Pending prosecution

[Haywain]

Deleted posts on advice as informed these are read by rail companies.

While that may be the case, forum rules dictate that you cannot do that:

Please note: by posting on the forum you are bound by our Forum Rules and you agree that the posts you make cannot be removed except at our discretion.

 

[skyhigh]

I felt under attack by two staff at the side of my seat watching me go through my belongings as I panicked about losing my card and the atached anxiety. I then searched for money for them all this after asking for a ticket and how much and stating that I needed to go further.

You probably won't like this, but by this point you've already committed an offence. Their actions don't get you out of trouble. From your previous posts, you said they spoke to you, gave you 5 minutes to find your bank card then a further 5 minutes to find your cash - objectively that seems like they were helping you, not attacking you. It also seems you walked off to get a bus while they were still talking to you.

Given the anxiety and panic attack I was under at losing my card, aggravated by ptsd my mental ability to coordinate my search was not as a normal person may do. I'm afraid we are not all of good mental health or physical health. I would love to plan properly, talk properly, behave properly , but my brain doesn't work like that. And the medication doesn't always help as the side effects often appear dazed.
There is too little training in mental health issues and people are always quick to judge actions based on their own lives rather than Steppng into the shoes of the person to view through their eyes.

Again, you probably won't like this but you need to pay the £99 and settle. If you take this to court it will cause you a lot more stress, you will likely be torn apart and it will cost you more financially too. If you can't "talk properly" or "behave properly" you would need professional representation in court - and that will likely cost more than £99 and you might still lose.

Pay the settlement, then if you still feel you've been wronged take it up with customer services/whatever legal avenue you want to go down. But antagonising the courts and GWR over other people's actions, trying to argue to move the location of the hearing, rescheduling and the theft of pound coins will not end well for you when you are in the wrong here. You're making things harder for yourself.

I previously wrote mental health in a post and how disorganised I am. It seeks to have slipped by.

To be blunt, your story has been hard to understand, has seemingly changed with each post and is even harder to follow now you've deleted most of your posts.

I am not trying to be insulting, or rude, or help the train company out here. I genuinely think paying the £99 is your best option given the circumstances you find yourself in.

 

[yorkie]

I have restored the posts.

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Thanks

Edit: @andy1202 when you are ready for us to unlock the thread, please report this post to alert us.

 

[WesternLancer]

I'm tempted to suggest that clear advice has been given in this thread, various questions answered etc and the OP has the choice of actions they can take and the consequences of those have been outlined.

It strikes me that it might be helpful to close the thread now, and it could be re-opened at the OP's request if there is an update to post, or further advice needed.

Of course a decision for the mods to take.

 

[andy1202]

Hi

Firstly my apologies for deleting posts previously.

So an update.
Firstly the charge.
The prosecution swore before the court that, specifically, I had travelled from Falmouth to st austell without having purchased a ticket. As a point of law, the crime charged must be correct. You can't be charged with theft from asda when it was tesco. The indictment is invalid. As such, being charged with travelling on a train from Falmouth, meaning boarding at a specific time, changing at truro and then getting on the relevant train when that didn't happen. Cannot stand.
An application to amend the charge will be made but such an amendment would place a defendant at a disadvantaged under natural justice. A defence would be prepared in the charge laid and if it is incorrect, then a defendant is not prepared for another charge.

The prosecution has certain legal responsibilities under PACE and statutes. A dirty exists to review said evidence. Failing to follow these results in evidential failings and to answer some, yes technicalities but, they exist for a reason. To allow natural justice to prevail. Procedural impropriety is not tolerated by the courts.

A ticket did exist for my correct journey from Redruth to Truro. The attention of the guard was sought, by way of sure contact, before leaving Truro Station.

The interviewing officer also has very serious obligations under the law, recording accurately and fully what is said including 'significant statements' must be recorded. If not in writing by visual and audio or in writing. Failing to record such statements in line with PACE again is serious failure.

I put forward a number of points to the prosecution, including correct boarding station, having a valid ticket initially, asking for a further ticket, initially that request being honoured only for the rpi to change his mind, and the comments I made to the officer.

I also highlighted the evidential failings under the law, by both the prosecution, the evidence officer and the rpi. In addition I stated I would fight this, apply to quash the case and, in a later letter, my intention to ask for a judicial review of the way gwr handles evidence, in contravention of relevant roles and procedures.

The prosecution came back to clarify the station I boarded, comments I made to the officer and any proof I had.

My reply was to clarify i boarded at Redruth and can provide evidence from my bus pass to show I travelled in a bus to the station just prior to its departure. I clarified my comments to the rpi and the conversation regarding my asking for a ticket and the willingness to sell a ticket before changing track and going directly for prosecution without any communication regarding this. The prosecution confirmed she had not seen the cctv and was unable to review it as it was deleted weeks after the offence. Before a charging decision was taken. I was also able to provide statements regarding use of my visa card up to that day and then nothing for a week. Finally proof of purchase of ticket from Camborne by a friend was asked for.

Within an hour or two of this email being sent I recieved the following .....
"
After a thorough look at your case, I am prepared to accept payment for the fare from Truro to St Austell to settle the matter. The amount outstanding is £6.50 and needs to be paid by 3rd November 2022.

...."

So I am pleased to say case resolved.
Points of law are important and should not be overlooked. I trained in administrative law, particularly interested in judicial review. Ensuring procedures are followed and that evidential requirements are met are essential.

I trust this can help someone else, look at your case as a whole. Minor points may seem irrelevant however a weight of these can carry weight.

== Doublepost prevention - post automatically merged: 13 Oct 2022 ==

How do I edit my post... autocorrect changed words. I can't seem to do it??

 

[WesternLancer]

Hi

Firstly my apologies for deleting posts previously.

So an update.
Firstly the charge.
The prosecution swore before the court that, specifically, I had travelled from Falmouth to st austell without having purchased a ticket. As a point of law, the crime charged must be correct. You can't be charged with theft from asda when it was tesco. The indictment is invalid. As such, being charged with travelling on a train from Falmouth, meaning boarding at a specific time, changing at truro and then getting on the relevant train when that didn't happen. Cannot stand.
An application to amend the charge will be made but such an amendment would place a defendant at a disadvantaged under natural justice. A defence would be prepared in the charge laid and if it is incorrect, then a defendant is not prepared for another charge.

The prosecution has certain legal responsibilities under PACE and statutes. A dirty exists to review said evidence. Failing to follow these results in evidential failings and to answer some, yes technicalities but, they exist for a reason. To allow natural justice to prevail. Procedural impropriety is not tolerated by the courts.

A ticket did exist for my correct journey from Redruth to Truro. The attention of the guard was sought, by way of sure contact, before leaving Truro Station.

The interviewing officer also has very serious obligations under the law, recording accurately and fully what is said including 'significant statements' must be recorded. If not in writing by visual and audio or in writing. Failing to record such statements in line with PACE again is serious failure.

I put forward a number of points to the prosecution, including correct boarding station, having a valid ticket initially, asking for a further ticket, initially that request being honoured only for the rpi to change his mind, and the comments I made to the officer.

I also highlighted the evidential failings under the law, by both the prosecution, the evidence officer and the rpi. In addition I stated I would fight this, apply to quash the case and, in a later letter, my intention to ask for a judicial review of the way gwr handles evidence, in contravention of relevant roles and procedures.

The prosecution came back to clarify the station I boarded, comments I made to the officer and any proof I had.

My reply was to clarify i boarded at Redruth and can provide evidence from my bus pass to show I travelled in a bus to the station just prior to its departure. I clarified my comments to the rpi and the conversation regarding my asking for a ticket and the willingness to sell a ticket before changing track and going directly for prosecution without any communication regarding this. The prosecution confirmed she had not seen the cctv and was unable to review it as it was deleted weeks after the offence. Before a charging decision was taken. I was also able to provide statements regarding use of my visa card up to that day and then nothing for a week. Finally proof of purchase of ticket from Camborne by a friend was asked for.

Within an hour or two of this email being sent I recieved the following .....
"
After a thorough look at your case, I am prepared to accept payment for the fare from Truro to St Austell to settle the matter. The amount outstanding is £6.50 and needs to be paid by 3rd November 2022.

...."

So I am pleased to say case resolved.
Points of law are important and should not be overlooked. I trained in administrative law, particularly interested in judicial review. Ensuring procedures are followed and that evidential requirements are met are essential.

I trust this can help someone else, look at your case as a whole. Minor points may seem irrelevant however a weight of these can carry weight.

== Doublepost prevention - post automatically merged: 13 Oct 2022 ==

How do I edit my post... autocorrect changed words. I can't seem to do it??

Thanks for posting - interesting to read this update and potentially helpful for others in future.

 

[MikeWh]

How do I edit my post... autocorrect changed words. I can't seem to do it??

There should be a link right at the bottom of the post caled "Edit". Click on that and you should be able to.

 

[Master29]

Hi

Firstly my apologies for deleting posts previously.

So an update.
Firstly the charge.
The prosecution swore before the court that, specifically, I had travelled from Falmouth to st austell without having purchased a ticket. As a point of law, the crime charged must be correct. You can't be charged with theft from asda when it was tesco. The indictment is invalid. As such, being charged with travelling on a train from Falmouth, meaning boarding at a specific time, changing at truro and then getting on the relevant train when that didn't happen. Cannot stand.
An application to amend the charge will be made but such an amendment would place a defendant at a disadvantaged under natural justice. A defence would be prepared in the charge laid and if it is incorrect, then a defendant is not prepared for another charge.

The prosecution has certain legal responsibilities under PACE and statutes. A dirty exists to review said evidence. Failing to follow these results in evidential failings and to answer some, yes technicalities but, they exist for a reason. To allow natural justice to prevail. Procedural impropriety is not tolerated by the courts.

A ticket did exist for my correct journey from Redruth to Truro. The attention of the guard was sought, by way of sure contact, before leaving Truro Station.

The interviewing officer also has very serious obligations under the law, recording accurately and fully what is said including 'significant statements' must be recorded. If not in writing by visual and audio or in writing. Failing to record such statements in line with PACE again is serious failure.

I put forward a number of points to the prosecution, including correct boarding station, having a valid ticket initially, asking for a further ticket, initially that request being honoured only for the rpi to change his mind, and the comments I made to the officer.

I also highlighted the evidential failings under the law, by both the prosecution, the evidence officer and the rpi. In addition I stated I would fight this, apply to quash the case and, in a later letter, my intention to ask for a judicial review of the way gwr handles evidence, in contravention of relevant roles and procedures.

The prosecution came back to clarify the station I boarded, comments I made to the officer and any proof I had.

My reply was to clarify i boarded at Redruth and can provide evidence from my bus pass to show I travelled in a bus to the station just prior to its departure. I clarified my comments to the rpi and the conversation regarding my asking for a ticket and the willingness to sell a ticket before changing track and going directly for prosecution without any communication regarding this. The prosecution confirmed she had not seen the cctv and was unable to review it as it was deleted weeks after the offence. Before a charging decision was taken. I was also able to provide statements regarding use of my visa card up to that day and then nothing for a week. Finally proof of purchase of ticket from Camborne by a friend was asked for.

Within an hour or two of this email being sent I recieved the following .....
"
After a thorough look at your case, I am prepared to accept payment for the fare from Truro to St Austell to settle the matter. The amount outstanding is £6.50 and needs to be paid by 3rd November 2022.

...."

So I am pleased to say case resolved.
Points of law are important and should not be overlooked. I trained in administrative law, particularly interested in judicial review. Ensuring procedures are followed and that evidential requirements are met are essential.

I trust this can help someone else, look at your case as a whole. Minor points may seem irrelevant however a weight of these can carry weight.

== Doublepost prevention - post automatically merged: 13 Oct 2022 ==

How do I edit my post... autocorrect changed words. I can't seem to do it??

I would have to say well done. A good outcome after I admit that I was one of the individuals who advised that you would have been better to pay the original settlement when you have shown that perseverance and a bit of knowledge of the law can work in one's favour. Thanks for the feedback.

 

[L401CJF]

Certainly sounds like a rare outcome and a very good one at that. Thanks for updating us!

 

[AlterEgo]

Looks like the OP took the wise step of having someone else, perhaps legally qualified, handle his correspondence or give advice. A good result and thanks for giving the update.

 

[andy1202]

No handled it all myself.

 

[Mcr Warrior]

Would it be fair to say that the OP has escaped on a technicality here, there no doubt being parallels to the decidedly confusing tale that we were originally told as to where they had travelled to/from?

 

[island]

Would it be fair to say that the OP has escaped on a technicality here, there no doubt being parallels to the decidedly confusing tale that we were originally told as to where they had travelled to/from?

I suspect the complicated circumstances and arguments might have convinced the prosecutor to place it in the "too difficult" pile.

 

[skyhigh]

I suspect the complicated circumstances and arguments might have convinced the prosecutor to place it in the "too difficult" pile.

I'm guessing the fact it's GWR, arguably one of the most lenient TOCs, also helped.

 

[andy1202]

It was also due to the staff not complying with thier obligations within statutes and the failure of the prosecuting authority to undertake their duties in compliance with the same.

Technicalities, no.
Too difficult. We'll shouldn't be if it is a strict liability offence like many have stated, you didn't have a ticket, you were on a train!

It all has to be legally compliant and if it is not then no charge may be brought.
For example many laws and bylaws state that you must have done a and b and c to fulfill an offence.
Doing a and c does not constitute an offence. There are examples of this on the forum where charges have been either dropped or no evidence offered for the failure of inspectors to comply with this.

In this case the inspector and the prosecuting authority have to do a b c d. Failure to do this renders the alleged offence null.

Fruit of the poisoned tree!!

So not a technicality, merely compliance with the law.

Many of you as toc staff know the surface of the law but fail to have a handle on the substance or indeed depth of the laws, or indeed have a full comprehension of your requirements. Not to say a few of you may have a full understanding but on the whole you don't understand the substrate.



One reason may be that the toc didn't want the case argued before the court. Certainly this would raise awareness and possibly lead to changes in the status quo if argued before the high court, something I was willing to do by way of case started regarding certain issues. Something the prosecution would not have wanted. The last thing they want is for new case law to be introduced.

The status quo in the law suits train operators as it is. It is the only law where you can buy a full discharge upon payment of a fee.
Pay this or we will prosecute you.

Try that when you are pulled for speeding, or harassment, theft or domestic.
Itll go something like this....

I'm arresting you for ..xyz... you are not obliged etc etc
Hello officer, well I'd like to offer you £100 by way of compensating you for your time if you drop the case and do not charge me.
Really sir... well I also arrest you for bribery!

Really officer, but the train company prosocuter allows me to pay them to avoid a charge.... surely the law must be consistent officer. Or are the train companies commiting an offence of extortion officer.

......


Is it appropriate for a staff member to take money from a passenger for no reason ?

I see nobody on here condemned the act of theft by one of your colleagues, it is a strict liability offence and the actions constitute all elements required for a charge of theft!

Deprived the owner of their property with no intention to return it in order to permanently deprive them of the same.

Or was it part payment of my fare? in which case it cannot be argued that I had intent, intent to avoid payment and the prosecution has to prove... intent.

I did make a complaint regarding the actions of this employee abusing his position of trust, and the inspector being complicit within this act, 'technically' conspiracy of theft, bringing themselves and the toc within the realms of criminal liability;responsible for staff actions-corporate liability. Must chase that up.

 

[furlong]

The status quo in the law suits train operators as it is. It is the only law where you can buy a full discharge upon payment of a fee.
Pay this or we will prosecute you.

Try that when you are pulled for speeding, or harassment, theft or domestic.
Itll go something like this....

I'm arresting you for ..xyz... you are not obliged etc etc
Hello officer, well I'd like to offer you £100 by way of compensating you for your time if you drop the case and do not charge me.
Really sir... well I also arrest you for bribery!

Really officer, but the train company prosocuter allows me to pay them to avoid a charge.... surely the law must be consistent officer. Or are the train companies commiting an offence of extortion officer.

The way this is meant to work in law is that the payment to the rail company is to put the company back into exactly the same position as it would have been in had the offence not been committed. So this means paying fares avoided and any direct costs of dealing with the specific case (e.g. staff time, postage). This matches the approach a court should take if there was a successful prosecution. The train company should not be asking for anything beyond that so in no way should it end up in a better position. This is a tight definition that precludes any contribution towards general revenue protection costs or any element of profit. This is deemed to avoid the situation being considered similar to a bribe as the train company makes no gain compared to prosecuting successfully, but it is a fine line and the practice of some train companies may routinely fall on the wrong side of that line IMHO.

Another body that takes this sort of approach is HMRC so this is not unique to the railway.

The closest equivalent situation involving a police officer would be handled by way of a caution, which is an option not directly available to a train company.

 

[andy1202]

Disagree, a caution is classed as a criminal conviction on the pnc and must be declared when asked, ie job applications. It requires an admission of guilt and does not have a financial penalty.

A roughly simile option to this for tocs is a warning, used in many cases.

Hmrc ask for something back. Ie u owe us £300 undeclared taxs. Please settle or we will go to court to recover.

If the aim is for the toc to not be in a worse position "making whole" then if a customer offers payment at any point during the transaction then that would make the toc whole. The payment should be accepted.

Toc if were to act the same as hmrc could write straight away and say the inspector states you failed to show a ticket, please send us the fare you owe or details of your ticket. Fail to do this will result in formal action.

In fact...

This could be achieved by the inspector there and then filling out a standard letter placing start, destination, price on a pro forma letter and sending it out. After 7 days. No response, investigate and incur costs. This would sort out those who intend to resolve to those that say f it. Also save toc money.

A consistent approach would also be good rather than the range of things we see on forum
From having wrong ticket, at a similar price or being on an app and having purchased a wrong ticket around same price as correct ticket. Take a consistant approach......

1. Accept payment for correct ticket and cancel ticket customer has.
2. If wrong ticket and price difference accept difference (and refund them if they overpaid )
3. Issue penalty fare with review option. Ie if not paid or found to be repeat offender then 4 and incur investigation costs
4. Formal charge


But that is my common sense view. To the wider public, after asking many people on my travels from all walks of life - it is extortion; There is never a breakdown of costs.
The settle offer is made early on after a simple review of inspectors statement, ie there has not been much cost incurred.
Some months later after a 'full' investigation and a charge is laid you can still settle for the same cost!!
Your argument fails on that basis.
I accept your point-but initially a costs settlement of £25 , for re rewriting inspectors statement formally in an offer to settle would make the toc whole.
After charge laid, a 'full' investigation would cost; Reasonably around £2-£300.
A penalty fare is widely accepted as a reasonable option. A conviction is accepted for serious actions. Fraud, repeat offenders, non payment.
A penalty fare could state " this is issued on the basis that should new information come to light upon review, such as fraud, Previous indiscretions or non payment we reserve the right to withdraw this penalty and substitute with further action."


And this is all well and good and the point about making whole is understood. Maybe it would be good to educate inspectors on this point. So long as toc made whole, which is the primary aim of the inspectors, that is all that is required..... Rather than immediately pulling badge and notebook out and going straight to prosecution. And yes seen that as first reaction twice this month. Wonder what bonus incentives are on offer for hitting prosecution targets. And I think it would be nonsense to say there is no target! There has to be some way of measuring inspectors performance and if there is a good inspector who always sells a ticket you can bet that bosses ask why have you not issued any penalty fares or prosecuted anyone!

 

[furlong]

.

Disagree, a caution is classed as a criminal conviction on the pnc and must be declared when asked, ie job applications. It requires an admission of guilt and does not have a financial penalty.

Indeed, but I'm simply repeating the normal justifications that get used in answer to your points, and the inability to give a caution is used as the reason why we have this "not really a bribe" approach.
They wanted something more than a warning but less than prosecution in the same way that the police have a caution. They have Penalty Fares but that framework is too restricted in scope so this other system evolved.

We're all on the same page that the current system is a poor one but nobody seems willing to do anything about it. MPs that raise their voice are scared of being accused of siding with fare dodgers. The DfT has its head in the clouds, considering only the theoretical way everything is supposed to fit together with little interest in what really happens on the ground - it simply has too many conflicts of interest now so takes the easy way out of changing as little as possible as late as possible. I think the higher courts would force certain things to change but nobody has the money to pursue the relevant questions and anyway the train companies fold before cases get that far.

If you dig through other threads on here you'll find more of the problems. Your case was RORA so proving 'intent' would have been key as things should be, but one of the biggest controversies is one of the byelaws that purports not to require intent (or incorporates intent implicitly depending on your point of view). Something like 80 years ago courts decided one of its predecessors was ultra vires and so it got updated to find a compromise such that there was no financial penalty for breaches, but then in the early 2000s, during a renumbering exercise, the financial penalty happened to get reinstated, some of us would say contributing to much of the mess we are in.

 

[NorthWestRover]

A caution is not a criminal conviction. It is, however, an admission of guilt, and may well appear on DBS checks etc, at least until spent.

 

[andy1202]

Although a caution is not a conviction, it forms a part of a person's criminal record and can be used as evidence of bad character if a person is prosecuted for another crime, and Disclosure and Barring Service (DBS) checks (previously called Criminal Records Bureau (CRB) checks) for certain types of employment.

A settlement with a toc cannot be compared to a caution by this definition. A caution has consequences. A settlement does not.

I should have stated that a caution is a criminal record rather than conviction.

 

[reb0118]

......


Is it appropriate for a staff member to take money from a passenger for no reason ?

I see nobody on here condemned the act of theft by one of your colleagues, it is a strict liability offence and the actions constitute all elements required for a charge of theft!

Deprived the owner of their property with no intention to return it in order to permanently deprive them of the same.

Or was it part payment of my fare? in which case it cannot be argued that I had intent, intent to avoid payment and the prosecution has to prove... intent.

I'm sure theft is not strict liability. I'm more used to Scots Law where it's a Common Law offence but does the Theft Act (1968) for England & Wales make it strict liability?....

With regard to your special pound what were the conductor's intentions when he took it? What did he do with it afterwards? What proof do you have that it actually existed (I'm not stating that you are lying but can you prove beyond a reasonable doubt that it was taken)? Did you report the "theft" to the police or other authority timeously so a full investigation could be carried out.

In my opinion if you had verbally conducted yourself to the staff on board in a similar vein to how you have written here I would find it highly likely that the conductor merely forgot he had taken it (and taken it legitimately) due to your actions.

You have been fortunate this time but you might in future come across somebody who doesn't stand for any nonsense and takes a more robust approach. Often it's not always about who is technically right or wrong but about how much nonsense a person who can influence your day/life in a positive or negative way is willing to put up with. You are somewhat, and I'm sure you will agree with this, the architect of your own misfortune.

The pound is gone, forget about it. You have probably more money down the back of your sofa.

 

[skyhigh]

but does the Theft Act (1968) for England & Wales make it strict liability?....

Nope.

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it"

Dishonesty must be considered. If the OP gave the conductor the pound and the conductor forgot he had it or similar, there's no offence of theft.

 

[andy1202]

Dishonesty. Not a quality in someone I would wish to employ in a responsible position.

You have perfectly sumed up my point. Nobody condemning the actions of a responsible person, or colleague to most of you .

What actions the person who was stolen from is irrelevant. Taking money without permission, by a guard tasked with the safety of the train, passengers and child protection does not look good for the company.

Let's see how many more comments I can get supporting the actions of a thief, ahem.. I mean guard

 

[skyhigh]

Let's see how many more comments I can get supporting the actions of a thief, ahem.. I mean guard

I hope you note I'm not supporting either side. I'm simply pointing out you were wrong to say theft is a strict liability offence, when it is not.

If you really want to crusade over a pound coin, feel free to.

 

[L401CJF]

I don't think anybody is saying the guard is fine steal £1.

The railway takes theft very seriously. If I was to steal £1 and was reported, and evidence eg onboard CCTV showed I had infact stolen it, I'd be sacked no ifs no buts.

The issue isn't that "people are defending the guard", I am a guard, I am not defending the guard (if they did infact steal it rather than forget). If the guard did infact steal your money with intent then it is out of order and should be punished accordingly.

The issue is that you seem to have not brought it up at the time. If you seriously think the guard deliberately stole your £1 then that should have been reported to the TOC asap at the time, so CCTV could have been obtained before being overwritten, and investigated properly. Also a police report should have been submitted.

Bringing it up months after the event when the TOC threatens to prosecute over a ticketing irregularity isn't going to result in any action whatsoever. I said it in one of my previous posts and I'll say it again, it's just been left too late to deal with!

 

[Cowley]

Well it looks like this is now dealt with so thanks everyone.