Strict liability offences

[ralphchadkirk]

It goes against the principle of the HRA, I'm not sure whether it is contrary to it or not. i'll check my textbook as there's something in there about SL offences and the HRA.

 

[Ferret]

PS - Yorkie, as a specific example of what I mean by dealing with some matters which get you a PF under the byelaws instead - adult on a child ticket. That to me is evidence of intent to avoid the fare! Sod the byelaws even - S5 for that one!

 

[yorkie]

Ferret - I don't think I disagree with you on any of those points (we really don't disagree on what should happen in almost any circumstance I can think of!)

The only one I'd like to pick out really is "times change", that could be the key. Do we have any more info on that? Again, it raises more questions, but it could lead us to the answer!
--- old post above --- --- new post below ---

PS - Yorkie, as a specific example of what I mean by dealing with some matters which get you a PF under the byelaws instead - adult on a child ticket. That to me is evidence of intent to avoid the fare! Sod the byelaws even - S5 for that one!

I think you should always "sod the byelaws" (for 17/18), as if there is no intent there should be no prosecution. And yes I agree, it is. (out of interest, is there a big difference between a 16/17 year old who looks younger doing it - not that I am saying it is justified - but compared to someone say, 30 years older who is just doing it to get through barriers cheaply?)

 

[Ferret]

Well, some people genuinely think that the threshold for adult tickets is 18. Saw a case of that at New St the other day when Mr43004 was excessing a bloke who'd been refused entry through the barrier. I don't think that's a S5 matter at all! Somebody who is over 18 and drops in a child ticket - well, that's a proper S5 matter as far as I'm concerned.

As for my comments about times change - well, I'm going to indulge in some idle speculation. Could it be that in the age of 'no win no fee' that Prosecutors have got a little more savvy?

 

[Stigy]

I think you should always "sod the byelaws" (for 17/18), as if there is no intent there should be no prosecution. And yes I agree, it is. (out of interest, is there a big difference between a 16/17 year old who looks younger doing it - not that I am saying it is justified - but compared to someone say, 30 years older who is just doing it to get through barriers cheaply?)

Unless persistant a 16/17 year old on a Child Ticket will never go to Court, as TOCs tend not to use youth courts. They'll get some money out of them though....Or mummy and Daddy!

I agree there's a difference between a 16year old and that of a 30-year old commiting the same offence, however I'd deal with it in exactly the same way to remain consistant.

 

[Old Timer]

...I think you should always "sod the byelaws" (for 17/18), as if there is no intent there should be no prosecution. And yes I agree, it is. (out of interest, is there a big difference between a 16/17 year old who looks younger doing it - not that I am saying it is justified - but compared to someone say, 30 years older who is just doing it to get through barriers cheaply?)

Yorkie

One of the problems with the 1889 Act is that there is a need to demonstrate "intent" to the level required of a Criminal Court.

This is not always easy to do, and in fact one of the frustrations amongst TTIs in BR days was that although both WE and the Guilty party knew that there was intent, they knew we could not PROVE it at a sufficiently strong level in order to secure a Prosecution.

Repeat offenders would simply offer the fare, and as long as they did that then we could not go to a S5 without evidence of intent. For these offenders therefore, we would have to undertake prolonged plain clothes surveillance in order to gather evidence of intent.

Now this was finally dealt with by the Penalty Fares Act 1989, which made it a Strict Liability offence to be on the Railway or in a train under certain defined conditions. This dispensed with the need to prove intent, as simply being there was Prima Facie evidence sufficient to impose a penalty. The purpose of this being to deter, rather than punish in its truest sense. No longer could serial offenders simply pay the fare when caught and continue travelling at risk every day. There was now a method of capturing these people, as the PF itself now forms part of the proof of intent sufficient to gain a sucessful Prosecution under 1889 S5 on a later date.

Where intent cannot be shown but a TTI believes that there was intent, then the Byelaws can be used, as simply being on the Platform or in the train is a strict liability offence.

By using one or more of these Laws then we can protect revenue, because there is no reason why anyone should be on a train without a valid ticket EXCEPT in a small number of situations, which I referred to earlier. Whilst strictly speaking they CAN and in reality SHOULD be the subject of a Prosecution under the relevant Railway Byelaw, this is not always a reasonable response, especially when there is no suspicion that the passenger is trying to defraud the Railway but has by misfortune ended up in a situation without a ticket.

The NCoC simply legitimise the legal situation with regards to the type of ticket that may be issued and the rights for a ticket to be issued in those circumstances. remember that under the NCoC the passenger has the right to refuse to accept the NCoC which will then result in the ticket being cancelled and refunded and the intending passenger choosing to travel another way.

We thus have an absolutely tight means of protecting revenue and a variety of means of dealing with those who are intending to avoid payment,

The Byelaws also confer the right on the Railway to prevent those without a ticket entering upon a station and simply hanging about or getting up to mischief and can and should be used to deal with such issues.

Now of course where the whole edifice falls down is the willingness of TOCs to sell tickets on-board. This madness muddies the water because the whole point of the 1889 Act as well as the Penalty Fares Act 1989 is to provide a strong deterrent to people NOT to pass through a barrier or onto a train without a valid ticket.

TOCs are now actively ENCOURAGING people to actually break the Railway Byelaws, because to encourage someone to enter a train before purchasing a ticket at a manned station is actually contrary to the written Law.

I think as someone has opined, in a Court of Law it could well be the case that "over-Customer-Friendly" TOCs may well have rendered the successful Prosecution under the Byelaws impossible because an offender could argue that these were regularly ignored by TOCs and thus were no longer enforceable.

Frankly, in my simple opinion the whole thing is a complete shambles, simply because in the case of one TOC you would be sold a ticket with no questions asked and yet on another TOC (who DOES enforce the Byelaws - Does anyone bother I wonder ?) they could well be reported for a Byelaw offence.

What took years to assemble and get working right has now been destroyed by the former shop assistants and others who have so successfully entrenched themselves within the senior ranks of the TOCs. With fare evasion being estimated upwards of £190m by ATOC themselves I find it astounding that no firm and concerted action is being taken to tackle this issue.

Under no circumstances is enforcing the Law being unfriendly to "customers". Fare evasion is theft in the same manner that stealing an item from a shop is. In the retail environment stores now regularly operate treams of uniformed and plain clothes detectives and have a policy of always Prosecuting.

What to the same breed of "retail" managers makes the Railways so different that thye are more than happy to not only lose £190m a year but also to actively encourage the sdort of behaviour that leads directly to fare evasion ?

 

[Stigy]

As Old Timer has said, Intent is not always easy to prove.

The problem is, unless someone admits their intentions under questioning, nine times out of ten the matter reverts back to the 18.1 offence. If somebody has no money and no means, then unless the RPI doesn't ask enough questions, intention to avoid payment is easy enough to get. If, when you say "Is it fair to say it was your intention to avoid paying for your rail journey today?" and they say "Yes", then it's job done and it's 5.3(a) all the way. If they say "No" then you simply ask them how they intended to purchase a ticket with no means to do so. If they don't cough then and try and blag it further questions just roll off the tongue, but to be honest with no means it's a fairly easy RRA offence to prove anyway, as is Adult on Child ticket.

It's a little harder trying to get the intent from what initially appears to be an 18.1 Byelaw offence, although offenders often fall at the hurdle whereby you ask them how they would have bought their ticket if the barriers at station X,Y or Z were non-operational, and not challenged by staff. After that question the others just follw suit as you'd expect.

 

[Ferret]

I think that's the key to it - those byelaws only come into it where we know there's intent but we can't prove it! It's just something that has its uses....

 

[RPI]

Lets also remember that byelaw offences carry lighter penaltys than RRA offences and the byelaw offences are non-recordable which means you dont get a criminal record.

 

[Stigy]

Lets also remember that byelaw offences carry lighter penaltys than RRA offences and the byelaw offences are non-recordable which means you dont get a criminal record.

No, you DO get a Criminal Record, however it's not recordable on the Police National Computer. If found guilty of any Criminal offence you'll receive a criminal record, just not necessarily a recordable one. Even RRA offences seldon find their way on to the PNC to be honest, unless prosecuted by the CPS. There seems to be a lack of communication...