Merseyrail prosecution

[gray1404]

Make sure to get your local counsellor involved too.

 

[Hodgs0]

Also just to note - transport London apply the law accurately. The penalty fare scheme is used in lieu of prosecution because there was clearly no intent to pay then it is pursued through a civil route

 

[Bletchleyite]

To be fair, if you hadn't appealed the PF but just not paid it, a regular RoRA or Byelaw prosecution would have been applicable. In a sense you could consider what's likely to happen is "getting off on a technicality" - however it is right and important that the law is applied correctly and not by way of TOCs making things up.

(And the PF does of course remain due. Assuming you do win, it's likely Merseyrail will contact you again about paying it, and you should do so because you do owe them that money, and they could pursue it in a civil Court and would win that).

 

[Hodgs0]

To be fair, if you hadn't appealed the PF but just not paid it, a regular RoRA or Byelaw prosecution would have been applicable. In a sense you could consider what's likely to happen is "getting off on a technicality" - however it is right and important that the law is applied correctly and not by way of TOCs making things up.

(And the PF does of course remain due. Assuming you do win, it's likely Merseyrail will contact you again about paying it, and you should do so because you do owe them that money, and they could pursue it in a civil Court and would win that).

Yea I accept that and was expecting to receive a notice to pay but I didn’t get one I just got a summons to court.

 

[furlong]

(And the PF does of course remain due.

Not necessarily - if they are now refusing its payment, and proceeded with a prosecution in lieu, it must have already been cancelled - I'm not aware of any provision for 'suspending'' a PF such that someone who wants to pay it is prevented from doing so.

 

[Watershed]

Also just to note - transport London apply the law accurately. The penalty fare scheme is used in lieu of prosecution because there was clearly no intent to pay then it is pursued through a civil route

Penalty Fares issued by TfL are done under slightly different legislation, which doesn't have all of the same safeguards as Penalty Fares issued on non-TfL services. For example, there is no explicit statute bar on prosecution if you appeal a TfL-issued Penalty Fare.

Assuming you do win, it's likely Merseyrail will contact you again about paying it

I wouldn't rate that as particularly likely. But we shall see.

and you should do so because you do owe them that money, and they could pursue it in a civil Court and would win that

Obviously we can deal with that situation if/when it happens, but given that there seems to be no evidence of TOCs pursuing Penalty Fares civilly, I'm not sure that our OP necessarily needs to be terribly worried about this potential outcome. It's also worth noting that many TOCs add on "administration" fees when chasing payment of a Penalty Fare, which would be unlikely to be awarded in Court as there is no statutory basis for them.

Not necessarily - if they are now refusing its payment, and proceeded with a prosecution in lieu, it must have already been cancelled - I'm not aware of any provision for 'suspending'' a PF such that someone who wants to pay it is prevented from doing so.

The whole topic of cancelling Penalty Fares is dealt with in a rather wooly manner by the legislation, but regulation 11(1) only eliminates civil liability for a Penalty Fare where a prosecution are brought under one of the offences listed in regulation 11(4) - this is the same list (which does not include the section 5(1) offence that OP is being prosecuted for) as the list of offences that are statute barred upon appeal.

 

[Hodgs0]

Penalty Fares issued by TfL are done under slightly different legislation, which doesn't have all of the same safeguards as Penalty Fares issued on non-TfL services. For example, there is no explicit statute bar on prosecution if you appeal a TfL-issued Penalty Fare.


I wouldn't rate that as particularly likely. But we shall see.


Obviously we can deal with that situation if/when it happens, but given that there seems to be no evidence of TOCs pursuing Penalty Fares civilly, I'm not sure that our OP necessarily needs to be terribly worried about this potential outcome. It's also worth noting that many TOCs add on "administration" fees when chasing payment of a Penalty Fare, which would be unlikely to be awarded in Court as there is no statutory basis for them.


The whole topic of cancelling Penalty Fares is dealt with in a rather wooly manner by the legislation, but regulation 11(1) only eliminates civil liability for a Penalty Fare where a prosecution are brought under one of the offences listed in regulation 11(4) - this is the same list (which does not include the section 5(1) offence that OP is being prosecuted for) as the list of offences that are statute barred upon appeal.

But they are not prosecuting me under 11 (1)

 

[Watershed]

But they are not prosecuting me under 11 (1)

They're not; my point was that because of the specific offence they're prosecuting you for, there is neither a statute bar on prosecutions (as there would be for section 5(3) RoRA or Byelaws) nor on civil recovery of the Penalty Fare.

However there's no point worrying now about the Penalty Fare and whether you do or don't have to pay it - as it's a completely separate issue to the prosecution you're facing.

 

[gray1404]

As someone who lives on the same line as the o p I can totally sympathize with the predicament they were placed in. My concern here is that making a big deal in court, as has been done in some of the written correspondence, about how it is standard practice to pay at the other end could muddy the waters.

These are complex areas of railway law which magistrates and even your average criminal defence barrister will not be too familiar with. It is therefore important to keep the argument clear and concise. I would therefore recommend in the strongest possible terms focusing on how the charge is invalid rather than complicating things by saying about it being standard practice to be able to pay on arrival at Moorfields.

 

[Haywain]

As someone who lives on the same line as the o p I can totally sympathize with the predicament they were placed in. My concern here is that making a big deal in court, as has been done in some of the written correspondence, about how it is standard practice to pay at the other end could muddy the waters.

These are complex areas of railway law which magistrates and even your average criminal defence barrister will not be too familiar with. It is therefore important to keep the argument clear and concise. I would therefore recommend in the strongest possible terms focusing on how the charge is invalid rather than complicating things by saying about it being standard practice to be able to pay on arrival at Moorfields.

I agree with this, and would add that talking about legal rights is not a good idea if the facts are incorrect.

 

[Hodgs0]

The argument about whether or not a penalty fare could be applied is diff and covered under section 7 (d) of the railways where by it could be argued that by establishing that custom & practice they “generally” indicated that it was ok to be in that zone ticketless - buts than aside argument for a CIVIL court. Fundamentally they cannot proceed to prosecution for non payment of a penalty fare as demonstrated in this diagram

 

[gray1404]

The penalty fare was validly issued in these circumstances. However that is not the matter at hand here but it is important not to make a big deal about having regularly travelled without a valid ticket.

 

[Bletchleyite]

The penalty fare was validly issued in these circumstances. However that is not the matter at hand here but it is important not to make a big deal about having regularly travelled without a valid ticket.

Very much this, because if you admit doing so they'll prosecute you for those instances instead, and those would not be statute-barred.

 

[OhNoAPacer]

Very much this, because if you admit doing so they'll prosecute you for those instances instead, and those would not be statute-barred.

Could they do this? My understanding is that the OP had paid on arrival, so surely as the railway at the time allowed them to do this then no offence has occurred.

That said, I agree that it us not wise to mention this, at the very least it just muddies the waters and gets in the way of the actual argument that the prosecution is invalid in law.

 

[Bletchleyite]

Could they do this? My understanding is that the OP had paid on arrival, so surely as the railway at the time allowed them to do this then no offence has occurred.

Good point, I had in mind them not having paid, but they would have done.

That said, I agree that it us not wise to mention this, at the very least it just muddies the waters and gets in the way of the actual argument that the prosecution is invalid in law.

Indeed. The only argument used should be that the prosecution is invalid in law (because two of the three things the law required were done or offered to be done, and only one of them needed be done in order for no offence to have been committed) and if necesssary that the other options they might normally use are statute-barred.

 

[OhNoAPacer]

Good point, I had in mind them not having paid, but they would have done.

Accepting someone else's point of view on an Internet forum, I have contacted your ISP and complained about you being reasonable on the Internet

 

[Bletchleyite]

Accepting someone else's point of view on an Internet forum, I have contacted your ISP and complained about you being reasonable on the Internet

 

[Hodgs0]

The argument about whether or not a penalty fare could be applied is diff and covered under section 7 (d) of the railways where by it could be argued that by establishing that custom & practice they “generally” indicated that it was ok to be in that zone ticketless - buts than aside argument for a CIVIL court. Fundamentally they cannot proceed to prosecution for non payment of a penalty fare as demonstrated in this diagram

== Doublepost prevention - post automatically merged: 28 Mar 2022 ==

I can’t upload the diagram I have put together which shows how the process works in law but the section of the law MR are selectively choosing to ignore is this

Railways Act 2018
SECTION 12 (1)

"Where a person charged with a penalty fare

under regulation 5 (1) has not paid the penalty

fare in full, the operator on whose behalf the penalty fare was charged may recover the amount outstanding as a civil debt in any of the following circumstances …”

The only way MR can revert back to prosecution once they have taken a passenger into the penalty fares process which is a civil process is if the passenger gave incorrect name & address - then they can revert back into section 5 (1) because now an offence has been established. The law does not allow them to revert back for non payment of the penalty fare.

== Doublepost prevention - post automatically merged: 29 Mar 2022 ==

They're not; my point was that because of the specific offence they're prosecuting you for, there is neither a statute bar on prosecutions (as there would be for section 5(3) RoRA or Byelaws) nor on civil recovery of the Penalty Fare.

However there's no point worrying now about the Penalty Fare and whether you do or don't have to pay it - as it's a completely separate issue to the prosecution you're facing.

Hi watershed and others, my MP whilst he cannot get involved at this stage in my ind legal matter is willing to put questions to Merseyrail on their policy in general. This is an opp to exploit their fundamental lack of understanding of how & when section 5 (1) can be used to criminally prosecute & to question them about their application of section 12 of the railways act. I have some questions forming in my mind but wondered if you have any killer questions we can put to them via MP?

 

[WesternLancer]

Hi watershed and others, my MP whilst he cannot get involved at this stage in my ind legal matter is willing to put questions to Merseyrail on their policy in general. This is an opp to exploit their fundamental lack of understanding of how & when section 5 (1) can be used to criminally prosecute & to question them about their application of section 12 of the railways act. I have some questions forming in my mind but wondered if you have any killer questions we can put to them via MP?

This is helpful, and IMHO the correct role of an MP.

If I have followed it correctly possible q's MP could ask would be:

a) why, if custom and practice allows people to buy tickets at destination sales point (fares to pay desk at Moorfield or wherever you go) - this is not consistently applied? - ie only to permit fares to be paid which can not be bought at origin stations for clear reasons. BUT you may want to be careful what you wish for...
b) further to (a) - what is policy when passengers face long queues at origin stations about paying at destination (your case)? - Again may wish to be careful what you wish for....
c) Why do they think they can prosecute after penalty fare process has been used when if I understand the thread, the legislation prevents that as MPs in Parliament required train operators to obey this safeguard as part of parliament granting the right to allow a penalty fares system in the first place?

Of course others please correct my thinking if I have put forward erroneous suggestions.

 

[Watershed]

Hi watershed and others, my MP whilst he cannot get involved at this stage in my ind legal matter is willing to put questions to Merseyrail on their policy in general. This is an opp to exploit their fundamental lack of understanding of how & when section 5 (1) can be used to criminally prosecute & to question them about their application of section 12 of the railways act. I have some questions forming in my mind but wondered if you have any killer questions we can put to them via MP?

Some of the questions I would be asking include:

• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, just selling tickets?
• Are these staff instructed to give travellers any warning they are doing something wrong by buying at their destination?
• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, issuing Penalty Fares or taking details for prosecution?
• How many prosecutions has Merseyrail conducted in the last X years under section 5(1) of the Regulation of Railways Act 1889?
• How many of these cases resulted in a conviction?
• In how many of these cases did the passenger offer their (correct) name and address, or offer to pay their fare, when stopped?
• Since 1 April 2018, how many prosecutions has Merseyrail conducted under section 5(3) of the Regulation of Railways Act 1889, or the Railway Byelaws, in cases where the defendant had been issued with a Penalty Fare?
• Since 1 April 2018, how many prosecutions has Merseyrail conducted under section 5(3) of the Regulation of Railways Act 1889, or the Railway Byelaws, in cases where the defendant had appealed the Penalty Fare they had been issued with?
• What have the average annual running costs of the Prosecutions etc. department been over the last X years?
• How many successful prosecutions has the department brought during that time?
• What is the total amount which Merseyrail has been awarded in costs during that time?

I would expect Merseyrail to either refuse to answer some or all of the questions, or to say that they do not hold the information readily available. But it would start to open the door into the grubby underworld of private TOC prosecutions.

 

[Hodgs0]

This is helpful, and IMHO the correct role of an MP.

If I have followed it correctly possible q's MP could ask would be:

a) why, if custom and practice allows people to buy tickets at destination sales point (fares to pay desk at Moorfield or wherever you go) - this is not consistently applied? - ie only to permit fares to be paid which can not be bought at origin stations for clear reasons. BUT you may want to be careful what you wish for...
b) further to (a) - what is policy when passengers face long queues at origin stations about paying at destination (your case)? - Again may wish to be careful what you wish for....
c) Why do they think they can prosecute after penalty fare process has been used when if I understand the thread, the legislation prevents that as MPs in Parliament required train operators to obey this safeguard as part of parliament granting the right to allow a penalty fares system in the first place?

Of course others please correct my thinking if I have put forward erroneous suggestions.

I was thinking leave the custom & practice stuff - that’s an argument for a different day. The echo have actually picked up a story relating to the second one today but c) is where we want to focus …

Where in the law does it state that if a penalty fare debt remains outstanding following the appeals process, the passenger, having been denied the opportunity to pay the fare at the time of the event as is their right under Section 5 (1) in order to remain compliant with the law & avoid defaulting at that stage does it state that the TOC can revoke the penalty fare and revert to prosecuting criminally under section 5 (1)?

How do Merseyrail ensure they adhere to Section 12 of the Railways Act 2018 - Recovery of penalty fare as a civil debt
12. (1) Where a person charged a penalty fare under regulation 5(1) has not paid the penalty
fare in full, the operator on whose behalf the penalty fare was charged may recover the amount
outstanding as a civil debt in any of the following circumstances …

On how many occasions have Merseyrail pursued an outstanding penalty fare as a civil debt in accordance with the law? and under what circumstances is a civil process pursued in lieu of criminal proceedings?

== Doublepost prevention - post automatically merged: 29 Mar 2022 ==

Some of the questions I would be asking include:

• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, just selling tickets?
• Are these staff instructed to give travellers any warning they are doing something wrong by buying at their destination?
• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, issuing Penalty Fares or taking details for prosecution?
• How many prosecutions has Merseyrail conducted in the last X years under section 5(1) of the Regulation of Railways Act 1889?
• How many of these cases resulted in a conviction?
• In how many of these cases did the passenger offer their (correct) name and address, or offer to pay their fare, when stopped?
• Since 1 April 2018, how many prosecutions has Merseyrail conducted under section 5(3) of the Regulation of Railways Act 1889, or the Railway Byelaws, in cases where the defendant had been issued with a Penalty Fare?
• Since 1 April 2018, how many prosecutions has Merseyrail conducted under section 5(3) of the Regulation of Railways Act 1889, or the Railway Byelaws, in cases where the defendant had appealed the Penalty Fare they had been issued with?
• What have the average annual running costs of the Prosecutions etc. department been over the last X years?
• How many successful prosecutions has the department brought during that time?
• What is the total amount which Merseyrail has been awarded in costs during that time?

I would expect Merseyrail to either refuse to answer some or all of the questions, or to say that they do not hold the information readily available. But it would start to open the door into the grubby underworld of private TOC prosecutions.

Cheers will put this together tomorrow & send across. Hopefully with todays bad press and another MP in their case they’ll be starting to twitch.

 

[Watershed]

I was thinking leave the custom & practice stuff - that’s an argument for a different day. The echo have actually picked up a story relating to the second one today but c) is where we want to focus …

Perhaps - though it's probably the argument that gains the most 'moral' support (which, in the Kangaroo, ahem, Magistrates' Court matters quite a lot).

An argument of abuse of process, which is ultimately what this is alluding to, is perhaps tenuous - but it is likely to be only possible angle of defence where charges are brought under the Railway Byelaws (which contain strict liability offences).

Where in the law does it state that if a penalty fare debt remains outstanding following the appeals process, the passenger, having been denied the opportunity to pay the fare at the time of the event as is their right under Section 5 (1) in order to remain compliant with the law & avoid defaulting at that stage does it state that the TOC can revoke the penalty fare and revert to prosecuting criminally under section 5 (1)?

How do Merseyrail ensure they adhere to Section 12 of the Railways Act 2018 - Recovery of penalty fare as a civil debt
12. (1) Where a person charged a penalty fare under regulation 5(1) has not paid the penalty
fare in full, the operator on whose behalf the penalty fare was charged may recover the amount
outstanding as a civil debt in any of the following circumstances …

This is one of many areas where the Penalty Fares Regulations remain unhelpfully vague. They clearly envisage the possibility that a Penalty Fare may be cancelled, but do not enumerate the circumstances under which this is permissible.

It is not even explicitly stated in the legislation that liability for a Penalty Fare ceases if a prosecution is brought under section 5(1). The draftsperson quite reasonably must have thought that a prosecution under section 5(1) was mutually incompatible with a Penalty Fare having been issued (after all - how can you issue a Penalty Fare without a name and address? - and if you have a name and address, how can there be an offence under section 5(1)?).

On how many occasions have Merseyrail pursued an outstanding penalty fare as a civil debt in accordance with the law? and under what circumstances is a civil process pursued in lieu of criminal proceedings?

That's another good question worth asking. Unless there has been fundamental fraud (e.g. finding out down the line that the defendant was lying about the station where they got on), Merseyrail shouldn't be issuing Penalty Fares and then pursuing prosecutions. It's one or the other, yet they are trying to have their cake and eat it.

 

[Hodgs0]

I’m not being prosecuted using bye laws by their own admission though. I’ll draft up the list of questions today.

 

[Skie]

Some of the questions I would be asking include:

• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, just selling tickets?
• Are these staff instructed to give travellers any warning they are doing something wrong by buying at their destination?
• On how many days out of each year do Merseyrail have staff set up at the exit to Moorfields/other stations, issuing Penalty Fares or taking details for prosecution?

Just to cap off this train of questioning, I’d also ask

• How far in advance, and via what methods, did Merseyrail make passengers aware that this pay at destination operation was due to cease and that the regular penalty fare system was due to recommence?

 

[AntoniC]

Merseyrail Penalty Fares

Not sure if this is in the correct section. From 15 June, Merseyrail will cease to sell tickets on any of their trains. From that date, all stations, (including the four unstaffed stations it appears), will fall under the Merseyrail penalty fares area. Merseyrail have recently installed...

www.railforums.co.uk

From 15 June, Merseyrail will cease to sell tickets on any of their trains. From that date, all stations, (including the four unstaffed stations it appears), will fall under the Merseyrail penalty fares area.
15th June 2009 according to the post.
As a resident of Merseyside I remember there being lots of publicity about it

 

[Watershed]

Merseyrail Penalty Fares

Not sure if this is in the correct section. From 15 June, Merseyrail will cease to sell tickets on any of their trains. From that date, all stations, (including the four unstaffed stations it appears), will fall under the Merseyrail penalty fares area. Merseyrail have recently installed...

www.railforums.co.uk

From 15 June, Merseyrail will cease to sell tickets on any of their trains. From that date, all stations, (including the four unstaffed stations it appears), will fall under the Merseyrail penalty fares area.
15th June 2009 according to the post.
As a resident of Merseyside I remember there being lots of publicity about it

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.

 

[RPI]

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.

Out of interest, do Merseyrail issue tickets on ticket stock that has the Penalty Fare warning on the rear?

 

[AntoniC]

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.

I totally agree with you

 

[185143]

Out of interest, do Merseyrail issue tickets on ticket stock that has the Penalty Fare warning on the rear?

If you're referring to tickets sold at a regular ticket office, then they do not. Unless that's changed very recently of course.

 

[RPI]

If you're referring to tickets sold at a regular ticket office, then they do not. Unless that's changed very recently of course.

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".