Rather large out of court settlement

[richw]

But TOCs often keep a record of how many PFs they've issues, with a view to not offering them to those who have had a certain number (I was once told it was 3, but this was in the Wagn days).

Bear in mind those who used to have the money in their hands when caught. If they never had to give their details they'd continue not paying and just paying a PF in full, without argument, every once in a while.

How does a guard/RPI know how many somebody has been issued.

Of course they can ask for details, but if passenger has paid the fare on first request they have no obligation based on the wording of the requirement to provide name and address if they've "Failed to pay fare" as they have not failed by having paid penalty fare at first request.

 

[island]

I'm not so sure it is, as all publically available documentation states the important line:



Prior to the part where it states they are required to provide name and address and failure to do so is an offence. So therefore once that fare issued is paid there is no further requirement to provide name and address.

I'm afraid you're wrong there. Please see byelaw 23 (1).

 

[richw]

I'm afraid you're wrong there. Please see byelaw 23 (1).

I could not locate that online, and can only go on the information available to me, I looked at a number of TOCs websites and located their downloadable PDFs all of which state only when failure to pay the requested fare is it an offense not to provide name and address. If you've paid the requested fare - penalty fare in this case based on their PDFs from their website you have no obligation/

Northern's policy specifically says its only an offence to provide a false name or address.

This is obviously a case where the TOC's PDF on revenue protection differ/contradict to the byelaw you mention.

 

[DaveNewcastle]

I could not locate that online, and can only go on the information available to me, . . . . .

Here you go:

23. Name and address

(1) Any person reasonably suspected by an authorised person of breaching or attempting to breach any of these Byelaws shall give his name and address when asked by an authorised person.

 

[richw]

Here you go:

Thanks,
On the basis that a Penalty Fare should only be issued when the staff feel it was a genuine error and not a deliberate attempt would that still come under this part:

breaching or attempting to breach any of these Byelaws

 

[tony_mac]

Yes. 'Reasonable suspicion' is a pretty low bar; they could well be suspicious that you were attempting to avoid the fare but as they can't prove it would offer a penalty fare.

Although there can't be many cases where a penalty fare is issued without a byelaw being broken, I can't think of one!

 

[RJ]

How does a guard/RPI know how many somebody has been issued.

They can ring IRCAS if their TOC uses their services. It's possible that the RPSS does the same for its clients.

 

[island]

Thanks,
On the basis that a Penalty Fare should only be issued when the staff feel it was a genuine error and not a deliberate attempt would that still come under this part:

No. Byelaw 18 (1) states that a person shall not enter a railway vehicle for the purpose of travel unless he has with him a ticket entitling him to travel. This is a strict liability provision and a genuine error does not excuse a breach.

 

[PermitToTravel]

Can you enter one for the purposes of using the facilities e.g. lavatory or buffet, with the side effect of travel?

 

[najaB]

If documentation issued states its full and final settlement of the matter, then that is the end of the matter and neither party can pursue further.

The civil case, yes. A separate criminal case, not so much. According to the reports it is the BTP considering prosecution and they were not a party to the out of court settlement.

 

[PermitToTravel]

The civil case, yes. A separate criminal case, not so much. According to the reports it is the BTP considering prosecution and they were not a party to the out of court settlement.

The original out of court settlement will have prevented Southeastern from taking out any criminal action (and settled the balance, precluding any civil action). You're right though that anyone else can prosecute, it's just that generally (media interest etc. not withstanding) no one else will want to prosecute.

It will always be an issue when anyone can bring prosecutions. I wonder if any further prosecution will fail the CPS public interest test, them declaring it not to be in the public interest to prosecute someone who's already paid not to be prosecuted?

 

[DownSouth]

Could the police prosecution have any chance of getting up without evidence from Southeastern?

 

[Deerfold]

Could the police prosecution have any chance of getting up without evidence from Southeastern?

Do you think Southeastern would refuse to aid a police investigation?

 

[DaveNewcastle]

There seems to be some misunderstandings here:

. . . . . I wonder if any further prosecution will fail the CPS public interest test, them declaring it not to be in the public interest to prosecute someone who's already paid not to be prosecuted?

The passenger did not 'pay not to be prosecuted', they paid compensation for the fares due.

This potential prosecution need not have anything to do with the CPS.

Could the police prosecution have any chance of getting up without evidence from Southeastern?

Southeastern or their appointed investigators would not fail to give evidence to any further investigation and/or prosecution.

Can you enter one for the purposes of using the facilities e.g. lavatory or buffet, with the side effect of travel?

The purpose in entering a train is loosely defined in the Byelaw as "for the purpose of travelling on the Railway". The Act of entering a train without a ticket, for whatever reason, but which resulted in travel, would be technically captured by the Byelaw unless there were exceptional circumstances to show that the purpose of entering a train was specifically understood not to involve travel. Anyone seeking to enforce the Byelaw would not be expected to demonstrate that such exceptional circumstances did not apply - the general arrangement is that trains provide a means of travel and that people enter them to take advantage of that purpose. People enter trains for the purpose of travelling and any exceptions are extraordinary.

 

[Haywain]

There seems to be some misunderstandings here:The passenger did not 'pay not to be prosecuted', they paid compensation for the fares due.

This potential prosecution need not have anything to do with the CPS.

Southeastern or their appointed investigators would not fail to give evidence to any further investigation and/or prosecution.

If a prosecution were to proceed, would the passenger then have grounds for sueing Southeastern?

 

[DaveNewcastle]

If a prosecution were to proceed, would the passenger then have grounds for sueing Southeastern?

I can't imagine what those grounds might be! Damages? I guess I don't know what was written in the settlement agreement, but it is very unlikely to expose the Company to a claim for the refunding of the settlement or to a counter-claim if BTP succeed in bringing forward a criminal prosecution.

No. I doubt it very much. The compensation settlement and the (potential) criminal prosecution are not inter-dependant.

 

[Merseysider]

Can you enter one for the purposes of using the facilities e.g. lavatory or buffet, with the side effect of travel?

If there was a notice saying you need a ticket to board, that would come under this:

13. Unauthorised access and loitering
(1) No person shall enter or remain on any part of the railway where there is a notice:
(i) prohibiting access; or
(ii) indicating that it is reserved or provided for a specified
category of person only, except where he belongs to that specified category.
(2) No person shall loiter on the railway if asked to leave by an authorised person.

I think that means you can't tie yourself to the outside of the train either :-x

 

[island]

I fear we're going off on a tangential corner case.

 

[Merseysider]

I fear we're going off on a tangential corner case.

Yes, sorry.

I personally think the fact an out of court settlement was agreed upon does not preclude his criminal activity and at the very least he should be named. He would no doubt be out of a job and that's no less than he deserves; you or I would face the sack if we engaged in a fraud of this magnitude.

 

[Rich McLean]

Regarding those pax who walk up with £20 ready to pay the PF, I know an RPI where if he see's someone with £20 at the ready before he has even asked, he will write them up instead for a Byelaw 18. The reason behind it as it screams "Pay when challenged" and "Repeat offender"

 

[34D]

I can't imagine what those grounds might be! Damages? I guess I don't know what was written in the settlement agreement, but it is very unlikely to expose the Company to a claim for the refunding of the settlement or to a counter-claim if BTP succeed in bringing forward a criminal prosecution.

No. I doubt it very much. The compensation settlement and the (potential) criminal prosecution are not inter-dependant.

Presumably though, depending on the terms of the settlement, there may well be a clause that precudes SouthEastern providing information to BTP?

 

[DaveNewcastle]

I don't like to speculate in these threads, but . . . .

Presumably though, depending on the terms of the settlement, there may well be a clause that precudes SouthEastern providing information to BTP?

Well, it's possible, but I think it unlikely for two reasons:

1. When we think about what bargaining power each party would have had during the negotiation of that settlement, then I wouldn't expect that the Company would have been under any pressure to accept any condition other than to waive their right to prosecute the Criminal offence; a waiver which only relinquishes the other mechanism by which they would seek to recover the assessed losses in the face of an offer to pay those losses directly.

2. It may not be lawful to refuse to give certain information to BTP in the course of their investigation into an alledged crime (and we shouldn't assume that both parties were naive enough to agree a condition that was unlawful). Having made an unlawful term in the agreement then either party would be at liberty to challenge that agreement subsequently, it its entireity. I'd expect both parties would have been aware of that hazard.

I speculate, but I very much doubt that "there may well be a clause that precludes SouthEastern providing information to BTP".

 

[34D]

There was a case a few years ago where an accused was a school teacher who had intimate relations with an under-16 years old pupil. He made an 'arrangement' with the girls father to pay off part of their mortgage, and when the Matter was eventually investigated by the police and prosecuted by the CPS in the usual manner, the judge stated that the payment would be taken into consideration upon sentencing.

 

[island]

Well, one might boldly assume that the settlement would reduce or remove the amount of compensation which a judge might award on sentencing. It does not of course negate any criminal liability.

 

[Haywain]

Well, one might boldly assume that the settlement would reduce or remove the amount of compensation which a judge might award on sentencing. It does not of course negate any criminal liability.

On the whole, that's not terribly encouraging when this forum regularly advises people to seek to settle out of court!

 

[Deerfold]

On the whole, that's not terribly encouraging when this forum regularly advises people to seek to settle out of court!

On the other hand BTP are unlikely to suddenly start examining the average case - and I'm sure if they did we'd have people coming back and either complaining or seeking further advice.

 

[Haywain]

On the other hand BTP are unlikely to suddenly start examining the average case - and I'm sure if they did we'd have people coming back and either complaining or seeking further advice.

I agree, but if people believe they are paying an amount of money to make the problem go away, why should the problem not go away only if you pay a very large amount of money?

 

[Deerfold]

I agree, but if people believe they are paying an amount of money to make the problem go away, why should the problem not go away only if you pay a very large amount of money?

The problem of the TOC taking the person to court went away.

I'm not sure what you'd suggest to solve this - I'm fairly sure paying the police not to prosecute would cause alarm bells to start ringing.

The TOC is presumably now happy that they have no longer lost out but that doesn't stop a number of criminal offences havening potentially taken place - and presumably BTP are at liberty to investigate this.

I think the only solution is to make sure you're absolutely sure what your payment will achieve. Perhaps the forum's advice should add a caveat that a payment would not prevent prosecution from another TOC or BTP.

 

[tony_mac]

Maybe that would make a nice little moneymaking scheme. Pay your £80 to avoid prosecution, but they will pass on your details to another TOC, who will then ask for an out of court settlement....

(This guy, or his representative, was sharp enough to get an anonymity clause. I wouldn't really want to speculate on what else he managed to negotiate.)

 

[Tibbs]

Maybe that would make a nice little moneymaking scheme. Pay your £80 to avoid prosecution, but they will pass on your details to another TOC, who will then ask for an out of court settlement....

(This guy, or his representative, was sharp enough to get an anonymity clause. I wouldn't really want to speculate on what else he managed to negotiate.)

Indeed, if I were in his position (with his audacity) I'd probably get a clause that said the money was to be paid back if a prosection were envinced.