Strict liability offences

[RPI]

I really cannot see why TOCs cannot offer the full range of tickets on the train as long as the person gets on the train and offers to pay as soon as they are gripped and/or they go to the guard. What's so hard in that? Grand Central/WSMR do it so why not the other TOCs. It does seem that generally Northern have this more enlightened attitude in most cases.

I am aghast at some of the views of some on this board that seem to think many quite innocent people are criminals.

Oh dear, ok then, i'd like to see you work a peak train out of Paddington to Reading that stops everywhere and get all the tickets done! or even half a coach done!
Grand Central and W&S run half empty with big gaps between principal stations AND they dont operate any stations so by customers buying those tickets at other operators stations then GC and WS lose 9% to the TOC that sells the ticket.

As for this case then if the OP was caught exiting the station then she may well have been charged with the more serious offence under the Regulation of Railways act.

 

[nedchester]

Better off asking the prosecutions department of EMT. I seriously doubt if anyone on here is able to give a categoric answer. just speculation.
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How many revenue staff do you think it would take to do this on one peak-time train? The trains I work average 15-20 minutes between stops. There are seven or eight carriages which seat up to 84 people each. Selling a ticket using a CC takes at least 2 minutes (more if the ticket is "complicated", the passenger is not sure what they require, or there is an argument about buying the ticket).

Realistically, it would need at least 1 ATE per carriage, per train.

So that would mean a resulting increase in ticket prices to cover the cost of the hundreds of extra revenue staff.

Get real :roll:

Well Grand Central / WSMR manage it!

I am not saying remove the rule stating full standard single but allow the guards to use a little more discretion than is presently the case.

 

[Ferret]

Indeed, certainly I was wrong; I guess it's best to wait until there is actually enough information.

Anyway,
you only have 21 days to make a statutory declaration, there's some information on it here;

http://www.pattersonlaw.co.uk/Offences/Court/Making-a-statutory-declaration.php

Oooops, apologies Tony, my post wasn't intended to be smug! This is certainly one instance where I'd be happy to be wrong - as far as I'm concerned, I'd rather the lady concerned had been dealt with by being sold a new SDS.

Thanks also for the link - I didn't know that! Useful to know...


--- old post above --- --- new post below ---

Well Grand Central / WSMR manage it!

I am not saying remove the rule stating full standard single but allow the guards to use a little more discretion than is presently the case.

Guards *do* exercise discretion! I should know - I'm one of them!

As has been explained to you though, it's easier and makes sense for GC/Wrexham to do that - for the big TOCs it's far better to encourage buying before boarding.

 

[Flamingo]

Well Grand Central / WSMR manage it!

I am not saying remove the rule stating full standard single but allow the guards to use a little more discretion than is presently the case.

The guards currently have the discretion. And has been stated on many previous threads, discretion does not mean "ignore".

If someone jumps on my train going to South Wales and would have had an hour of a wait for the next train, I'll let them buy the cheapest ticket (unless I have to find them in a loo, or listen to "My mate down the train has my ticket").

If someone going to Reading or Didcot Parkway (both of which have a relatively frequent service) and I have to find them to ask them for their ticket, they buy a full open.

As regards GC/WSMR I have no idea, but RPI has suggested a few reasons why they might do so - which basically come down to lighter passenger loadings.

 

[Flamingo]

I really cannot see why TOCs cannot offer the full range of tickets on the train as long as the person gets on the train and offers to pay as soon as they are gripped and/or they go to the guard. What's so hard in that?

How many revenue staff do you think it would take to do this on one peak-time train? The trains I work average 15-20 minutes between stops. There are seven or eight carriages which seat up to 84 people each. Selling a ticket using a CC takes at least 2 minutes (more if the ticket is "complicated", the passenger is not sure what they require, or there is an argument about buying the ticket).

Realistically, it would need at least 1 ATE per carriage, per train.

So that would mean a resulting increase in ticket prices to cover the cost of the hundreds of extra revenue staff.

Get real :roll:

 

[yorkie]

Is anyone actually prosecuted under strict liability offences?

The prosecution that this particular thread refers to, appears not to be for a strict liability offence, as EMT have told that particular person that if they are able to produce the original ticket then the matter should be resolved.

Ralphchadkirk (and others) can I please request that until we establish that strict liability offences are prosecuted, can we not scare people who request advice on this forum by suggesting that they are or by telling them they have committed such offences, when if they are being prosecuted they are in fact not being prosecuted for a strict liability offence.

It is unfair that someone who comes here for advice is given a barrage of comments about unenforced byelaws, particularly when someone believes they are being prosecuted, to then make them think they are being prosecuted for a strict liability offence and that there is 'no defence' yet in reality the company is informing the customer that if they produce the original ticket then that is a perfectly acceptable defence.

We need to help people and advise them when they ask us for help, not scare them away and bombard them with comments about unenforced regulations.

Flamingo - as for the issue of discretion, that sounds absolutely spot on to me, I am impressed! Guards should be allowed (and encouraged) to use discretion, in my opinion.

 

[Mojo]

Is anyone actually prosecuted under strict liability offences?

If you mean, generally, then yes, individuals (eg. speeding), or other cases (such as catering establishments causing food poisoning).

Regarding the railways, can't see why not, although still doesn't explain why almost all official sources on fare evasion mention prosecution under the 1889 Act.

 

[ralphchadkirk]

Yes, strict liability offences are still used. They are mostly regulatory offences, and for public protection.
There is no list defining strict liability offences - in the definition of the offence, if it uses words which indicate mens rea (the guilty mind - what the defendant was thinking at the time the actus reus - the act - was committed). These words would be things like 'knowingly' and 'maliciously' which then mean mens rea needs to be proved, and the offence is not strict liability.

It is important to point out that there is a general presumption against strict liability.

If there are no words which indicate mens rea then the offence is one of strict liability. This means that as long as the actus reus exists - i.e. you committed the offence - then that is enough to find the defendant guilty.

Case law in this area would include the London Borough of Harrow v Shah 2000, where the defendant owned a newsagents, and had sold a lottery ticket to someone under 16. They had procedures, and trained their staff to prevent this, yet the act had happened, and they were found guilty.

Another case would be Alphacell v Woodward where a paper mill did not know that their filters (maintained, and kept records of maintenance, and had monitored them) were allowing pollutants into a river. The fact that the pollutants had entered the river was enough to prosecute, and find guilty.

I have lots of other cases for this if you want them!

 

[yorkie]

No, I didn't mean generally, I meant specifically with regard to railway ticketing.

If TOCs are not prosecuting under them, then I think that when people ask us for advice, we should shut up about them! If people want to discuss the merits (or otherwise!) of them we can do so here. But if they aren't used, why should we even mention them in other threads where people want advice?

The only thing I can find that relates to strict liability is a Penalty Fare, where you are not being accused of avoiding a fare, but you are committing a 'strict liability offence' and the penalty is charging you for that. But away from penalty fare areas, please do tell me if anyone has been prosecuted by a TOC for strict liability offences directly relating to ticketing?

 

[ralphchadkirk]

No, I didn't mean generally, I meant specifically with regard to railway ticketing.

If TOCs are not prosecuting under them, then I think that when people ask us for advice, we should shut up about them! If people want to discuss the merits (or otherwise!) of them we can do so here. But if they aren't used, why should we even mention them in other threads?

If the offence definition does not include words that indicate mens rea, then TOCs are prosecuting under strict liability. Without seeing the offence that the OP has been charged with, I cannot say for sure, but railway byelaws (if that is what the TOC is prosecuting with) are strict liability generally.

18. Ticketless travel in non-compulsory ticket areas
(1) In any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel.

This does not include things like 'knowingly entering the train' or 'maliciously entering the train', therefore the offence is strict liability, and there is no need to prove mens rea.
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I should have mentioned that strict liability offences can only be statutory offences - i.e. not created by common law.

 

[Ferret]

Is anyone actually prosecuted under strict liability offences?

Yes. I can confirm that strict liability offences relating to ticketing are prosecuted by TOCs via their prosecutions department. There's certainly no intent on my part to scare anybody at all - merely tell things like they are!

 

[ralphchadkirk]

Yes. I can confirm that strict liability offences are prosecuted by TOCs via their prosecutions department. There's certainly no intent on my part to scare anybody at all - merely tell things like they are!

There's no intent on my part to scare anyone either. I'm only telling them how the law works!

 

[yorkie]

All the cases I've been made aware of are not on the strict liability basis though.

And instructions to guards are to give passengers opportunity to buy a ticket, not to instantly make a report for prosecution.

Is this really 'how things are'? It doesn't seem to match up with reality.

 

[ralphchadkirk]

You seem to be blurring the legislation with what happens on the ground. It is still an offence whether or not the TOC choose to enforce or prosecute. The instructions they give the guards do not change the law, only the application of the law.

And yes, this is really how things are. People are charged day in day out with SL offences.

Regarding the cases you have 'been made aware of', if you would provide more details then Ferret and I will be able to help to see if they were prosecuted with strict liability.

 

[yorkie]

You seem to be blurring the legislation with what happens on the ground.

If the legislation isn't enforced then what's the point in mentioning it? What matters is "what happens on the ground"

And someone does not get prosecuted simply for boarding a train at Rotherham! No way! And you even admit that. So why suggest it?

Regarding the cases you have 'been made aware of', if you would provide more details then Ferret and I will be able to help to see if they were prosecuted with strict liability.

Well, the Rotherham to Sheffield one for a start. If it was strict liability, then EMT wouldn't be asking a copy of the original ticket, would they?

 

[ralphchadkirk]

EMT will still want to decide whether it is costworthy to take to court. Even strict liability offences are expensive in court.

If the legislation isn't enforced then what's the point in mentioning it? What matters is "what happens on the ground"

What matters is the legislation - it's the worst case scenario. You wouldn't want to be giving people false hope with "well, they usually let you off", would you? Much better to say that you can be prosecuted for it, and then they can feel satisfied when/if they are let off.

Again, this is only about telling people what the law says about their situation, nothing more, nothing less. In a legal case, the law is relevant!

 

[yorkie]

You can't tell me it is relevant to tell someone boarding at Rotherham that a guard is, in a "worst case" going to ignore their training and simply say "If you don't have a ticket, we're prosecuting" and start obtaining details. It simply does not happen even in a 'worst case scenario'. I do not feel it helps to tell people this, when they want advice, do you? If you know that isn't what happens, then why suggest it? There is no satisfactory answer to that!

 

[MikeWh]

I *think* you have agreed that it is not an offence to board a train without a ticket if there were no facilities at the station to sell you a ticket. I think that you have also agreed that if an authorised person gives you permission to board a train then that's ok too. What is your view of the large poster at Gatwick Airport that invites people using the Gatwick Express to Victoria to board the train and pay the guard/tm? Is a poster the same as an authorised person?

 

[ralphchadkirk]

You can't tell me it is relevant to tell someone boarding at Rotherham that a guard is, in a "worst case" going to ignore their training and simply say "If you don't have a ticket, we're prosecuting" and start obtaining details. It simply does not happen even in a 'worst case scenario'. I do not feel it helps to tell people this, when they want advice, do you? If you know that isn't what happens, then why suggest it? There is no satisfactory answer to that!

Are you seriously suggesting that the law is not relevant in a case where the poster's daughter is being taken to court?

 

[Ferret]

All the cases I've been made aware of are not on the strict liability basis though.

And instructions to guards are to give passengers opportunity to buy a ticket, not to instantly make a report for prosecution.

Is this really 'how things are'? It doesn't seem to match up with reality.

Yorkie, how many times do I need to tell you that railway companies do prosecute using strict liability byelaws?! Do you honestly think we're making it up?!

 

[ralphchadkirk]

I *think* you have agreed that it is not an offence to board a train without a ticket if there were no facilities at the station to sell you a ticket. I think that you have also agreed that if an authorised person gives you permission to board a train then that's ok too. What is your view of the large poster at Gatwick Airport that invites people using the Gatwick Express to Victoria to board the train and pay the guard/tm? Is a poster the same as an authorised person?

I am not sure about the poster. This is something that would have to be challenged in court. As far as I see it, the byelaw expceptions ask for a authorised person. Not a poster, or other literature. As I said though, this would have to be challenged.

 

[DaveNewcastle]

I'm only telling them how the law works!

I'm concerned by the impression given by your posts on this matter, in particularly "how the law works".

It would not help anyone reading this to come away believing that an act which may be captured by a 'strict liability' byelaw would sutomatically, as a consequence of that interpretation, be prosecuted as such. That is often not how they are prosecuted - and I include Railway Byelaws.

It would not help anyone reading this to come away believing that a prosecution for a 'strict liability' offence will inevitably suceed. That is not accurate nor realistic.

I would be happier if anyone on here claiming to "tell how the law works" did so in a balanced manner and with regard for how UK law works in practice.

As I have remarked on here in the past, there is a very high standard of evidence required to ensure that a contested prosecution for 'strict liability' will suceed and I have personally suceeded in defending at least 3 such prosecutions and am optomistic about our prospects of success of another current matter.

This insight into process might assist Mojo with his enquiry about the choices available to TOCs when preparing a prosection and the decision to prosecute under the Regulation of Railways Act 1889.

 

[yorkie]

Yorkie, how many times do I need to tell you that railway companies do prosecute using strict liability byelaws?! Do you honestly think we're making it up?!

Until I'm given examples, I am very sceptical. Are you specifically aware of any; I thought you said that your knowledge of this was based on an RPI saying so? my belief is that the RPI may be mistaken.

I'm not saying that the strict liability laws are definitely not used, but that I am not aware of any occasion of prosecution that we get to hear about, they aren't. So I am very suspicious!

Also, common sense and experience of the real world, plus talking to guards, means I know that if someone boards a train, and they don't have a ticket, the guard isn't going to say "Right you're being reported for prosecution for a byelaw offence" and you agreed with me on that!

Here is a good example

http://www.yorkshireeveningpost.co.uk/news/Charged--over-10p-fare.1348000.jp

She got out of it as intent could not be proven, but she did commit a "byelaw offence" of giving a false address. Yet it wasn't strict liability or she'd be guilty.

So, why are the TOCs not prosecuting under strict liability?

Ralph - I don't claim to be a legal expert but I do know what what you say sometimes bears little resemblance to what happens in practice.

DaveNewcastle - well put. I share those concerns.

If there are strict liability cases being prosecuted for people simply boarding a train and it going straight to prosecution, then I would like to hear about them!

 

[ralphchadkirk]

It would not help anyone reading this to come away believing that a prosecution for a 'strict liability' offence will inevitably suceed. That is not accurate nor realistic.

As long as the offence is strict liability, and the prosecution can prove that the actus reus has been committed, then the case will succeed.

Do you think Ferret and I have been making all this up about SL offences?

As I have remarked on here in the past, there is a very high standard of evidence

The burden of proof is exactly the same. Beyond all reasonable doubt, as in every criminal case.

I am quite happy to get a solicitor to check up what I have written, and I am 100% confident that they will agree with me - considering they taught me Strict Liability..

 

[chuckles1066]

It doesn't natter whether you exit the station or not, the minute you step in a train without a valid ticket, then you are gaining services without paying for them. The same as walking out a supermarket.

Erm, how come the morning services I use have staff who come through the coaches asking for tickets and sell them to those who've boarded without one?

In any case, how do you buy a ticket from Patchway?

And why is it you can bypass the ticket barriers and depart Bath Spa station via what appears to be a route at the far end of the station designed for disabled people? :roll:

 

[Ferret]

Yorkie, for the last time, yes we do prosecute under strict liability. I'm involved in a couple of cases myself at the moment which will be strict liability. After they've been concluded, I *may* be able to provide further details. Rest assured though, these were not 'I don't have a ticket' 'OK, I'm prosecuting' scenarios!!! That just doesn't happen....

 

[ralphchadkirk]

Erm, how come the morning services I use have staff who come through the coaches asking for tickets and sell them to those who've boarded without one?

In any case, how do you buy a ticket from Patchway?

And why is it you can bypass the ticket barriers and depart Bath Spa station via what appears to be a route at the far end of the station designed for disabled people? :roll:

Have you actually read the thread? We have been over the points of where there are exceptions.
The guard is using his discretion in selling tickets to those who have boarded without one. If it was an RPI it may be a different story.

Regarding your last point it doesn't matter whether there are barriers, or whether you can get to the station without going through them. It's immaterial.

 

[Ferret]

PS - Dave from Newcastle - I remember you mentioning those 3 successful SL defences before! I seem to recall you managed to get them thrown out on a point of law? I guess for the sake of balance, we should say that this is 3 cases out of many many hundreds we're talking about here?

 

[Greenback]

As long as the offence is strict liability, and the prosecution can prove that the actus reus has been committed, then the case will succeed.

Do you think Ferret and I have been making all this up about SL offences?


The burden of proof is exactly the same. Beyond all reasonable doubt, as in every criminal case.

I am quite happy to get a solicitor to check up what I have written, and I am 100% confident that they will agree with me - considering they taught me Strict Liability..

You will undoubtedly be able to find many solicitor who will agree with you, and just as many that won't! That is the nature of the law, and why we have interesting discussions in court cases about precedent, and the interpretation of statutes.

Although some consider me quite sad, I enjoy recording judgements from courts and tribunals. The legal reasoning behind the judgement is sometimes difficult to follow for a layperson, but it does illustrate how grey many areas can be, particularly when higher courts subsequently overturn a decision on appeal!

Just as an aside, when I was a tthe local station the other day, the ticket clerk was asked by a passenger whether they could buy a ticket on the train. The conversation went roughly like this:

Can I buy a ticket to Cardiff on the train?

Yes, or from me now if you like.

Does it cost the same on the train?

Yes.

I'll buy it on the train then.

There was no queue, and the train was not due - would this count as permission from an authorised person?

 

[ralphchadkirk]

Although some consider me quite sad, I enjoy recording judgements from courts and tribunals. The legal reasoning behind the judgement is sometimes difficult to follow for a layperson, but it does illustrate how grey many areas can be, particularly when higher courts subsequently overturn a decision on appeal!

As do I. I find the law hugely interesting, but it gets incredibly complicated when you delve into case law and common law. There is an exception to almost everything!

There was no queue, and the train was not due - would this count as permission from an authorised person?

Yes:

“authorised person” means:
(i) a person acting in the course of his duties who: (a) is an employee or agent of an Operator, or (b) any other person authorised by an Operator, or
(ii) any constable, acting in the execution of his duties upon or in connection with the railway;