TOC behaviour and the law

[driverd]

Hi all,

Just a quick question to those who know. The legalities of ticketing and especially when things go beyond what is and isn't a valid ticket is certainly not my strong point so by all means correct any errors in my wording etc.

I recently helped my friend deal with a threat of prosecution (or whatever you call it legally speaking) from *a TOC*. This was the TOCs prosecutions team, not an agency.

Essentially, the situation was that my friend had recently moved from a 16-17 saver to a 16-25 railcard. A genuine error had been made where they failed to recognise the difference in the two names and selected the 16-17 rather than 16-25 (think it may have been down to the app they used defaulting to the old railcard).

On inspection by a revenue protection officer, they noted the wrong discount has been applied. My friend apologised and offered to pay the difference, but this was declined and an investigation ensured. The outcome: a £1000+ bill for every ticket previously bought on the app with the 16-17 saver.

The TOC said they would consider reducing this if my friend could provide proof of their prior possession of the 16-17 saver (both railcards were purchased through the same app that all this ticket history was stored on). They would not do this research themselves and would not take any other means of proof than the barcode for the 16-17 railcard.

So a few things:
1. Surely this would be laughed out of court? Under the basis of innocent until proven guilty, surely the TOC cannot accuse someone of years of fare evasion with nothing more than one off, circumstantial evidence?

2. What if my friend had previously had a paper railcard and had disposed of it? How would this be dealt with?

3. Where exactly are you consenting to a contract with the TOCs to disclose all the previous ticket data on the app? How does this sit with GDPR etc?

 

[Haywain]

1. Surely this would be laughed out of court? Under the basis of innocent until proven guilty, surely the TOC cannot accuse someone of years of fare evasion with nothing more than one off, circumstantial evidence?

No, they would prosecute the one offence which would be a slam dunk conviction.

2. What if my friend had previously had a paper railcard and had disposed of it? How would this be dealt with?

16-17 Saver is only available electronically, so the point is moot.

3. Where exactly are you consenting to a contract with the TOCs to disclose all the previous ticket data on the app? How does this sit with GDPR etc?

T&Cs of the website or app, although GDPR allows it anyway for the detection and prevention of crime.

 

[driverd]

No, they would prosecute the one offence which would be a slam dunk conviction.

There was no contesting the error so it wouldn't have got that far.

What was contested was the fact they were billing my friend for every occasion they had ever travelled with a 16-17 saver discount. The TOC had provided a breakdown of every journey ever made with a 16-17 saver and the fare owed. They had absolutely no evidence to support their assumption of fare evasion.

Further, the TOC would not check my friends account on their behalf for the prior purchase of a railcard or any internal records (which a friend in revenue protect tells me do exist) and refused to accept, amongst other things, a bank statement for proof of purchase or an email from (3rd party ticket selling website staff member) stating that the 16-17 saver was purchased and in my friends' possession for all prior journeys.

The TOCs representative would only accept a barcode. Otherwise, £1000+ charge.

16-17 Saver is only available electronically, so the point is moot.

I see.

T&Cs of the website or app, although GDPR allows it anyway for the detection and prevention of crime.

Understood - would rather push me toward paper tickets for fear of a small error landing me in hot water!

 

[Haywain]

There was no contesting the error so it wouldn't have got that far.

It would if a settlement wasn't paid.

 

[Mcr Warrior]

So, how does the OP's friend 'prove' that certain journeys were indeed validly made in conjunction with the 16-17 Saver railcard?

 

[MrJeeves]

Understood - would rather push me toward paper tickets for fear of a small error landing me in hot water!

You end up with the same issue no matter what unless you only buy your tickets from ticket machines/offices in cash though!

 

[Hadders]

Welcome to the forum!

It’s difficult to comment about the case without seeing the paperwork. If you are able to upload that (with personal details redacted) then we would be better placed to advise.

It sounds as though your friend had been purchasing tickets without the correct railcard selected for a sustained period of time. The train company has effectively given your friend a choice - pay an out of court settlement amounting to the value of the fares avoided plus an admin fee to cover the cost of their investigation or go to court where they would prosecute for the single offence where your friend was caught without a valid ticket. However inadvertent the error was, all the train company has to demonstrate to the court is that your friend did not have a valid ticket on the day they were caught, which they didn’t.

If the matter ends up in court and your friend either pleaded guilty or is found guilty then they would have to pay:

- a fine based on their weekly income (usually discounted by a third for pleading guilty at the earliest opportunity)
- a surcharge of 40% of the value of the fine
- a contribution towards the train company’s costs in bringing the matter to court
- compensation for the fare avoided

There is unlikely to be little change out of £1,000. In addition a prosecution under the Regulation of the Railways Act comes with a criminal record.

Selecting the wrong railcard when purchasing a ticket online is an easy thing to do, but it is the passenger’s responsibility to make sure they have the correct ticket for their journey. It just so happens that we see many cases of 16-17 being selected instead of 16-25, strangely the 16-17 railcard gives a larger discount. I’m not saying you did this deliberately but I’ve seen many, many similar cases on here but not once has anyone told us they ended up paying more than they needed to because they selected the wrong railcard and can they get a refund.

Train companies generally have data sharing agreements with Trainline and other ticket selling websites. This is allowed under GDPR as long as it is for the prevention of crime.

It seems to me that the train company has discovered that your friend has purchased discounted tickets over a long period of time which they believe they might not be entitled to. They are offering them the chance to settle out of court, and are even offering to reduce the value of the out of court settlement if they can show they held the appropriate railcard at the time the tickets were used. Many people are keen to keep matters like this out of court, others argue that matters like this should end up in court.

Essentially, the choice is to pay what they are asking (at a lower rate if your friend can show they held the railcard) or take your chance in court for the single offence where they were caught.

Either way, I suspect the cost is likely to be very similar…

 

[cactustwirly]

You end up with the same issue no matter what unless you only buy your tickets from ticket machines/offices in cash though!

Well it's a lot harder to detect even if the purchase was made by card

 

[Hadders]

Let’s not turn this thread into a debate about paper tickets v e-tickets as it is not helpful to the OP.

 

[cactustwirly]

Welcome to the forum!

It’s difficult to comment about the case without seeing the paperwork. If you are able to upload that (with personal details redacted) then we would be better placed to advise.

It sounds as though your friend had been purchasing tickets without the correct railcard selected for a sustained period of time. The train company has effectively given your friend a choice - pay an out of court settlement amounting to the value of the fares avoided plus an admin fee to cover the cost of their investigation or go to court where they would prosecute for the single offence where your friend was caught without a valid ticket. However inadvertent the error was, all the train company has to demonstrate to the court is that your friend did not have a valid ticket on the day they were caught, which they didn’t.

If the matter ends up in court and your friend either pleaded guilty or is found guilty then they would have to pay:

- a fine based on their weekly income (usually discounted by a third for pleading guilty at the earliest opportunity)
- a surcharge of 40% of the value of the fine
- a contribution towards the train company’s costs in bringing the matter to court
- compensation for the fare avoided

There is unlikely to be little change out of £1,000. In addition a prosecution under the Regulation of the Railways Act comes with a criminal record.

Selecting the wrong railcard when purchasing a ticket online is an easy thing to do, but it is the passenger’s responsibility to make sure they have the correct ticket for their journey. It just so happens that we see many cases of 16-17 being selected instead of 16-25, strangely the 16-17 railcard gives a larger discount. I’m not saying you did this deliberately but I’ve seen many, many similar cases on here but not once has anyone told us they ended up paying more than they needed to because they selected the wrong railcard and can they get a refund.

Train companies generally have data sharing agreements with Trainline and other ticket selling websites. This is allowed under GDPR as long as it is for the prevention of crime.

It seems to me that the train company has discovered that your friend has purchased discounted tickets over a long period of time which they believe they might not be entitled to. They are offering them the chance to settle out of court, and are even offering to reduce the value of the out of court settlement if they can show they held the appropriate railcard at the time the tickets were used. Many people are keen to keep matters like this out of court, others argue that matters like this should end up in court.

Essentially, the choice is to pay what they are asking (at a lower rate if your friend can show they held the railcard) or take your chance in court for the single offence where they were caught.

Either way, I suspect the cost is likely to be very similar…

Technically speaking the Regulation of Railways Act requires the TOC to prove intent to avoid the fare, if the tickets were bought accidentally I fail to see how this can be proved.

It also depends on what charge the other journeys are. It's up to the TOC to prove that you didn't have a 16-17 saver for each journey, not the other way round. Obviously an electronic railcard is easier as Trainline etc would be able to provide the expiry date of the railcard.
If some of the journeys are within the date of the 16-17 saver, I would be writing back to ask for an out of court settlement for the journeys with the incorrect railcard only.

 

[yorkie]

Hi all,

Just a quick question to those who know. The legalities of ticketing and especially when things go beyond what is and isn't a valid ticket is certainly not my strong point so by all means correct any errors in my wording etc.

I recently helped my friend deal with a threat of prosecution (or whatever you call it legally speaking) from *a TOC*. This was the TOCs prosecutions team, not an agency.

Essentially, the situation was that my friend had recently moved from a 16-17 saver to a 16-25 railcard. A genuine error had been made where they failed to recognise the difference in the two names and selected the 16-17 rather than 16-25 (think it may have been down to the app they used defaulting to the old railcard).

On inspection by a revenue protection officer, they noted the wrong discount has been applied. My friend apologised and offered to pay the difference, but this was declined and an investigation ensured. The outcome: a £1000+ bill for every ticket previously bought on the app with the 16-17 saver.

The TOC said they would consider reducing this if my friend could provide proof of their prior possession of the 16-17 saver (both railcards were purchased through the same app that all this ticket history was stored on). They would not do this research themselves and would not take any other means of proof than the barcode for the 16-17 railcard.

So a few things:
1. Surely this would be laughed out of court? Under the basis of innocent until proven guilty, surely the TOC cannot accuse someone of years of fare evasion with nothing more than one off, circumstantial evidence?

They might struggle to secure a conviction of intent to avoid payment (if the defendant has good legal representation) however they can simply use the strict liability Byelaws, which do not require intent.

The law is stacked against customers.

2. What if my friend had previously had a paper railcard and had disposed of it? How would this be dealt with?

3. Where exactly are you consenting to a contract with the TOCs to disclose all the previous ticket data on the app? How does this sit with GDPR etc?

No consent is required for the detection of offences.

A lot of people don't realise how awful the current situation is; my hope is that one day it gets the same attention as the post office scandal. There is a thread for that!

 

[driverd]

It’s difficult to comment about the case without seeing the paperwork. If you are able to upload that (with personal details redacted) then we would be better placed to advise.

It sounds as though your friend had been purchasing tickets without the correct railcard selected for a sustained period of time.

I think the error had been made maybe on 3 or 4 occasions, during which time a railcard was held (just not the right one). The TOC tried to bill for many, many more instances of travel (and I've seen evidence to support).

The train company has effectively given your friend a choice - pay an out of court settlement amounting to the value of the fares avoided plus an admin fee to cover the cost of their investigation or go to court where they would prosecute for the single offence where your friend was caught without a valid ticket. However inadvertent the error was, all the train company has to demonstrate to the court is that your friend did not have a valid ticket on the day they were caught, which they didn’t.

My question more relates to what right the TOC has to assume guilt and what onus is put on them to prove their position. They had billed for a large number (around 20-30 mark) of journeys where a valid railcard was held. I work in the industry and was advised by a friend in revenue there is a railcard database the TOC could access but the individuals dealing with the case specifically refused to do so and put all onus on my friend to provide this evidence themselves.

If the matter ends up in court and your friend either pleaded guilty or is found guilty then they would have to pay:

- a fine based on their weekly income (usually discounted by a third for pleading guilty at the earliest opportunity)
- a surcharge of 40% of the value of the fine
- a contribution towards the train company’s costs in bringing the matter to court
- compensation for the fare avoided

There is unlikely to be little change out of £1,000. In addition a prosecution under the Regulation of the Railways Act comes with a criminal record.

That's interesting to know!

Selecting the wrong railcard when purchasing a ticket online is an easy thing to do, but it is the passenger’s responsibility to make sure they have the correct ticket for their journey. It just so happens that we see many cases of 16-17 being selected instead of 16-25, strangely the 16-17 railcard gives a larger discount. I’m not saying you did this deliberately but I’ve seen many, many similar cases on here but not once has anyone told us they ended up paying more than they needed to because they selected the wrong railcard and can they get a refund.

I think from the consumers perspective this may be a tad unfair. No one threatens you with court for overpaying.

It seems to me that the train company has discovered that your friend has purchased discounted tickets over a long period of time which they believe they might not be entitled to.

Again, as above, this is not the case. That's why I'm trying to establish if the prosecutions team were acting in a lawful manner.

They are offering them the chance to settle out of court, and are even offering to reduce the value of the out of court settlement if they can show they held the appropriate railcard at the time the tickets were used. Many people are keen to keep matters like this out of court, others argue that matters like this should end up in court.

It's been settled now as the barcode for the railcard was eventually provided by the 3rd party retailer, which seemed like a ridiculous hurdle to jump over when the 3rd party retailer provided email confirmation of the 16-17 saver previously purchased, the concurrent issue of the 16-25 railcard and also a receipt for both.

Essentially, the choice is to pay what they are asking (at a lower rate if your friend can show they held the railcard) or take your chance in court for the single offence where they were caught.

Either way, I suspect the cost is likely to be very similar…

I didn't realise just how expensive it was to go to court. Ouch!

As I say, it's all resolved now - my question is more relating to how the TOC approached the matter, not the eventual outcome.

 

[RPI]

Just to add, the 16-17 Saver isn't just available as a digital Railcard, it can issued as a plastic photo card type Railcard, it is only available to be purchased online, so it can't be bought at ticket offices.

 

[Hadders]

My question more relates to what right the TOC has to assume guilt and what onus is put on them to prove their position. They had billed for a large number (around 20-30 mark) of journeys where a valid railcard was held. I work in the industry and was advised by a friend in revenue there is a railcard database the TOC could access but the individuals dealing with the case specifically refused to do so and put all onus on my friend to provide this evidence themselves.

As I said earlier it's difficult to comment without seeing the paperwork. Purchasing tickets with a railcard isn't illegal. What is illegal is using them. I often purchase tickets on behalf of friends and family using a variety of railcard discount which they are (but I am not) entitled to use. If someone were to research my online ticket purchasing history then this could cause some questions that I would vigorously defend.

The issue here is that your friend was caught travelling with an invalid ticket. The train company is perfectly entitled to prosecute for that single offence, and realistically that is all they could've done. Their prosecution would've been successful, especially if it was a Bylaw conviction as no intent has to be shown. A prosecution under the Regulation of the Railways Act has to show intent but the issue for a defendant is that a conviction under the RoRA is recorded in the Police National Computer and will show in criminal record checks. A Bylaw conviction usually doesn't. The fine and costs would probably be similar whether RoRA or Bylaws.

I do think it is poor of the the Train Company not to cross reference their research of online ticket purchasing history with the railcard database.

Again, as above, this is not the case. That's why I'm trying to establish if the prosecutions team were acting in a lawful manner.

The prosecutions team is entitled to research online ticket purchasing accounts for the prevention and detection of crime. This sort of stuff happens all the time in online retailing and I am genuinely surpised how unaware people are of the digital footprint they leave behind when making online transactions. This is probably something for a separate discussion.

It's been settled now as the barcode for the railcard was eventually provided by the 3rd party retailer, which seemed like a ridiculous hurdle to jump over when the 3rd party retailer provided email confirmation of the 16-17 saver previously purchased, the concurrent issue of the 16-25 railcard and also a receipt for both.

That sounds like excellent customer from the 3rd party retailer.

As I say, it's all resolved now - my question is more relating to how the TOC approached the matter, not the eventual outcome.

Good that it's been resolved. Apologies if I've missed it but which train company was this case with?

 

[furlong]

I do think it is poor of the the Train Company not to cross reference their research of online ticket purchasing history with the railcard database.

Not just poor, but if this was on a route to prosecution they were basically required to do this before making accusations that they should already have known were unfounded. They need to search for evidence they (being in effect "the railway") have that would exonerate the suspect at least as equally as they search for evidence to convict them and probably moreso! I hope that one result of the Post Office scandal will be that people involved in railway prosecutions learn from the Post Office's numerous mistakes and up their game! The railway can't attempt to extract an out-of-court settlement for a particular offence when it is in possession of evidence that shows the offence was not committed! (The railway as a whole has a duty to make sure any such evidence is in the hands of the prosecutor. Of course there's always some margin accepted for mistakes in individual cases, but the policies and processes in place should be robust enough for those to be demonstrably rare.) This is serious stuff - nobody knows how far the public mood might swing when the inquiry reports, such that offences that are largely disregarded today, might then be investigated retrospectively and lead to criminal convictions for railway employees working in or responsible for these departments as well as Post Office staff.

 

[driverd]

As I said earlier it's difficult to comment without seeing the paperwork. Purchasing tickets with a railcard isn't illegal. What is illegal is using them. I often purchase tickets on behalf of friends and family using a variety of railcard discount which they are (but I am not) entitled to use. If someone were to research my online ticket purchasing history then this could cause some questions that I would vigorously defend.

I find it quite remarkable, however, that you would have to defend it at all. Say you made a simple error, for instance, accidentally purchased a ticket for a regular journey when that day you were travelling a few stops further.

If you were caught by revenue protection and had your purchase history investigated, how is it fair that it is put on you to justify every obe of your previous purchases on threat of a huge fine or indeed court action?

It's atrocious customer service and far from how the TOC I was a conductor at certainly asked us on the front line to behave.

(I'm trying to keep this anonymised on all sides, apologies if this doesnt help)

The issue here is that your friend was caught travelling with an invalid ticket. The train company is perfectly entitled to prosecute for that single offence, and realistically that is all they could've done. Their prosecution would've been successful, especially if it was a Bylaw conviction as no intent has to be shown. A prosecution under the Regulation of the Railways Act has to show intent but the issue for a defendant is that a conviction under the RoRA is recorded in the Police National Computer and will show in criminal record checks. A Bylaw conviction usually doesn't. The fine and costs would probably be similar whether RoRA or Bylaws.

This is where I take issue. The TOC was essentially blackmailing my friend - pay £x000s for all these journeys or see you in court - for a very simple error that was literally worth £2 or less to the TOC. The objection from me here is that this was clearly a case of an error made in good faith and its poor on the TOCs staff not to come at the situation from that starting point until they have proof to the contrary.

I do think it is poor of the the Train Company not to cross reference their research of online ticket purchasing history with the railcard database.

I agree. I also think it's out of order for the TOC to keep giving my friend hoops to jump through when they had emails from the 3rd party retailer confirming they had purchased a 16-17 saver.

 

[Hadders]

I find it quite remarkable, however, that you would have to defend it at all. Say you made a simple error, for instance, accidentally purchased a ticket for a regular journey when that day you were travelling a few stops further.

If you were caught by revenue protection and had your purchase history investigated, how is it fair that it is put on you to justify every obe of your previous purchases on threat of a huge fine or indeed court action?

It's atrocious customer service and far from how the TOC I was a conductor at certainly asked us on the front line to behave.

(I'm trying to keep this anonymised on all sides, apologies if this doesnt help)



This is where I take issue. The TOC was essentially blackmailing my friend - pay £x000s for all these journeys or see you in court - for a very simple error that was literally worth £2 or less to the TOC. The objection from me here is that this was clearly a case of an error made in good faith and its poor on the TOCs staff not to come at the situation from that starting point until they have proof to the contrary.



I agree. I also think it's out of order for the TOC to keep giving my friend hoops to jump through when they had emails from the 3rd party retailer confirming they had purchased a 16-17 saver.

What I try to do is explain to people how the process works and the outcome you can expect.

Almost anyone caught with a ticket irregularity thinks they have made an error and should be shown discretion. What outcome do you think is appropriate in this case?

Comparisons with non railway incidents often aren’t appropriate but this is like a careful driver who gets caught breaking the speed limit and who feels aggrieved that they’ve been given a fixed penalty notice or got to attend a speed awareness course.

 

[AlterEgo]

What I try to do is explain to people how the process works and the outcome you can expect.

Almost anyone caught with a ticket irregularity thinks they have made an error and should be shown discretion. What outcome do you think is appropriate in this case?

Comparisons with non railway incidents often aren’t appropriate but this is like a careful driver who gets caught breaking the speed limit and who feels aggrieved that they’ve been given a fixed penalty notice or got to attend a speed awareness course.

But in this case, the person was caught speeding and then told to account for their past few years' driving, which doesn't happen.

It's a shame @driverd didn't come to the forum sooner because dependent on the train company you can push back against this sort of sharp practice.

 

[Deafdoggie]

I find it quite remarkable, however, that you would have to defend it at all. Say you made a simple error, for instance, accidentally purchased a ticket for a regular journey when that day you were travelling a few stops further?

It's atrocious customer service

This is why so many people drive.

You might accidentally speed one day, but you're not faced with a fine for every past time you drove that route on the basis you might have sped then too

 

[Y Ddraig Coch]

So if I have this right , your friend had 16-17 railcard and used it over the year correctly, then turned 18 and bought a 16-25 railcard and selected the 16-17 railcard discount by accident on one occasion and they are trying to say all the correctly made journey's made with the correct rail card and correct discount selected should be paid back?

I wouldn't be settling for that at all if true as you say.

 

[robbeech]

What was contested was the fact they were billing my friend for every occasion they had ever travelled with a 16-17 saver discount. The TOC had provided a breakdown of every journey ever made with a 16-17 saver and the fare owed. They had absolutely no evidence to support their assumption of fare evasion.

This is how the railway operates now. It's VERY simple to find a trigger (a fare evasion, one that you admit happened) and then try it on. With nobody to stop you, why wouldn't you? However......

I think the error had been made maybe on 3 or 4 occasions,

This is information that (unless iv'e missed it) was not present in the initial post. This certainly changes things a lot and whilst it doesn't change the morality or legality of trying to charge for every single ticket, it does provide significant evidence that could be seen a serial fare evasion.

My question more relates to what right the TOC has to assume guilt and what onus is put on them to prove their position.

The Railway can and will do as it pleases with this sort of thing. We can argue about rules, regulations, laws until the cows come home but if there isn't anyone to enforce this then they will continue to do as they please.

I think from the consumers perspective this may be a tad unfair. No one threatens you with court for overpaying.

I'm afraid this is not correct. Had this been the other way around whereby a 16-17 railcard was held and a 16-25 railcard was selected in the retailer's app this would have been treated the same way. The ticket is invalid whichever way you look at it. Revenue neutral railcard discrepancies are also common. A change to a 26 to 30 from a 16 to 25 would yield the same penalty.

The railway can't attempt to extract an out-of-court settlement for a particular offence when it is in possession of evidence that shows the offence was not committed!

You'd really like to think that wouldn't you. But the railway CAN attempt to extract an our of court settlement for absolutely anything it wants. The railway could indeed try to extract an out of court settlement for a passenger wearing red shoes if it wanted. Of course, the case would be dropped before it went to court due to the sheer absurdity. A silly example of course.

I find it quite remarkable, however, that you would have to defend it at all. Say you made a simple error, for instance, accidentally purchased a ticket for a regular journey when that day you were travelling a few stops further.

If you were caught by revenue protection and had your purchase history investigated, how is it fair that it is put on you to justify every obe of your previous purchases on threat of a huge fine or indeed court action?

It's atrocious customer service and far from how the TOC I was a conductor at certainly asked us on the front line to behave.

A simple error on the part of the passenger is an opportunity to increase revenue for the railway. Ironically, a simple error on the part of the operator is also an opportunity to increase revenue, for example when an operator wrongfully issues a penalty fare that isn't due but the passenger isn't in possession of the level of knowledge required to fight it.

This is where I take issue. The TOC was essentially blackmailing my friend - pay £x000s for all these journeys or see you in court - for a very simple error that was literally worth £2 or less to the TOC. The objection from me here is that this was clearly a case of an error made in good faith and its poor on the TOCs staff not to come at the situation from that starting point until they have proof to the contrary.

We must remember that for every alleged genuine case like this one where a simple mistake has been made for 3 or 4 journeys in a given time period there will be dozens of cases where someone has been trying it on with a railcard discounted ticket for months without holding a railcard. Yes, we shouldn't follow a guilty before proven innocent mentality, but given the vast majority of these cases are from people guilty of fare evasion (and this case is no exception to that) then you can perhaps understand the bias. Do they go about it the right way? No, its appalling frankly and they should be penalised heavily for treating passengers the way they do, but overall fare evasion DOES need to be reduced.

So if I have this right , your friend had 16-17 railcard and used it over the year correctly, then turned 18 and bought a 16-25 railcard and selected the 16-17 railcard discount by accident on one occasion and they are trying to say all the correctly made journey's made with the correct rail card and correct discount selected should be paid back?

I wouldn't be settling for that at all if true as you say.

Turns out it was 3 or 4 occasions. but this is essentially how some of these operators, or their contracted teams work nowadays. Its the same with refunds and delay repay. If they suspect a singular delay repay claim isn't genuine (either from a scan record of an eticket or through whatever other criteria they choose) then they'll write to a passenger and ask for every piece of delay repay they've had from that operator back, plus an admin fee or they'll risk the police being involved. As with this sort of claim, MOST of the time there are some dodgy claims which is what has triggered it, but there have been examples where no wrong doing has taken place but people have still be bullied and frightened into paying back hundreds or even thousands of pounds to avoid a criminal record because they don't trust the railway or the court or the police (who all use the same golf course) to follow the correct procedures.

 

[yorkie]

I find it quite remarkable, however, that you would have to defend it at all.....

I would ask people to exercise caution here; we get accused, simultaneously, of being too far on both opposing 'sides'!

Apparently we defend TOCs and look out for their interests and defend the current legal system which penalises customers; we are therefore very bad people for doing this as we must be in cahoots with the TOCs; we also wouldn't suggest anyone engages in the process if we didn't agree with it, right? We should instead be asking people to fight unwinnable cases in the courts to prove a point, as after all a criminal record is a small price to pay to stand up against a TOC, and anyone who is applying for a job that requires a DBS check can just tell the prospective employer it was for a worthy cause to stand up against the evil TOCs.

Also, at the same time, also we defend criminals, and try to get people who are guilty of crimes (ranging from using a Railcard one day out of date, or choosing the wrong railcard, all the way up to people who committed fraud) the best possible outcome, which is obviously very bad because such people should not be encouraged to engage in the process and instead those people should not be settling out of court and instead the courts should get clogged up with cases, the TOCs get less money, and more people get criminal convictions, which is all round better for society, right?

Check this thread out:

Why do you contribute to threads in the Disputes Section when sometimes people have deliberately broken the law?

This is a general comment, which just goes to show how great the folk here are. If you posted a comment say on a software forum along the lines of "I have knowingly installed a cracked version of the software and want help from those who've paid the full price for the software to give me...

www.railforums.co.uk

I'd like to think that, after considering all the available evidence, most people would agree that none of the extreme views (yes I have worded them for dramatic effect) stated above are right; both extreme views are flawed, and that in reality the advice given here (which is informal advice, not legal advice) is actually the best possible advice for all sides, given the actual laws we have in place. The only people who disbenefit could possibly be lawyers, who may otherwise have more work to do, if more cases clogged up the courts.

If anyone is in a position to try to get the law changed, that's quite a different matter to fighting an individual case.

My personal opinion on whether not someone should or shouldn't be prosecuted isn't necessarily relevant to whether or not I think the best outcome for all parties is for the out-of-court settlement fee to be paid. Giving informal advice to settle a matter out of court is not an endorsement of the law which enables such fees to be demanded. Nor is it an endorsement of criminal activity and trying to get criminals off the hook. Yet, people with very different views on opposing sides will inevitably think that we are doing something wrong.

Taking a middle ground view between two opposing sides can be seen as being on the wrong side by people with the opposing viewpoints; you can't always win!

The idea that we may be somewhere in the middle doesn't always get considered by some people; reading the aforementioned thread will hopefully enable people to reconsider.

 

[800Travel]

This is how the railway operates now. It's VERY simple to find a trigger (a fare evasion, one that you admit happened) and then try it on. With nobody to stop you, why wouldn't you? However......

This is information that (unless iv'e missed it) was not present in the initial post. This certainly changes things a lot and whilst it doesn't change the morality or legality of trying to charge for every single ticket, it does provide significant evidence that could be seen a serial fare evasion.

The Railway can and will do as it pleases with this sort of thing. We can argue about rules, regulations, laws until the cows come home but if there isn't anyone to enforce this then they will continue to do as they please.

I'm afraid this is not correct. Had this been the other way around whereby a 16-17 railcard was held and a 16-25 railcard was selected in the retailer's app this would have been treated the same way. The ticket is invalid whichever way you look at it. Revenue neutral railcard discrepancies are also common. A change to a 26 to 30 from a 16 to 25 would yield the same penalty.

You'd really like to think that wouldn't you. But the railway CAN attempt to extract an our of court settlement for absolutely anything it wants. The railway could indeed try to extract an out of court settlement for a passenger wearing red shoes if it wanted. Of course, the case would be dropped before it went to court due to the sheer absurdity. A silly example of course.

A simple error on the part of the passenger is an opportunity to increase revenue for the railway. Ironically, a simple error on the part of the operator is also an opportunity to increase revenue, for example when an operator wrongfully issues a penalty fare that isn't due but the passenger isn't in possession of the level of knowledge required to fight it.

We must remember that for every alleged genuine case like this one where a simple mistake has been made for 3 or 4 journeys in a given time period there will be dozens of cases where someone has been trying it on with a railcard discounted ticket for months without holding a railcard. Yes, we shouldn't follow a guilty before proven innocent mentality, but given the vast majority of these cases are from people guilty of fare evasion (and this case is no exception to that) then you can perhaps understand the bias. Do they go about it the right way? No, its appalling frankly and they should be penalised heavily for treating passengers the way they do, but overall fare evasion DOES need to be reduced.

Turns out it was 3 or 4 occasions. but this is essentially how some of these operators, or their contracted teams work nowadays. Its the same with refunds and delay repay. If they suspect a singular delay repay claim isn't genuine (either from a scan record of an eticket or through whatever other criteria they choose) then they'll write to a passenger and ask for every piece of delay repay they've had from that operator back, plus an admin fee or they'll risk the police being involved. As with this sort of claim, MOST of the time there are some dodgy claims which is what has triggered it, but there have been examples where no wrong doing has taken place but people have still be bullied and frightened into paying back hundreds or even thousands of pounds to avoid a criminal record because they don't trust the railway or the court or the police (who all use the same golf course) to follow the correct procedures.

I keep evidence of train running times for all delay repay claims and I also retain a copy of my ticket in the same folder (a download of an e-ticket from an email) alongside my claim information. Presumably if I provided all this, they wouldn't be able to pursue the matter? I ask only because, as I'm sure is the case with many commuters, I get frequently delayed and make legitimate claims often as a result. I don't make fraudulent claims, but would hope if the TOC was curious about a claim they'd get in touch and then I could provide the relevant evidence that supports my claim rather than threatening police action etc. This kind of behaviour is why people dislike the railway

 

[Wolfie]

Not just poor, but if this was on a route to prosecution they were basically required to do this before making accusations that they should already have known were unfounded. They need to search for evidence they (being in effect "the railway") have that would exonerate the suspect at least as equally as they search for evidence to convict them and probably moreso! I hope that one result of the Post Office scandal will be that people involved in railway prosecutions learn from the Post Office's numerous mistakes and up their game! The railway can't attempt to extract an out-of-court settlement for a particular offence when it is in possession of evidence that shows the offence was not committed! (The railway as a whole has a duty to make sure any such evidence is in the hands of the prosecutor. Of course there's always some margin accepted for mistakes in individual cases, but the policies and processes in place should be robust enough for those to be demonstrably rare.) This is serious stuff - nobody knows how far the public mood might swing when the inquiry reports, such that offences that are largely disregarded today, might then be investigated retrospectively and lead to criminal convictions for railway employees working in or responsible for these departments as well as Post Office staff.

You are spot on. Unless things change TOCs should be stripped of many of their current rights with respect to criminal prosecution.

With respect to loss claims it seems that many working in revenue protection for TOCs need to re-familiarise themselves with the Civil Procedure Rules and in particular the overriding objective: "These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost." If they don't perhaps the Courts should start awarding higher levels of costs against TOCs to send them a message.

 

[Fawkes Cat]

(Sorry if this isn't fully in the flow of the thread, but I have been mulling this over for a while and I think have now worked out what I want to say)

As things pan out, this case has had a happy ending (the evidence that the TOC insisted on could be produced) but there's a couple of points where I think the investigators' judgement was poor:

- although the passenger wasn't (initially) able to produce the bar code to prove they had held a Railcard, my understanding is that they did produce proof of purchase (bank statement and the email showing they'd brought it). Given that there's no requirement to keep the bar code from an expired Railcard, and assuming absence of evidence to show that they hadn't bought a Railcard or that the purchase was for someone else, I would expect what they had to be sufficient to prove beyond reasonable doubt (i.e. to the standard needed in the criminal courts) that they had owned a Railcard. The TOC should not have been requiring evidence beyond what a court would need in that had the matter gone to court the passenger would have won.
- my working assumption for out of court settlement amounts has been that they would be unable to significantly exceed the financial penalty (fine, costs, compensation etc. all rolled up) that a court would impose, in that while going to court is a hassle (and some people might be prepared to pay some hundreds of pounds to avoid that hassle) if you can get a cheaper settlement by going to court than by settling in advance then you will take your chance in court. From what we see here, a typical court penalty rolls up to maybe £500 - £800: but the TOC were pursuing more than £1000. Given that they would only have been able to prosecute for journeys in the last six months ('three or four') unless they were to prosecute for fraud, this suggests that the TOC didn't think through the chances of getting some money in quickly.

I'm disappointed: investigators should be doing their job better.

 

[Haywain]

- my working assumption for out of court settlement amounts has been that they would be unable to significantly exceed the financial penalty (fine, costs, compensation etc. all rolled up) that a court would impose,

I have never found any evidence to support this theory. There is a principle in civil law that you should not be taking court action simply to extract greater damages than you have already been offered*, but I can't remember the exact details of that.


*Or something. See the explanation below.

 

[John Palmer]

I have never found any evidence to support this theory. There is a principle in civil law that you should not be taking court action simply to extract greater damages than you have already been offered, but I can't remember the exact details of that.

I'm not sure whether you actually intended to convey the sense that such a principle exists, for, taken at face value, it would mean that a civil claim having a value in damages of, say, £1,000 could be pre-empted by the offer of £1.00 in settlement.

What does often happen, so far as civil claims are concerned, is that the (prospective) defendant makes an offer which, if well judged, is a little less than the award in damages that the claimant can expect to recover. Such an offer will be expressed to be made 'without prejudice save as to costs'. The 'without prejudice' qualification precludes introduction of the offer as evidence that the claim is admitted, whilst the 'save as to costs' element puts the claimant on notice that the defendant reserves the right to refer to the terms of the offer if the claim succeeds but the damages awarded are less than the amount offered. In such a case the court will be invited to order that the claimant to pay the legal costs incurred by the defendant since the date of the offer, on the basis that the claimant has secured no greater benefit than the amount offered in settlement and has thus put the defendant to unnecessary legal expense.

Offering a sum slightly less than the amount the claimant expects to be awarded places him on the horns of a dilemma, because rejection of the offer exposes him to a substantial costs risk if, as is frequently the case, the prospective damages award cannot be reliably predicted in advance.

Once proceedings are actually under way, the Civil Procedure Rules set out, in Part 36, a formal procedure for making an offer having substantially the same effect.

 

[Haywain]

taken at face value, it would mean that a civil claim having a value in damages of, say, £1,000 could be pre-empted by the offer of £1.00 in settlement.

Hence "I can't remember the exact details"! I considered such an example when I was making that comment! Thanks for the rest of your post clarifying my half-baked attempt.

 

[Watershed]

Once proceedings are actually under way, the Civil Procedure Rules set out, in Part 36, a formal procedure for making an offer having substantially the same effect.

A Part 36 offer can be made before proceedings are underway, but it is of little effect in a case that is (or would have been) allocated to the Small Claims Track - i.e. most disputes for amounts of less than £10,000.

 

[driverd]

Thank you all for the level of depth in these replies - it's very interesting to read through.

There's so much I could quote to add my thoughts on, but in an effort to keep this succinct, I'll just give a few thoughts based on the conversation above.

Whilst I appreciate the sentiment of the speeding analogy used upthread, I think it's probably not the best equivalent. Unlike driving, no customer is required to take a test in both theory and practical use of the railway ticketing system to demonstrate competence. Given the level of complexity and variety within the fares structure, you would expect a little more sympathy from revenue protection teams and an appreciation that the fares structure isn't simple at all.

The app my friend uses retains your railcard details for future purchases (ie: doesn't make you re-select it for each purchase). This creates a very hazardous interface for a consumer acting in good faith, especially when you take into account the fact that the 2 railcards in question have very similar names and cover the same age groups. I suspect my friend wasn't even aware they offered different % discounts.

A more appropriate analogy for the error that occurred would be purchasing apples by the gram at the supermarket, but then accidentally selecting a similarly named but differently priced variety at the self check out. Upon a member of staff recognising your error, rather than correcting you, you are threatened with prosecution for theft and then offered an out of court settlement, calculated on the basis that you shoplifted every time you visited the supermarket over the last 24 months.

Despite you acknowledging your error and being prepared to pay the difference + admin for the time/times you made the mistake, you are not given this choice. You are told you will only be given a reduced fine if you can provide a receipt for every one of your visits to the supermarket over the last 2 years. You contact the store manager who, for whatever reason, can prove you didn't shoplift, but no, this will not be accepted by the prosecutions team as evidence, the prosecutions team will not reduce your fine unless you produce receipts. Throughout this whole process, you're being told the fine will double unless you comply with the prosecution teams arbitrary deadline and that you might be getting a criminal record (despite the evidence gathering being out of your control). Throughout this whole process the prosecutions team have direct access to a system which would prove your innocence but choose not to do so - preferring you to be put through a high level of stress and anxiety to find a very precise piece of evidence.

Obviously the real world doesn't work like this - but somehow train operators do.