Misleading Information by Conductor

[Deckard_91]

Hello,
I am currently in the process of appealing a Penalty Fair Notice with Northern Rail via Penalty Services. I have unfortunately been unsuccessful with my first appeal, but I do feel I have been unfairly fined and would like to respond with a stronger argument.

[UPDATE]
After attempting to buy a ticket via app and realising the payment didn't go through, the train arrived. Before boarding the train, I asked the conductor if I should board the train, or wait for the next train (and go and buy a ticket). The conductor said I should board the current train, and buy a ticket from Victoria. As I got to Manchester Victoria, I was faced with a fine and no option to pay for a ticket (as told by the conductor).

My unsuccessful attempt to appeal the fine was rejected on the basis that Northern Rail can prove I had options to purchase a ticket at Littleborough, which is fair enough, but I A) didn't realise the payment hadn't gone through on the app, and B) was told by the conductor, that I could pay for a ticket at Manchester Victoria.
Please may I ask for assistance in how I can appeal for a 2nd time, or if I can site any quotations from https://www.legislation.gov.uk/uksi/2018/366/contents to help me with my appeal.

Thank you very much in advance.

 

[fandroid]

Welcome to the forum.

The difficulty is that it is an offence to board a train without a valid ticket when there are facilities at your starting station to buy one. Northern appear to have become stricter and stricter about this recently. It's possible that your conductor's inability to sell you a ticket was part of that.

Could you please post up on this thread the penalty notice that you received. Then we can be sure what type of "fine" you are being asked for, and advise accordingly. Delete any details that would identify you, plus the reference number.

UPDATE
My response above was based on the original version of the OP's post #1, which differed in several important details from the version that is there now. 26.10.23

 

[island]

As Littleborough has a ticket office and ticket machines, it's a criminal offence to join the train without a ticket there. Whilst it's unfortunate your purchase didn't go through, you should have waited for a confirmation screen, and used the ticket office/machine if unable to buy an e-ticket. The offence was committed the moment you stepped onto the train, and the conductor cannot "un-commit" it.

As such based on the information so far given it seems to me a Penalty Fare would have been properly issued.

However as you have gone through the appeal process even though unsuccessful, you're protected from being prosecuted for the offence. I cannot currently see any reason why a second or third appeal would succeed.

 

[Deckard_91]

Thanks for the reply Fandroid, it's much appreciated.

Sorry for the confusion, I'm writing on behalf of my partner. Please see the following update from her.

The reasoning on the Penalty Fare Notice is as follows... "A Penalty Fair Notice is being issued because when asked by an authorised person you were unable to show a valid ticket for your entire journey. You have travelled from a station operating within the penalty fair scheme where ticket issuing facilities where available"... which is fine and I understand that, and would have complied, if not before boarding the train, I asked the conductor if I could board the train and buy a ticket at Victoria, or wait for the next train, and the conductor instructed me to board the train and I could purchase a ticket at Victoria.

I went straight to a desk to ask to buy a ticket, and was told you can't buy a ticket, but here's a penalty notice.

== Doublepost prevention - post automatically merged: 25 Oct 2023 ==

As Littleborough has a ticket office and ticket machines, it's a criminal offence to join the train without a ticket there. Whilst it's unfortunate your purchase didn't go through, you should have waited for a confirmation screen, and used the ticket office/machine if unable to buy an e-ticket. The offence was committed the moment you stepped onto the train, and the conductor cannot "un-commit" it.

As such based on the information so far given it seems to me a Penalty Fare would have been properly issued.

However as you have gone through the appeal process even though unsuccessful, you're protected from being prosecuted for the offence. I cannot currently see any reason why a second or third appeal would succeed.

Appreciate the response island. Please can you confirm if the situation would still be the same after reading my update?

 

[AlterEgo]

before boarding the train, I asked the conductor if I could board the train and buy a ticket at Victoria, or wait for the next train, and the conductor instructed me to board the train and I could purchase a ticket at Victoria.

That version of events is at odds with the opening post, which says:

Once I boarded the train, I tried to show the conductor my ticket, but the payment didn't go through. I then wanted to pay on the train, but the conductor didn't have the facility to do so. The conductor then told me in good faith that I can pay at Manchester Victoria, and with believing this information, I didn't try again to purchase with my phone via the app.

Which of these two things is it, and which sequence of events was given in the first appeal?

 

[Deckard_91]

He

That version of events is at odds with the opening post, which says:



Which of these two things is it, and which sequence of events was given in the first appeal?

Hey AlterEgo, thanks for the reply.

I am writing on behalf of my partner and had to fact-check after my incorrect interpretation of events from my first post.
The second is the correct sequence of events. I can confirm before boarding the train, my partner asked the conductor if she should board the train, or wait for the next train (and go and buy a ticket). The conductor said to my partner she should board the current train, and buy a ticket from Victoria.

 

[AlterEgo]

He

Hey AlterEgo, thanks for the reply.

I am writing on behalf of my partner and had to fact-check after my incorrect interpretation of events from my first post.
The second is the correct sequence of events. I can confirm before boarding the train, my partner asked the conductor if she should board the train, or wait for the next train (and go and buy a ticket). The conductor said to my partner she should board the current train, and buy a ticket from Victoria.

Could you show us a copy of the Penalty Fare notice and the appeal that she sent in? It's important for us to see this to see which argument/s exactly have been used and exactly on which grounds the appeal was made and on which it was refused.

Ultimately this hinges on "a member of staff told me something" which is going to be very difficult to evidence.

 

[scrapy]

Byelaw 18(1) states that no person shall enter any train for the purposes of travelling on the railway without a valid ticket.

Byelaw 18(3)(3) states that no person shall be in breach of byelaw 18(1) is an authorised person gave him permission to travel without a valid ticket.

Therefore if the OPs partner was given permission by the conductor to board the train without a valid ticket then 18(3)(3) means they did not commit any offence.

I would be tempted to put the above in any 2nd appeal. The trouble is whether or not the appeals body decide your version of events is credible. On hearing how other appeals have gone they have come back and said that 'as you cannot prove or give a description or name of the staff member that gave you permission we are unable to uphold your appeal' in which case I would submit a third appeal on the same grounds and say that it is unreasonable to expect someone to remember these things and that Northern cannot provide any evidence that they didn't say this.

The good news is that now the penalty has been appealed your partner cannot be prosecuted.

 

[6Gman]

He

Hey AlterEgo, thanks for the reply.

I am writing on behalf of my partner and had to fact-check after my incorrect interpretation of events from my first post.
The second is the correct sequence of events. I can confirm before boarding the train, my partner asked the conductor if she should board the train, or wait for the next train (and go and buy a ticket). The conductor said to my partner she should board the current train, and buy a ticket from Victoria.

In which case I believe she had been granted authority to travel and therefore the penalty fare was inappropriate.

However (I assume) your partner has no proof that such an exchange took place so it turns into the issue @scrapy refers to below.

Byelaw 18(1) states that no person shall enter any train for the purposes of travelling on the railway without a valid ticket.

Byelaw 18(3)(3) states that no person shall be in breach of byelaw 18(1) is an authorised person gave him permission to travel without a valid ticket.

Therefore if the OPs partner was given permission by the conductor to board the train without a valid ticket then 18(3)(3) means they did not commit any offence.

I would be tempted to put the above in any 2nd appeal. The trouble is whether or not the appeals body decide your version of events is credible. On hearing how other appeals have gone they have come back and said that 'as you cannot prove or give a description or name of the staff member that gave you permission we are unable to uphold your appeal' in which case I would submit a third appeal on the same grounds and say that it is unreasonable to expect someone to remember these things and that Northern cannot provide any evidence that they didn't say this.

The good news is that now the penalty has been appealed your partner cannot be prosecuted.

In this case, assuming the passenger knows which train it was and the date (which they presumably do) then the operator should be able to identify the member of staff. "08.22 departure on 21 October? That was Conductor Bill Smith of Wigan. Does he remember speaking to a passenger at xxxx on that date?"

 

[furlong]

Ultimately this hinges on "a member of staff told me something" which is going to be very difficult to evidence.

For the company to evidence you mean? Recall that the burden of proof lies on the operator to disprove such a statement. They can identify the member of staff concerned and supply a statement to the appeals body. If they don't disprove the passenger's claim, the appeal gets upheld by default. (But given what we know about how appeals work in practice, that might only happen if the appeals panel is presented with the legal argument showing them this.)

 

[father_jack]

Ultimately this hinges on "a member of staff told me something" which is going to be very difficult to evidence.

Entirely correct.

OP needs to remember the appeals body would play "devils advocate".

Although we have no reason to doubt the interaction with the guard saying buy "at" Victoria (OP keeps saying "from" Victoria- that could cause confusion in itself !) didn't take place what have we got to prove it did ? I've often found tickets at work, rang the guard on the train concerned and the guard will usually say "if/when I find the owner I'll go to the gate with them or give them something to explain or get them through".

And the final part- what if the gates were out of service/open ? In the balance of probabilty what would a person in the OP's situation do ? That's what the appeals body will be thinking. If the OP is a genuine case that's just unfortunate.

 

[furlong]

what have we got to prove it did ?

The statement from the passenger. Such a statement must be accepted as true by an Appeals Panel unless the train company reasonably demonstrates it is untrue. In situations such as these, it was expected that the member of staff would be asked what happened and then the train company would decide whether or not to oppose the appeal.

16(4) Where the appellant makes representations as part of an appeal under this regulation in relation to any of the matters specified in paragraph (5), it is for the operator on whose behalf the penalty fare was charged to provide evidence that reasonably demonstrates that any fact described by the appellant in relation to any of those matters is not true.
(5) The matters referred to in paragraph (4) are—
(a) in circumstances where the appellant was charged a penalty fare in relation to travelling by, being present on, or leaving a train—
...
(iii) whether any of the circumstances mentioned in regulations 6(2) applied;
...

6(2) This paragraph applies if, at the time when, and at the station where, the passenger boarded the train—
...
(d) the operator of the train or the station, or a person acting or purporting to act on behalf of the operator, indicated that the passenger was, or persons generally were, permitted to travel by or be present on the train without having a travel ticket.

 

[SuspectUsual]

The other problem the OP may face is that regardless of what actually happened and what was actually said, it seems to me that Northern would expect the conductor to have said "no, you can't travel, there are ticket buying facilities here", so in the event that weeks later the conductor is asked what he did or didn't say, its likely their reply will be "no recollection" or even "I didn't say they could travel"

 

[fandroid]

Previously, we've seen cases where Northern have simply responded to similar circumstances by saying "our staff are trained not to do that " and the appeals body has accepted that guff as evidence that it didn't happen. Some effort has to be made to persuade the appeals body that their duty includes telling Northern that they must specifically trace the staff member concerned and get a statement off them.

 

[scrapy]

In this case, assuming the passenger knows which train it was and the date (which they presumably do) then the operator should be able to identify the member of staff. "08.22 departure on 21 October? That was Conductor Bill Smith of Wigan. Does he remember speaking to a passenger at xxxx on that date?"

It's unlikely Northern will go to.this trouble - it's not in their interest to do so either. Conductors speak to multiple passengers everyday, it's unlikely they will.remember anyway. The OPs partner could request CCTV from Littleborough which may show them speaking with the guard. (Whilst it won't show what's said it will at least corroborate their story). They are entitled to view this under GDPR if its still available but is unlikely to be available if the incident was more than a month ago.

 

[AlterEgo]

The other problem the OP may face is that regardless of what actually happened and what was actually said, it seems to me that Northern would expect the conductor to have said "no, you can't travel, there are ticket buying facilities here", so in the event that weeks later the conductor is asked what he did or didn't say, its likely their reply will be "no recollection" or even "I didn't say they could travel"

The allegation is that not only did the conductor say she could travel, but that they were unable to issue her a ticket (I note this has been retracted from the opening post but perhaps the OP can confirm if this part was correct or not), and hence advised her to buy at Victoria.

I think it's very unlikely a conductor with a working machine would refuse to sell a ticket and give up the commission, but more likely they were naive enough to just allow travel if their machine was broken.

It would help to know if this was true or not, because if the conductor didn't sell any tickets at all on their journey then that helps the OP's partner. However, if that was the case, it's also extremely unlikely the OP's partner is the only one so unable to buy a ticket onboard on that train and also unlikely to be the only person reporting this when getting to Victoria.

 

[Parham Wood]

The allegation is that not only did the conductor say she could travel, but that they were unable to issue her a ticket (I note this has been retracted from the opening post but perhaps the OP can confirm if this part was correct or not), and hence advised her to buy at Victoria.

I think it's very unlikely a conductor with a working machine would refuse to sell a ticket and give up the commission, but more likely they were naive enough to just allow travel if their machine was broken.

It would help to know if this was true or not, because if the conductor didn't sell any tickets at all on their journey then that helps the OP's partner. However, if that was the case, it's also extremely unlikely the OP's partner is the only one so unable to buy a ticket onboard on that train and also unlikely to be the only person reporting this when getting to Victoria.

The conductor is alleged to have said that she should board the train and buy at Victoria. Therefore whether or not the conductor sold tickets is irrelevant.

 

[AlterEgo]

The conductor is alleged to have said that she should board the train and buy at Victoria. Therefore whether or not the conductor sold tickets is irrelevant.

Yes, "alleged". It is relevant if you're going to try and substantiate it in the absence of any record of such permission. The appeal may consider it unlikely that a conductor who was perfectly capable of selling tickets, and indeed perhaps sold them to other passengers on board on that trip, would have given permission for this particular passenger to just not buy one.

 

[furlong]

It's unlikely Northern will go to.this trouble - it's not in their interest to do so either.

The way the regulations are written, they don't have much choice unless they don't oppose the appeal. Similarly if the passenger claimed that CCTV would confirm they had a conversation, the Appeals Panel would have to accept that as true unless Northern produced evidence to refute it. (E.g. Camera not in the right place, or footage shows something contrary, or conductor's denial.)

Even going back to 2002, the SRA's 2002 Policy document said:

Access to the information needed to decide each appeal.
The appeals staff will need to assess whether the operator has failed to meet the requirements of its scheme, the rules and the regulations. To do this, operators must keep records of, for example, the actual opening hours of ticket offices, when ticket machines have broken down, and so on, and to give this information to the appeals organisation when it is needed. Appeals staff will also need to assess whether an authorised collector has used his or her discretion in an appropriate way. To do this, arrangements will need to be made for authorised collectors and other staff to give their version of events to the appeals organisation when necessary.

I don't think there can be any question that it has always been expected that staff involved will be contacted to provide input into the appeals process when matters like this arise.

 

[island]

Whatever grounds you decide to put in your second appeal, I would strongly suggest you get your story straight before writing it. It has chopped and changed in numerous aspects since the original post.

 

[fandroid]

Whatever grounds you decide to put in your second appeal, I would strongly suggest you get your story straight before writing it. It has chopped and changed in numerous aspects since the original post.

How that appeal is drafted also depends on what was said in the first appeal. A second appeal relying on a different story will need a lot of careful explanation to give it any credibility.

 

[AlterEgo]

How that appeal is drafted also depends on what was said in the first appeal. A second appeal relying on a different story will need a lot of careful explanation to give it any credibility.

This is why we need to see the first appeal and the refusal, both in full.

 

[Deckard_91]

Thanks all for the response and help.
Apologies, I understand the story has changed as I initially wrote it in work. When I got home, my partner told me exactly what happened, and I updated the post.

The facts are as follows:
My partner was instructed before boarding the train, by the conductor (acknowledging my partner did not have a ticket at the time), that she should board the train, and purchase a ticket from Manchester Victoria station. The conductor, to my partner's knowledge, didn't have facilities to sell a ticket on the train for this particular journey, or notice anybody else buying a ticket on board (sometimes they do, sometimes they don't, in my own experience for this journey).

I have attached the first appeal outcome and also the Penalty Fare Notice. As for the first appeal, I can't provide that right now as partner at work, but it was written in a rush most probably, but the facts still the same.

If anybody could assist with mentioning something specific or any citations from the regulations that would be more than helpful.

 

[Titfield]

I cant help but notice but even now there are slight differences in wording in the recounting of the events of that day.

However as other posters have noted this appeal hinges on whether you can prove or convince the appeal body that you were given permission to travel without a valid ticket.

It seems to me that given this is probably a defence advanced by many recipients of penalty fares, that the appeals body will be minded to reject it unless there is compelling proof of permission. Otherwise there would almost be no point in issuing penalty fares as they would be overturned on appeal almost as a matter of course.

In the absence of proof of permission I can not see what course of action you could take which would be successful.

 

[scrapy]

Thanks all for the response and help.
Apologies, I understand the story has changed as I initially wrote it in work. When I got home, my partner told me exactly what happened, and I updated the post.

The facts are as follows:
My partner was instructed before boarding the train, by the conductor (acknowledging my partner did not have a ticket at the time), that she should board the train, and purchase a ticket from Manchester Victoria station. The conductor, to my partner's knowledge, didn't have facilities to sell a ticket on the train for this particular journey, or notice anybody else buying a ticket on board (sometimes they do, sometimes they don't, in my own experience for this journey).

Did your partner explain the circumstances to the conductor, or simply say that they couldn't get a ticket?

The conductor then being under the impression that your partner had tried to use station facilities but found there was nowhere to purchase a ticket at Littleborough due to ticket office closure and machine out of order. The conductor took your partners word for this, the on arrival in Manchester this was checked and found not to be the case?

 

[furlong]

However as other posters have noted this appeal hinges on whether you can prove or convince the appeal body that you were given permission to travel without a valid ticket.

Indeed and yet there is strangely no reference to this in the response letter to the first appeal. Was it mentioned in the appeal and if not whyever not? The references to digital tickets are hard to reconcile with the story as presented here.

It seems to me that given this is probably a defence advanced by many recipients of penalty fares, that the appeals body will be minded to reject it unless there is compelling proof of permission.

That is NOT how an Appeals Panel is REQUIRED to work - please read my earlier posts. An operator wishing to oppose an appeal needs to provide evidence in each case that reasonably demonstrates that permission was not given. If that can't be done, the appeal must be upheld. The burden of proof in this situation lies firmly with the train operator not the passenger. Several methods have already been suggested in this thread as to the sorts of evidence the train company might be able to present to convince an Appeals Panel of its case.

 

[AlterEgo]

Thanks all for the response and help.
Apologies, I understand the story has changed as I initially wrote it in work. When I got home, my partner told me exactly what happened, and I updated the post.

The facts are as follows:
My partner was instructed before boarding the train, by the conductor (acknowledging my partner did not have a ticket at the time), that she should board the train, and purchase a ticket from Manchester Victoria station. The conductor, to my partner's knowledge, didn't have facilities to sell a ticket on the train for this particular journey, or notice anybody else buying a ticket on board (sometimes they do, sometimes they don't, in my own experience for this journey).

I have attached the first appeal outcome and also the Penalty Fare Notice. As for the first appeal, I can't provide that right now as partner at work, but it was written in a rush most probably, but the facts still the same.

If anybody could assist with mentioning something specific or any citations from the regulations that would be more than helpful.

We really need to see the first appeal, because the response rejecting the appeal does not mention anything about permission to travel or reference the conductor at all.

If the argument was advanced in the first appeal and the response rejecting it did not consider it then you may also mention that in the second (and if necessary, third) stage of the appeal.

But if the first appeal made no argument of permission, then advancing it at a later stage is likely to be seen as speculative and an assessor is likely to be minded it is not true.

 

[Deckard_91]

Here is the transcript from the first appeal that was unsuccessful:

I am writing to appeal this notice as I was unable to purchase a ticket for the following reasons...
I tried to purchase a ticket on my Trainline app on my phone which took me through to payment stage but then said there were no fares left at this rate. I then had to repeat the process again and when I got to ticket selection it said they were unavailable to purchase online (I'm not sure why) so it meant I couldn't get a ticket on my phone.
As I could see the train just pulling up, I walked to the end carriage and spoke to the train staff member on duty and asked if I could purchase a ticket on the train. He advised me that I could board the train and buy a ticket at Victoria station which I did. When I got to Victoria I went straight to a desk where I thought I could purchase a ticket to be then be surprised by being issued with a penalty notice.

I tried to explain my situation and I was advised that I should appeal as I was given the wrong information from staff. I feel like it is very unfair as I was being honest and willing to buy a ticket. I wasn't trying to skip paying the fare and I know that there are so many barriers at Victoria station that it would be impossible to do so even if I wanted to. If I thought that you couldn't buy a ticket at Victoria I would've waited for the next train to arrive in about 15 minutes time but I was advised incorrectly by staff so I feel like this is penalty notice was given very unfairly.

________

Do we have a leg to stand on here?

 

[anothertyke]

So is this another example of falling foul of the Northern advance ticket regulations? Maybe the attempt was made to purchase an advance within five minutes of the departure time. I think there have been other cases on here, one from Fitzwilliam comes to mind, where people are unable to purchase on line, board a train and are zapped for a penalty fare. The Northern advance ticket rules seem to lend themselves to this type of situation. To me it's in the same category as being caught doing 45 in a 40 limit on an unfamiliar road where the signage isn't very good. Yes there's mitigation but boarding a Northern train these days without a ticket when you have the opportunity to buy on line or at a TVM is not recommended.

 

[island]

Regardless of the legalities, unless you have verifiable evidence that the train guard gave permission to board without a ticket, it will be difficult to appeal successfully as it would be your word against theirs.