Penalty Fare advice needed please

[jkdd77]

If anything, it is more likely to go to court now that they have solid evidence that you are refusing to pay a fare you are deemed (fairly or unfairly) liable for, ie. a Penalty Fare.

Your refusal to pay may now be interpreted as a Section 5.3(a) offence under the Regulation of Railways Act. I cannot say for sure whether your action of purchasing a ticket after the event negates the intent. This becomes a recordable criminal offence if you are prosecuted and convicted under it, as opposed to an unrecordable Byelaw offence.
...

S. 5(3)(a) states

If any person—
(a)Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof;

There are three elements of this offence:
1) Travels or attempts to travel;
2) Without having previously paid his fare;
3) With intent to avoid payment thereof

Since the OP had indeed paid for a weekly season prior to travel, and can apparently prove this, I would say that the second criterion has not been met. As an aside, Southeastern would have to cancel the PF in order to prosecute, so the fare they would prosecute for would then be the full single fare, not the PF, and, in the case of a RRA prosecution, this would be complicated by both the OP's prior payment of the season ticket fare, and the apparent invalidity of the PF itself. However, a prosecution under railway byelaws would almost certainly succeed.

I disagree with najaB that the PF was valid, since the incorrect origin station was listed on the PF, but, since IPFAS is not independent at all, being part of Southeastern, I am not surprised that the appeal was rejected.

The safest course of action, by far, would be to pay the PF and then take the matter up with Southeastern and Passenger Focus, although there is no guarantee of a positive outcome.

 

[bb21]

Since the OP had indeed paid for a weekly season prior to travel, and can apparently prove this, I would say that the second criterion has not been met.

But that is the problem. He cannot prove it. A payment for the same amount as a weekly season ticket shown on the bank statement means nothing as it could have been for other tickets. There is also no database of weekly season ticket holders, so the only concrete proof is the ticket itself.

I however do agree that the Penalty Fare is not valid technically speaking, nevertheless that may not stop South Eastern issuing a court summons in the belief that it was. Who the court will side with is not something I can predict, because I am not sure whether an incorrect origin is sufficient for the court to overturn an otherwise correctly issued Penalty Fare.

There is just too much uncertainty for my liking to allow this one to go to court, all for the sake of £20.

 

[LateThanNever]

But that is the problem. He cannot prove it. A payment for the same amount as a weekly season ticket shown on the bank statement means nothing as it could have been for other tickets. There is also no database of weekly season ticket holders, so the only concrete proof is the ticket itself.

I however do agree that the Penalty Fare is not valid technically speaking, nevertheless that may not stop South Eastern issuing a court summons in the belief that it was. Who the court will side with is not something I can predict, because I am not sure whether an incorrect origin is sufficient for the court to overturn an otherwise correctly issued Penalty Fare.

There is just too much uncertainty for my liking to allow this one to go to court, all for the sake of £20.

Practically, agreed.
But in the end if the offence is incorrectly charged then, strict liability or not, you absolutely cannot be guilty of it. It is incorrect. There is no reason why the court should think that evidence of payment should be construed as paying for some other unknown ticket. Any court would have to accept that you'd paid, unless the prosecution could point to a specific ticket that you had purchased for the same amount.- and the onus is here on the prosecution, not the accused! After all you are innocent until proved guilty beyond reasonable doubt . There is more than reasonable doubt here...

Of course this would be more difficult if they decide not to mention the originating station and just go for not having a valid ticket, but having issued a Penalty Fare notice I'd say they have effectively provided evidence of an incorrect prosecution.

 

[najaB]

After all you are innocent until proved guilty beyond reasonable doubt . There is more than reasonable doubt here...p.

Which doesn't matter if they go for a Byelaws prosecution as the only thing the TOC has to prove is that the defendant didn't present a valid ticket when asked to. The OP has already stated that he didn't, so case closed.

 

[DaveNewcastle]

But in the end if the offence is incorrectly charged then, strict liability or not, you absolutely cannot be guilty of it. It is incorrect. There is no reason why the court should think that evidence of payment should be construed as paying for some other unknown ticket. Any court would have to accept that you'd paid, unless the prosecution could point to a specific ticket that you had purchased for the same amount.- and the onus is here on the prosecution, not the accused! After all you are innocent until proved guilty beyond reasonable doubt . There is more than reasonable doubt here...

Of course this would be more difficult if they decide not to mention the originating station and just go for not having a valid ticket, but having issued a Penalty Fare notice I'd say they have effectively provided evidence of an incorrect prosecution.

I think we're missing the point here. The point is not what is written on the Penalty Fare Notice, it is whether or not an Offence has been detected. It appears to me that it has.

The "evidence of payment" you refer to is neither persuasive evidence in rebuttal nor is it adequate evidence.

But that is the problem. He cannot prove it. A payment for the same amount as a weekly season ticket shown on the bank statement means nothing . . . . .

Precisely.

A journey was taken, no ticket was presented, a Penalty Fare was issued and it remains unpaid. It's remarkably simple.

 

[richw]

. There is also no database of weekly season ticket holders, so the only concrete proof is the ticket itself.

When I buy 7 day season tickets they scan/input my photo card details onto the ticket. Is this not recorded or logged on the system that the 7DS has been sold to the photo card number?

 

[jkdd77]

I think we're missing the point here. The point is not what is written on the Penalty Fare Notice, it is whether or not an Offence has been detected. It appears to me that it has.

The "evidence of payment" you refer to is neither persuasive evidence in rebuttal nor is it adequate evidence.
Precisely.

A journey was taken, no ticket was presented, a Penalty Fare was issued and it remains unpaid. It's remarkably simple.

Surely, if the OP was prosecuted under the RRA (specifically), he or she could give sworn evidence under oath that he/she had previously paid his/her fare, by buying the 7-day season ticket, giving details of time, place, method of purchase and seller, supporting this with the bank statement, then, in the absence of evidence to the contrary, this ought to be sufficient, particularly if this corresponds with what the OP said at the time when stopped?

Failure to pay the PF, whether valid or not, does not change the fact that the OP has previously paid his/her fare.

I agree that the apparent invalidity of the PF is of no relevance to whether a byelaw 18 prosecution would succeed, which, in this case, it surely would.

 

[bb21]

When I buy 7 day season tickets they scan/input my photo card details onto the ticket. Is this not recorded or logged on the system that the 7DS has been sold to the photo card number?

No, I don't think so.

 

[Greenback]

I agree. I've bought quite a few weeklies from a TVM, where you put your photocard number in so that it is printed on the ticket itself. What happens in the ticket office is just a quick of getting the number on to the ticket rather than keying it in, as the guard does if you buy on board.

 

[DaveNewcastle]

Surely, if the OP was prosecuted under the RRA (specifically), he or she could . . . . .

Perhaps, but as I read the OP's report, the Company are pursuing the payment of a Penalty Fare (plus accrued admin charges). Not a RRA Prosecution. Please let me know if that is mistaken.

Failure to pay the PF, whether valid or not, does not change the fact that the OP has previously paid his/her fare.

I agree that the apparent invalidity of the PF is of no relevance to whether a byelaw 18 prosecution would succeed, which, in this case, it surely would.

Similarly, I'm not aware that a Byelaw Offence is being Prosecuted, either.

I read the OP's report in this thread as a quite simple instance of a Penalty Fare remaining unpaid. £20 remains outstanding. That's all.

 

[jkdd77]

I was merely speculating on the possible outcome if the (arguably invalid) PF remains unpaid, particularly if a prosecution is then launched under the RRA.

IMO, the £31(?) payment to the TOC presumably showing on the OP's debit card statement, supported by a sworn statement to that effect, is likely to be considered by a court as being more likely to be a payment for a Norwood Junction- London Terminals 7DS than as payment for any other journey or service costing that precise amount.

That said, I certainly do not advise putting it to the test, particularly as the question of whether the OP can demonstrate that he/she has previously paid his/her fare is irrelevant if a byelaw prosecution is pursued instead! Even in the case of a (more serious) RRA prosecution, the risk/ reward ratio would seem to favour paying £20 now rather than face the real possibility of being convicted of a dishonesty offence.

If it's any consolation to the OP, I once had a ticket wallet containing a 1st advance single and railcard fall out of my trouser pocket onto the platform. I realised after boarding the train, immediately before departure. I managed to get off the train and retrieve the ticket wallet, only to see the train leave without me, so I had to return to the ticket office to buy a new standard class ticket for the next service. It was very frustrating, but the mistake was entirely mine and I had to face the consequences, which would surely have been worse if I had continued to travel whilst not being in possession of a valid travel.

 

[bb21]

IMO, the £31(?) payment to the TOC presumably showing on the OP's debit card statement, supported by a sworn statement to that effect, is likely to be considered by a court as being more likely to be a payment for a Norwood Junction- London Terminals 7DS than as payment for any other journey or service costing that precise amount.

But that is the problem is it not? How certain can you be that it will be seen by a court as sufficient evidence? Is it really a good idea challenging a case on that basis (assuming that a charge is brought under the RoRA) without being able to show proof for an argument to the contrary? Way too risky sounding to me.

I have no reason to doubt the OP and his account, but I can't see how it would be a good idea.

 

[jkdd77]

But that is the problem is it not? How certain can you be that it will be seen by a court as sufficient evidence? Is it really a good idea challenging a case on that basis (assuming that a charge is brought under the RoRA) without being able to show proof for an argument to the contrary? Way too risky sounding to me.

I have no reason to doubt the OP and his account, but I can't see how it would be a good idea.

I think we are in agreement that it would indeed be unwise, for the reasons you put forward.

 

[DaveNewcastle]

I was merely speculating on the possible outcome
. . . .


That said, I certainly do not advise putting it to the test, . . .

I'm pleased to learn that is what you were doing. I do not advise Chris842 to attempt that challenge, either.

This forum's rules prevent me from responding to such speculation, other than to reiterate my observation each time a RRA or Byelaw Prosecution is raised, that neither of these are relevant to the current matter, which is simple an unpaid Penalty Fare issued as a consequence of Chris842 having lost the ticket.

£20 is due to be paid.

 

[island]

I'm pleased to learn that is what you were doing. I do not advise Chris842 to attempt that challenge, either.

This forum's rules prevent me from responding to such speculation, other than to reiterate my observation each time a RRA or Byelaw Prosecution is raised, that neither of these are relevant to the current matter, which is simple an unpaid Penalty Fare issued as a consequence of Chris842 having lost the ticket.

£20 is due to be paid.

Indeed, and in default of such payment the sum, which may grow from expenses and fees, is recoverable from Chris842 through the county court.

 

[jkdd77]

Indeed, and in default of such payment the sum, which may grow from expenses and fees, is recoverable from Chris842 through the county court.

This does assume that the PF is found to be valid by the county court, which, as previously discussed, is debatable at best due to the origin station listed on the PF being incorrect, and also due to the additional argument shown below. If the substantive claim was found to be invalid on those grounds, then presumably the claim for administrative fees, which may also be challenged separately as being excessive, would also fall.

Regulation 4(2) of the Penalty Fares Regulations 1994, as amended, states: http://www.legislation.gov.uk/uksi/1994/576/regulation/4/made

(2) Nothing in these Regulations or in rules shall authorise the operator of a train or a person acting on behalf of him to charge a penalty fare in respect of: (a) travel by, presence on or leaving a train other than a train operated by that operator; or...

The plain wording of the Regulation forbids "a person acting on behalf of him" to charge a PF in these circumstances, so it appears to be prohibited for TOCs to enter into agreements to charge PFs on behalf of each other.

The OP travelled by Southern, and the above regulation appears to forbid Southeastern issuing PFs relating to travel on services operated by other operators, so the PF does appear to be invalid, and therefore I must respectfully disagree that £20 is actually due as a civil debt.

In any case, it is far more likely that Southeastern would simply cancel the PF and prosecute, either under byelaw 18 or the RRA, rather than bring a county court claim, and the virtual certainty of a byelaw prosecution succeeding leads me to conclude that the OP would be wiser to pay it and dispute its validity after the fact with London Travelwatch.

 

[island]

Southern has doubtless authorised Southeastern's Authorised Collectors to charge Penalty Fares to Southern passengers; when doing so those Authorised Collectors would be acting on behalf of Southern.

Try again.

 

[Abpj17]

Also on the point of being forced to sign the Penalty Fare, that is unlikely to wash. While I understand that you may feel under pressure to sign the notice under the circumstances, no one can ever force you to do so. I would never sign such a thing should I be in your position and feel that the notice has been incorrectly filled.

Yes they can - if they refuse to let OP exit the station...

But that is the problem. He cannot prove it. A payment for the same amount as a weekly season ticket shown on the bank statement means nothing as it could have been for other tickets. There is also no database of weekly season ticket holders, so the only concrete proof is the ticket itself.

And the TOC ought (in a reasonable world) be keeping records of what it has actually sold. If it was bought on debit/credit card, the OP could try taking it up with their bank…but bringing them into the argument may not help. The legislation for s75/credit cards is referred to at http://www.moneysavingexpert.com/shopping/section75-protect-your-purchases but only applies for over £100. Some banks will offer more generous protection. Under Visa/Mastercard rules there are various provisions around refunds/chargebacks that create expectations that reasonable records should be maintained by merchants.

 

[bb21]

Yes they can - if they refuse to let OP exit the station...

What? On what authority? I would like to see a TOC do that.

While the RoRA offers some provision for detaining a passenger, I do not know one TOC who allows their staff to do that, especially if it is a relatively "trivial" matter such as a Penalty Fare.

If the OP provided his correct details then even the circumstances set out in the RoRA would not apply.