was not your intention to defraud the rail company - because you tried to pay the RPI and he wouldn't have it. This would not be a good defence under SL law for these bylaws, no matter how unfair they are and how ill advised you were.

 

[Chapeltom]

When there is an open and shut case, experienced posters will NOT advice you to let a TOC take you to court. From what I gather, yours IS an open and shut case, an out of court settlement isn't paying the railway company off, its about minimising costs and ensuring the people who come for advice DO NOT get unwanted criminal records.

For innocent mistakes there penalty fares in many areas of the country, when a penalty fare is refused, it is inevitable a TOC will take the next step and pursue prosecution. What else do you expect them to do? These can be issued incorrectly, and if a TOC pursues prosecution when the passenger is in the right, people are given advice how to fight that.

If you were taken to court and convicted under the bye-laws, under the false pretence you were correct, you'd be at least £200-£300 out of pocket. Whereas an out of court settlement is likely to cost less than that. Posters on here WILL always give advice that avoids a trip to court, this forum wouldn't have a good reputation if most people who came for advice, were advised to fight their open/shut cases in court and got stung for £'xxx' and given potentially life changing criminal records

People do come on to here, with attitudes, with a stubbornness arguing how right they are and kick off when they don't like the advice they are receiving. Many of the fare advisers/posters are either in the railway industry or know a serious amount more about ticketing than the average passenger.



If you don't like the advice given, don't think it is correct and doubt highly experienced people in cases you've read through elsewhere on the forum and yours, we've RPIs, guards on here, then by all means, go to court and fight it. This isn't some ordinary consumer chit-chat forum as you imply, as we've got industry professionals on here which will once again be reiterated. I don't necessarily think you've come seeking advice, but you think your in the right and aren't happy that people aren't agreeing with you. If you think you can defend yourself in court and win, by all means come back and tell us but I wouldn't advise that.

 

[maniacmartin]

If you're that confident of winning, you are of course welcome to let the TOC take you to court. I stand by my advice that the chance of you winning is slim, however.

It is of course possible that the barriers were defective, but you have no proof of that. The TOC can ask why other passengers using the gates around the time you did managed to touch in successfully, and that the gates have no doubt been tested and accredited in some way. This may well be proof "beyond reasonable doubt".

Your other example of a staff member letting you board without a ticket is explicitly covered by the legislation as a valid defense, however it might be wise to get this in writing if this is something you end up doing in future, because stories starting with "the man on the platform said..." may not be believed.

I'm afraid I don't agree with your opinion of the seasoned posters here. Many are very much not supportive of the actions of the TOCs, and spend a lot of time advising people here, on campaigning and on chasing up occasions when TOCs break the rules. However, you have to be realistic. The legislation favours the TOC over the passenger, and the deck is stacked against you, regardless of who was "right". Unless you are confident you have a strong defense, it will probably be cheaper and less stressful to settle out of court. There is no risk of a criminal conviction, and the settlement is usually less than the fine a court may impose.

Whilst it would be nice to advise passengers to have their day in court and fight back against the TOCs, I don't feel comfortable advising someone to take this course of action if I would not take this path if I was in their shoes. A lot of people who come to this section of the forum think that the worst that can happen is a £20 "fine" and that it is a civil matter. I think its important to get across that that is not the case, and the stakes are actually significantly higher, especially since the more serious RoRA prosecutions carry a criminal record.

If you intend to go ahead with your defense on the grounds of a faulty Oyster gateline, I would love to see how the case progresses, but please think very carefully beforehand. Don't even consider it unless you have a good lawyer who knows about railway legislation, and an expert witness who can testify to the design flaws that the Oyster readers may or may not have.

 

[furlong]

First case - add in CCTV evidence, which the TOC would surely know they had to retain for this purpose based on the explanation given to the RPI at the time?

Second case, covered by authorised person giving permission to travel?

 

[PuffingBilly0612]

If you're that confident of winning, you are of course welcome to let the TOC take you to court. I stand by my advice that the chance of you winning is slim, however.

It is of course possible that the barriers were defective, but you have no proof of that. The TOC can ask why other passengers using the gates around the time you did managed to touch in successfully, and that the gates have no doubt been tested and accredited in some way. This may well be proof "beyond reasonable doubt".

Your other example of a staff member letting you board without a ticket is explicitly covered by the legislation as a valid defense, however it might be wise to get this in writing if this is something you end up doing in future, because stories starting with "the man on the platform said..." may not be believed.

I'm afraid I don't agree with your opinion of the seasoned posters here. Many are very much not supportive of the actions of the TOCs, and spend a lot of time advising people here, on campaigning and on chasing up occasions when TOCs break the rules. However, you have to be realistic. The legislation favours the TOC over the passenger, and the deck is stacked against you, regardless of who was "right". Unless you are confident you have a strong defense, it will probably be cheaper and less stressful to settle out of court. There is no risk of a criminal conviction, and the settlement is usually less than the fine a court may impose.

Whilst it would be nice to advise passengers to have their day in court and fight back against the TOCs, I don't feel comfortable advising someone to take this course of action if I would not take this path if I was in their shoes. A lot of people who come to this section of the forum think that the worst that can happen is a £20 "fine" and that it is a civil matter. I think its important to get across that that is not the case, and the stakes are actually significantly higher, especially since the more serious RoRA prosecutions carry a criminal record.

If you intend to go ahead with your defense on the grounds of a faulty Oyster gateline, I would love to see how the case progresses, but please think very carefully beforehand. Don't even consider it unless you have a good lawyer who knows about railway legislation, and an expert witness who can testify to the design flaws that the Oyster readers may or may not have.

The prosecution needs to prove its own case beyond a reasonable doubt; the defence does not have to prove anything at all. But this is not what you are implying at all. Therefore, the prosecution would have to prove that the barriers were not faulty and fully functional and operating at the time in this instance. If they believed an OP just went through the barriers that were open already they would not bring a contravention of bylaws case, based on strict liability, they would bring a true crimes case against the OP instead, and prove mens rea.

I think you have got things a bit skewed here.

 

[furlong]

And if things turn nasty there's also this one to throw into the mix:

9 (2) Where the entrance to or exit from any platform or station is via a manned or an automatic ticket barrier no person shall enter or leave the station, except with permission from an authorised person, without passing through the barrier in the correct manner.

Does the correct manner with an Oyster card require the passenger to check for the green light after touching their card?

 

[maniacmartin]

If they believed an OP just went through the barriers that were open already they would not bring a contravention of bylaws case, based on strict liability, they would bring a true crimes case against the OP instead, and prove mens rea.

I don't believe there is an obligation to bring a casae under RoRA instead of under the bylaws. Whilst the punishments are more severe, its also harder to prove and the TOC might be less likely to take their chance or have the time or inclination to do so.

 

[PuffingBilly0612]

However, you have to be realistic. The legislation favours the TOC over the passenger.

If direct causation is there yes; but if that is not so, I doubt it. Otherwise, everyone who travels is liable to be prosecuted - not for mistakes they make, which are potential avoidable whether intentional or not - but for just being and doing (travelling without a valid ticket) and the only way to be sure of not being prosecuted is not to be more careful and to take adequate care, but not to travel on the trains at all. Is that what the railway companies want? I doubt it.

Would that approach serve the public interest too? No. This is one of the main criterion for deciding strict liability law. There has to be some incentive to try harder and be able to try harder too, in to avoid the problem arising and the operator enforcer has to be able to take preventative steps to avoid the problem too to avoid the ease in they have to prosecute. But do they? I sometimes think they invite the problem to raise revenue, don't you?

In any event, the OP has to be able to prevent, to avoid, to be careful, to look for alternatives not excuses to prevent being prosecuted under the bylaws. In the barrier example I gave, with its lack of direct causation - this is impossible to do - except to avoid going through the barriers in the first place and onto the train, which rather defeats the object of the exercise: to use the trains lawfully.

According to some on here, someone with some serious memory defect - and no recollection of whether they have paid or not - would still be clobbered under the strict liability legislation. Technically they would be right too; but morally it would stink. So the absolute test has to accommodate everyone, not just some people who are carefully selected to be disregarded. This would make a mockery of the law.

So there are provisions in place to put up a defence under strict liability

In a private space with open access to the public, as trains are, I think your interpretation of strict liability is too absolute to be workable and is likely to produce more fare dodgers not fewer because there is absolutely no incentive at all to pay the fare because if they do they will be clobbered - no matter what the consequences, whether a mistake happens or not. I doubt that was the intention of the legislation for strict liability. A lot of this will be down to court interpretation but if a case is presented with care there can be winners. It is not a foregone conclusion unless the defence argues its case badly. The breach for not having a valid ticket is simply not serious enough to justify an absolute liability interpretation for the law to apply (unlike with some laws that has to be 'absolute' for the interests of public safety, for example). So causation will play a big part in the outcome of any breaches of bylaw legislation in relation to not having a valid ticket to travel. The crime is too petty for it to avoid that essential ingredient.
--- old post above --- --- new post below ---

And if things turn nasty there's also this one to throw into the mix:



Does the correct manner with an Oyster card require the passenger to check for the green light after touching their card?

Probably it does, but if the barriers worked correctly they would not open on amber or red and a 'seek assistance' prompt would show. But if it reads green and the barrier opens and the card doesn't register a ticket being paid by the time the RPI arrives to check your ticket, then the causation link can't be made and, as I have already argued, I do believe the test of strict liability under the bylaws cannot be proven. That's because the OP has no manner or means to avoid the problem and no reason whatsoever to believe that he should either. All they can do is travel by train in the first place by entering the platform vicinity and going by alternative means of transport.

 

[dcsprior]

I think there's a difference between liking/approving of the current regulations, and advising people how to best to act within them to get the best outcome.

I too have read a number of threads on here, and generally there is an attempt to help anyone who appears genuine - but sometimes this attempt to help will be to say that the best course of action is to pay to make it go away, regardless of how unfair that may feel.

As an aside, I've read your earlier thread and must say I have experienced something similar - except that in my case there was no ticket-check en-route so I only suffered an oyster maximum fare rather than a penalty fare. However the fact that I sympathise, and think "there but for..." does not mean that I doubt the advice which other (experienced and knowledgeable) posters gave you.

 

[PuffingBilly0612]

I think there's a difference between liking/approving of the current regulations, and advising people how to best to act within them to get the best outcome.

I too have read a number of threads on here, and generally there is an attempt to help anyone who appears genuine - but sometimes this attempt to help will be to say that the best course of action is to pay to make it go away, regardless of how unfair that may feel.

As an aside, I've read your earlier thread and must say I have experienced something similar - except that in my case there was no ticket-check en-route so I only suffered an oyster maximum fare rather than a penalty fare. However the fact that I sympathise, and think "there but for..." does not mean that I doubt the advice which other (experienced and knowledgeable) posters gave you.

I spoke to a lawyer yesterday, regarding my situation and he told me that much of the advice given out on here is incorrect. But I don't know what he was referring to, so that isn't much help.

I have consulted some interesting stuff on the matter of strict liability and it is certainly not a case of 'done deal' you travelled without a ticket' therefore you are guilty by default. Not without more qualifiers that are rarely aired on these discussion forums.

I am the very last person who would try to give advice on matters like this based on the law as I would like it to be rather than what it is. Trust me, if you knew who I was, what I have written about in the past regarding other legal matters, you would agree with me. I do, however, concede that the area of Railway law is a bit out of my depth presently, but I am doing some reading around the subject as should be apparent by my posts.

....and no I am not rubbishing everyone else on here. I am just dismayed that so many of the champion advisers feel fit to advise posters to 'roll over and pay up' instead of fighting their corner. I am sure in some cases that is not helpful, either to themselves or anyone else. For others it may be the only way to go.

 

[DaveNewcastle]

I have been asked to comment on this thread by another regular poster in this section. I speak with some considerable experience in the Courts and knowledge of Railway Law, a background that I draw on when giving advice on here.

I will agree with PuffingBilly0612 insofar as a thorough understanding of the legislation and case law must be combined with an equally thorough understanding of legal process, guidance, standards and practice before giving advice.
However, I believe there is a third element to good legal advice, and that is a balanced estimate of probabilities and costs (in terms of time, money and any sentence) which takes the form of a risk assessment.

To illustrate this, there are occasional reports on here of exceptional incidents in which experts are satisfied that a passenger is in the right on some small arcane technicality, but that the Railway Company has treated the passenger as a fare evader. However, if the prospects of winning a dispute in Law are marginal, the costs likely to be high, the sentence in a conviction would be injurious and the stress and time taken would be deleterious, then my risk assessment would favour the early settlement.

Perhaps, in your circumstances PuffingBilly0612, you have more of an appetite for the conflict, and I am content that your risk assessment will have a different outcome. But it is clear to me that most of the people I have assisted on here or elsewhere are 'ordinary' commuters who simply want to get on with other things in their life, and do not share my interest in case law nor your interest in a contest. They would find that an unwelcome 'stress' in their lives; these are differences of approach which I would want to respect, and I hope you would want to do the same.

As it stands, there used to be a great number of prosecutions brought under the Railway Byelaws around a hundred years ago, and a significant proportion were overturned on Appeal. The Byelaws as written were simply not robust in the face of the standards of evidence which Railway Companies could reasonably adduce and where they would not be able to provide the necessary proof of 'intention' (See Bentham v Hoyle 1878 and London & Brighton Railway Co v Watson 1879) (There were other defects as well). Since the Byelaws were re-written in 1965 and again in 2005, however, they have been seen to be much more robust in the face of a contested claim (See Boddingon v British Transport Police 1995 and Burns v First Capital Connect 2012).

In reponse to the argument of causation, I think we are all quite clear that the Railway investigators are reasonable in attempting to identify those instances in which a passenger had some simple excuse for being unable to provide a ticket for inspection at a particular moment; I am certainly aware of numerous examples where the passenger was advised on here to write with an explanation and perhaps some supporting documentation, following which the Company accepted the explanation. No causation and no prosecution. I refute the suggestion that the advice of here is significantly biased towards acceding to the Railway Company's will to prosecute and encouraging unnecessary settlements, though I will say that I do not always agree with other members, and there are a few who sometimes become muddled in their own enthusiasm to repond.

In conclusion, I will make one more point, for balance. It has become very clear to me over the years that there are many regular rail travellers who are blissfully unaware of the responsibilities and consequences of travel without a valid ticket; perhaps they have always had a valid season or other ticket when required. And equally, there are a great many who take a chance to reduce their costs by a few pounds over and over again, which leads to the headline statement that 45 million journeys are made each year without a valid ticket, fare evasion costing the industry £240mil p.a., but that many of those travellers, when detected without a valid ticket, become indignant at being accused of wrongdoing.
On this forum, we will see both categories of new-comer seeking advice. Some are apparently genuinely unaware and some knew exactly what they were doing. But we all have to be tested against the same regulations.
I find this forum to achieve a good balance in assessing appropriate advice.

- - - - - - - - - -

Taking a slightly different approach, prompted by your use of the word 'dodgy', I wondered if this might be a good moment to lighten the mood with a look at the humourous list of "top 10 dodgy excuses" listed by the industry's trade association, ATOC? Here. The last time this list was discussed, there was a raft of replies with other 'excuses' heard regularly on the railway. some were credible, most were not.

 

[cuccir]

A few thoughts

• This forum is strong on 'run of the mill' cases. The 'I forgot my railcard' or 'I was in too much of a rush to buy a ticket' cases. Equally, it's also strong where the TOC involved has done something blatantly wrong eg ignored a valid routing, attempted to penalty fare someone who has not had an opportunity to buy a ticket
  
• For cases which are unusual or complex this forum is a little weaker. This is perhaps understandable. There have been several cases where people have successfully avoided prosecution due to unclear circumstances. In many if not all of those, at least one person has advised the OP to just pay up
  
• However, even if there is a chance of winning, much advice is given out of calculations of risk. What is the percentage likelihood of winning? What is the cost of settling out of court? What is the worst possible outcome (ie the potential fine) in the event of a loss? I think the advice you received on your thread
  has largely come from this position. Out of court settlements, whether fair or not, are always the quickest and easiest way of making a problem go away. For many people, that is the desired outcome
  
• One thing that certainly is true is that you can always win a court case, whether it's with sufficient legal knowledge, a very skilled lawyer, or just good luck. But the chance of doing that may often be very low.

From your posts, I think you have an unusually strong sense of justice/injustice (which is very good!). I'm a Marx-reading, Green Party member, Guardian-reading, academic leftie. If you want to join in and overthrow capitalism, then I'm all for it. But while we have the economic-political-legal system that we have, corporate interests will always be better served in court. Many people are happy to pay a certain fee in order to avoid the threat of losing more. I agree that it stinks: the power balance is very uneven. If a TOC decides not to prosecute a case, or even loses, then its losses are minimal. If a passenger loses, the events will be at the best a psychological and financial strain and could be at the worst life damaging. But equally, most people coming here just want an easy life, the advice to pay-up and make it go away is often good advice.

Finally, it should be noted that the thread entitled 'before you ask for advice' is very clear

The forum cannot be held liable for any advice given by any forum member, and none of the advice given on this forum can be considered legal advice. If you are threatened with prosecution you may wish to seek the advice of a solicitor.

 

[Nick W]

I would dispute the belief that this case is in any way, "cut and dry". Speaking as postgraduate student in computer science, I don't think a case based on the premise that Oyster technology, including barriers, cards and readers, always work 100%.

A simple Google will result in numerous incidents of technical problems and security flaws with the system. The system itself has no mechanism for digitally signing transactions or providing the users with indisputable evidence for validation or lack of validation, despite the existence and every-day use of such technologies (e.g. chip and pin, secure websites).

If the OP claims that he heard an audible "beep" and saw a green light when touching his oyster card, and the TOC cannot find anyone who witnessed the OP passing through the barriers in any other way, I don't see how the TOC's case can stand.

I would be interested as to what case law is available for "failed touched in" prosecutions, and what evidence was used to support this.

 

[PuffingBilly0612]

However, I believe there is a third element to good legal advice, and that is a balanced estimate of probabilities and costs (in terms of time, money and any sentence) which takes the form of a risk assessment.

- - - - - - - - - -

Taking a slightly different approach, prompted by your use of the word 'dodgy', I wondered if this might be a good moment to lighten the mood with a look at the humourous list of "top 10 dodgy excuses" listed by the industry's trade association, ATOC? Here. The last time this list was discussed, there was a raft of replies with other 'excuses' heard regularly on the railway. some were credible, most were not.

Great post. I certainly take your point about 'risk assessment'. And you are right, I am a bit of a Rottweiller when it comes to a challenge and I have put up a cfight in court on more than a few occasions (not rail fare issues though) and I've won too - even as a pro se litigant. So I find it hard to tolerate some uniformed jackbooted Nazi when he accosts me on the train and makes my day needlessly stressful, particularly when I think I am right or someone else is wrong or acting immorally and unfairly and doesn't take into account normal human error and treats like a federal crime. I guess I also take the idiom: the worst evil is when good men do nothing' very seriously too. So I don't have a lot of time for those that want an easy resolution, just for the sake of an easy life.

I should like to add another qualifier to what you said. It is also the case that some legal representatives, far from risk assessing what is best for the client will also risk assess for themselves too and rationally work out the smallest amount of work for themselves and at the highest fee, particularly when workloads are at bursting point and legal aid pays peanuts (not that LA is available for fare evasion offences).

I'm sure lawyers are not all unscrupulous, but I think some probably are too. That would result in some who are clearly correct in law being bambazooled into pleading guilty or seeking a swift resolution via an OOC settlement, just to put the matter behind them as soon as possible. There is only one problem with that approach in criminal matters. Criminal convictions, no matter what the sentence is, are never totally behind you - even when they are spent - and until the law changes that also permits the UK to completely expunge old convictions from history (like they can in USA and Canada with an appropriate application and agreement from the state) there is always someone, somewhere out there who will have the power to fish into your history (even dodgy PIs carry out unlawful background checks) and use your past to prevent you getting on with your life. Even accepting a police caution is not a good idea, no matter what you are advised to do at the time because to accept a police caution, although not a recorded conviction, is still an admission of guilt in a criminal case and to so many people an admission of guilt is a conviction and no amount of what they would regard as 'hair splitting' will alter that viewpoint.

So, if you can bear to and can ride it out and put up a fight, after risk assessing your chances of success, I would always plead not guilty and say nothing and let the Prosecution prove its case against you.
--- old post above --- --- new post below ---

A few thoughts

• This forum is strong on 'run of the mill' cases. The 'I forgot my railcard' or 'I was in too much of a rush to buy a ticket' cases. Equally, it's also strong where the TOC involved has done something blatantly wrong eg ignored a valid routing, attempted to penalty fare someone who has not had an opportunity to buy a ticket
  
• For cases which are unusual or complex this forum is a little weaker. This is perhaps understandable. There have been several cases where people have successfully avoided prosecution due to unclear circumstances. In many if not all of those, at least one person has advised the OP to just pay up
  
• However, even if there is a chance of winning, much advice is given out of calculations of risk. What is the percentage likelihood of winning? What is the cost of settling out of court? What is the worst possible outcome (ie the potential fine) in the event of a loss? I think the advice you received on your thread
  has largely come from this position. Out of court settlements, whether fair or not, are always the quickest and easiest way of making a problem go away. For many people, that is the desired outcome
  
• One thing that certainly is true is that you can always win a court case, whether it's with sufficient legal knowledge, a very skilled lawyer, or just good luck. But the chance of doing that may often be very low.

I'm a Marx-reading, Green Party member, Guardian-reading, academic leftie.

EEEEK!!!

Seriously, it is the leftie, diversity obsessed, unelected not-so-do-gooding social engineering obsessed think-tankers and NLP trained psychobabblists with a Communitarian agenda that is creating all of this misery in the first place. Not the libertarians amongst our flock, who just want to go about their daily business and live in freedom but within the safety and security of common law, instead of doing battle with an ever growing mountain of revenue raising Statutes and and paid enforcement officials to spoil their day.

 

[LateThanNever]

I'm a Marx-reading, Green Party member, Guardian-reading, academic leftie.
EEEEK!!!

Seriously, it is the leftie, diversity obsessed, unelected not-so-do-gooding social engineering obsessed think-tankers and NLP trained psychobabblists with a Communitarian agenda that is creating all of this misery in the first place. Not the libertarians amongst our flock, who just want to go about their daily business and live in freedom but within the safety and security of common law, instead of doing battle with an ever growing mountain of revenue raising Statutes and and paid enforcement officials to spoil their day.

I too used to read the Guardian but can't afford to any longer owing to the expense of rail fares. I heartily agree that you have to stand up for your rights and this strict liability - which also exists for energy companies - would never exist had they not been transferred from the Nationalised indu stries of BR, Gas and Electricity. This same liability also exists for somebody who holds an alcohol licence where you can be prosecuted for selling to an under 18 even if he looked and you genuinely believed him to be 58. But licensing is at least enforced by the Police who are generally better at discretion than some jobsworth employed on commision by a private corporation. And That really is the nub of the problem. Probably the battle should be with Parliamnet rather than the railway..

 

[island]

I think the key point from this post is the risk trade off. I don't think anyone else on the forum, with the exception of the esteemed DaveNewcastle, knows, much less cares about, the difference between absolute liability and strict liability. In a number of cases we have seen, there is available a technical defence which could be argued by a lawyer who is experienced and skilled in matters of railway law. A run of the mill lawyer or a defendant appearing unrepresented in court would, we think, be unlikely to succeed and could result in the defendant losing the possible credit for a guilty plea, not to mention facing additional costs and missing the opportunity to settle beforehand.

The number of such experienced and skilled lawyers is almost certainly very low. Most of the posters on this forum are unlikely to be adequately resourced to employ one. Therefore, I admit that we frequently recommend settling out of court when there is a non-zero possibility that the passenger could have escaped conviction. But equally, when it is clear that the passenger is in the right, we regularly go to all feasible lengths to assist them.

The risk/reward trade-off for any person will be different.

I am reminded of Nick Freeman, a solicitor renowned for getting road traffic charges dismissed or not guilty verdicts on the most tenuous or technical of grounds or due to daft slip-ups by the prosecution. (One that sticks in my mind from reading his book was where a starstruck junior barrister asked and was allowed to sit behind Freeman while he defended his client at Magistrates Court. Now, the defendant is not required to appear at Magistrates Court proceedings if he is legally represented, and in this case he did not. The case was something relatively serious (I think driving with excess blood alcohol) and the arresting officer in cross-examination referred to "your client" in a throwaway remark while pointing to the barrister. Freeman very quickly obtained a not guilty verdict due the officer identifying the wrong person.)

 

[richw]

What you've got to remember on the forum, very few of the members are qualified to provide legal advise and most of the advise given comes from knowledge of previous similar cases which have gone to court, and the knowledge of the fines issued.
What you have to remember is if you're after correct legal advise, pay a specialist solicitor, who is specialised in railway and ticketing offences.
The advise given on here I can assure you is far better than the advise you'd receive from the alternative free option, the citizens advise bureau.

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.

If you want the best and accurate advise pay the top money for it. Simple and common sense really.
Why come on a forum for advise if you've already got a solicitor involved. Total waste of time really.

 

[PuffingBilly0612]

I think the key point from this post is the risk trade off. I don't think anyone else on the forum, with the exception of the esteemed DaveNewcastle, knows, much less cares about, the difference between absolute liability and strict liability.

This is a rather ridiculous comment. The magistrates courts will not only want to know but they will have to know the difference between them, and that is what counts. Otherwise, the case could go to CoA if the law is incorrectly applied.

 

[island]

This is a rather ridiculous comment. The magistrates courts will not only want to know but they will have to know the difference between them, and that is what counts. Otherwise, the case could go to CoA if the law is incorrectly applied.

1. I said "anybody on this forum". Magistrates are not on this forum, and in any case they would seek advice from their legal adviser if the matter came up.

2. An appeal from Magistrates' Court goes to the Crown Court AFAIK.

3. Would you care to enlighten us as the difference if you feel it is this important?

 

[DaveNewcastle]

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 will be proved if the passenger was found to be in the situation described by the Act or Byelaw. An example would be that they were found to be attempting to exit a ticket barrier without a valid ticket. There is no need for the prosecution to show that the passenger intended to avoid the payent of a fare ( - the mens rea) 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".

An absolute liability offence is similar in that there is no need for the Prosecution to offer proof of "intent", but in addition, there is no need to prove the connection between the person and the action which would be adequate for the link of "causation". I expect that the only current Railway Byelaw which might fall short of the requirement for "causation" might be 16, The Control of Animals in which it is the creature which can be refused entry.

The upshot of this distinction, which is far from being as clear in practice as it might be in the classroom, is that a railway officer facing a prosecution would wish to be satisfied that the person at fault had in some way brought about the state of affairs which are captured by the legislation. Being, or having been, a passenger on a train will satisfy that test.

 

[LateThanNever]

This is a rather ridiculous comment. The magistrates courts will not only want to know but they will have to know the difference between them, and that is what counts. Otherwise, the case could go to CoA if the law is incorrectly applied.

Leaving aside that technically the Crown Court is the next appeal stage it seems to have been forgotten that most magistrates are lay so may not be that aware of liability differences. They obviously have the help of a clerk but as anyone who has been to a magistrates court will be aware it is generally pretty rough justice and if you want to make your point you have to make sure the court is aware of every minute detail. As the point about the traffic case indicates - detail is critical.
Also when I think about it presumably the railway company has to give the evidence to the CPS/Procurator Fiscal so they could in the end decide there is insufficient evidence to bring a prosecution before the case comes to court?

 

[transmanche]

Also when I think about it presumably the railway company has to give the evidence to the CPS/Procurator Fiscal so they could in the end decide there is insufficient evidence to bring a prosecution before the case comes to court?

No, they bring the prosecution themselves.

 

[DaveNewcastle]

. . . . . the railway company has to give the evidence to the CPS/Procurator Fiscal so they could in the end decide there is insufficient evidence to bring a prosecution before the case comes to court?

. . . or, as in Burns v First Capital Connect (which I referred to here this morning), the Company didn't attend the Court of Appeal at which the judges so clearly determined that "no Offence was . . . capable of having been committed under Byelaw 18(2)" when the passenger presented his Oyser card with insufficient funds.

 

[LateThanNever]

No, they bring the prosecution themselves.

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!??

 

[island]

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 will be proved if the passenger was found to be in the situation described by the Act or Byelaw. An example would be that they were found to be attempting to exit a ticket barrier without a valid ticket. There is no need for the prosecution to show that the passenger intended to avoid the payent of a fare ( - the mens rea) 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".

An absolute liability offence is similar in that there is no need for the Prosecution to offer proof of "intent", but in addition, there is no need to prove the connection between the person and the action which would be adequate for the link of "causation". I expect that the only current Railway Byelaw which might fall short of the requirement for "causation" might be 16, The Control of Animals in which it is the creature which can be refused entry.

The upshot of this distinction, which is far from being as clear in practice as it might be in the classroom, is that a railway officer facing a prosecution would wish to be satisfied that the person at fault had in some way brought about the state of affairs which are captured by the legislation. Being, or having been, a passenger on a train will satisfy that test.

Thank you very much for this, it is very enlightening.

 

[transmanche]

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!??

Royal Mail for one.

I'd imagine other bodies which have statutory byelaws (e.g. TfL, Nexus, local authorities) also bring their own prosecutions.

 

[LateThanNever]

Royal Mail for one.

I'd imagine other bodies which have statutory byelaws (e.g. TfL, Nexus, local authorities) also bring their own prosecutions.

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

 

[PuffingBilly0612]

1. I said "anybody on this forum". Magistrates are not on this forum, and in any case they would seek advice from their legal adviser if the matter came up.

2. An appeal from Magistrates' Court goes to the Crown Court AFAIK.

3. Would you care to enlighten us as the difference if you feel it is this important?

---------------------

2. If the defence believes there is a point of law issue ('by way of case stated') then it would go straight to the higher court (Criminal CoA to examine whether the law was correctly applied or not. If it was the conviction will stand; if there was an error - in law - then the CoA will either overturn the conviction or send the case back to the MC). The Crown court only deal with automatic MC appeals requiring a re-trial (on finding of fact) or appeal against sentence imposed by the MC.

3. What I 'feel' is important is neither here nor there; what the law says is what matters. I already gave some information about this on an earlier post but you can google it easily enough too. There is tons of info on the subject.

 

[jkdd77]

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 will be proved if the passenger was found to be in the situation described by the Act or Byelaw. An example would be that they were found to be attempting to exit a ticket barrier without a valid ticket. There is no need for the prosecution to show that the passenger intended to avoid the payent of a fare ( - the mens rea) 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".

An absolute liability offence is similar in that there is no need for the Prosecution to offer proof of "intent", but in addition, there is no need to prove the connection between the person and the action which would be adequate for the link of "causation". I expect that the only current Railway Byelaw which might fall short of the requirement for "causation" might be 16, The Control of Animals in which it is the creature which can be refused entry.

The upshot of this distinction, which is far from being as clear in practice as it might be in the classroom, is that a railway officer facing a prosecution would wish to be satisfied that the person at fault had in some way brought about the state of affairs which are captured by the legislation. Being, or having been, a passenger on a train will satisfy that test.

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.

It raises an interesting question about whether a person who is coerced to travel on a train against his will would be guilty of the byelaw offence, and indeed whether, in all the circumstances, the unwilling passenger has even entered into a contract to travel.

 

[island]

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