Merseyrail prosecution

[185143]

No sorry, tickets sold in liu of a PF with the red warning on the back says something along the lines of "had an authorised collected being checking tickets you may have been issued a PF... blah blah".

Ah right. No idea then I'm afraid.

 

[Hodgs0]

Indeed but they have undermined that scheme by selling tickets on arrival, without any warning or penalty, more than 99% of the time and then penalising people less than 1% of the time.

FYI Steve Rotherham Metro Mayor has agreed that he is concerned about merseyrail practice & my experiences & has agreed to discuss with merseyrail questions I’ve put to him to ask. Court date set for 17th may… showed case to a solicitor & a magistrate friend - both suggested they think Merseyrail may well drop it but could drop it on the day.

 

[gray1404]

Merseyrail is very militant and stubborn train company hence them waiting until the day of the court hearing to potentially drop it.

Even doing a subject access request from them they insist on having copies of ID along with data that they do not need. I am not saying no data is necessary but last time I did such a request they insisted that I filled out subject access form that requested way more information that was required and they would only accept such a request on their form.

 

[MikeWh]

Even doing a subject access request from them they insist on having copies of ID along with data that they do not need. I am not saying no data is necessary but last time I did such a request they insisted that I filled out subject access form that requested way more information that was required and they would only accept such a request on their form.

If you are confident that they are breaking the rules of subject access then I'd refer them to the ICO.

 

[some bloke]

How about a brief note to the bosses of Merseyrail, Merseytravel and their legal/prosecution department/s, cc: councillors/MP/mayor, pointing out that they are prosecuting despite you informing them of this obvious legal error?

 

[WesternLancer]

FYI Steve Rotherham Metro Mayor has agreed that he is concerned about merseyrail practice & my experiences & has agreed to discuss with merseyrail questions I’ve put to him to ask. Court date set for 17th may… showed case to a solicitor & a magistrate friend - both suggested they think Merseyrail may well drop it but could drop it on the day.

Thanks for this update - it seems you are progressing things in a useful fashion given the circs and points made up thread. Keep us posted!

 

[some bloke]

I'd be tempted to start writing very brief emails to the prosecution department, perhaps beginning with,

"Subj: Please drop case no.xxxx by 5pm today

As I showed in my email/letter of xx March, your interpretation of section 5(1) contradicts the Police Law Handbook.

I suggest it would be better for Merseyrail's reputation if you dropped this case, and I propose that you do so by 5pm today."

You could, if it comes to it, read such emails out in court.

== Doublepost prevention - post automatically merged: 13 Apr 2022 ==

If it seems appropriate, you could follow up within an hour with a polite phone call to the number on the charge sheet, asking for clarification: maybe "given what the book says, I'm unable to understand the charge".

If they don't accept the point about the book, you could move to logical implications of the idea that people should be convicted for one or two "fails".

 

[Watershed]

I'd be tempted to start writing very brief emails to the prosecution department, perhaps beginning with,

"Subj: Please drop case no.xxxx by 5pm today

As I showed in my email/letter of xx March, your interpretation of section 5(1) contradicts the Police Law Handbook.

I suggest it would be better for Merseyrail's reputation if you dropped this case, and I propose that you do so by 5pm today."

You could, if it comes to it, read such emails out in court.

== Doublepost prevention - post automatically merged: 13 Apr 2022 ==

If it seems appropriate, you could follow up within an hour with a polite phone call to the number on the charge sheet, asking for clarification: maybe "given what the book says, I'm unable to understand the charge".

If they don't accept the point about the book, you could move to logical implications of the idea that people should be convicted for one or two "fails".

Frankly I don't think there is much point in sending an email such as this or calling. OP has made exactly the same point previously, but it is clear Ms McLachlan has it in her mind that the OP is guilty and she wants to prosecute her come hell or high water.

So there is little to be gained by antagonising her or her colleagues by setting arbitrary deadlines and making implied threats (e.g. re: Merseyrail's reputation).

 

[some bloke]

it is clear Ms McLachlan...wants to prosecute her come hell or high water.

If this means "she won't listen to reason, no matter what form of words anyone comes up with to explain the mistake", I can't see how the evidence justifies it. For example, maybe someone else advised her to use the wrong interpretation. Maybe she didn't read the emails properly because she was in a rush.

 

[Haywain]

If this means "she won't listen to reason, no matter what form of words anyone comes up with to explain the mistake", I can't see how the evidence justifies it. For example, maybe someone else advised her to use the wrong interpretation. Maybe she didn't read the emails properly because she was in a rush.

Maybe she's just signing the letters and following someone else's instructions. I don't think it's terribly helpful to focus on one person when the situation is clearly and organisational failure.

 

[some bloke]

Maybe she's just signing the letters and following someone else's instructions. I don't think it's terribly helpful to focus on one person when the situation is clearly and organisational failure.

Yes. I'm saying the personal comment seems unfair.

 

[WesternLancer]

Maybe she's just signing the letters and following someone else's instructions. I don't think it's terribly helpful to focus on one person when the situation is clearly and organisational failure.

I do agree with this point. The policy must be set, presumably elsewhere, and the staff expected to deliver it - they may have some discretion in their interpretation I suppose - but there is presumably a corporate approach to taking cases to court - although one would assume that someone must review cases before that final step is taken in order to consider the prospect of losing and the costs associated with that action.

 

[some bloke]

@Hodgs0 may prefer to wait for court. If she wants to sort it out earlier, given that there's no case to answer, it's perhaps not clear what would be lost by sending one or two brief emails, especially where the company has not answered a point.

OP has made exactly the same point previously

I earlier referred to an "email/letter" citing the Police Law book and implied @Hodgs0 sent it to the company. If I now understand correctly, she sent the quotation to the court, rather than as part of the earlier email exchange with the company, and without the URL which enables easy checking that the quotation is genuine. If that understanding is correct, then even if the court sent the quotation to the company, the company may think this is evidence they can't accept yet; and maybe they would have considered it more closely if they'd seen it during the earlier exchange. On that basis it might seem worth sending to the company with the URL.

In any case, can we reasonably assume there's no use writing short emails clarifying points to the company after the summons? In these circumstances it may be hard to know what will cause someone's light bulb to come on.

It may or may not be relevant that the Sentencing Guidelines refer to s.5(1) as "failing to produce ticket":
https://www.sentencingcouncil.org.u...court/item/railway-fare-evasion-revised-2017/
Maybe the company's error has arisen in part because of this and/or other instances of incomplete description. Maybe companies have "successfully" prosecuted people because the defendants didn't know any better, and the magistrates and clerks were led astray by the company and the sentencing guidelines. Then the companies went back for more. If there's any truth to this idea (which I'm not claiming is likely, just exploring) we might, in a way, hope that defence solicitors weren't involved. The explanation why the company made a mistake could help persuade some who need persuading.

== Doublepost prevention - post automatically merged: 13 Apr 2022 ==

The wording of section 5(2) is also highly relevant

Yes - it is obvious that the power to detain can only apply where the person fails all three (ticket, paying, details) and that the wording is similar to 5(1).

 

[Wolfie]

Merseyrail is very militant and stubborn train company hence them waiting until the day of the court hearing to potentially drop it.

Even doing a subject access request from them they insist on having copies of ID along with data that they do not need. I am not saying no data is necessary but last time I did such a request they insisted that I filled out subject access form that requested way more information that was required and they would only accept such a request on their form.

That is of questionable legality if the primary legislation does not (and it absolutely doesn't!) specify such requirements. Frankly their pathetic requirements don't matter as l'm damned sure the ICO, whose website is clear on the issue, wouldn't hesitate to bluntly tell them!

Personally, as a "Whitehall warrior" of 30+ years standing, l would FOI them too demanding the policy behind that too - there are rather too many Mickey Mouse 'big fish in a small pond' types out there who need a salutary lesson....

== Doublepost prevention - post automatically merged: 14 Apr 2022 ==

If you are confident that they are breaking the rules of subject access then I'd refer them to the ICO.

The ICO's own website states

• Individuals can make SARs verbally or in writing, including via social media.

Right of access

ico.org.uk

 

[Fawkes Cat]

Personally, as a "Whitehall warrior" of 30+ years standing, l would FOI them too demanding the policy behind that too - there are rather too many Mickey Mouse 'big fish in a small pond' types out there who need a salutary lesson....

Are Merseyrail FOI-able? They're a commercial company rather than a public authority, and while they may have a contract from a public authority (Merseytravel) I'm not sure that is enough to bring them under the rules.

 

[Watershed]

Are Merseyrail FOI-able? They're a commercial company rather than a public authority, and while they may have a contract from a public authority (Merseytravel) I'm not sure that is enough to bring them under the rules.

They're not - Merseytravel are subject to FoI however they won't hold all of the same the information that Merseyrail will. In many cases they might refuse to disclose information that Merseyrail have provided them with, under one of the numerous FoI exemptions.

However I fear we are veering off topic with this discussion as it is of no real assistance to the OP.

 

[Puffing Devil]

@Hodgs0

It may or may not be relevant that the Sentencing Guidelines refer to s.5(1) as "failing to produce ticket":
https://www.sentencingcouncil.org.u...court/item/railway-fare-evasion-revised-2017/
Maybe the company's error has arisen in part because of this and/or other instances of incomplete description. Maybe companies have "successfully" prosecuted people because the defendants didn't know any better, and the magistrates and clerks were led astray by the company and the sentencing guidelines. Then the companies went back for more. If there's any truth to this idea (which I'm not claiming is likely, just exploring) we might, in a way, hope that defence solicitors weren't involved. The explanation why the company made a mistake could help persuade some who need persuading.

Very rarely would the magistrates be directed to the statute - only if pointed there by one of the parties or their legal advisor. I am only aware of the intricacies of the RORA through this site. I would wager that nearly all magistrates wouldn't know the difference between a prosecution under the bylaws or the RORA and will use the same guideline in any event, as there is no specific guideline for the bylaw.

Also, there's no well known "Mr Loophole" for railway matters - perhaps because there aren't the same number of Ferrari driving miscreants on the Merseyrail system?

 

[Wolfie]

They're not - Merseytravel are subject to FoI however they won't hold all of the same the information that Merseyrail will. In many cases they might refuse to disclose information that Merseyrail have provided them with, under one of the numerous FoI exemptions.

However I fear we are veering off topic with this discussion as it is of no real assistance to the OP.

My last comment in this area, as your last para is correct, the ICO is coming down like a tonne of bricks on inappropriate usage of exemptions.

== Doublepost prevention - post automatically merged: 14 Apr 2022 ==

Are Merseyrail FOI-able? They're a commercial company rather than a public authority, and while they may have a contract from a public authority (Merseytravel) I'm not sure that is enough to bring them under the rules.

A good point.

 

[Watershed]

My last comment in this area, as your last para is correct, the ICO is coming down like a tonne of bricks on inappropriate usage of exemptions.

I really hope so. TfL have refused to disclose even the fares applying for certain daily caps and extension fares, let alone maximum journey times, under the claimed justification that this is to "avoid fare avoidance". Well how about people who just want to know what they'll be charged? TfL are effectively saying they have to guess, which is absolutely unacceptable.

 

[some bloke]

Very rarely would the magistrates be directed to the statute - only if pointed there by one of the parties or their legal advisor. I am only aware of the intricacies of the RORA through this site. I would wager that nearly all magistrates wouldn't know the difference between a prosecution under the bylaws or the RORA and will use the same guideline in any event, as there is no specific guideline for the bylaw.

Thanks - so might @Hodgs0 risk a lot of resistance, through magistrates and/or clerk having repeatedly seen the misleading description of the offence in the Sentencing Guidelines, especially if they are having a bad day?

In previous byelaw and RoRA cases, if magistrates or the clerk looked at the guidelines, they could have seen twice at the top of the page, "s.5(1)" next to "failing to produce ticket". And through that the Sentencing Council provides them, and perhaps defendants and companies, with ongoing miseducation.



https://www.sentencingcouncil.org.u...court/item/railway-fare-evasion-revised-2017/

Perhaps there's a real risk magistrates and/or clerk won't easily take in something that goes against what they're used to. "Are you telling me the company invented an offence and the Sentencing Council has also misled us?"

I wonder if the most likely outcome on the 17th is not that the company is embarrassed by losing, but that they or the magistrates say, "It seems best that the case is adjourned so this can be looked at more closely", and then the case is abandoned, perhaps with the company sending a rude letter to the "defendant".

The Criminal Procedure Rules unsurprisingly require the prosecutor to supply an accurate version of an offence which does exist, when they apply for the summons.



https://www.legislation.gov.uk/uksi/2020/759/contents/made#openingWholeMod

 

[Puffing Devil]

Thanks - so might @Hodgs0 risk a lot of resistance, through magistrates and/or clerk having repeatedly seen the misleading description of the offence in the Sentencing Guidelines, especially if they are having a bad day?

In previous byelaw and RoRA cases, if magistrates or the clerk looked at the guidelines, they could have seen twice at the top of the page, "s.5(1)" next to "failing to produce ticket". And through that the Sentencing Council provides them, and perhaps defendants and companies, with ongoing miseducation.

View attachment 113063

https://www.sentencingcouncil.org.u...court/item/railway-fare-evasion-revised-2017/

Perhaps there's a real risk magistrates and/or clerk won't easily take in something that goes against what they're used to. "Are you telling me the company invented an offence and the Sentencing Council has also misled us?"

I wonder if the most likely outcome on the 17th is not that the company is embarrassed by losing, but that they or the magistrates say, "It seems best that the case is adjourned so this can be looked at more closely", and then the case is abandoned, perhaps with the company sending a rude letter to the "defendant".

The Criminal Procedure Rules unsurprisingly require the prosecutor to supply an accurate version of an offence which does exist, when they apply for the summons.

View attachment 113048

https://www.legislation.gov.uk/uksi/2020/759/contents/made#openingWholeMod

I see nothing misleading - S5(1) is very much failure to produce.

With all law, the devil is in the detail and the interpretation. Personally, I would not run a defence based on the interpretation of the statute without a lawyer by my side.

Edit to add - for a comparison look at the guideline for "Failure to provide [a specimen for analysis]" and the spaghetti of statute that follows in the Road Traffic Act 1988, s.7(6). Magistrates will never look at that 99.5% of the time, they will hear that X failed to provide and these were the circumstances. Only if Mr Loophole, or his associates, come to court is the letter of the law likely to be examined.

 

[island]

I see nothing misleading - S5(1) is very much failure to produce.

With all law, the devil is in the detail and the interpretation. Personally, I would not run a defence based on the interpretation of the statute without a lawyer by my side.

Nonsense.

S5 (1) requires a passenger when so requested to either produce a ticket, or pay their fare, or give their name and address. Any one of these is sufficient.

 

[Puffing Devil]

Nonsense.

S5 (1) requires a passenger when so requested to either produce a ticket, or pay their fare, or give their name and address. Any one of these is sufficient.

See my edit above - it's a fair summary of the offence, which is all it needs to be. Just as S5 (3) is failure to pay.

 

[Watershed]

See my edit above - it's a fair summary of the offence, which is all it needs to be. Just as S5 (3) is failure to pay.

It's a highly inaccurate summary of the offence in my view.

Section 5(1) of RoRA covers people who are ticketless and refuse to pay or provide their details, not people who are 'just' ticketless. It would make no sense for a law introduced in 1889 - when (just as today) there were many stations without ticket facilities - to make it an offence, without any defence, to fail to produce a ticket. Byelaw 18 would also be completely unnecessary otherwise.

The description of section 5(3) is much more accurate - "travelling on railway with intent to avoid payment".

 

[island]

What I'm increasingly concerned about in the light of the above is the potential for the OP to get convicted by magistrates and then have to get them to state a case to the High Court, which gets very costly very fast.

 

[some bloke]

What I'm increasingly concerned about in the light of the above is the potential for the OP to get convicted by magistrates and then have to get them to state a case to the High Court, which gets very costly very fast.

On the last point, this case might be suitable for magistrates to reconsider, on the ground that they had made a fundamental mistake about what the law is. But that would still be examination by magistrates who don't have to be legally qualified and are unlikely to have experience in interpreting law. Otherwise this says it would normally be an appeal to Crown Court:
https://www.gov.uk/appeal-magistrates-court-decision

In any case, beside the risk of losing because magistrates don't usually deal with differing interpretations of the law (and the possibility of someone having a bad day), there are other reasons to stop this getting to court in a month's time. While it might be tempting to think the company can be embarrassed at court, there's perhaps no guarantee the case won't be adjourned and then abandoned. And there's a general duty to inform the court if a participant is aware of basic problems with the case. @Hodgs0 has done this through her response to the summons, but perhaps a separate letter would be appropriate making clear the whole process is inappropriate. Unsurprisingly, courts want people to avoid them if reasonably possible. People are supposed to talk to the other side, and if I understand correctly there is some evidence which @Hodgs0 can still put to the company about the fact that the "offence" does not exist.

@Hodgs0 , you could write to the court something like,

"I wish to inform the court that the summons is invalid because there is no such offence, and in my view should be withdrawn.

Merseyrail claims on the charge sheet that there is an offence of '[failing on request] to either produce, and if so requested deliver up, a ticket showing that your fare is paid'. However, it is highly implausible that such an offence could exist. For one thing, it would mean that Parliament is allowing people to be convicted for failing to produce a valid ticket even if a ticket office is closed and the ticket machine is broken."

- adding the URL for the legislation, the evidence and URLs for the Police Law book and LOROL training material, and perhaps other arguments - while being careful to keep the email short and clear.

You could also write to the CPS suggesting they ask Merseyrail for information with a view to deciding whether to take over the case, noting that you have been informed that this is not the first time the company has claimed the existence of this "offence". At the least, if they write to Merseyrail it may make Merseyrail sit up and think. This may involve the CPS asking you for more information.
"When the CPS finds out about a Private Prosecution": https://www.cps.gov.uk/legal-guidance/private-prosecutions

The general duty to try to avoid court is one reason for continuing a dialogue with the company through short and clear emails. For example, you can emphasise the evidence and URLs for the Police Law book and LOROL training material until they respond to those. And the idea that there is a blanket requirement to produce a valid ticket without the law making clear exceptions is "perhaps not a reasonable supposition".

 

[island]

There is no "general duty to try to avoid court" but I agree with the remainder of the post.

 

[some bloke]

There is no "general duty to try to avoid court"

It seems to me that in effect there is, because of Criminal Procedure Rules 1.2 and 3.3 and the rules above each which they mention.

The relevant parts include "Each party must...actively assist the court in fulfilling its duty under rule 3.2", which includes "avoiding unnecessary hearings".

https://www.legislation.gov.uk/uksi/2020/759/made

 

[Hodgs0]

Hi all

I wrote to Steve Rotherham to this effect & he responded that my case concerned him & agreed to put some questions to merseyrail which I have to him. Any way guess who rang me today… Merseyrail prosecutions team to ask me if IM STILL PLANING ON PROCEEDING TO COURT. Well laugh out loud. So I said absolutely yes. So she said well we’d like a “chat” around that then. So I said I’m too busy in work at moment but you can ring me later so she said she would after weekend as she finished at 4 & I wasn’t free to discuss until 5. Anyway…seems like they don’t want to proceed to court. I will upload the lette I wrote to Steve Rotherham the Metro Mayor.

== Doublepost prevention - post automatically merged: 6 May 2022 ==

 

[WesternLancer]

Thanks for update. Always slightly amusing when an org'n only too happy to threaten court action - when presented with actually arguing about it in court then want to chat to you about it - and expect you to do it during your hours of employment etc to boot. Maybe an idea to set up a premium rate phone number for them to ring you on....lol.

Of course their motivation might be very different than this but there we are.