Prosecution letter...

[Dave1987]

I totally understand how it can be viewed. But it was a simple mistake and one which could end up, ultimately, ruining her life and everything she has worked for

I know, unfortunately an awful lot of people try to defraud the railway so everyone caught have to be treated the same way, innocent mistake or not. Incidently something I have just thought is that we have got very far ahead of ourselves here. We still do not know whether they are actually going to take you to court. Have you just received a letter asking for your version of events?

 

[ChantelleO]

I know, unfortunately an awful lot of people try to defraud the railway so everyone caught have to be treated the same way, innocent mistake or not. Incidently something I have just thought is that we have got very far ahead of ourselves here. We still do not know whether they are actually going to take you to court. Have you just received a letter asking for your version of events?

From what I read, it doesn't ask for her version of events. It simply says they are gathering evidence for her possible prosecution and she has 14 to respond if she has anything to say. Unless that is their way of asking her for her version of events? If so, it's quite cryptic. It's scared the living day lights out of her and she was in floods of tears last night with worry about it. I think she just wants to get it all sorted and not get a criminal record.

 

[Dave1987]

From what I read, it doesn't ask for her version of events. It simply says they are gathering evidence for her possible prosecution and she has 14 to respond if she has anything to say. Unless that is their way of asking her for her version of events? If so, it's quite cryptic. It's scared the living day lights out of her and she was in floods of tears last night with worry about it. I think she just wants to get it all sorted and not get a criminal record.

Ouch yeah thats sounds like they are going to prosecute her for intent of evading the fare. Well like Ferret said a solicitor with a good knowledge of railway ticketing regulations and byelaws is a must.

 

[DaveNewcastle]

From what I read, it doesn't ask for her version of events. It simply says they are gathering evidence for her possible prosecution and she has 14 to respond if she has anything to say. Unless that is their way of asking her for her version of events?

Yes. That is the opportunity to make a Statement which will serve 2 purposes. It will a) assist the Investigating Officer in deciding whether or not to pursue a Prosecution for the Offence, and, b) that Statement will become Evidence which could be submitted to the Court if it is passed on for Proesecution.

As for the claim that the Company may pursue a claim of travelling without a valid ticket with the intent to avoid payment, it must be understood that 'intent' does not have its everyday meaning here. It is not for anyone to argue what the passenger thought or even what their tendencies towards certain thoughts might have been; 'intent' is determined by reference to a person's actions and what they say.

I agree with W230 that it would appear, from reading personalised defences and counter-claims, that all of the world's ailments and stresses have fallen on those who are being investigated. Perhaps that is only to be expected; if someone IS acutely ill, then their judgement WILL BE impaired; if they are mildly unwell, it appears a reasonable attempt at an appleal for sympathy to say so. There's no way the person reading would know, and unless there is an Expert Witness Statement (from a Doctor) to provide to the Court, then there is little to be gained by trying to raise it in Court (but conversely, it it was true and was NOT mentioned in the Statement, then it would be unwise to try to aduce that Evidence in Court if it hadn't already been mentioned in the Statement!).

As for whether it is reasonable to instruct a solicitor, that must be a decision for the passenger. The Costs can be high (a Railway Law specialist can charge £2k-£3k to defend a claim in Court). Or the Claim might have been abandoned with an apology and an out-of-Court settlement. Or, the claim might simply be abandoned for want of Evidence.
Its a gamble of odds, as well as a consideration of the costs.
I haven't read enough to form an opinion of the odds, and would have to read the Company's Evidence to reach an accurate estimate.

I have a hunch that there is one specific line of challenge which might undermine a Prosecution, and most Prosecutors would realise that long before exposing their company to the risk of unnecessary costs. I'd expect a solicitor to realise this and get the matter abandoned at a cost of a few hundred pounds in professional fees. Perhaps the OP could do it in their own letter. But it all depends on what we haven't seen from the other point-of-view - the Company's Inspector's Statement.

 

[Dave1987]

"From what I read, it doesn't ask for her version of events. It simply says they are gathering evidence for her possible prosecution and she has 14 to respond if she has anything to say. Unless that is their way of asking her for her version of events?" Yes. That is the opportunity to make a Statements which will serve 2 purposes. It will a) assist the Investigating Officer in deciding whether or not to pursue a Prosecution for the Offence, and, b) that Statement will become Evidence which could be submitted to the Court if it is passed on for Proesecution.

As for the claim that the Company may pursue a claim of travelling without a valid ticket with the intent to avoid payment, it must be understood that 'intent' does not have its everyday meaning here. It is not for anyone to argue what the passenger thought or even what their tendencies towards certain thoughts might have been; 'intent' is determined by reference to a person's actions and what they say.

Is it right that the RPI's could view the use of the Oyster card as intent of avoiding the fare? Or would they have to use this along with evidence obtained by questions they asked the OP?

 

[DaveNewcastle]

[Oooops, I was still expanding on my own post when you popped this question]

Is it right that the RPI's could view the use of the Oyster card as intent of avoiding the fare? Or would they have to use this along with evidence obtained by questions they asked the OP?

They might, but to equate that action with 'intent' then they'd need to provide a basis for doing so. The Case Law doesn't quite cover that action. Some argument about the cost of travel on each leg of the journey, and on the operation and the effect of the machine (the Oyster touch pad) would appear to be necessary to demonstrate the 'intent'. I'd be uncomfortable in having to argue that from the Company's position, and I can't say I'd cherish arguing it from the passenger's position but I'd be marginally more confident with the passenger's defence.
But I still won't estimate the odds, and without those, I couldn't advise on the costs of legal representation.

Anyway, I will say that if the passenger WAS to reply themselves (and therefore to proceed without representation), then I'd suggest making a brief but clear statement of the health matter, a confident assertion that there was no intention to avoid the fare, an honest explanation of the reason for not paying, and refute that passing the ticket (Oyster Card) over the touch-pad demonstrates anything other than compliance with fare paying procedure.

To go back to the letter that is currently waiting a response. I should add that it SHOULD be responded to, but if the passenger IS intending to instruct a Solicitor, then the Solicitor should advise on the response to the letter. However, even when that letter (the Statement) has been sent, there is still the possibility to negotiate with the Company after submitting the Statement and before any possible Court Action. In fact a great many cases are negotiated between the submission of Evidence and a Court Hearing, for the simple reason that it can save time and money - it can be cheaper for the Company to accept a settlement or to abandon a doomed Claim, it can be quicker, and its advantageous for the passenger to conclude the matter sooner, perhaps at less cost, avoid the inconvenience of a Court appearance and avoid the risk of a Prosecution.

 

[Dave1987]

[Oooops, I was still expanding on my own post when you popped this question]They might, but to equate that action with 'intent' then they'd need to provide a basis for doing so. The Case Law doesn't quite cover that action. Some argument about the cost of travel on each leg of the journey, and on the operation of the machine (the Oyster touch pad) would appear to be necessary. I'd be uncomfortable in having to argue that from the Company's position, and I can't say I'd cherish arguing it from the passenger's position but its I'd be marginally more confident with the passenger's defence.
But I still won't estimate the odds, and without those, I couldn't advise on the costs of legal representation.

Anyway, I will say that if the passenger WAS to reply themselves (and therefore to proceed without representation), then I'd suggest making a brief but clear statement of the health matter, a confident assertion that there was no intention to avoid the fare, an honest explanation of the reason for not paying, and refute that passing the ticket (Oyster Card) over the touch-pad demonstrates anything other than compliance with fare paying procedure.

To go back to the letter that is currently waiting a response. I should add that it SHOULD be responded to, but if the passenger IS instructing a Solicitor, then the Solicitor should advise. However, even when it has been sent, there is still the possibility to negotiate with the Company between submitting the Statement and any possible Court Action. In fact a great many cases are negotiated between the submission of Evidence and a Court Hearing, for the simple reason that it can save time and money - it can be cheaper for the Company to accept a settlement or to abandon a doomed Claim, it can be quicker, and its advantageous for the passenger to conclude the matter sooner, perhaps at less cost, avoid the inconvenience of a Court appearance and avoid the risk of a Prosecution.

Yes I see where you are coming from but surely the company could argue the OP was trying to significantly reduce her fare by using the oyster card and consider she wasnt entitled to use the oyster card for this journey. Is there any way around this argument?

 

[DaveNewcastle]

. . . surely the company could argue the OP was trying to significantly reduce her fare by using the oyster card and consider she wasnt entitled to use the oyster card for this journey. Is there any way around this argument?

I'm not quite sure what you are asking here.
I have already said (in the passage you quote) that "to equate that action with 'intent' then they'd need to provide a basis for doing so. The Case Law doesn't quite cover that action."

As I'm sure you know, it is the duty of Counsel to present the facts of the matter, and where it helps to clarify the facts, to test the Evidence of any Witnesses. They will not hypothesise what people might have done nor why they might have done it.
Similarly, it will be for the magistrates, guided by their Clerk, to test those facts against the Law, and not to speculate about what people might have been thinking.

But I really don't think it is at all helpful to speculate about Court procedure at this stage. As someone else has wisely proposed, the OP's sister would do well to either write a letter of frank explanation, an apology and an offer of a settlement of administrative costs, or to instruct a Solicitor. And only those two options.

I'll say no more on this matter without any more facts to consider.

 

[bb21]

Oh yes, £14.40 is the 2013 price.

I'm curious why the RPI didn't issue a penalty fare. Would not that be the usual way to deal with this?

A Penalty Fare is not the correct course of action if there is suspicion of fraudulent travel or fare evasion. It is simply a charge for an innocent mistake. You cannot demand a Penalty Fare and the RPI does not have to issue a Penalty Fare. He should go straight to MG11 if there is suspicion of the above.

That is exactly what she was expecting. She has decided to get a solicitor in order to get professional help in sorting this all out.

This Penalty Fares Q&A document was issued by Greater Anglia's predecessor and Question 15 pretty much answers your question.

Ouch yeah thats sounds like they are going to prosecute her for intent of evading the fare. Well like Ferret said a solicitor with a good knowledge of railway ticketing regulations and byelaws is a must.

Why is it so? The only indication I can see is that they are preparing for the possibility of a prosecution. There is no indication that there will be one, or that it will be for the Regulation of Railways Act.

 

[Ferret]

I'd be uncomfortable in having to argue that from the Company's position, and I can't say I'd cherish arguing it from the passenger's position but I'd be marginally more confident with the passenger's defence.

This is precisely why I do not think a prosecutor will go for the more difficult to prove RoR Act s.5 offence if the railway company want to proceed with a prosecution. It's worth remembering that railway companies do not like losing in Court as it means they have wasted money!

It is far easier to bring a case under the 'strict liability' Byelaw 18 offence of failing to show a valid ticket when asked - patently the Oyster card was not in any way a valid ticket for the journey undertaken. Less risk to the TOC of losing and thereby incurring nasty Court costs. My personal opinion (bear in mind I am not a lawyer), is that paying a Solicitor would be money down the drain; I don't see a realistic prospect of the railway company gambling on an RoR Act Prosecution and it should be perfectly possible to negotiate an out of Court settlement without a Solicitor before a summons to a Magistrates Court for a Byelaw 18 offence is issued.

 

[Dave1987]

This is precisely why I do not think a prosecutor will go for the more difficult to prove RoR Act s.5 offence if the railway company want to proceed with a prosecution. It's worth remembering that railway companies do not like losing in Court as it means they have wasted money!

It is far easier to bring a case under the 'strict liability' Byelaw 18 offence of failing to show a valid ticket when asked - patently the Oyster card was not in any way a valid ticket for the journey undertaken. Less risk to the TOC of losing and thereby incurring nasty Court costs. My personal opinion (bear in mind I am not a lawyer), is that paying a Solicitor would be money down the drain; I don't see a realistic prospect of the railway company gambling on an RoR Act Prosecution and it should be perfectly possible to negotiate an out of Court settlement without a Solicitor before a summons to a Magistrates Court for a Byelaw 18 offence is issued.

The letter clearly states that the company is collecting evidance for a possible prosecution of the OP so I think getting the advice of a suitable solicitor is a good idea. I think in this case they would go for the Regulation of Railways Act as it seems as though they have enough to prove intent. But then again they might except an out of court settlement as it would be easier. Anyway until the OP has received a response from the letter then none of us know how they are going to proceed. Could the OP possibly come back to the thread once they have received next correspondence from GA or Magistrate?

 

[Ferret]

The letter clearly states that the company is collecting evidance for a possible prosecution of the OP so I think getting the advice of a suitable solicitor is a good idea. I think in this case they would go for the Regulation of Railways Act as it seems as though they have enough to prove intent.

That letter is a standard letter. They won't make their decision on which offence to prosecute until they have received the response from the individual concerned in this thread. Intent to avoid the fare can be very difficult to prove, why would you imagine the railway company would risk a defeat when they don't need to?

 

[6Gman]

If part of the defence/mitigation is going to be 'confusion during illness' then a doctor's statement seems vital. And - I would have thought - would encourage the TOC to settle out of court.

 

[DelayRepay]

It seems quite odd that the note on the booking office didn't tell passengers to use the TVM and inform them where it is.

However, the location of the ticket machine seems to be a bit of a side issue. She didn't have a ticket and attempted to leave Liverpool St with an invalid one. As she works, presumably she had a medical note when she was off sick for 6 weeks. If two of the symptoms are fatigue and confusion then proving she had glandular fever and trying to convince GA that was the reason for her mistake would appear, from an outsider's perspective, to have a better chance of success in preventing a prosecution than getting into a debate about the location of the TVM.

A quick observation - the traveller wanted a Marks Tay - Boundary Zone 6 ticket. These tickets are not usually sold at TVMs are they? If this is the case then the fact that she did not buy her ticket at the TVM shouldn't be considered a sign of intent to travel without the correct ticket, since there was no opportunity to purchase the correct ticket.

This doesn't get over the fact that she tried to exit Liverpool Street using an invalid ticket though. To do so, did she walk past any ticket buying opportunities e.g. an excess fare window?

 

[Dave1987]

A quick observation - the traveller wanted a Marks Tay - Boundary Zone 6 ticket. These tickets are not usually sold at TVMs are they? If this is the case then the fact that she did not buy her ticket at the TVM shouldn't be considered a sign of intent to travel without the correct ticket, since there was no opportunity to purchase the correct ticket.

This doesn't get over the fact that she tried to exit Liverpool Street using an invalid ticket though. To do so, did she walk past any ticket buying opportunities e.g. an excess fare window?

From what the op has said she had a season ticket Oyster card for zones 1-6, but she travelled fom Marks Tey. There are ticket machines on the platforms at Marks Tey so she would have enough opportunity to purchase a ticket. Also she could have approached the RPI'S straight away and explained that she needed a ticket. I think by swiping the Oyster card the company will see it as intent to evade the fare and go for a prosecution. Remember it is part of GA's franchise agreement to reduce ticketless travel. That is why I think they will prosecute. Could the OP possibly come back to this thread once they have received next correspondence??

 

[ChantelleO]

From what the op has said she had a season ticket Oyster card for zones 1-6, but she travelled fom Marks Tey. There are ticket machines on the platforms at Marks Tey so she would have enough opportunity to purchase a ticket. Also she could have approached the RPI'S straight away and explained that she needed a ticket. I think by swiping the Oyster card the company will see it as intent to evade the fare and go for a prosecution. Remember it is part of GA's franchise agreement to reduce ticketless travel. That is why I think they will prosecute. Could the OP possibly come back to this thread once they have received next correspondence??

Please feel free to end this thread. My sister is dealing with this matter via a solicitor, so speculation is now irrelevant. Thanks.

 

[The Boat]

Please feel free to end this thread. My sister is dealing with this matter via a solicitor, so speculation is now irrelevant. Thanks.

ChantelleO

If your sister has travelled from Marks Tey before she must of bought a ticket, via a card or cash ask her to go through her Bank statements if she paid using a Card look for the debits and print them out this is evidence that this is a one off mistake or any old Tickets in the purse she may have is she paid by cash

My last post was deleted all I am saying hundreds of daily commuters are doing the same daily with oyster cards and the rail company are trying hard to stop this railway fraud

Good luck and keep us posted of the result and tell her not to worry too much its not the crime of the century