Merseyrail prosecution

[Bletchleyite]

Looks like you're going to need to make a fool of them in Court, then...good luck!

While I don't think precedent is set by Magistrates' Courts, does anyone know of a successful case of this defence being used (or indeed of it failing)? It might be helpful.

 

[Hodgs0]

Thanks, I have reiterated the position so they have one final opportunity to rescind but I will include all this in my evidence pack

 

[Watershed]

Does Ms McLachlan seriously think that a law introduced in 1889, and not amended in any material regard since, criminalises the mere act of not producing a ticket - regardless of the circumstances? In spite of the fact that in 1889 there were many stations that had no ticketing facilities whatsoever - a situation that still persists to this day at some stations?

It really doesn't take an expert to determine the meaning of "either" and "or". There is no excuse for errors as basic as this. I really hope you don't have to battle this level of incompetence all the way to court, but equally that may be what's needed to teach Ms McLachlan the basics of railway criminal law.

 

[Hodgs0]

I almost want my day in court

 

[Watershed]

I almost want my day in court

One option that remains open to you is contacting your MP, or local councillor, explaining the predicament. They may be able to get the case escalated high enough up in Merseyrail that it is looked at by someone who has a clue.

Merseyrail operates a concession let by Merseytravel, which is in turn overseen by the Merseytravel committee of the Liverpool City Region Combined Authority, which has 26 councillors from each of the local authorities in the CA. So it may be worthwhile seeing if you can contact one of these councillors from your local authority, even if they don't necessarily represent your ward.

 

[WesternLancer]

One option that remains open to you is contacting your MP, or local councillor, explaining the predicament. They may be able to get the case escalated high enough up in Merseyrail that it is looked at by someone who has a clue.

Merseyrail operates a concession let by Merseytravel, which is in turn overseen by the Merseytravel committee of the Liverpool City Region Combined Authority, which has 26 councillors from each of the local authorities in the CA. So it may be worthwhile seeing if you can contact one of these councillors from your local authority, even if they don't necessarily represent your ward.

Just on this point - if your ward councillor is not on the CA - they should have a relationship with one from their own council that is, so you should ask them to 'raise the matter with their colleague who represents x council on the CA' (if I have the structure correct) - this is your local democratic accountability channel - ie how the funds from merseyside taxpayers are used to deliver the rail service run and subsidised by local council tax payers.

But you may get a speedier response from your MP (as MPs have more staff to support raising case work) - so I would contact both - and make it clear you are writing to both in your message / letter to each of them.

BUT - this may not always work as it is possible that your local councillor, or indeed MP (who is after all simply a fellow citizen elected to represent you) may well not have the level of grasp of specialist detail (or what they might see as specialist detail) of what is being argued here.

So in any communication to them I would be asking your councillor / MP to raise it with a 'suitably senior person who can appreciate the key point you are seeking to make over this issue' or some such wording - ie expect them to write to the CEO of Merseytravel and Merseyrail on your behalf, for example.

Good luck.

 

[507020]

Does Ms McLachlan seriously think that a law introduced in 1889, and not amended in any material regard since, criminalises the mere act of not producing a ticket - regardless of the circumstances? In spite of the fact that in 1889 there were many stations that had no ticketing facilities whatsoever - a situation that still persists to this day at some stations?

It really doesn't take an expert to determine the meaning of "either" and "or". There is no excuse for errors as basic as this. I really hope you don't have to battle this level of incompetence all the way to court, but equally that may be what's needed to teach Ms McLachlan the basics of railway criminal law.

Is there any way we can have Ms McLachlan removed from her role within Merseyrail (i.e. sacked) for her incompetence/misconduct? She is attempting to make unlawful prosecutions based purely on her own personal belief that Merseyrail are not prohibited from “bring a prosecution” (note the basic grammatical error in what is supposed to be professional correspondence) under the aforementioned section of regulation despite the fact that it has meant nothing of the kind since the act was passed in 1889

It is likely beyond her capabilities to learn even the basics of railway criminal law, so as long as she is employed, innocent passengers continue to be in danger of being taken to court for no good reason!

 

[Hodgs0]

One option that remains open to you is contacting your MP, or local councillor, explaining the predicament. They may be able to get the case escalated high enough up in Merseyrail that it is looked at by someone who has a clue.

Merseyrail operates a concession let by Merseytravel, which is in turn overseen by the Merseytravel committee of the Liverpool City Region Combined Authority, which has 26 councillors from each of the local authorities in the CA. So it may be worthwhile seeing if you can contact one of these councillors from your local authority, even if they don't necessarily represent your ward.

Well through my job I’m familiar with local counsellors & MP so I will do that! Thanks!

 

[Watershed]

Is there any way we can have Ms McLachlan removed from her role within Merseyrail (i.e. sacked) for her incompetence/misconduct? She is attempting to make unlawful prosecutions based purely on her own personal belief that Merseyrail are not prohibited from “bring a prosecution” (note the basic grammatical error in what is supposed to be professional correspondence) under the aforementioned section of regulation despite the fact that it has meant nothing of the kind since the act was passed in 1889

It is likely beyond her capabilities to learn even the basics of railway criminal law, so as long as she is employed, innocent passengers continue to be in danger of being taken to court for no good reason!

That is a matter for Merseyrail, ultimately. I'm not sure that sacking Ms McLachlan would achieve a great deal. There are a lot of other things that would probably be more effective in ensuring that people aren't wrongfully prosecuted again. But certainly Merseyrail ought to conduct a review of cases, to ensure they haven't prosecuted people where barred from doing so by the Penalty Fares Regulations, or for mere failure to produce a ticket under section 5(1) of RoRA.

Well through my job I’m familiar with local counsellors & MP so I will do that! Thanks!

Glad to hear that. Your last resort option would be to contact a criminal defence solicitor or local law clinic to see if they could provide you with an initial consultation for free, or for a low cost, to advise you on the best way forward. They may be willing to write a letter to Merseyrail for a reasonable cost, which Ms McLachlan may accept as more persuasive than what you write - and once this is resolved, it might be possible for you to recover your costs.

 

[Hodgs0]

That is a matter for Merseyrail, ultimately. I'm not sure that sacking Ms McLachlan would achieve a great deal. There are a lot of other things that would probably be more effective in ensuring that people aren't wrongfully prosecuted again. But certainly Merseyrail ought to conduct a review of cases, to ensure they haven't prosecuted people where barred from doing so by the Penalty Fares Regulations, or for mere failure to produce a ticket under section 5(1) of RoRA.


Glad to hear that. Your last resort option would be to contact a criminal defence solicitor or local law clinic to see if they could provide you with an initial consultation for free, or for a low cost, to advise you on the best way forward. They may be willing to write a letter to Merseyrail for a reasonable cost, which Ms McLachlan may accept as more persuasive than what you write - and once this is resolved, it might be possible for you to recover your costs.

Also have a criminal defence barrister to hand who is a family friend who I’ve given heads up to.

 

[WesternLancer]

Also have a criminal defence barrister to hand who is a family friend who I’ve given heads up to.

Thanks for your updates, genuinely valuable esp for other people in future. It will be interesting (and important) to see how this plays out if you are able, and it sounds as if you are, to continue to pursue it.

 

[Watershed]

Also have a criminal defence barrister to hand who is a family friend who I’ve given heads up to.

Even better. It sounds like you are on the right track in that case. Do keep us updated

 

[Hodgs0]

This is there defence … are they allowed to dispense with the law as they see fit ?!??

 

[WesternLancer]

Is there any way we can have Ms McLachlan removed from her role within Merseyrail (i.e. sacked) for her incompetence/misconduct? She is attempting to make unlawful prosecutions based purely on her own personal belief that Merseyrail are not prohibited from “bring a prosecution” (note the basic grammatical error in what is supposed to be professional correspondence) under the aforementioned section of regulation despite the fact that it has meant nothing of the kind since the act was passed in 1889

It is likely beyond her capabilities to learn even the basics of railway criminal law, so as long as she is employed, innocent passengers continue to be in danger of being taken to court for no good reason!

This isn't the issue really at the end of the day - since no doubt the general course of action (if not each individual case) is sanctioned by 'on high' in senior management etc - since they set the pay of the post holder - and thus the experience and skill they are likely to recruit, control the training budget, and should manage the staff actions/ knowledge/training etc, and take responsibility for it.

 

[Bletchleyite]

This is there defence … are they allowed to dispense with th,e law as they see fit ?!??

The law doesn't require them to have that facility on offer if you could purchase before you boarded. It doesn't, however, allow for a prosecution in this case because a PF appeal has been assessed and refused (nor does it allow one at all under the part of RoRA they are attempting to use, appeal or no, and that's obvious to anyone who reads it), and thus their remaining option is to pursue you in the civil Court for the sum of the Penalty Fare (plus reasonable costs?)

This still means you end up paying the PF etc, which as the appeal was denied is definitely still due, but avoids a criminal record which is the important bit.

Which makes it odd they won't offer you one of those fairly standard £100+fare settlements, because that's the best they can legally get out of you unless the Magistrate is having difficulty reading a perfectly clear law on the day too. It is quite possible that if they did go to civil Court (i.e. sue you) they'd get less than that.

 

[Hodgs0]

The law doesn't require them to have that facility on offer if you could purchase before you boarded. It doesn't, however, allow for a prosecution in this case because a PF appeal has been assessed and refused (nor does it allow one at all under the part of RoRA they are attempting to use, appeal or no, and that's obvious to anyone who reads it), and thus their remaining option is to pursue you in the civil Court for the sum of the Penalty Fare (plus reasonable costs?)

This still means you end up paying the PF etc, which as the appeal was denied is definitely still due, but avoids a criminal record which is the important bit.

Which makes it odd they won't offer you one of those fairly standard £100+fare settlements, because that's the best they can legally get out of you unless the Magistrate is having difficulty reading a perfectly clear law on the day too. It is quite possible that if they did go to civil Court (i.e. sue you) they'd get less than that.

The other problem with their argument is that on most days they do in fact offer the facility to pay which is part of my argument.

 

[WesternLancer]

This still means you end up paying the PF etc, which as the appeal was denied is definitely still due, but avoids a criminal record which is the important bit.

Does this mean the advice to @Hodgs0 should be to make a payment of the Penalty Fare sum that was asked for before the appeal of the Penalty Fare was made?

 

[Bletchleyite]

Does this mean the advice to @Hodgs0 should be to make a payment of the Penalty Fare sum that was asked for before the appeal of the Penalty Fare was made?

That would certainly show that the OP isn't acting with bad will, but I don't think it's overly relevant to whether a prosecution would succeed or not.

== Doublepost prevention - post automatically merged: 24 Mar 2022 ==

The other problem with their argument is that on most days they do in fact offer the facility to pay which is part of my argument.

It is provided for people who were unable to pay before boarding, e.g. because the ticket office staff had gone to use the loo or the TVM (at e.g. Capenhurst/Bache) was broken. That they might let others off isn't particularly relevant, galling though it is.

 

[Hodgs0]

Does this mean the advice to @Hodgs0 should be to make a payment of the Penalty Fare sum that was asked for before the appeal of the Penalty Fare was made?

They won’t let me they’ve taken away that option

== Doublepost prevention - post automatically merged: 24 Mar 2022 ==

That would certainly show that the OP isn't acting with bad will, but I don't think it's overly relevant to whether a prosecution would succeed or not.

== Doublepost prevention - post automatically merged: 24 Mar 2022 ==



It is provided for people who were unable to pay before boarding, e.g. because the ticket office staff had gone to use the loo or the TVM (at e.g. Capenhurst/Bache) was broken.

But that is not how they operate it in practice for which I have witnesses

== Doublepost prevention - post automatically merged: 24 Mar 2022 ==

They won’t let me they’ve taken away that option

== Doublepost prevention - post automatically merged: 24 Mar 2022 ==


But that is not how they operate it in practice for which I have witnesses

On many occasions I have been allowed to pay because the queue was huge.

 

[Bletchleyite]

But that is not how they operate it in practice for which I have witnesses

That isn't relevant. Merseyrail is a Penalty Fares TOC and so a PF was totally correct in your circumstances, and that PF remains due (but could only be collected by civil, not criminal, means, once an appeal has concluded).

There are parallels all over the system - you're very, very unlikely to get a PF on a LNR service, but they can issue them and do when a station block is carried out.

Merseyrail hasn't given their official blessing to "paying at the other end" (classically a euphemism for not paying) since the 1990s.

 

[Watershed]

Does this mean the advice to @Hodgs0 should be to make a payment of the Penalty Fare sum that was asked for before the appeal of the Penalty Fare was made?

The Penalty Fare has no relevance to the prosecution (currently) at hand. Its appeal means that @Hodgs0 cannot be prosecuted for any of the usual alternative offences, but apart from that it is not relevant, and OP need not pay it for this prosecution to be disposed of.

This is there defence … are they allowed to dispense with the law as they see fit ?!??

No. They are just making things up. The law is quite clear:

Every passenger by a railway shall, on request by an officer or servant of a railway company, either produce, and if so requested deliver up, a ticket showing that his fare is paid, or pay his fare from the place whence he started, or give the officer or servant his name and address

The operator's policy doesn't come into it. The law gives you the choice as to whether you wish to produce a ticket, pay your fare, or give your name and address. You offered to do the latter two, so you are in the clear. Their suggestion that "in some circumstances" you will have the opportunity to pay your fare is complete nonsensense. Offering to pay your fare is one of the options you have for complying with this section. If you do that - even if the fare is refused - you have not committed an offence.

The arguments about it being custom and practice to pay at the destination are only really relevant if you want to try and argue that the whole prosecution is an abuse of process... but ultimately I think it would be overcomplicating things to head down that road, when you are so clearly and obviously in the right here. Obviously your family friend solicitor may advise you on this point.

Just as some independent verification that Ms McLachlan is barking up the wrong tree - the reference book Police Law, 12th ed, states on p803:

In the first instance, the Regulation of Railways Act 1889, s 5(1) provides that every passenger on a railway, on request by an officer or agent or servant of the railway company, must either produce, and if requested deliver up, a ticket showing that his fare is paid, or pay his fare from the place where his journey started, or give his name and address. In default of doing so, the passenger commits an offence. Put in everyday language, a railway passenger must at the request of a railway employee or British Transport Police officer, show, and if required surrender, his ticket. If he does not for any reason, he must pay the fare for his journey; if he is unable to do this he must give his true name and address so that the fare may be recovered from him by civil process, if necessary.

The former operator of London Overground, LOROL, describes the offence under section 5(1) as "the three fails" in their RPI training materials (released under FoI).

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

If a passenger having failed either to produce, or if requested to deliver up, a ticket showing that his fare is paid, or to pay his fare, refuses or fails on request by an officer or servant of a railway company, to give his name and address, any officer of the company may detain him until he can be conveniently brought before some justice or otherwise discharged by due course of law.

So it is only upon the failure to show a ticket and the failure to pay the fare and the failure to give a name and address that enforcement action can be taken. Now obviously they are not prosecuting you under section 5(2) (it only gives them a right of interim detention - it does not create an offence). But it clearly indicates the intended meaning of section 5(1), in case there were any doubt.

 

[Bletchleyite]

I can, on re-reading it, see how a layman might interpret it as three separate clauses, i.e. the officer or servant may request one of those and you have to do that one. However it does seem clear that this is not what it is intended to mean, confirmed by the book excerpt you quote.

I wonder is there precedent, even if it may not be binding? There are so many ticketing prosecutions that there surely must be, particularly if Merseyrail has brought more of them in the past, which if Ms McLachlan is their main prosecutor they no doubt have.

 

[Watershed]

I can, on re-reading it, see how a layman might interpret it as three separate clauses, i.e. the officer or servant may request one of those and you have to do that one. However it does seem clear that this is not what it is intended to mean, confirmed by the book excerpt you quote.

Indeed, but the presence of the "either" is the crucial indication that this interpretation is not correct. Imagine the sentence without the "either":

Every passenger by a railway shall, on request by an officer or servant of a railway company, produce, and if so requested deliver up, a ticket showing that his fare is paid, or pay his fare from the place whence he started, or give the officer or servant his name and address

That would certainly be much more ambiguous, and I can see how it could potentially lend itself to the interpretation that you have to do whichever one of those three things the officer requires.

But the "either" is in the law and that makes things pretty clear.

You also have to consider the legislative background - it would not make any sense for Parliament to make a blanket criminal offence of failing to show a ticket, without any exceptions. There were many unstaffed halts in 1889, where passengers would not have been able to obtain any ticket before travelling. That would be a plainly illogical and unjust law, yet that is what Ms McLachlan is suggesting the law says (or possibly that there is some degree of discretion to be exercised, but again this appears nowhere in the law).

I wonder is there precedent, even if it may not be binding? There are so many ticketing prosecutions that there surely must be, particularly if Merseyrail has brought more of them in the past, which if Ms McLachlan is their main prosecutor they no doubt have.

It's quite possible; the problem is that the vast majority of Magistrates' Court prosecutions are not recorded in any great detail. Occasionally a reporter from the local rag will sit in on hearings, but they usually only tend to go to be able to report "Mr X from Y Street was ordered to pay 30 times the fare" or the like.

 

[Hodgs0]

Well I had to file today anyway, so I filed with supporting evidence. I threw the kitchen sink at it.

 

[island]

I wish you the very best of luck, please keep us updated.

 

[Watershed]

Well I had to file today anyway, so I filed with supporting evidence. I threw the kitchen sink at it.

I might have worded a few things slightly differently, but your document gets across all the salient points.

Let's hope the Magistrates see through Ms McLachlan's smoke and mirrors!

 

[Bletchleyite]

That looks pretty good to me, though I am obviously not a legal professional. I wish you the best of luck, and please do tell us how it goes!

 

[Western Sunset]

I'll second that. Very best wishes.
"Let right be done!" to quote a line from the Winslow Boy.

 

[Hodgs0]

I might have worded a few things slightly differently, but your document gets across all the salient points.

Let's hope the Magistrates see through Ms McLachlan's smoke and mirrors!

Thanks I will keep you all posted. I have highlighted my case to my MP, the metro mayor & the local press.

 

[furlong]

Well there have been a few similar threads on this forum so I think you might make a case for an external inquiry:
1) Identify all the situations where Merseyrail might have misrepresented the law, (regardless of whether or not it led to a prosecution) and consider whether there is justification to widen the scope of the inquiry to include any other train companies (e.g. look at the distribution of prosecutions for this particular offence and review a sample)
2) Determine whether anyone suffered unjustified adverse consequences that still need to be rectified
- Was anybody who was innocent convicted, perhaps after taking what Merseyrail wrote at face value and not seeking independent legal advice and pleading guilty to a manufactured offence?
3) Provide recommendations (e.g. training, review, oversight) to avoid this situation arising again at this or any other train company.

Where any individual involved in this belongs to a professional body, that might provide another route for a complaint, given how basic this error appears to be - other legal professionals might feel the correspondence presented in this thread reflects badly upon them.