21. We have found that current revenue protection practices in rail are not working as well as they need to and require improvement in the interests of passengers, the rail industry and taxpayers.
22. Fare evasion and revenue loss are increasing, despite new technology that can aid detection. In response, enforcement action by TOCs has become more frequent and robust within the context of the strict liability framework. And process changes – such as the introduction of the SJP – have made it easier for TOCs to prosecute passengers.
23. However, passenger safeguards have not kept pace with these developments, and current revenue protection practices are largely weighted towards the industry. This may result in unfair or disproportionate outcomes with passengers being penalised for innocent or minor mistakes.
24. Action needs to be taken to improve fairness, consistency and transparency while ensuring that TOCs are able to deal with deliberate and persistent fare evaders robustly. Our recommendations to address this are set out below.
...
28. Individual TOCs have considerable scope to set their own approach to revenue protection. Different TOC policies, as well as variation in how frontline staff apply these, mean that passengers can face inconsistent treatment and outcomes for similar types of ticketing issue across the network.
29. Aside from penalty fares (which are prescribed in legislation, with a three-stage appeal process), most of the tools used by TOCs to deal with invalid tickets are not defined in any consistent or transparent way across the industry. While there is a need to reflect specific operational and commercial circumstances, some differences appear arbitrary. This can result in action being taken against a passenger with no formal appeals process in place should the passenger wish to challenge that action.
30. When a passenger claims to have made a mistake with their ticket, the challenge is determining whether this is genuine or not. The judgement of frontline staff plays a key role in this. However, while new technology can help, it is not always possible to determine a passenger’s intent accurately. In such circumstances, a passenger who has made a ‘one-off’ mistake might be penalised or a deliberate fare evader may be given the benefit of the doubt.
31. Building on some existing good practice we have seen, one way of addressing the issue of intent would be for the industry to establish a more systematic approach to recording incidents of ticket irregularities. Where passenger intent is unclear, revenue protection staff could check whether the passenger has a track record of travelling without a valid ticket. If they do not, they could give them the benefit of the doubt, but log the passenger’s details. The passenger could then pay the correct fare due, without being penalised, and the TOC would have greater assurance that they have not let a repeat fare evader off the hook.
32. Likewise, where a penalty fare is appealed, if the appeals body is able to see whether a passenger has a track record of ticket irregularities, that would enable them to better judge whether to give the passenger the benefit of the doubt.
33. Making better use of data in this way would also allow an escalatory approach to be adopted where, if a passenger is found without a valid ticket on subsequent occasions, the consequences become increasingly more serious. This would help to rebalance protections so that they are fairer for fare-paying passengers who have made a ‘one-off’ mistake, while providing for TOCs to deal robustly with those intentionally defrauding the railway.
34. This approach would also be consistent with TOCs putting a greater emphasis on encouraging behavioural change among passengers, which we know a number of TOCs are increasingly looking to do. This includes ensuring passengers see and experience a system that is working for them, where they get support to buy a valid ticket and that they are aware of the consequences of not doing so.
35. In considering this further, we recommend that the industry should establish a common framework for dealing with cases of ticket irregularities. This would include a set of consistent tools underpinned by clear principles, including for example:
- a fair and consistent right of appeal for all types of notice;
- not penalising passengers where there is a ticket irregularity involving no risk of revenue loss;
- consistent with a more escalatory approach, not prosecuting passengers under byelaws for a first or second offence unless there are aggravating factors (such as tailgating or refusing to remedy the lack of a valid ticket); and
- a more coordinated approach to training and evaluation for frontline revenue protection staff to ensure consistent high standards and application of policy.
36. As part of this, there is an opportunity for governments to make clear the overarching strategy for revenue protection. For example, this could make clear the importance of fairness to the process.
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38. Prosecutions should only be undertaken where it is appropriate to do so, given that a conviction is a serious and potentially life changing matter.
39. Crown prosecutors in England and Wales (private prosecutions are very rare under Scottish Law, and so this section focuses on England and Wales) must meet key criteria both to ensure there is sufficient evidence of a crime to secure a conviction and that it is in the public interest to prosecute. This is known as the ‘Full Code Test’. TOCs, as private prosecutors, are not obliged to follow this test but there are good reasons for them to apply or align with it.
40. While it was reassuring to find that many TOCs apply a test that is similar to the Full Code Test, this is not the case for all the TOCs that prosecute. There were six TOCs for whom we either did not see evidence of a formal test or where it was unclear what test they were applying in practice. And more broadly, we saw scope for improvement in the tests that some TOCs applied.
41. The lack of a consistent robust and transparent decision-making framework across the industry risks prosecutions being undertaken where they are not in the public interest, as well as arbitrary treatment depending on which TOC a passenger travels with. There is evidence both from our Call for Evidence and from Transport Focus
research
that passengers have been prosecuted (or faced prosecution) where it would not be in the public interest.
42. Instead of pursuing a prosecution, TOCs can offer passengers the opportunity to settle out of court. This can sometimes serve the public interest better than a prosecution and provide a better outcome for the passenger. However, it is important that TOCs do not use the prospect of prosecution to leverage an unfair settlement.
...
43. While we found the policies of several TOCs to be reasonable in terms of how they calculate out of court settlements, and some examples of good practice that could be adopted more widely, the policies of other TOCs were less clear.
44. There were also some TOCs whose written policies state they may pursue out of court settlements even where there is insufficient evidence to prosecute. We have been unable to clarify this point owing to the time constraints of the review and therefore have no clear evidence that it is happening in practice. However, if TOCs were doing this while leaving passengers under the impression that they will be prosecuted if they do not pay, we consider this would be without basis and unreasonable.
45. TOCs that prosecute need to have fair, evidence-based criteria and should only proceed when it is clearly justified and in the wider public interest. Equally, TOCs need to have similarly clear best practice principles for using out of court settlements.
46. We note that current byelaw strict liability offences regarding travel without a valid ticket empower TOCs to prosecute passengers where there is no evidence of intent or revenue loss and provide passengers with very limited defences in law. While this can be helpful in enabling TOCs to take action against deliberate fare evaders, it puts passengers who have made an honest mistake at risk of prosecution.
47. Following TOCs being
authorised
to use the SJP to prosecute railway byelaw offences in April 2016, it has arguably become easier for them to prosecute. The roll out of a new digital case management system (‘Common Platform’) by HM Courts & Tribunal Service is likely to make it even easier.
48. There is a case therefore for a broader review of the legislation used by the industry to deal with fare evasion. This would include ensuring that there is an appropriate balance between protecting passengers who have made an innocent mistake and protecting the railway and taxpayers from the impact of fare evasion.
