Penalty for conviction under Railway Byelaw 17(1)

[Puffing Devil]

Mod note: posts 1-4 moved from thread "Advice Needed on Rail Fare Evasion SJPN Fine"

On conviction for a Byelaw 17(1) offence only then the maximum theoretical disposal would be:

• Conditional discharge
• Surcharge (£26)
• Compensation (see below)
• Costs (see below)

I disagree for the reasons in my earlier post. A fine is still a viable option in this case.

That said, the OP should move ahead with the SD and work with Chiltern on an out-of-court settlement.

 

[Cantab26]

I disagree for the reasons in my earlier post. A fine is still a viable option in this case.

That said, the OP should move ahead with the SD and work with Chiltern on an out-of-court settlement.

If you would cite some authority for the propositions you advance that would be useful.

Your views on how to deal with section 118 of the sentencing code with respect to the availability of a fine in a magistrates’ court would also assist.

Absent that, a magistrates’ court dealing with this type of offence would have no statutory power to impose a fine, and has no inherent jurisdiction to fall back on at common law either.

Nor can this offence be committed to crown for sentence (where a fine would be available) because it is not triable either way.

 

[Puffing Devil]

If you would cite some authority for the propositions you advance that would be useful.

Your views on how to deal with section 118 of the sentencing code with respect to the availability of a fine in a magistrates’ court would also assist.

Absent that, a magistrates’ court dealing with this type of offence would have no statutory power to impose a fine, and has no inherent jurisdiction to fall back on at common law either.

Nor can this offence be committed to crown for sentence (where a fine would be available) because it is not triable either way.

As I said in the post, the first stop would be the enabling legislation and the SI. They may have penalties set out. I don't have time go through the legislation that supports the Byelaws.

Notwithstanding that, even in the absence of a specific statutory penalty, the court retains inherent powers to impose a penalty it deems appropriate and proportionate to the offence. This principle is well-established in the common law and has been affirmed in numerous cases, such as R v. Rimmington; R v. Goldstein [2005] UKHL 63

 

[Cantab26]

As I said in the post, the first stop would be the enabling legislation and the SI. They may have penalties set out. I don't have time go through the legislation that supports the Byelaws.

There is no default penalty in the parent Act which merely sets out a maximum penalty which may (but need not) be imposed through the byelaws. This knocks out your first stop.

Notwithstanding that, even in the absence of a specific statutory penalty, the court retains inherent powers to impose a penalty it deems appropriate and proportionate to the offence. This principle is well-established in the common law and has been affirmed in numerous cases, such as R v. Rimmington; R v. Goldstein [2005] UKHL 63

There is no authority for this proposition as far as a magistrates’ court’s ability to impose a fine is concerned. It might be different in the High Court or, potentially, the Crown Court, but that is not relevant to the OP.

The Goldstein case concerned the indictable common law offence of public nuisance and is entirely distinguishable.

Which specific paragraphs of the opinions do you say support your asserted position? Bear in mind that the following paragraphs clearly contradict your position:

53.…Similarly, in the matter of sentence, Parliament has reached a view that certain conduct is appropriately covered by an offence which can be tried only summarily and which should attract no more than a particular level of sentence. Parliament has also fixed the maximum sentence to be imposed in summary proceedings, even where the defendant is convicted of more than one charge. Again, in any particular case, the sentence available under statute may appear to the prosecutor to be inadequate. But Parliament is entitled to place an offence in what it regards as the appropriate level in the hierarchy of offences and to limit the sentencing power of a court where the accused is not tried by jury.

54. It is not for the Crown to second-guess Parliament's judgment as to any of these matters by deliberately setting out to reject the applicable statutory offences and to charge the conduct in question under common law in order to avoid the time-limits or limits on sentence which Parliament has thought appropriate.

 

[furlong]

Now that this has a separate thread, in how many more cases might the same problem have happened, and how can we draw the attention of HMCTS to this problem to encourage it to include a check for incorrectly-imposed fines for breaches of byelaw 17 in its current examination of errors in railway prosecutions?

 

[Hadders]

Now that this has a separate thread, in how many more cases might the same problem have happened, and how can we draw the attention of HMCTS to this problem to encourage it to include a check for incorrectly-imposed fines for breaches of byelaw 17 in its current examination of errors in railway prosecutions?

This is a good point. Perhaps it should be bought to the attenttion of some of the journalists who were present at the recent judgement.

The latest update about the Train Company Prosecutions on the gov.uk website does have an email address SJS@justice.gov.uk Although this doesn't appear to be for this sort of thing it might be worth a try.

Train company prosecutions

www.gov.uk

Notice

Train company prosecutions​

Updated 10 September 2024

Update – 15 August 2024​

On Thursday 15 August 2024 the Chief Magistrate made a judgment on a small number of these cases to decide how erroneous proceedings and convictions are dealt with. He decided that these cases should be declared invalid, and anything paid for that offence should be reimbursed.
The first stage will be to list other cases of this type before the court so that a decision can be made as to whether they too should be declared invalid. People involved in these cases will not be required to attend those hearings.
HMCTS will use court records and case information held by rail providers to contact those affected over the coming weeks about the hearing and decision. If you think you may be affected, you should wait to be contacted directly and told what will happen next including if you have paid some or all of a financial penalty. For those who haven’t yet paid anything relating to their offence we will be writing to inform them that the conviction is declared invalid and to confirm the court record has been corrected
If a case you are worried about does not meet all of the following criteria then we can already confirm that you are not affected. Affected cases were prosecuted:

• by Northern, Transpennine, Avanti West Coast, Greater Anglia, Great Western Railway, Arriva Rail Northern, Merseyrail or C2C
• between 2018 and 2023 (with the vast majority of affected cases prosecuted from 2020)
• under Section 5(1) or 5(3) of Regulation of Railways Act (and the wording of one of these would have appeared on the single justice notice you would have received)

If you believe that your address or payment information has changed since you last provided this to HMCTS, please make contact via email at SJS@Justice.gov.uk or telephone on 0300 303 0656 to provide updated information. You will also need your case number or account number so that we can update your details.

Background​

The Single Justice Procedure (SJP) allows those who plead guilty to low-level, non-imprisonable crimes to resolve their case without going to court.
Train companies and various other bodies are authorised by the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 to institute proceedings by a SJP Notice.
The decision to use SJP is a matter for prosecutors. When cases come to court, magistrates decide on conviction and sentence, advised by legal advisers.

Rail fare offences​

HMCTS, the Department for Transport and the Ministry of Justice are aware that several train companies have prosecuted in error some specific offences through SJP in circumstances where:

• the offence was not included in the 2016 Order or
• the offence was imprisonable (albeit no prison sentence was passed for these offences through SJP)

Any procedural error of this type would only relate to specific rail fare offences and does not affect any other type of SJP prosecution.