Penalty fare - purchased after departure

[Afro_Ken]

I was commuting from Bournville to Birmingham New St last week, running late and jumped on the 08:29 without thinking and without having purchased a ticket. I realised this when I saw ticket inspectors on the train and purchased a ticket in the Trainline app (single peak time ticket from Bournville to New St which showed my journey as being on the 8:50 as purchased after the 08:29 had departed Bournville). When the inspector scanned the ticket he identified it had been bought after departure and called across to his colleague “I’ve got another one”. This seemed unprofessional and inappropriate. He explained my ticket wasn’t valid as it was purchased after the train left Bournville and proceeded to take my details and issue a penalty fare notice.

I do not try to dodge fares but I’ll admit I didn’t I was doing anything wrong by buying a ticket on the app after boarding the train. In fact, the guard explained to me that I could have got on the train and bought a ticket from the guard. I don’t see the distinction between that and what I did. All seems rather inconsistent and jobsworth-like.

The penalty fare notice is for £100 plus the single fare of £3.70. This feels wrong as I did in fact pay the single fare for the journey and present the ticket (it was clear to the inspector that I was not going to be able to board the the 8:50 from Bournville!).

Ideally I would like to successfully appeal l but don’t want to waste my time. Is there any basis to appeal or should I just let this teach me a lesson? If I do appeal, does this extend the period in which I can pay the reduced amount or would you pay the £53.70 and reclaim it if the appeal succeeds?

Thanks for your thoughts.

 

[SCDR_WMR]

The experts will be along to give you very good advise, but I would say you have a chance to appeal this based on the details you've given.

They should have issued you an MG11 as I don't believe you can receive a penalty fare for this.

My opinion being that you DID hold a valid ticket (unless it was a train specific advanced ticket) and you were guilty of 'boarding the train without a ticket'.

 

[Watershed]

Welcome to the forum.

You haven't shown us the part of the Penalty Fare notice that shows the stated reason for it being issued, but as @SCDR_WMR says, in a way it doesn't really matter.

A ticket isn't invalid merely because it's bought after departure. What you produced was a valid ticket, and as such it was not lawful for the RPI to issue you with a Penalty Fare. Therefore I would suggest you may want to appeal.

This is completely separate to the fact that at the moment you stepped onto the train without a ticket, you committed an offence under the Railway Byelaws (Byelaw 18(1) refers). Buying a ticket after boarding didn't negate that Byelaw offence.

I appreciate it may be a bit of a strange one to get your head around - but the correct course of action, should the RPI have wished to penalise you for buying your ticket after boarding, would have been to take your details for a potential prosecution for a Byelaw breach.

It's not open to the RPI to make up their own version of the Penalty Fares Regulations where PFs can be issued for buying a ticket after boarding - that's not authorised by the Regulations. They purely concern themselves with whether you are presenting a valid ticket at the point of inspection.

There are three stages of appeal available to you against your Penalty Fare. Unfortunately, the appeals assessors for the first and second stages appear to be of limited competence. We regularly see well-founded appeals rejected by them, with responses that indicate they haven't even read the appeal properly.

They often just seem to decide on moral grounds ('does this smell like fare evasion?') than sticking to the Regulations' stated grounds for appeals. It is only at the final third stage of appeal that you get to an appeals panel, where in our experience more nuanced arguments such as this tend to be considered more openly.

Any time where your Penalty Fare is 'on appeal' (i.e. pending a decision on a first, second or third stage appeal) is not counted towards the 21 day period you have to pay the reduced rate of £50 plus the fare. So it's absolutely worth persisting - there's really nothing to be lost, beyond the time taken to write your appeal.

Importantly, you have legal protection from prosecution under the Byelaws or section 5(3) of the Regulation of Railways Act, which kick in once your first-stage appeal is decided (or is due to have been decided, i.e. 21 days after submitting your appeal, if a decision hasn't been reached yet).

The only exception to this protection is if the Penalty Fare gets cancelled before then, but I can't recall ever having heard of this happening. I wouldn't regard this as a risk worth worrying about.

There are a couple of issues, however; firstly, some train companies seem to completely ignore the fact that they are not lawfully allowed to bring prosecutions once a PF appeal has been decided. They do so anyway, leaving it for you to challenge the prosecution. Given that - as in your experience - train companies' staff sometimes disregard the Regulations in issuing the PF to begin with, I suppose this can't come as a huge surprise.

Secondly, some train companies have recently been arguing that the scope of the section of the PF Regulations (Regulation 11 to be exact) which brings this bar on prosecution is so limited as to be effectively meaningless. They have argue this in front of the chief magistrate and have had a ruling in their favour (see this thread).

The problem is that the Chief Magistrate is not a qualified judge of the sort that would usually decide legal challenges like this; from the way he wrote his judgment, it is apparent he is well out of his depth. Concerningly, there appears to have been no input by passengers (let alone legal representation for them) in that case - which meant that opposition the train companies' arguments wasn't even heard.

The one piece of good news is that the CM's ruling isn't legally binding on other courts. However, the fact that it has been handed down by the CM is influential and may mean that some Magistrates' Courts may accept it as the way the law works - even though in our view, it is a woefully misinformed interpretation of the law and may well have been overturned if appealled (sadly it is now too late to do so - it only came to light months later).

I appreciate this has ended up being an incredibly long response - but hopefully it goes into detail on some of the issues which may be pertinent to your decision as to whether to pay and/or appeal.

 

[SCDR_WMR]

Can you upload your actual ticket or confirm that it is an Anytime Day Single (£3.70).

 

[Watershed]

Can you upload your actual ticket or confirm that it is an Anytime Day Single (£3.70).

There are no Advance tickets from journeys from Bourneville to Birmingham - so given that the OP stated they bought a ticket having selected an itinerary on the 08:50 train, it can only have been issued as an Anytime Day Single (or Return).

 

[Afro_Ken]

Thank you all. Really appreciate the assistance. The reason is stated on the PFN as ‘Purchased after Departure’ (see just below issue date and below the redacted info).
As Watershed states, this will have been an open peak single ticket.
I’m a lawyer, so happy to engage with the Regs in my appeal. Clearly there isn’t a reg to prove a negative but can you point me to the relevant reg I should be looking at re the valid ticket obligation (and is this is in the amendment Regs or the underlying Regs)?
If I pay the penalty fare does that negate my appeal or would I be eligible to be reimbursed if successful?

 

[AlterEgo]

I’m a lawyer, so happy to engage with the Regs in my appeal. Clearly there isn’t a reg to prove a negative but can you point me to the relevant reg I should be looking at re the valid ticket obligation (and is this is in the amendment Regs or the underlying Regs)?

4(1) here: https://www.legislation.gov.uk/uksi/2018/366/regulation/4

If I pay the penalty fare does that negate my appeal or would I be eligible to be reimbursed if successful?

You would be eligible to be reimbursed.

 

[Watershed]

Thank you all. Really appreciate the assistance. The reason is stated on the PFN as ‘Purchased after Departure’ (see just below issue date and below the redacted info).
As Watershed states, this will have been an open peak single ticket.
I’m a lawyer, so happy to engage with the Regs in my appeal. Clearly there isn’t a reg to prove a negative but can you point me to the relevant reg I should be looking at re the valid ticket obligation (and is this is in the amendment Regs or the underlying Regs)?

No problem. Yes, "Purchased after Departure" is not a valid ground for issuing a Penalty Fare. It provides prima facie evidence that you met your obligation to present a valid travel ticket as per Regulation 4(1), and hence that there were no grounds for issuing a PF.

The train company might try and argue that a ticket bought after departure is not a "valid" ticket. But that is a complete non-starter. If it's not valid, surely that means you couldn't have used it on a later train either - in which case, what were you paying for? There is nothing in the National Rail Conditions of Travel (NRCoT) that even purports to say that a ticket bought onboard is invalid. It talks about the penalties for boarding a train without a ticket in condition 9, but that is merely a summary of the law - it does not invalidate a ticket.

More fundamentally, condition 9 clearly envisages that tickets may be bought onboard from a member of staff in some cases (see 9.2.1). Obviously it must be intended for such a ticket to be valid (again, what are you paying for otherwise) so how is this any different from buying such a ticket on your phone? I would put WMT to strict proof of the exact rule that supposedly made your post-boarding ticket invalid - as opposed to criminalising your ticketless boarding, which is a separate matter beyond the remit of the PF system.

In reality, it seems that operators have tried to take a shortcut by issuing PFs for tickets bought after boarding - thinking that it's a ticketing irregularity just like any other - without properly thinking through what they're actually doing. The idea that an eTicket has a completely different set of rules to a paper ticket bought from a guard is clearly nonsense.

Regulation 16(4) is really valuable; it provides that the burden of proof for any issue mentioned in Regulation 16(5) lies on the train company, not you as the passenger. Again the appeals assessors for the first and second stages don't always seem to understand this or take it at face value, but it's important to drive home in my view.

The Regulations were amended in 2022, but there weren't any changes that are really material to your case. Those amendments have also been incorporated into the Regulation on legislation.gov.uk if you look at the "Latest available (Revised)" version, so I think you can just refer to "the Railways (Penalty Fares) Regulations 2018 (as amended)" if you want.

Another potential ground of appeal you might want to consider is non-compliant warning signage. Regulation 8 sets out the requirements for signage but most operators have decided not to bother complying with that Regulation (which in turn refers to Schedule 1). They generally do have some signage but it often doesn't contain the exact specified wording (e.g. "will be charged") and most importantly the signs are often not situated "prominently" at all entrances to a station's platforms. I haven't been to Bournville station in a while, but in general I'm aware that WMT's signage doesn't appear to comply with the Regulation in its wording.

This is a ground of appeal discussed in more detail in this thread, where the passenger succeeded on a second appeal after advancing pretty much the same argument as they'd done for the first appeal - which again shows how persistence is key.

You would be eligible to be reimbursed.

Although they might still try to hold on to the cost of the fare - notwithstanding the fact that you had already paid! (That, of course, is a further indication as to why a PF cannot lawfully be issued in this situation)

 

[Puffing Devil]

If you're happy to challenge the legality of the PF, then not paying would be the route to take. If you do pay and lose the appeal, WMT will still have your money.

There is also the risk that if you fail to pay the PF, WMT may look at your appeal and decide that the magistrates' court is not the best place for them, and go down the civil recovery route.

The only way to guarantee a trial is to ignore the PF and wait for the SJPN or requisition.

 

[Starmill]

The craziest thing about this nonsense is that if Parliament had wanted to make it a ground to charge a Penalty Fare for purchasing a ticket onboard the train after departure they would easily have been able to do so in the recent update to rules. They explicitly set out the relevant grounds so that everyone knows where they stand, which is the point of the regulation. This is not one of them.

It's cakeism of the highest order to have your own dedicated set of regulations you rely on when you want to and then completely ignore them when they don't suit.

 

[soil]

The problem is that the Chief Magistrate is not a qualified judge of the sort that would usually decide legal challenges like this; from the way he wrote his judgment, it is apparent he is well out of his depth. Concerningly, there appears to have been no input by passengers (let alone legal representation for them) in that case - which meant that opposition the train companies' arguments wasn't even heard.

The one piece of good news is that the CM's ruling isn't legally binding on other courts. However, the fact that it has been handed down by the CM is influential and may mean that some Magistrates' Courts may accept it as the way the law works - even though in our view, it is a woefully misinformed interpretation of the law and may well have been overturned if appealled (sadly it is now too late to do so - it only came to light months later).

Worth clarifying that the Chief Magistrate is in fact a qualified judge with a proper legal education, he's technically the chief "district judge", whereas otherwise "magistrates" in general aren't legally trained/qualified.

He's been appointed essentially as the top district judge in the country - district judges do go on to become very senior and respected judges, but for some reason both the chief and deputy chief magistrate (Tan Ikram) appear to be terrible.

It is true that his pronouncements have no binding authority but it's quite usual for low-level judgments (e.g. county court) to be very influential on future judgments even among professional judges

 

[Kite159]

The question is, if there wasn't a revenue check on board would you have still purchased a ticket from Bournville. Or are you someone who will 'accidentally' buy a ticket from somewhere like Five Ways to bypass the barriers at Birmingham New Street if they were in operation that morning?

 

[Afro_Ken]

The question is, if there wasn't a revenue check on board would you have still purchased a ticket from Bournville. Or are you someone who will 'accidentally' buy a ticket from somewhere like Five Ways to bypass the barriers at Birmingham New Street if they were in operation that morning?

Yes, I’d have purchased a ticket from Bournville where I boarded (see original post “I do not try to dodge fares”).

 

[Johnbo05]

Interesting discussion. My understanding was if the RPI scans an e-ticket that was just purchased (i.e. after the train's departure time) was grounds for referral to the prosecutions team, rather than issuing a PF. Is that not the case?

If they had referred to the prosecutions team, would there still be grounds to appeal do we think?

 

[Watershed]

Interesting discussion. My understanding was if the RPI scans an e-ticket that was just purchased (i.e. after the train's departure time) was grounds for referral to the prosecutions team, rather than issuing a PF. Is that not the case?

Yes, that's correct. That would be on the basis of a potential breach of Railway Byelaw 18(1):

In any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel.

If they had referred to the prosecutions team, would there still be grounds to appeal do we think?

There isn't really a formal appeal procedure for a prosecution report; the train company has the discretion to decide how they wish to proceed. I the majority of cases, they would tend to offer an out-of-court settlement which would usually tend to end up being more expensive than a Penalty Fare. However, they of course retain the option of bringing a prosecution in the event that a settlement offer is refused.

So the issue is procedural - the law does not allow Penalty Fares to be issued in these circumstances. Arguably it would be in passengers' interest for these kinds of situations to be able to regularised via a PF - because this gives them a regulated (albeit not entirely competent) method of appealing and it means that the amount of the Penalty Fare is determined by the law, rather than the train company's discretion.

 

[AlterEgo]

Interesting discussion. My understanding was if the RPI scans an e-ticket that was just purchased (i.e. after the train's departure time) was grounds for referral to the prosecutions team, rather than issuing a PF. Is that not the case?

It is the case.

If they had referred to the prosecutions team, would there still be grounds to appeal do we think?

There is no right of "appeal". The prosecution team either proceeds to prosecute or settles. There is no doubt an offence was committed by the OP here at least under Bylaw 18.

 

[Afro_Ken]

Thanks for all the input, a final question from me for now. If I were to appeal is there at least a theoretical risk that a successful appeal could be a Pyrrhic victory and they could instead pursue a prosecution under the relevant bylaw, or does the fact that they didn’t issue a MG11 at the time mean that ship has sailed?

 

[AlterEgo]

They could prosecute you for the offence, and indeed might thanks to the Chief Magistrate’s interpretation of the law. All an MG11 is is a form which captures a witness statement.

 

[Johnbo05]

I think I agree with your notion of pyrrhic victory here. Surely if you've avoided a referral to the prosecutions team and received penalty fare, that's a lot cheaper and with no criminal record - I would take the win!

 

[Starmill]

Thanks for all the input, a final question from me for now. If I were to appeal is there at least a theoretical risk that a successful appeal could be a Pyrrhic victory and they could instead pursue a prosecution under the relevant bylaw, or does the fact that they didn’t issue a MG11 at the time mean that ship has sailed?

If you don't appeal and you don't pay, there's nothing on paper to stop the PF being cancelled and being charged with an offence under the Byelaw or something else. Now as they didn't collect a witness statement they may be sorely lacking in evidence for that, so they may not try it, or they may try it and find they cannot prove it. But that's simply the chance you take. They may have persuasive evidence on the day, we don't really know, although we can clearly see that's not especially likely.

If you do appeal it's much less likely this will happen because even if it did you can use the PF regulation against them, subject to the caveats above. If you appeal and lose three times you're not really in any worse position than today, albeit you should take great care not to miss the payment deadline. If you appeal and win you're not in the clear either. But you might have better odds of that being the end of the matter.

If it were me I'd probably pay the PF and appeal anyway as there's little to lose and it's not that much money. Nobody's perfect.

 

[AlterEgo]

If you don't appeal and you don't pay, there's nothing on paper to stop the PF being cancelled and being charged with an offence under the Byelaw or something else. Now as they didn't collect a witness statement they may be sorely lacking in evidence for that, so they may not try it, or they may try it and find they cannot prove it. But that's simply the chance you take. They may have persuasive evidence on the day, we don't really know, although we can clearly see that's not especially likely.

If you do appeal it's much less likely this will happen because even if it did you can use the PF regulation against them, subject to the caveats above. If you appeal and lose three times you're not really in any worse position than today, albeit you should take great care not to miss the payment deadline. If you appeal and win you're not in the clear either. But you might have better odds of that being the end of the matter.

If it were me I'd probably pay the PF and appeal anyway as there's little to lose and it's not that much money. Nobody's perfect.

They don’t need the customer’s own admission that the offence was committed in this case. It’s clear from the time of the stop and the time of purchase that a prosecution under Bylaw 18 could proceed without any interview from the OP, as indeed they frequently do.

 

[Watershed]

Thanks for all the input, a final question from me for now. If I were to appeal is there at least a theoretical risk that a successful appeal could be a Pyrrhic victory and they could instead pursue a prosecution under the relevant bylaw, or does the fact that they didn’t issue a MG11 at the time mean that ship has sailed?

No problem. As mentioned, the act of bringing an appeal (whether successful or not) means that legally speaking, WMT are barred from prosecuting you for a Byelaw or section 5(3) RoRA offence. At worst they would be entitled to pursue the PF by means of a civil claim in the County Court, if you didn't pay it.

That is quite clearly the letter and intent of PF Regulation 11 says - and neither I, nor anyone legally qualified that I have seen opine on it, can see how there is any doubt about that being the legal position.

However, following the Chief Magistrate's (in our view wrong) decision in the case linked to, WMT may feel emboldened to nevertheless unlawfully bring a prosecution. It would then fall on you to oppose that prosecution on the basis of Regulation 11, potentially having to appeal if the Magistrates' Court allowed the prosecution to proceed despite the Regulation 11 bar.

Obviously that is all going to be a lot more stressful and time consuming than simply paying £53... which is exactly what the train companies rely on. However, if you have the willingness to challenge this as a matter of principle, it could be very valuable for a lot of people. Particularly so if it results in a binding ruling on Regulation 11, where both sides are heard and legally represented.