Fare evaders - what happens if they run?

[JamesRowden]

Murray Vs Leisureplay (2005) EWCA Civ 963
English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable.

An £80 penalty on a fare of less than £5 for example?

If someone is travelling on a train without buying a ticket they are not breaking a contract because they have not entered a contract (they are trespassing/stealing).

 

[soil]

There should be no profit at all. The 'out of court settlement' should accurately reflect the costs the TOCs have incurred (as it should), but it's patently obvious that Northern's £80 'Penalty Fare' is mostly profit.

I managed to find reference to the law that covers this:

http://www.penaltycharges.co.uk/pages.php?id=4

This part is especially interesting:

Murray Vs Leisureplay (2005) EWCA Civ 963
English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable.

An £80 penalty on a fare of less than £5 for example?

Well yes and no.

The issue here is that indeed in contract law, you generally can't enforce a penalty of £80 for a breach costing £5.

This is reflected in the fact that the compensation in court is only the fare avoided, not double it or anything silly like that.

However that doesn't affect criminal penalties, which can be any amount, unrelated to the actual loss, if provided for by Parliament.

Example:

I overstay in private carpark - loss to car park £1 (an hour), I owe them £1 (no matter what they might argue otherwise)
I overstay in council car park - loss to council £1, but there are penalties provided for by law, I owe them £80

In the case of Northern, they are entitled to bring a private prosecution, and they are perfectly within their rights to blackmail people with the £80 'penalty' to drop the prosecution. Since the fee is to drop the criminal prosecution, it is not a penalty for breach of contract.

 

[Tibbs]

If someone is travelling on a train without buying a ticket they are not breaking a contract because they have not entered a contract (they are trespassing/stealing).

Isn't there an implied contract?

 

[soil]

If someone is travelling on a train without buying a ticket they are not breaking a contract because they have not entered a contract (they are trespassing/stealing).

There is an implied contract to buy a ticket when you travel on the train, just as when you go into a restaurant and order some food, there is an implied contract to pay the bill at the end.

It is not theft or trespass, but specific railways offences that allow the TOCs to mount a somewhat effective anti-avoidance regime.

 

[Tibbs]

Well yes and no.

The issue here is that indeed in contract law, you generally can't enforce a penalty of £80 for a breach costing £5.

This is reflected in the fact that the compensation in court is only the fare avoided, not double it or anything silly like that.

However that doesn't affect criminal penalties, which can be any amount, unrelated to the actual loss, if provided for by Parliament.

Example:

I overstay in private carpark - loss to car park £1 (an hour), I owe them £1 (no matter what they might argue otherwise)
I overstay in council car park - loss to council £1, but there are penalties provided for by law, I owe them £80

In the case of Northern, they are entitled to bring a private prosecution, and they are perfectly within their rights to blackmail people with the £80 'penalty' to drop the prosecution. Since the fee is to drop the criminal prosecution, it is not a penalty for breach of contract.

I'm glad I'm not the only one who makes the link between TOC behaviour and blackmail / bribery.

 

[JamesRowden]

There is an implied contract to buy a ticket when you travel on the train, just as when you go into a restaurant and order some food, there is an implied contract to pay the bill at the end.

It is not theft or trespass, but specific railways offences that allow the TOCs to mount a somewhat effective anti-avoidance regime.

Travelling on a train while intentionally not paying seems the same type of offence as shop lifting to me (offender gets the service of the company without paying).

 

[soil]

Travelling on a train while intentionally not paying seems the same type of offence as shop lifting to me (offender gets the service of the company without paying).

No it's not the same thing at all.

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly."

The key word here is 'property'.

If you take a joint of beef or a packet of razor blades, that s 'property' you have 'permanently deprived' the shop of. If you go on the train without paying, you have not permanently deprived them of any property.

 

[JamesRowden]

The key word here is 'property'.

I regard space on a rail service to be the property of the TOC. Once one has made that journey that property cannot be given back. It may not be a form of physical property like a razor blade but there are other forms of property that are considered in law such interlectural property.

You might say that if the train was not full then it is not like a product being taken from a shop that could have been given to someone else, but shops overstock and have to throw things out (e.g. food) and so seems to work the same way.

 

[Tibbs]

I regard space on a rail service to be the property of the TOC. Once one has made that journey that property cannot be given back. It may not be a form of physical property like a razor blade but there are other forms of property that are considered in law such interlectural property.

You might say that if the train was not full then it is not like a product being taken from a shop that could have been given to someone else, but shops overstock and have to throw things out (e.g. food) and so seems to work the same way.

You may regard it as that, but the law at large doesn't.

It's why film companies can't get freetards (people who download illegally) prosecuted under theft legislation, they have to go after them for copyright infingement as they haven't actually stolen anything..

 

[JamesRowden]

You may regard it as that, but the law at large doesn't.

It's why film companies can't get freetards (people who download illegally) prosecuted under theft legislation, they have to go after them for copyright infingement as they haven't actually stolen anything..

I think that 'Copyright infringement' is a form of theft even if you personally might not have a word that covers all acts of illegally obtaining something that belongs to someone else (does not need to be an object).

Law is open to interpretation and I personally think that the offence of intentially using a rail service without paying is closer to shop lifting than to not keeping to all the terms of a signed contract.

 

[soil]

I think that 'Copyright infringement' is a form of theft even if you personally might not have a word that covers all acts of illegally obtaining something that belongs to someone else (does not need to be an object).

Law is open to interpretation and I personally think that the offence of intentially using a rail service without paying is closer to shop lifting than to not keeping to all the terms of a signed contract.

You have the right to be wrong. The law is actually extremely clear about both of these cases.

Copyright infringement is not in law theft, nor is fare evasion. Both might be criminal offences, but they are not in law theft.

 

[JamesRowden]

You have the right to be wrong. The law is actually extremely clear about both of these cases.

Copyright infringement is not in law theft, nor is fare evasion. Both might be criminal offences, but they are not in law theft.

I was not saying that the law officially refers to fare evading as theft. I was writing philosophically about what other offences it seems most similar to (and therefore reason would indicate that it could be treated in a similar way to). The main point I was making is that I do not think that you can assume that because there is a law about 'breach of contract' that it must include fare evaders. I think that this law might have been made and have been intended for a different application.

 

[Tibbs]

Well yes and no.

The issue here is that indeed in contract law, you generally can't enforce a penalty of £80 for a breach costing £5.

This is reflected in the fact that the compensation in court is only the fare avoided, not double it or anything silly like that.

However that doesn't affect criminal penalties, which can be any amount, unrelated to the actual loss, if provided for by Parliament.

Example:

I overstay in private carpark - loss to car park £1 (an hour), I owe them £1 (no matter what they might argue otherwise)
I overstay in council car park - loss to council £1, but there are penalties provided for by law, I owe them £80

In the case of Northern, they are entitled to bring a private prosecution, and they are perfectly within their rights to blackmail people with the £80 'penalty' to drop the prosecution. Since the fee is to drop the criminal prosecution, it is not a penalty for breach of contract.

I guess the issue here is whether Northern's PF represents a criminal penalty. Since there is no law relating to it, I would think not.

The reasonable thing seems to be to pay the £80, wait until the statute of limitations is up for prosecution then claim your £80 back. It's certainly what I'd do if I were in that position.

With the added advantage of interest @ 8% as well! Much better than you get in the marketplace these days...

 

[soil]

I was not saying that the law officially refers to fare evading as theft. I was writing philosophically about what other offences it seems most similar to (and therefore reason would indicate that it could be treated in a similar way to). The main point I was making is that I do not think that you can assume that because there is a law about 'breach of contract' that it must include fare evaders. I think that this law might have been made and have been intended for a different application.

There isn't a law about breach of contract per se, it's part of common law, essentially custom that has built up over hundreds of years applying to contracts.

 

[transmanche]

Law is open to interpretation and I personally think that the offence of intentially using a rail service without paying is closer to shop lifting than to not keeping to all the terms of a signed contract.

I feel that most people will not agree, tending to view 'theft' of a service as less severe than theft of a 'thing'.

Take the situation of a shoplifter who steals an item retailing for £10 which has a 50p profit margin. The shopkeeper now has to replace the item, costing him actual financial loss of £9.50 - i.e. it has cost him the profit he would have earned from selling 19 units. Meaning he now has to sell 19 extra units just to break even.

Whereas in the case of a railway journey, unless a potential fare-paying passenger was unable to board the train, the actual financial loss[*] is virtually nil.

Hence the need for other laws to cover ticketless travel - otherwise the 'theft' would be for the value of fractions of a penny.

* I.e. the extra cost of fuel, wear & tear, etc, of carrying the passenger.

 

[JamesRowden]

Take the situation of a shoplifter who steals an item retailing for £10 which has a 50p profit margin. The shopkeeper now has to replace the item, costing him actual financial loss of £9.50 - i.e. it has cost him the profit he would have earned from selling 19 units. Meaning he now has to sell 19 extra units just to break even.

But what if the person evading would have payed for the fare and still made the same journey if they had feared getting caught if they tried to evade?

There are some tickets that cost a hundred of pounds and someone could potentially get away with getting two cheap tickets that work at the barriers of both the origin and the destination and try hiding in the toilet when the ticket inspector passes through the train (as a lady who was an earlier subject of this thread did).

 

[maniacmartin]

I don't see how that refutes transmache's post at all.

 

[Spaceflower]

Part of the amended theft act 1978 thus

http://www.legislation.gov.uk/ukpga/1978/31

To include obtaining service along with property.

I know this as its a big problem in the fishing industry with regards to sport fishing without paying...
--- old post above --- --- new post below ---
[

 

[michael769]

Isn't part of the theft act
[

The CPS would beg to differ.

You will often have a choice between specific legislation relating to the form of transport, and proceedings under the Theft Act 1978 or Forgery and Counterfeiting Act 1981. See the Fraud Act 2006 and Forgery and Counterfeiting elsewhere in the Legal Guidance.

 

[Spaceflower]

How is that differing (other than the fact it could also fall foul of additional legislation depending upon which way a TOC prefers to pursue it)?

I feel you've misinterpreted my original post. Let me try and re-word it....

P.S. I meant my original post as a question. i.e Isn't part of the theft act thus?
http://www.legislation.gov.uk/ukpga/1978/31

 

[island]

I managed to find reference to the law that covers this:

http://www.penaltycharges.co.uk/pages.php?id=4

This part is especially interesting:

Murray Vs Leisureplay (2005) EWCA Civ 963
English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable.

An £80 penalty on a fare of less than £5 for example?

Not this old chestnut again. This has nothing to do with a breach of contract nor a penalty clause. It is a payment made by a person who has committed a crime, in recognition of which the victim of the crime will not pursue a prosecution.

 

[michael769]

I feel you've misinterpreted my original post. Let me try and re-word it....

You are right, I did take a different meaning from your original wording.

 

[soil]

Not this old chestnut again. This has nothing to do with a breach of contract nor a penalty clause. It is a payment made by a person who has committed a crime, in recognition of which the victim of the crime will not pursue a prosecution.

However the eventual compensation in court relates to the contractual fare due. On top of which there are fines and costs.

 

[Tibbs]

Not this old chestnut again. This has nothing to do with a breach of contract nor a penalty clause. It is a payment made by a person who has committed a crime, in recognition of which the victim of the crime will not pursue a prosecution.

So a bribe then.

 

[Swirlz]

So a bribe then.

Covering their administration costs that people breaching whatever railway legislation have caused them to incur.

Seems reasonable to me. Northern's £80 penalty is hardly excessive, it is the same as TfL's Penalty Fare and the same amount as the majority of Police Fixed Penalty Notices for Disorder.

Would you take a speeding ticket for say, £80, or elect to go to court, where the fine is likely to be double, if not triple? Same principal applies to fare irregularities.

 

[Spaceflower]

So what's the alternative?

I do empathise with some though. A heavy handed approach without right of appeal I think is a little unfair, particularly on today's railway. By the industries own admission, the fare structure is often so complicated that you'd need a phd to fully understand it. I bet there are alot of genuine mistakes unfairly penalised by such an approach.

And if rail staff can't understand it sometimes, what chance do members of the public?
--- old post above --- --- new post below ---
It's not bribery, it's bullying.

 

[Swirlz]

So what's the alternative?

I do empathise with some though. A heavy handed approach without right of appeal I think is a little unfair, particularly on today's railway. By the industries own admission, the fare structure is often so complicated that you'd need a phd to fully understand it. I bet there are alot of genuine mistakes unfairly penalised by such an approach.

And if rail staff can't understand it sometimes, what chance do members of the public?
--- old post above --- --- new post below ---
It's not bribery, it's bullying.

They do have a right of "appeal", they can choose to go to court.

 

[silencio]

Given my current situation (see my thread) I definitely see Northern Rail as a bully.

 

[Bald Rick]

Stop teasing. How much were quoted?

Lowest was £250, highest £900.

 

[ScottMathew]

In my opinion, the issue isn't a complicated grey area, but a simple one: You do NOT get on a train without already having bought a ticket for your journey prior to getting on it.