Prosecution time limits having "gamed" the Oyster system

[keiran]

Mod Note: Posts #1 - #9 originally from two threads found here and here.

Please can anyone confirm whether TFL can prosecute for any incidents that occurred more than 6 months ago?

And point to the relevant legislation?

I may have "gamed" Oyster card features (more about testing the system than outright theft)

Many thanks

 

[skyhigh]

Please can anyone confirm whether TFL can prosecute for any incidents that occurred more than 6 months ago?

And point to the relevant legislation?

I may have "gamed" Oyster card features (more about testing the system than outright theft)

Many thanks

If they've contacted you over how you "gamed features" you'd be best off starting your own thread for relevant advice.

 

[keiran]

A new thread has been started by an established member (as above)

I haven't been contacted at all but am apprehensive about being contacted. - though if the 6 month limit rule is applied, I shouldn't have to worry

 

[AlterEgo]

A new thread has been started by an established member (as above)

I haven't been contacted at all but am apprehensive about being contacted. - though if the 6 month limit rule is applied, I shouldn't have to worry

It depends on whether you have committed a summary-only offence or a more serious one such as fraud which is triable either way. It is not possible for anyone to advise further without details of how you have apparently "gamed the system".

 

[keiran]

Many thanks for all the observations above.

My "issue" is at present hypothetical and I have had no correspondence at all from TFL (but I'm just trying to understand the various positions in case)


It seems that I cannot be tried under RoRA or byelaws as any incident occurred more than 6 months ago. (TFL may be waiting to see if I repeat the action, and then they could pounce for all incidents) (I will not repeat)

If they used the Fraud Act it seems I have more "mitigations" to use as it's no longer "strict liability" (Please can someone confirm if they know)

And lastly, do knowledgeable forumites think that the civil law could be, or is ever, used by TOCs and TFL?


Many thanks

 

[Haywain]

If you are gaming the system in a manner that may not be legal, I would advise you to stop doing so (and "not outright theft" sounds, to most people, a lot like theft). Then you won't have to consider whether legal proceeding could result.

 

[keiran]

Yes thanks.

I haven't for at least a year, and will not do so again.

This thread is for any future possible repercussions

 

[Haywain]

Yes thanks.

I haven't for at least a year, and will not do so again.

This thread is for any future possible repercussions

Future repercussions are always a possibility for those who flout the law, and worrying about those repercussions is the price you pay.

 

[AlterEgo]

Yes thanks.

I haven't for at least a year, and will not do so again.

This thread is for any future possible repercussions

Nobody can advise on what repercussions you may face because none of us know how you have been, ahem, "gaming the system", or whether it amounts to an offence triable either way rather than summary only.

 

[ainsworth74]

For general discussion on prosecution time limits please see this thread.

 

[island]

I think that it is quite impractical for us to give useful advice when so much information is absent.

 

[plugwash]

Equally though I think it's imprudent for the OP to share information that might incriminate themselves.

 

[Western Sunset]

Probably need to put the cake away and close this thread.

 

[plugwash]

My understanding is that the oyster system normally only keeps data on individual journeys for 8 weeks.

If they suspect foul play, they can of course keep the data for longer, but given that they have more options for prosecution in the first 6 months than later it seems unlikely to me that they would put data in the "foul play" category and then sit on it for over 6 months before starting proceedings.

 

[vinnym70]

Surely if someone believes they are 'gaming' the system, then fraud is the most likely charge?
To me, the use of the word alone suggests someone has identified a weakness in a system, has actively exploited it and has directly benefited from it.

 

[greyman42]

What is "gaming"?

 

[vinnym70]

In my mind it's plying the rules to your own benefit - it requires knowing the rules and also to deliberately try and bend them in your favour or to exploit loopholes that may exist in those rules.

 

[Fawkes Cat]

In my mind it's plying the rules to your own benefit - it requires knowing the rules and also to deliberately try and bend them in your favour or to exploit loopholes that may exist in those rules.

I'd phrase it as playing to the letter of the rules but not necessarily the spirit or the usual interpretation. In sports, it's the sort of thing that gets you sent off for ungentlemanly conduct, or winning uphill motor races because there's nothing in the rules that says you can't use a go-cart.

 

[yorkie]

What is "gaming"?

That's the problem; it's undefined and we cannot possibly advise with any issue until it is defined.

Someone may describe buying a ticket which has been issued in error as "gaming" the system but that's entirely subjective and wouldn't be an offence.

PAYG is still relatively new and the concept works in a completely different way to traditional ticketing, so even if we fully understood the issue, there may not be any form of precedent and it may not be possible to reach a consensus.

 

[keiran]

Yes, I found a system weakness and initially tested it and then unwisely exploited it on a few occasions.

I won't post the actual details of the weakness on a public forum as it may incriminate me and also publicise it for misuse by others.

It started as an experiment, it hasn't happened for over a year and it's unhelpful and unnecessary for posters to tell me not to do it, etc as that is now lamentably clear to all.



My initial query on here was about the 6 month limit for TFL to take any action, and a poster helpfully said the following, which was confirmed as a good summary by another poster who's a solicitor:-
""
Watershed said:
The default rule for "summary-only" offences, such as breaches of the Railway Byelaws or of the Regulation of Railways Act 1889, is that an information must be laid before the Court within 6 months of the alleged offence. Otherwise a prosecution cannot be brought. See section 127 of the Magistrates' Courts Act 1980.

There is no time limit for offences which are "triable either way" or which are "triable on indictment" (i.e. cases which can or must be heard in the Crown Court). This would include alleged cases of fraud.
""


I also learned that there is "strict liability" for prosecutions under the RoRA and byelaws (which have to be brought within 6 months) in that for prosecution "'intention is irrelevant and you may be guilty simply by the fact you did not have a valid ticket"(ie you are guilty with no recourse to excuses or mitigation)

To add to this, I think that data may not be kept after a certain time period (how long?)


So then I posted
""
My "issue" is at present hypothetical and I have had no correspondence at all from TFL (but I'm just trying to understand the various positions in case)


It seems that I cannot be tried under RoRA or byelaws as any incident occurred more than 6 months ago. (TFL may be waiting to see if I repeat the action, and then they could pounce for all incidents) (I will not repeat)

If they used the Fraud Act (which is "triable either way") it seems I have more "mitigations/defences" to use as it's no longer "strict liability" (Please can someone confirm if they know)

And lastly, do knowledgeable forumites think that the civil law could be, or is ever, used by TOCs and TFL?
""

 

[Haywain]

What is "gaming"?

I would suggest that “testing the system not outright theft” says much about what it is. It sounds to me rather like theft with a veneer of perceived legitimacy.

 

[Cantab26]

If they used the Fraud Act it seems I have more "mitigations" to use as it's no longer "strict liability" (Please can someone confirm if they know)

If you are talking about mitigation then you have already been convicted!

Broadly speaking, the prosecution must prove beyond a reasonable doubt that (1) an offence was committed and (2) the accused committed it.

As to (1), the following must be proven:
(a) actus reus - the ‘guilty act’
(b) mens rea - the ‘guilty mind’
(c) lack of a relevant defence

The prosecutor must prove (a) and (b) beyond a reasonable doubt. The exact requirements as to what must be proven will depend on the specific offence libelled.

If (a) and (b) are made out, the onus of proving that there is a defence falls on the accused, although the standard of proof is lower than for the prosecution i.e. the defence need only be made out on the balance of probabilities (‘more likely than not’), not beyond a reasonable doubt.

And lastly, do knowledgeable forumites think that the civil law could be, or is ever, used by TOCs and TFL?

It could be since it’s really just a plain vanilla contract case, although I have not personally come across such a case: in England and Wales it is easier to tack on a compensation order for the unpaid fare to a prosecution and in Scotland the operators don’t generally bother because private prosecutions are by-and-large not permitted and bringing civil proceedings takes effort and the expense will not normally be worth it.

 

[Watershed]

It seems that I cannot be tried under RoRA or byelaws as any incident occurred more than 6 months ago.

That is correct. You have to allow some time for an information to lead to a summons (or SJP pack) being issued but generally this is of the order of a few weeks, perhaps a month or two at worst if there are significant postal delays. So with these events now lying a year in the past, the possibility of a prosecution under RoRA or the Byelaws can essentially be eliminated.

(TFL may be waiting to see if I repeat the action, and then they could pounce for all incidents) (I will not repeat)

If there are a series of continuing offences (the continuous nature for example being made out if you did this "gaming" on a daily basis), then the 6 month rule would apply from the last instance. But if there is a break in continuity, the 6 month rule applies. So if you started "gaming" again tomorrow, any historic incidents cannot be prosecuted under a summary-only offence.

If they used the Fraud Act (which is "triable either way") it seems I have more "mitigations/defences" to use as it's no longer "strict liability" (Please can someone confirm if they know)

The various offences under the Fraud Act inevitably require intention, and the hoops the prosecution has to jump through are certainly more numerous than the Byelaws' "did you have a valid ticket" or RoRA's "did you fail to pay the correct fare before travel, and did you intend to avoid payment thereof".

But there is a difference between a defence (something you argue to avoid being convicted) and mitigation (something you argue to lessen your sentence after being convicted).

And lastly, do knowledgeable forumites think that the civil law could be, or is ever, used by TOCs and TFL?

There's certainly nothing stopping them, and I imagine it might be an avenue they'd pursue in exceptional cases. For one thing, the burden of evidence is considerably lower - they must merely prove their allegations on the balance of probabilities.

However it is certainly not something I've ever heard of happening, and the cost (to the TOC) of bringing a case is a lot more significant as compared to a run of the mill Byelaws/RoRA prosecution. I imagine that the file would be passed to the BTP if they considered there was evidence of an offence, and if the BTP or CPS declined to charge or prosecute they would probably see that as the end of the matter.

 

[etr221]

Looking it up, a definition of gaming the system:

Gaming the system means using the rules, policies and procedures of a system against itself for purposes outside what these rules were intended for (from https://www.lawinsider.com/dictionary/gaming-the-system)

In other words, it might be thought to be immoral or unfair conduct, but is not, strictly, considering the small print, unlawful or criminal conduct.

And I suspect people's attitude to it is very dependent on their position.

Without too much thought or knowledge, I would suggest much of what comes up on fare, ticketing or disputes threads on this forum might be considered - by one side or the other - as 'gaming the system': i.e. exploitation of the small print gives the passenger a better or worse deal than might reasonably have been expected.

In another sphere, 'gaming the system' is tax avoidence "compliant with the law, though aggressive or abusive avoidance, as opposed to simple tax planning, will seek to comply with the letter of the law, but to subvert its purpose", as distinct from criminal tax evasion.

Without knowing what the OP actually did, it is impossible to judge whether what they did was legal "gaming the system" 'fare avoidence' or criminal 'fare evasion'.

 

[MikeWh]

I have been in contact with the OP and know exactly what they did. I will not post the details here. I note @Watershed's advice upthread and am of the view that TfL probably can't now do anything about what happened.

There is a suspicion that TfL might have put a marker on the OPs account so I have advised them to stay very much under the radar for the foreseeable future.