Fallout for rail prosecutions from Post Office scandal

[Fawkes Cat]

I suspect, but do not know, that the CPS takes some over specifically so that they can discontinue them, considering that the prosecution is oppressive or malicious.

Pretty sure that that is precisely what happens, especially since (as @Kirkstall one told us above) cases can come to the CPS's attention

where the CPS learns of the private prosecution in another way, for example, from a press report.

 

[Tetchytyke]

I suspect, but do not know, that the CPS takes some over specifically so that they can discontinue them, considering that the prosecution is oppressive or malicious.

That is generally precisely why they are taken over, although not always, such as the infamous (and heart-breaking) case of Eleanor de Freitas.

If a private prosecution is being conducted properly, the CPS are normally content to let the private prosecutor just crack on.

FWIW it's unlikely the Post Office cases would have had a different outcome even if the DPP had taken them over, given that Fujitsu and Post Office senior managers were content to say on oath during prosecutions that Horizon could not be tampered with.

 

[yorksrob]

*One has to wonder just why there are so many different railcards with different benefits and restrictions.

There's a very simple solution to that. (Cough "national railcard" cough).

However this whole affair raises the question if the police aren't trusted to bring their own prosecutions, why on earth are companies (public or private) trusted to.

 

[KirkstallOne]

Actually reading that link again it seems TV licensing, railways etc are not classed as private prosecutions as they are ‘entities with a statutory power to prosecute’. Makes sense given the tiny number referred to the CPS in the FOI request. The relevant link seems to be:

https://www.cps.gov.uk/legal-guidance/relations-other-prosecuting-agencies-and-prosecutors-convention

So railways are in a privileged position in that prosecutions would only be taken over “in wholly exceptional circumstances where all other avenues of discussion have been exhausted”.

All the more reason that they should fulfil their duties to the court scrupulously, something that we have seen on this forum is not always the case.

 

[Titfield]

There's a very simple solution to that. (Cough "national railcard" cough

It smacks of "oh so and so can have a railcard, why dont we introduce one for....."

I still think there is a good case for a "TNEFAOC" Railcard.

(Those Not Eligible For Any Other Card).

 

[Enthusiast]

Recently, I read an article on the Evening Standard newspaper about the Single Justice Procedure.

There is much criticism of the SJP but among that criticism there is never any proper explanation of the procedure.

To be clear:

The SJP can only be used:

• where the defendant was aged 18 or over when charged.
• where the offence is "summary only" and cannot be dealt with by a term of imprisonment

It cannot be used:

• where the defendant has given notice that he will plead not guilty
• where the defendant has given notice that he requires a personal hearing in the "normal" Magistrates' Court.[my emphasis]

This would rule out all the prosecutions under the "Horizon" fiasco because, as far as I am aware, all charges were brought under the Theft Act (usually false accounting) and so would be "either way" offences which carry a custodial sentence. But the last point is most important. All the criticism I have seen of the SJP mentions "Secret courts" "Behind Closed Doors" and similar phrases. It also gives the impression that the defendant has no option but to submit to being dealt with under the that process. However, Single Justice Procedure Notices, to which a defendant is asked to respond, quite clearly give the accused three options:

• To plead guilty and have their matter dealt with under the SJP.
• To plead guilty and request a personal appearance in court.
• To plead not guilty.

The sentencing process under the first two options, including any costs and surcharges, is identical. There is no risk of a harsher penalty by requesting a personal hearing. So nobody is compelled to be "tried behind closed doors."

 

[Hadders]

One would hope that simplifying the system would reduce mistakes, reduce wrong advice, make it less easy for persistent offenders to play the innocent mistake card.

I’m in favour of simplification but not if it increases fares, which it undoubtedly would. You only need to look at (nationalised) LNER’s recent ‘simplification’ to see what would happen - and that’s just for starters.

I agree that some fares rules are complicated but they shouldn’t be to someone who is correctly trained. Time and again we see TOCs saying something that simply isn’t true. I doubt there’s malice involved - it’s down to knowledge and training.

 

[Merle Haggard]

It smacks of "oh so and so can have a railcard, why dont we introduce one for....."

I still think there is a good case for a "TNEFAOC" Railcard.

(Those Not Eligible For Any Other Card).

In the days of Inter City, some wag suggested that the then-blossoming variety of railcards should all be withdrawn and fares reduced; and a new railcard "Businessman's Railcard" introduced. Presentation of this would result in double the standard fare being charged.

in effect, this is what railcards aimed to do - to identify segments of the market that were price sensitive and provide a railcard while leaving the then-lucrative business travel market un-discounted.

 

[Titfield]

I agree that some fares rules are complicated but they shouldn’t be to someone who is correctly trained. Time and again we see TOCs saying something that simply isn’t true. I doubt there’s malice involved - it’s down to knowledge and training.

How much knowledge can an individual be expected to have? If a fact (piece of knowledge) is changed how do we expect the individual to refresh their knowledge?

There are 9 national railcards and 13 regional railcards. Should a ticket seller be expected to know the rules and restrictions for all of these?

When I worked in retail travel years ago I learned a raft of core facts but it was repeatedly drummed into me do not assume, do not guess but recheck.

A large part of the training was not "facts" but where to find the "facts".

 

[mrmartin]

To be honest the more I think about it the more misleading the PF scheme is.

It seems completely arbitrary reading this forum whether people get a PF or not.

There is also loads of prominent signage which if you didn't read correctly, you'd assume you'd get a PF for.

TfL is much clearer IMO that you may get a penalty fare OR prosecution. The rest of the network never seems to say that and I think the lay person would think - especially from the signs that list all the reasons you could get one - that you would get that had you not had a ticket.

Now if it was the case that PFs were always given apart from repeat or serious 'fraud' I'd understand and support that. But it doesn't seem to be the case at all.

I think really if the railway wants all these special powers, they have to get their house in order to keep them. And that means consistency, quality control of their own staff with 'mystery shoppers' and other auditing.

 

[Western Sunset]

I feel that the role of the CPS in the Horzion scandal is being "bigged-up" in certain quarters due to:
a) who was a former DPP
b} an impending General Election

 

[yorksrob]

It smacks of "oh so and so can have a railcard, why dont we introduce one for....."

I still think there is a good case for a "TNEFAOC" Railcard.

(Those Not Eligible For Any Other Card).

Indeed.

 

[sheff1]

How much knowledge can an individual be expected to have? If a fact (piece of knowledge) is changed how do we expect the individual to refresh their knowledge?

There are 9 national railcards and 13 regional railcards. Should a ticket seller be expected to know the rules and restrictions for all of these?

When I worked in retail travel years ago I learned a raft of core facts but it was repeatedly drummed into me do not assume, do not guess but recheck.

A large part of the training was not "facts" but where to find the "facts".

And that is something clearly missing on 'the railway' (even when the facts are publicly available in seconds). Even worse are those who refuse to look at the facts even when a passenger attempts to show them - "I know because I have worked here for xx years".

Worse still is when what should be straighforward appeals based on the facts are rejected by a supposedly independent body who can't be bothered to look at the facts themselves (despite not being under any immediate pressure, which a ticket checker on a train might be) and instead take the lies fed to them by TOCs as gospel.

 

[Llanigraham]

The CPS is, like many public bodies, heavily overworked and severely underfunded.

And under-staffed!
And the Court system is the same, with some Courts looking at delays for fixing hearing dates in years, not months.

 

[Hadders]

A large part of the training was not "facts" but where to find the "facts".

I agree. Throughout my (non retail) career I've had to know large amounts of process and procedure. Much of it legal requirement. Things change and I cannot possibly remember everything but I do know where to look something up if I'm not sure.

 

[Egg Centric]

Speculating a bit here but I wonder if at some point the advice given here, for a short transitionary period, will have to be "stall it by doing xyz and they won't be able to prosecute you in a month's time".

 

[John R]

Noone believes me when I tell people that I know that have inadvertently fare evaded (bought ticket to wrong stop for example, or using super off peak instead of off peak at ungated stations) believes the severity of enforcement that they could have had.

Isn’t the only action when a super off peak is held instead of an off peak the excessing of the ticket to the higher fare?

 

[Hadders]

Isn’t the only action when a super off peak is held instead of an off peak the excessing of the ticket to the higher fare?

Correct.

 

[Navajo8686]

My twopence worth.

As with so many things in life there is no correct way IMHO.

CPS aren't going to even open a case file for a £30 avoided railfare let alone a lesser amount and going for a CCJ adds on costs and adding bailiffs into the mix adds even more cost. Can end up more that a current TOC prosecution.

What do you otherwise do with individuals who don't give a damn and 'dont pay, won't pays?

In my experience if a Revenue Officer colleague was uncertain (because of complicated fares/routing tables) then they let it go with a warning - a pragmatic approach which removes the 'wrongly penalise at all costs' scenarios. Having said that the number of those was exceptionally small (in the West Midlands). There is always going to be a ticket 'valid on a Tuesday when it's raining in August only on a journey from Inverness to Penzance via Aberystwyth and Norwich' scenario and these are the absurdities which need sorting out so that RP colleagues don't even have to try to explain them.

I'm always wary of classifying something as an 'honest mistake' - there have to be limits, otherwise if I accidentally ran somebody over in my car I could claim it was an 'honest mistake' and avoid any prosecution. Honest mistakes tend to be subjective dependent on where you stand in the process!

 

[melevittfl]

FWIW it's unlikely the Post Office cases would have had a different outcome even if the DPP had taken them over, given that Fujitsu and Post Office senior managers were content to say on oath during prosecutions that Horizon could not be tampered with.

Post Office lawyers failed to disclose other cases where the Horizon system was alleged to be at fault and failed to disclose expert witness reports saying the same.

CPS lawyers might not have been so willing to commit acts of, at best, professional misconduct, in order to protect their employer.

 

[AHCT]

Single Justice Procedure

As someone pointed out above, false accounting and fraud charges have nothing to do with SJP.

Private prosecutions have long been a feature of English law. The Prosecution of Offences Act 1985 specifically reserves that possibility (although the CPS can take over prosecutions). Private prosecutions can also be used to good effect, such as by the RSPCA in animal welfare cases, although the competing benefits/disadvantages of private prosecutions are a valid legal question see this video for instance. Whatever is to be made of it, it should be noted that private prosecutions have a wide range of uses (often in niche, specialised fields) which should each be considered before abolishing them.

 

[43096]

CPS lawyers might not have been so willing to commit acts of, at best, professional misconduct, in order to protect their employer.

This is the key part. It cannot be right that a person/organisation with a clear beneficial interest in a conviction is allowed to prosecute. That is obviously the case with the Post Office and is also with the TOCs in fare evasion cases.

 

[Bletchleyite]

As someone pointed out above, false accounting and fraud charges have nothing to do with SJP.

Private prosecutions have long been a feature of English law. The Prosecution of Offences Act 1985 specifically reserves that possibility (although the CPS can take over prosecutions). Private prosecutions can also be used to good effect, such as by the RSPCA in animal welfare cases, although the competing benefits/disadvantages of private prosecutions are a valid legal question see this video for instance. Whatever is to be made of it, it should be noted that private prosecutions have a wide range of uses (often in niche, specialised fields) which should each be considered before abolishing them.

Does Scotland suffer major problems by not having them (mostly)?

I'm not sure I support the RSPCA having the ability either, they could report offences to the Police instead.

 

[Tetchytyke]

Post Office lawyers failed to disclose other cases where the Horizon system was alleged to be at fault and failed to disclose expert witness reports saying the same.

CPS lawyers might not have been so willing to commit acts of, at best, professional misconduct, in order to protect their employer.

The presumption in English law is that computer evidence is correct unless the defendant can prove otherwise.

The CPS actually did prosecute a small number of these theft/false accounting cases.

Ultimately certain people within Fujitsu and Post Office lied about Horizon and others within Fujitsu and Post Office deliberately didn't look too closely at Horizon.

CPS aren't going to even open a case file for a £30 avoided railfare let alone a lesser amount

Of course they're not- it wouldn't be in the public interest to prosecute someone for such a trivial amount of money unless they were repeatedly doing it or there was pre-meditation, e.g. falsified documents.

Bog standard low level fare evasion should be dealt with by Penalty Fare.

going for a CCJ adds on costs and adding bailiffs into the mix adds even more cost.

All of the above applies if someone buries their head in the sand, receives a fine, and doesn't pay that fine. And the costs attached to enforcement of criminal judgments are higher than the costs attached to enforcement of a civil judgment.

It's worth noting, too, that the small claims track of the County Court (usually referred to as the Small Claims Court) limits the costs that can be recovered by a plaintiff. A plaintiff can only claim £60 for the costs of issuing the Court claim (if under £500- the fee rises if the amount claimed rises). This fee is far far below what TIL and the TOCs charge as their "administration fees", and is- even more importantly- a defined and fixed fee. It isn't a damp finger in the air.

== Doublepost prevention - post automatically merged: 11 Jan 2024 ==

Isn’t the only action when a super off peak is held instead of an off peak the excessing of the ticket to the higher fare?

In theory- but understanding of this with revenue protection staff is varied, shall we say.

 

[Bletchleyite]

The presumption in English law is that computer evidence is correct unless the defendant can prove otherwise.

Given how many IT systems contain bugs this seems a rather poor position for the law to take, rather than requiring the operator of the computer system to properly evidence that its calculations are correct.

 

[Tetchytyke]

I'm not sure I support the RSPCA having the ability either

I certainly don't, especially having seen the stories that have cropped up in Private Eye relating to the RSPCA's misuse of criminal proceedings.

== Doublepost prevention - post automatically merged: 11 Jan 2024 ==

Given how many IT systems contain bugs this seems a rather poor position for the law to take

Quite.

 

[melevittfl]

The presumption in English law is that computer evidence is correct unless the defendant can prove otherwise.

You're statement in bold is not correct.

The law is that computer evidence is presumed to be correct unless evidence to the contrary is cited. It's not for the defendent to "prove" it's incorrect. Only that the presumption is that it is unless there is evidence to the contrary.

A report by an independent investigation stating that the computer is unreliable would surely meet this test.

From: https://www.cps.gov.uk/legal-guidance/computer-records-evidence

Computer evidence must now follow the Common Law rule, that a presumption will exist that the computer producing the evidential record was working properly at the material time and that the record is therefore admissible as real evidence.

That presumption can, however, be rebutted if evidence to the contrary is adduced. In that event it will be for the party seeking to produce the computer record in evidence to satisfy the court that the computer was working properly at the material time. For detailed guidance as to the law, see <Archbold 9-11 9-15>.

 

[Tetchytyke]

The law is that computer evidence is presumed to be correct unless evidence to the contrary is cited. It's not for the defendent to "prove" it's incorrect. Only that the presumption is that it is unless there is evidence to the contrary.

You're splitting hairs here. The defendant has to have sufficient evidence to rebut the principle. In effect, this means that the defendant has to go an awful long way down the road of proving that the computer evidence is incorrect.

 

[Lucan]

The presumption in English law is that computer evidence is correct unless the defendant can prove otherwise.

It that presumption written down anywhere or is it just a custom? Either way, it is absolutely appaling.

Given how many IT systems contain bugs this seems a rather poor position for the law to take

Make that all IT systems, as anyone who has been the slightest bit involved in programming or systems administration will know. Large systems such as Horizon, SAP, and Windows itself, have teams behind the scenes working on dealing with bugs and patching security holes all the time. In the open source world the equivalent activity can be seen (if you are interested) on open forums where the traffic is constant - there are several developers' forums in the Linux world alone, and I have been a little involved. Software reliability is a specialist subject in itself.

The problem is that an organisation like the Post Office is run by accountants and overseen by politicians, and neither of those groups have a clue about IT beyond what they can see on their screens.

 

[mrmartin]

My twopence worth.

As with so many things in life there is no correct way IMHO.

CPS aren't going to even open a case file for a £30 avoided railfare let alone a lesser amount and going for a CCJ adds on costs and adding bailiffs into the mix adds even more cost. Can end up more that a current TOC prosecution.

What do you otherwise do with individuals who don't give a damn and 'dont pay, won't pays?

In my experience if a Revenue Officer colleague was uncertain (because of complicated fares/routing tables) then they let it go with a warning - a pragmatic approach which removes the 'wrongly penalise at all costs' scenarios. Having said that the number of those was exceptionally small (in the West Midlands). There is always going to be a ticket 'valid on a Tuesday when it's raining in August only on a journey from Inverness to Penzance via Aberystwyth and Norwich' scenario and these are the absurdities which need sorting out so that RP colleagues don't even have to try to explain them.

I'm always wary of classifying something as an 'honest mistake' - there have to be limits, otherwise if I accidentally ran somebody over in my car I could claim it was an 'honest mistake' and avoid any prosecution. Honest mistakes tend to be subjective dependent on where you stand in the process!

Yes but a CCJ doesn't give you a criminal record. If you are in a profession which requires 'good conduct' then the cost of a criminal record can be 100ks if not million+ over your career. That's the whole point. If you look at this forum nearly everyone is worried about the criminal record; not the fine amount, and often these are young people at the start of their career. Whether it is a £300 fine + costs through the courts or £1000 CCJ inc all costs is completely immaterial (plus you'd have chance to pay the CCJ early on which would be much less). And if you really don't care you can just have your credit hit with the CCJ, not your entire ability to earn money.

If anything the current system could be penalty fare, if you don't pay that then prosecution could start - if we were to retain private proseuctions. Going straight to a court summons IMO is overly harsh and completely out of proportion with the losses the railway company has.

Put it another way - does anyone think that (private) parking companies should be able to do private prosecutions to collect parking fines? I would be surprised if anyone would.

As I've often thought; if you are a prolific fare evader that just jumps barriers all the time you won't even get to court in nearly all circumstances, as you'll just run off or give a fake address.