Revenue Protection Officers' obligations under PACE

[techno]

If one is undoubtedly guilty of fare evasion as per the Byelaw or under the RoRw Act - Would there be a a good chance of succeeding in a procedural/technicality defence for when Revenue Protection Officer does/dopes not do the following things before and/or during questioning you under caution:

1) Tells you, before questioning under caution, that you will not be prosecuted or sent to court - rather that you will only receive a warning letter.

2) Does not tell you that you are free to go, can seek legal advice or make a
phone call.

I know that the admissibility of evidence can be affected if this in not complied with under PACE, but what are the prospects of using this as a defence in these cases?

Further, suppose there is video/audio recording of the whole event showing all of the above - although, they obviously did not know that they were being recorded - would this evidence be allowed in court?

Thanks.

 

[222007]

1/ We never know whether the person will end up in court. I had some cut and dry cases which were settled out of court. At the end of the day we are collating evidence which is then passed to our TOC who then decide if to prosecute and go forward to court so i would never say you will/will not end up in court just that the company will be in touch

2/ at the point we caution the person my training was to tell the person if asked that they are not under arrest, free to leave at any time.

On the subject of cctv the company i worked for our badge cams had a message that told people they were being recorded however im not personally aware of any recording used in court.

 

[scrapy]

1) if you have been told something that is untrue and you can prove it you may have a case. Although if a revenue officer says something like 'it is likely you will only recieved a warning' then I do not believe this would stop a prosecution.
2) I don't believe there is any requirement for a revenue officer to tell you these things.

I believe almost every station and many trains have notices saying goes recordings may be taken so I believe this would be sufficient that further notification is not required. Same as if you assaulted a revenue officer a recording could be used in evidence and you could not use as a defence that you thought it was OK because you didn't know you were being recorded.

 

[yorkie]

....
Further, suppose there is video/audio recording of the whole event showing all of the above - although, they obviously did not know that they were being recorded - would this evidence be allowed in court?

Thanks.

Sounds like it...

Fair enough. I've known traincrew record conversations on their mobiles / iphones that were later used in evidence.
--- old post above --- --- new post below ---
Personally, I think we should be issued with those "clip-on" cameras, so we could record the abuse and arguments we have on a daily basis.

The TOC's don't want to invest in them, as apart from the cost, they would then have to face up to the issue of the amount of abuse that we take from the travelling public, which is the elephant in the room when we start getting "Customer Care" lectures.

The unions don't want them as it would be hard evidence in cases of alleged improper behaviour by train staff.

The lack of them is being used to protect the guilty, IMHO.

 

[furlong]

If you're talking about a specific case, then seek specific professional legal advice.

Depending on the full circumstances, an application to rule certain evidence inadmissible might succeed, or it might not, but a prosecution could still be successful based on other evidence. A prosecution after being told there would be none might perhaps be deemed an abuse of process, but equally it might not pass the threshold for this or some alternative remedy might suffice.

 

[DaveNewcastle]

. . . . but a prosecution could still be successful based on other evidence.

I think this is the crucial point.

The primary question has to be: has the offence, as defined in statute, or secondary legislation been commited, as clarified by case law? Yes or No.

If No, then these questions about process don't arise.
If Yes, then someone could try to find fault, but in doing so, is as likely to be exposing the client to an admission of some facts, as to be exonerating them from the offence as charged.

My advice, when trying to contest the process rather than the evidence, is to be very, very, very careful.

 

[Elwyn]

Ultimately it is for the judge to decide whether evidence is admissible or not. He/she will listen to whether a caution and other information was given under PACE. If disputed, Counsel may argue about that at a preliminary hearing. The interviewing officers (and their notebooks) can be subject to the courts examination. In my experience (which is outside of the railway field) the courts take a pretty sensible and pragmatic approach. They will weigh up the credibility of the witnesses (interviewing officer(s) and the accused) and they generally don’t like letting people off on a technicality unless the investigating officer has willfully disregarded PACE.

If you are otherwise “bang to rights’” and your case goes to court (which it may not) I wouldn’t rely on an alleged breach of PACE to get you off. That’s my opinion.

Definitely a matter to discuss with a criminal solicitor.

 

[tony_mac]

To give the OP something to read...

http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/#b06

On 28 November 2006, the Lord Chief Justice (LCJ) delivered a judgment for the Court of Appeal in R v Abu Hamza [2007] 1 Cr. App. R. 27. This judgment is highly relevant to cases where abuse arguments are raised on the basis of breach of an undertaking not to prosecute. The LCJ stated at paragraph 50:

"... circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice."

He went on to say that:

"Only in rare circumstances will it be offensive to justice to give effect to [the public interest that those who are reasonably suspected of criminal conduct should be brought to trial]. Such circumstances can arise if the police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance on that undertaking, acts to his detriment."

The Court of Appeal's decision in Abu Hamza, and the authorities noted above suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless there has been:

(a) an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and

(b) the defendant has acted on the representation to his detriment.

Even then, if facts come to light that were not known when the representation was made, this may justify proceeding with a prosecution despite the representation.

 

[Flamingo]

Sounds like it...

That's a zombie post risen from the dead, and as far as I can remember six years on, was written in relation to prosecution of public order type offences, not the filming of staff interactions by passengers.

I believe some other members of the forum are much better acquainted with the issues arising from filming staff, overtly and covertly, and indeed I think there may have been a thread recently on that very subject...

 

[Mag_seven]

If one is undoubtedly guilty of fare evasion as per the Byelaw or under the RoRw Act - Would there be a a good chance of succeeding in a procedural/technicality defence for when Revenue Protection Officer does/dopes not do the following things before and/or during questioning you under caution:

1) Tells you, before questioning under caution, that you will not be prosecuted or sent to court - rather that you will only receive a warning letter.

2) Does not tell you that you are free to go, can seek legal advice or make a
phone call.

I know that the admissibility of evidence can be affected if this in not complied with under PACE, but what are the prospects of using this as a defence in these cases?

Further, suppose there is video/audio recording of the whole event showing all of the above - although, they obviously did not know that they were being recorded - would this evidence be allowed in court?

Thanks.

Why don't you just buy a ticket instead of trying to get let off on a legal technicality.

 

[DaveNewcastle]

To give the OP something to read...

http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/#b06

It's interesting that you should cite Abu Hamza. I've been racking my brains all day for the authority which refers to private prosecutions following an assurance not to prosecute, and have just found it : Jones v. Whalley [2006] UKHL 41

It was a Criminal Appeal to the House of Lords from a Decision by the High Court in 2005 : [2005] EWHC 931 Admin.

On 17 May 2003 the appellant, Mr Whalley, who is an adult, assaulted and injured the respondent, Mr Jones, at Newton-le-Willows. The matter was reported to the Greater Manchester Police, and an officer of that force interviewed Mr Whalley concerning an offence of assault occasioning actual bodily harm. Mr Whalley admitted commission of that offence. The officer decided that Mr Whalley should not be prosecuted but should instead be cautioned. He was notified of this decision in a standard form bearing the imprint of the Greater Manchester Police. This form explained the effect of the caution:

"This means that you will not have to go before a criminal court in connection with this matter but that a RECORD will be kept of this warning."​

On 22 December 2003 Mr Jones, acting as a private prosecutor, laid an information against Mr Whalley, charging him with assault occasioning actually bodily harm contrary to section 47 of the Offences against the Person Act 1861. The matter came before Justices sitting at St Helens, and Mr Whalley submitted that his acceptance of a police caution on the indication that, if he accepted it, he would not face any further criminal proceedings, should preclude a private prosecution. The Justices heard argument on this issue on 25 October 2004, when authority was cited. The Justices were satisfied that to allow the prosecution to proceed would be an abuse of the process of the magistrates' court, and stayed the proceedings.

Mr Jones appealed to the Queens Bench Division, which "held that the administration and acceptance of a caution were not sufficient to render the exercise of the right of private prosecution an abuse of process". Mr Whalley then challenged that decision in the House of Lords, arguing that the Justices in St. Helens had been correct in fact, and "whether the right of private prosecution can, or should, survive the implementation of a formal cautioning procedure which has not been quashed and set aside".

The Lords made several observations in accepting Mr Whalley's plea:

38. The broader issue is one of some importance. It requires some consideration of the general value of any right of private prosecution in modern conditions. It was not raised below or touched on in the appellant's case, and its implications have not been properly explored. They may be more substantial than might appear. Prosecutions brought without police or Crown Prosecution Service involvement are not uncommon. They may be initiated by private bodies such as high street stores, by charities such as the NSPCC and RSPCA, or by private individuals as in the present case. To treat a police decision to accept a caution as by itself fatal to the maintenance of any private prosecution, even where the terms of the caution expressly reserve that possibility, would be a step which would, at the least, require very careful thought, and might very well, even if it were thought appropriate, require legislation.

39. The Law Commission's approach in their Report on Consents to Prosecution (LC 255) of 20 October 1998 is of interest. The Commission addressed the right to bring a private prosecution in paragraphs 5.3 and 5.4 under the heading of "The Fundamental Principle". It pointed out that it had in its prior consultation paper considered the significance of private prosecutions, and had (in agreement with the statements of Lord Simon of Glaisdale and Lord Diplock and Lord Wilberforce quoted in Lord Bingham's opinion at paragraph 9) concluded that "the right to private prosecution was 'an important one which should not be lightly set aside'" and "should be unrestricted unless some very good reason to the contrary exists". The Commission was (like your Lordships' House in the present case) only concerned with social and legal conditions in England and Wales. In Scotland, private prosecutions are apparently very rare, but without knowing more about the different Scottish environment leading to this being so, I cannot regard it as undermining the traditional English view that the right to institute a private prosecution is an important right and safeguard possessed by any aggrieved citizen.

I'm aware that some of this forum's staff are passionately opposed to any Private Prosecutions on principle, and will vigouously resist these concusions, but I will continue quoting from the judgement -

The Law Commission went on at paragraphs 5.7 and 5.10 to 5.12 to recite criticisms of the right which it had received in the light of its consultation paper, and concluded at paragraph 5.13:

"We see the force of these points but do not believe that it is appropriate to consider abolishing the right of private prosecution without specific consideration which has neither been sought nor given in this project. The issues raised on the question of retention of the right of private prosecution are complex and they are not capable of being resolved within the scope of this report".​

41. At paragraph 5.19 the Commission identified two types of harm as likely to result if private prosecutions were instituted in cases failing the tests applied by the Crown Prosecution Service when deciding whether to prosecute, viz the harm resulting (1) from an unsuccessful prosecution of an innocent defendant and (2) from any prosecution, successful or not, which is not in the public interest. But at paragraph 5.22 they recited three factors which, as they concluded in their consultation paper, demonstrated that these potential harms did not undermine the fundamental principle of the right to institute a private prosecution. The factors were:

"(1) There is always a risk that an individual Crown Prosecutor will either misapply the Code or - more likely, given the width of the Code tests - apply a personal interpretation to the tests which, although not wrong, might differ from that of other prosecutors.
(2) The Code itself may, in the eyes of some, fail to achieve a proper balance between the rights of the defendant and the interests of the community.
(3) It should not be assumed that if it is wrong to bring a public prosecution then it is also wrong to bring a private prosecution. If, for example, a case is turned down by the CPS because it fails the evidential sufficiency test, but only just; if the private prosecutor knows that the defendant is guilty (because, say, he or she was the victim and can identify the offender); and if the case is a serious one, then a private prosecution might be thought desirable."​

The Lords allowed the Appeal.

 

[Flamingo]

Thank you Dave. Very informative.

 

[Stigy]

2) Does not tell you that you are free to go, can seek legal advice or make a
phone call......

It is a requirement under PACE to be told when cautioned that you are not under arrest and are free to leave at any time (this is the same for any staff who question under caution, be it rail staff, Police, RSPCA, DWP etc). It's good practice for staff to put this in question format too, so it's part of the verbatim interview. If this is said but not noted in notes made at the time, but appears in the officer's statement, it's breaching PACE so can't really be used legally. This is only required when a suspect is obviously not under arrest.

It is NOT a requirement to offer free legal advice or allow a phone call or similar. This IS a requirement when a suspect is arrested and taken to custody, where they are NOT free to leave at any point. This is why this entitlement exists, because when a suspect is interviewed by Police/rail staff etc but not under arrest, they are not entitled to these things as they can leave and obtain legal advice etc in their own time whenever they desire, as opposed to being holed up for potentially 24 hrs!

I always tell suspects that even if they leave they'll be reported and answering questions now may be their only opportunity to put their side across.....serves as a bit of a sweetener to allow me the investigation time I need, and is fair for the suspect too.

Worth noting too that name and address should be obtained prior to caution, anything else in terms of probing questions should be done under caution....nothing wrong with asking question without a caution buy using said questions won't be allowed in the statement submitted and subsequent in court.

 

[plastictaffy]

I too have known staff leave their mobile recording when they've gone to the toilet to see what their colleagues think of them, and then take it to management and try to make complaints about it. Re the body camera thing for on board staff - no. Not now, not ever, no way.

 

[AlterEgo]

I too have known staff leave their mobile recording when they've gone to the toilet to see what their colleagues think of them, and then take it to management and try to make complaints about it. Re the body camera thing for on board staff - no. Not now, not ever, no way.

Anyone know if CrossCountry are still using them? TMs were given them a year or two ago, incorporated into their name badge. You slid the badge down half an inch and it started recording. I seem to recall that when slid down there was a yellow banner visible saying "recording in progress" or something similar.

There was a mixed reaction to it at the time, I recall.

 

[222007]

Anyone know if CrossCountry are still using them? TMs were given them a year or two ago, incorporated into their name badge. You slid the badge down half an inch and it started recording. I seem to recall that when slid down there was a yellow banner visible saying "recording in progress" or something similar.

There was a mixed reaction to it at the time, I recall.

I refused to use them and only knew one member of staff that regularly used to use them.

 

[techno]

Why don't you just buy a ticket instead of trying to get let off on a legal technicality.

If a private company is to be, quite irresponsibly by government, delegated right to administer ridiculous strict liability offences against the public where the previous law (fraud, theft Act + civil enforcement) is adequate - and they are prepared to bang someone to rights for intending to buy a ticket (albeit was not able to buy a ticket t at the first available opportunity before boarding) then I think I will bang them to rights in their obligation under PACE. I have the video evidence so they can take a napkin to dry the tears. Awww how sad for them! Haha

I've started a campaign to raise money to send s18 of the Byelawysfor judicial review try and establish the unconstitutional nature. I'll post up links shortly.

 

[Clip]

I've started a campaign to raise money to send s18 of the Byelawysfor judicial review try and establish the unconstitutional nature. I'll post up links shortly.

This bit isnt serious is it?

 

[AlterEgo]

This bit isnt serious is it?

I hope it is. The byelaws - and how they are applied - need serious reform.

 

[Shaw S Hunter]

I've started a campaign to raise money to send s18 of the Byelawysfor judicial review try and establish the unconstitutional nature. I'll post up links shortly.

While a review of Railway Byelaws might well be useful I very much doubt that any such review would consider a single section in isolation. Be careful what you wish for!

 

[DaveNewcastle]

I've started a campaign to raise money to send s18 of the Byelawysfor judicial review try and establish the unconstitutional nature. I'll post up links shortly.

Very interesting!

Please take care to identify EXACTLY what point you wish the Court to consider - from your posts on here it's not at all clear to me, and if its not clear from your posts here, on this specialised forum, then it may not be clear to the Court.

Is it the constitutional basis for a Byelaw to be enforced by a Private Company?
Is it the constitutional basis for a Byelaw to create a Criminal Offence?
Is it the constitutional basis for a Byelaw to create a 'strict liability' Offence?
Is it the evidential standard to be met by a Court when hearing Witness Statements in respect of a Byelaw offence / or of a Criminal Offence / or of a 'strict liability' offence?
Is it the ability of the Court to accept 'an information' brought by a private prosecutor and to issue a summons?
Is it the evidential standard to be met by a 'private prosecutor' ?
Is it the lack of any duty by the CPS to consider (or to be made aware of) a prosecution brought by a private prosecutor, so that they can excercise their rights to take on the prosecution (and to discontinue where it fails to meet the 'full code test')?
Or is it something else that you wish to have reviewed?

 

[furlong]

Well from what I can tell, under earlier byelaws, if you simply didn't present a valid ticket you were required to buy one or you could be removed from the railway. There was no fine (unless there was intent when RORA could be used). When the byelaws were reorganised, the DfT approved the introduction of a penalty, but a previous FOI request asking about this change turned up no paperwork - which struck me as rather odd as I'd have expected they would have had to consider any possible conflict with existing legislation (including Penalty Fares) and the lawfulness of the new penalty, even if only to conclude it did not present any difficulties. Perhaps it would be worth asking the DfT this question again more specifically and trying to enter a dialogue before taking this to the courts.
--- old post above --- --- new post below ---
The subtlety as I see it is that while the offence is well-established, until relatively recently its only practical use was to enforce the purchase of a ticket. Both prosecution under RORA and the issue of a Penalty Fare require a level of intent to evade the fare (either explicit or implicit by ignoring signage) and as such they provide many safeguards for the honest passenger. The byelaw reorganisation, while not making any especially significant change to the offence itself and thereby side-stepping one set of constitutional considerations, by altering only the penalty has had a side-effect of operators preferring to refuse to accept payment of the fare on the spot and instead prosecuting, seeking fines, or using the threat of prosecution to obtain out-of-court settlement payments, in effect introducing a less-burdensome alternative to Penalty Fares lacking many of the protections afforded to the honest passenger that Parliament required of such schemes.

 

[35B]

I've started a campaign to raise money to send s18 of the Byelawysfor judicial review try and establish the unconstitutional nature. I'll post up links shortly.

Unconstitutional? That should be interesting, given the lack of a written constitution.

 

[crehld]

Unconstitutional? That should be interesting, given the lack of a written constitution.

I think you mean 'uncodified'? Parts of our constitution are very much written.

 

[DaveNewcastle]

Well from what I can tell, . . . .

I'm going to assume that you are responding to my words of caution to Stiri about clarity of exactly what he seeks to have Judicially Reviewed. (I hope you were, because I have a dissapointing hunch that Stiri won't respond).

My underlying point was that a Judicial Review must have a specific judicial decision to re-examine. Not the details of a claim or a prosecution, but a judicial decision (which can include decisions by local authorities and government departments, within limits).

So on that basis, let me respond to some of your points in so far as they might assist Stiri :

When the byelaws were reorganised, the DfT approved the introduction of a penalty, but a previous FOI request asking about this change turned up no paperwork - which struck me as rather odd as I'd have expected they would have had to consider any possible conflict with existing legislation (including Penalty Fares) and the lawfulness of the new penalty, even if only to conclude it did not present any difficulties.

I suggest that a Judicial Review of that 'approval' would only be viable if that decision could be identified, (e.g. located in place, time, persons, and as you point out, paperwork). If there isn't an identifiable judicial decision, then there is no decision to review.

The "possible conflict with existing legislation" should be treated as one of the established defences against a Byelaw prosecution: an assertion that it is ultra vires. Many Byelaw prosecutions have been successfully defended on that basis.

Perhaps it would be worth asking the DfT this question again more specifically and trying to enter a dialogue before taking this to the courts.

I agree.

The subtlety as I see it is that while the offence is well-established, until relatively recently its only practical use was to enforce the purchase of a ticket. Both prosecution under RORA and the issue of a Penalty Fare require a level of intent to evade the fare (either explicit or implicit by ignoring signage) and as such they provide many safeguards for the honest passenger. The byelaw reorganisation, while not making any especially significant change to the offence itself and thereby side-stepping one set of constitutional considerations, . . . . .

Yes, I agree with the impact assessment, but surely the challenge is to identify the DECISION that a JR can review.

. . . . by altering only the penalty has had a side-effect of operators preferring to refuse to accept payment of the fare on the spot and instead prosecuting, seeking fines, or using the threat of prosecution to obtain out-of-court settlement payments, in effect introducing a less-burdensome alternative to Penalty Fares lacking many of the protections afforded to the honest passenger that Parliament required of such schemes.

I fear that you are falling into the same territory as Stiri (and many others on here who are supportive in principle, based on the consequential impact of the legislation) but where is the decision that could be judicially reviewed?

The procedural point of a person acting as an investigator into a breach of contract or other misdemeanor, and who is unable to simultaneously act as an agent for one of the two parties in fulfilling the contract is very securely founded in law.

I see several points being made here. all wrapped in that one declaration of unfairness for "the honest passenger", but we, or Stiri, need to be specific about the judicial decision that is to be challenged, exactly where it was in error, and with what assessment of that review's success?

 

[techno]

Yes I'm dead serious. The campaign group have accepted my general application as being worthy and of the sort of case they would promote - so I have been given a section on their website to create my own page, which is still u see construction.

I am a practicing lawyer myself, although not an expert in judicial review (PErsonal injury / clinical negligence + some criminal law a few years ago) so I've now approached a few Counsel (ranging from Lord Pannik QC to pro-Bono barristers).

I'm my skeleton instructons i've mentioned two points for consideration:
1) establish that the railway co's in particular should not be able to have access to administer criminal offences under s18 - a non exhaustive list of reasons:
- the current law already provides adequate remedy (Theft / Fraud Act / civil law)
- policy/floodgate arguments in relation to allowing a private company who subjects such a large section of the public to criminal liability + strict liability offences with these effects should be the province of parliamentary implementation! (Do not forget that the TOCs allege to loose 240 mil a year on fare evasion - why do they not install ticket barriers at all stops? Think how much they would save if they had done this in the first place!) no clear indication to passengers that this is a crime (just sea to me that it's all a revenue scam)

Now I appreciate that the above is a very complex and difficult argument so the other option is to challenge the desicion in Bremme v Duberry.

The intention not to buy a ticket shouldn't cease when a passenger fails to pay at the first opportunity - it should cease when he passes his final chance to pay. If the TOCs want to allege fare evasion during a passengers journey then they should look to the normal law (stated above) for remedy and prove dishonesty.

Counsel will be instructed to determine the best course of action.

My description here isn't the best as I'm typing this on my phone in rush hour

I understand regulatory/strict liability plays a key role in criminal justice, but is better utilised for the regulation of the conduct of industry and corporations, where they should have the resources to manage and address any legal obstacles.

In answer to other question Ms - My instructions to Counsel were to establish either s18 is unconstitutional/unlawful/ultra vires... I'm sure he will know better. We will wait and see what their thoughts are..

 

[Clip]

I hope it is. The byelaws - and how they are applied - need serious reform.

They may or may not need reform but a judicial review? Really?

Once again many thanks to DaveNewcastle for cutting through the waffle and providing clarity on the whole judicial review issue.

If they need reform then its for DfT to start the ball rolling with them but be careful what you wish for as you may find them being tightened up even more than they already are.

 

[Flamingo]

Well, I can see this giving aid and comfort to every "pay-when-challenged", "short-fare", "donutting", "my-mum-is-meeting-me-at-the-station-with-the-money" faredodger in the country.

I am not a lawyer, but I can't help feeling "the law of unintended consequences" is going to kick in big-time on this...

 

[Monty]

Not that it's actually going to get anywhere though Flamingo.

 

[DaveNewcastle]

Now I appreciate that the above is a very complex and difficult argument so the other option is to challenge the desicion in Bremme v Duberry.

Are you sure you mean Bremme? (Bremme v Dubery (1964) 1 WLR 119.) That wasn't a S.18 offence or any other Byelaw. He lied about the station he came from and was charged under the RoRA. It was one of the simplest examples of fraudulent fare evasion. I can't see much support for challenging that conviction!

I hinted yesterday at some of the areas to which a JR could be directed. The Supreme Court has already outlined its concerns over the power to bring a private prosecution. I suspect there may be something of an open door in challenging the private prosecution of strict liability offences.
See R, Gujra v C.P.S [2012] UKSC 52, and even just thus month, Austin v CPS.