Possible Summons

[Haywain]

If three year railcard is two weeks out of date, then it may well have slipped the mind of that reasonable person.

However, if the railcard had been purchased online, as the OP's comments suggest, it can be argued that reminders of the expiry date will have been sent by email in advance of expiry.

 

[FrodshamJnct]

There was no indication, no payment was taken from me at the time. My biggest worry is that I'm gonna be screwed over not replying to the letter in time.

Contact them as soon as possible. As mentioned in another post, it’s all about what’s reasonable - will they see it as reasonable that you didn’t check your post/have it redirected whilst you were away from your university accommodation.

 

[Fawkes Cat]

In the event that the company chooses to push for Magistrates court, should I plead not guilty? I work in a job where enhanced dbs checks are common, although I suppose they wouldn't care too much about a fare issue.

You may well be right. This is what I said in another thread when a similar question was asked:

Obviously, it depends on your career, but for a number of jobs, the question isn't whether you can show a completely unblemished record, but whether an enhanced DBS shows a pattern of unsuitable behaviour. One mistake does not make a pattern.

Given what you have told us, it would seem that a prosecution is more likely than not. So in this post I assume that the worst happens and you are convicted and punished.

The punishment will be a fine, plus the train fare you didn't pay, plus various costs. The train fare and costs you have no control over, but the fine is a proportion of your weekly income. The court won't know how much your income is, so be prepared to tell them with evidence - bank statements, payslips and so on. If you don't, there's a standard income that is assumed - someone should be along soon to say how much.

You should also tell your employer / university (as appropriate) - you may well be required to do this anyhow by the rules you signed up to when you started, and you don't want to make matters worse by not being open: if your employer/university only find out by rerunning your enhanced DBS, they will feel that as well as making the initial mistake, there is a pattern of bad judgement in making the mistake and then not owning up to it. Put more bluntly, you will have lied to them by omission, and organisations don't like liars - they can't be trusted.

If you have a student union / trade union / professional body, it might be worth talking to them in confidence before talking to your organisation: you may well not be the first person in this position, and they may be able to tell you what will happen.

Don't panic: this may not be the end of the world!

 

[najaB]

"I knew it was due soon, but was busy and forgot to check the date" would seem to introduce doubt that is not unreasonable.

Which is why it's very much about appearing credible in court if it comes to that.

However, if the railcard had been purchased online, as the OP's comments suggest, it can be argued that reminders of the expiry date will have been sent by email in advance of expiry.

Unfortunately, email isn't considered to be a reliable delivery mechanism - it's too easy for messages to get caught in spam filters, etc. so it's entirely possible that the OP never received them.

 

[some bloke]

...which I mistakenly believed was not yet ready to be renewed. ...
letter from Thameslink telling me I was going to be prosecuted for "Travelling with on a train with intent to travel, without a ticket entitling travel". ...I did have a discounted ticket...

Could you please give the exact wording of the alleged offence and law it mentioned?

The discounted ticket still leaves the problem of not having a ticket entitling travel, because it wasn't valid without a valid railcard.

In the event that the company chooses to push for Magistrates court, should I plead not guilty? I work in a job where enhanced dbs checks are common, although I suppose they wouldn't care too much about a fare issue.

If the allegation is of intent to travel without paying the right amount, and you merely made a mistake, I'm not sure what the argument would be for pleading that you had that intent.

On DBS checks, to be clear, what did you agree when you applied for/took the job?

 

[najaB]

If the allegation is of intent to travel without paying the right amount, and you merely made a mistake, I'm not sure what the argument would be for pleading that you had that intent.

Intent is inferred from action. There's no way to prove it was a mistake as opposed to a deliberate attempt to pay 2/3's of the appropriate fare for the journey taken by using a railcard-discounted ticket without a valid railcard.

Hence it's about credibility and believability.

 

[some bloke]

For someone in a job involving enhanced DBS checks, there might be additional motivation not to plead guilty when innocent.

In any case, people differ in their attitude to admitting guilt when there isn't any.

There could be an argument to plead guilty because you think it's not likely enough you will be believed.

But it might have to be pretty strong to outweigh those.

 

[najaB]

For someone in a job involving enhanced DBS checks, there might be additional motivation not to plead guilty when innocent.

True, vut that isn't consideration where the OP iS concerned if the TOC is proceeding with a byelaw 18 prosecution. That's because it's a strict liability offence and nothing the OP has said indicates that they have a sufficient defence.

 

[some bloke]

The points on defence are about intent.

If it's a byelaw conviction, that doesn't necessarily mean it won't be revealed by a DBS check even if it's not supposed to be on the Police National Computer.

There's also the general issue of being upfront with the employer.

As suggested above, it might be useful for the OP to clarify the allegation and law mentioned in the letter, as well as the DBS situation.

 

[mrjfish007]

The conviction was exactly the same as the one in the post here https://www.railforums.co.uk/threads/notice-of-intention-to-prosecute.64940/, I'm assuming this is under a byelaw? The exact wording on the letter was "entering a train for the purpose of travelling without a ticket entitling travel". This was a chance to explain my side of the story (they did want it in 14 days, and it's well past it now) and according to Najab they've got about 2-3 weeks to bring it to the court if the 6 months thing is anything to go by, but they haven't sent me a court summons yet, so I'm unaware of the specific thing I'll be convicted under.

My line of work is in Social Care, where I'm generally in contact with vulnerable people, and I'll be doing medicine in the future which has a similar attitude towards criminal convictions, and I'm sure both of these obviously look for a pattern of behaviour and are looking for violent/drug offences so a minor blemish like this technically shouldn't matter, however I don't know if they expect me to reveal that a minor criminal record like this exists especially when I'm getting reamed over 4 quid.

The offence happened exactly 6 days after my Railcard expired and I had made a journey using it properly just a week prior, surely that is reasonable enough?

 

[najaB]

I'm sure both of these obviously look for a pattern of behaviour and are looking for violent/drug offences so a minor blemish like this technically shouldn't matter

I expect the same.

 

[mrjfish007]

Is it true that a conviction under Railway Byelaws doesn't carry a criminal record? Does it still show up on the DBS check though?

 

[najaB]

Is it true that a conviction under Railway Byelaws doesn't carry a criminal record? Does it still show up on the DBS check though?

You are going to get two answers to this.

First, two facts that are not in dispute: the police are statute barred from entering it onto the PNC, and a DBS check is based on what is recorded on the PNC.

The conclusion that I draw from these facts is that a Byelaw offence is effectively spent immediately and won't appear on a basic or standard DBS check.

Others draw a different conclusion.

 

[mrjfish007]

You are going to get two answers to this.

First, two facts that are not in dispute: the police are statute barred from entering it onto the PNC, and a DBS check is based on what is recorded on the PNC.

The conclusion that I draw from these facts is that a Byelaw offence is effectively spent immediately and won't appeal on a basic or standard DBS check.

Others draw a different conclusion.

Alright, that makes sense, thank you. Hoping that you're right in this case haha.

 

[some bloke]

As Thameslink aren't claiming dishonesty, hopefully there shouldn't be a lot to worry about. As others have said in similar cases, an employer may well regard hiding a relatively trivial conviction far more seriously than the offence itself.

It wouldn't completely surprise me if they dropped the case in view of the 6 days and the approaching deadline.

If there's anything you'd like to add or clarify to them, it would seem justifiable on the ground that you haven't had a lot of time to consider today's response.

First, two facts that are not in dispute: the police are statute barred from entering it onto the PNC, and a DBS check is based on what is recorded on the PNC.

The conclusion that I draw from these facts is that a Byelaw offence is effectively spent immediately and won't appear on a basic or standard DBS check.

I don't know about the police being statute barred (see NACRO, below), but in any case it's not the only relevant fact. It isn't just the police who add entries (see DaveNewcastle, below).

Although a standard DBS check is based on the PNC, an enhanced check adds what the police consider relevant. We might think this offence would be left out, even if the relevant police force already had, or obtained, the information.

The idea that a byelaw conviction "won't appear" in a standard DBS check (because it is not "recordable" on the PNC) seems overstated. I would say it is unwise to make this claim when giving advice.

But in any case there's a separate issue about what to disclose if asked.

"What is on the PNC" or "what might be revealed by a DBS check"

are different matters from

"whether the conviction is spent"

if we are talking about an employee's or applicant's legal duty to disclose when asked.

Now, you can say "it doesn't matter in practice" or "people will probably get away with it" but in giving advice, and on a public forum like this where other people may see the claims, it seems important to keep in mind, and try and explain, what the law actually allows.

"We recommend:...That issues relating to police recording practices are resolved. For example, the inconsistent approach to placing non-recordable criminal record information on the PNC."

June 2018
https://3bx16p38bchl32s0e12di03h-wp.../06/Nacro-position-statement-on-filtering.pdf

DaveNewcastle said (2012):

"A Byelaws Offence successfully Prosecuted does not lead to a Criminal Record nor to an entry in the Police National Computer (PNC). However, Magistrates Courts deal with Railway ticketing irregularities along with other Criminal matters brought to them by the Police and CPS, so it does sometime arise that a PNC entry is made. (In the event that this does happen, they are notoriously difficult to remove or qualify once an entry is made)."

https://www.railforums.co.uk/threads/bye-law-no-18-2-consequence-query.61617/#post-1012885

......

2012:

"It appears to be a rather unpredictable outcome - if a Clerk's office just types in all of a day's cases without a second thought, then they'll all be recorded. If they notice that some are Byelaw matters with no Police or CPS involvement, then they might not.

I'd like to think that I am wrong and that there is more consistency than this, but that's not what I've found. Perhaps the outcome even varies in different parts of the Country, can anyone else provide other experiences?"

https://www.railforums.co.uk/threads/bye-law-no-18-2-consequence-query.61617/#post-1013365


2015:

"If the matter is tried in a Magistrates Court along with a number of Statutory Offences, then there is always a small risk that the Byelaw Offences will be typed in at the end of the day along with the Statutory Offences. It shouldn't happen, but has done in the past."

https://www.railforums.co.uk/thread...her-countries-such-as-us.112547/#post-2087784

 

[najaB]

I don't know about the police being statute barred

I've already posted this:

3.—(1) There may be recorded in national police records—

(a)convictions for; and

(b)cautions, reprimands and warnings given in respect of,

any offence punishable with imprisonment and any offence specified in the Schedule to these Regulations.

The Byelaws (a) don't carry the possibility of a sentence of imprisonment; and (b) aren't listed - so the police do not have the statutory power to record them in the PNC.

Discussion of what may be accidentally recorded in the PNC isn't really helpful.

 

[some bloke]

the police do not have the statutory power to record them in the PNC.

The text only shows that those regulations don't grant the power.
Whether the police are barred overall, rather than having powers defined elsewhere to add other information, is a different matter.

Discussion of what may be accidentally recorded in the PNC isn't really helpful.

The discussion relates to a problematic claim that byelaw convictions "won't appear" on a DBS check. The risk is that someone gets a very nasty shock later.

It is not clear why anyone should claim a legal right to lie about convictions simply by looking at what is, or is supposed to be, on national police records.

 

[najaB]

The discussion relates to a problematic claim that byelaw convictions "won't appear" on a DBS check. The risk is that someone gets a very nasty shock later

In that case, I may find that a conviction for murder appears on my DBS check despite never even having been in a police station in my life...

 

[Haywain]

In that case, I may find that a conviction for murder appears on my DBS check despite never even having been in a police station in my life...

And if there are concerns that it may appear anybody can request a copy of the basic DBS check for themselves at any time.

 

[some bloke]

And if there are concerns that it may appear anybody can request a copy of the basic DBS check for themselves at any time.

Yes - and people may be less likely to check their "criminal record" if they're wrongly told they don't need to, on this forum.

Byelaw offences aren't and cannot be entered into the PNC

The nasty shock would be if someone believes, on the basis of information from this forum,

a) that they are acting lawfully in lying to their employer (perhaps over something the employer would not care about if they had disclosed it) or

b) that it's not lawful but nobody will care

and then the employer takes very seriously the fact that they have lied.

"I don't have any convictions on the PNC" doesn't necessarily mean "it's lawful - and sensible - for me to lie about this conviction".

 

[najaB]

"I don't have any convictions on the PNC" doesn't necessarily mean "it's lawful - and sensible - for me to lie about this conviction".

Disclosure is, generally speaking, a good thing. However overdisclosure can be unnecessarily limiting.

Best advice is to always disclose that which *needs* to be disclosed. Is it your contention that someone should disclose a conviction that has no reason to appear on a DBS check (as a result potentially being overlooked for a job) on the off chance that it happens to have accidentally been entered into the PNC?

 

[pedr]

If someone doesn't disclose a conviction which has been spent under the terms of the Rehabilitation of Offenders when asked on a job application form then it would - as I understand it - be unfair and improper to dismiss them or to prejudice them in any way, unless the job in question is exempt from the RoOA provisions. That's even true if the employer later discovers the fact that the person had been convicted of an offence which is now spent.

If someone doesn't disclose an unspent conviction which then is not revealed on any criminal record checking which the employer does, but the employer then sees an entry in the local paper, or otherwise finds out about the conviction, the RoOA doesn't help as it only provides protection in relation to spent convictions. And nothing in the RoOA distinguishes between recordable and non-recordable offences: a criminal sentence of a fine, for an adult, is spent 12 months after the date of the conviction. It may be that it is very unlikely that any employer or other third party will find out about an unrecorded and non-recordable railway offence conviction. But that is a separate question from whether not disclosing is deemed to be truthful the way it is in relation to spent convictions.

 

[najaB]

If someone doesn't disclose an unspent conviction which then is not revealed on any criminal record checking which the employer does, but the employer then sees an entry in the local paper, or otherwise finds out about the conviction,

I see where you are coming from, but the only legal and lawful way for the employer to find out about the conviction is by conducting a DBS check - that's the DBS's raison d'etre. Who is to say that the paper got it's facts right?

As I see it, if the DBS check comes back clear then that should be the end of the matter.

 

[mrjfish007]

Posting a positive update regarding the case, it has now been successfully resolved. They settled out of court for about 65 quid which I was more than happy to pay. Does leave me wondering though, since it had been a bit more 6 months since they'd stopped me (at the station) if I could've just ignored them, but figured it'd be ideal to stay on the safe side. Thanks a ton for everyone in the forum who helped sort this out.

 

[Fawkes Cat]

That's good news. Thanks for letting us know what happened.

 

[najaB]

Posting a positive update regarding the case, it has now been successfully resolved. They settled out of court for about 65 quid which I was more than happy to pay.

Thanks for letting us know.