Trainline.com assisting TOCs with fraud investigations

[Haywain]

95% of rail tickets TL sell are for DfT ie government contracts, and as such the DfT can pretty much dictate whatever it wants to these glorified travel agents. It wouldn't take much for government to remove their accreditation to sell RDG rail tickets if they felt they were allowing fraud or fare evasion to flourish. Thus, TL will jump to assist when asked.

Legally, DfT have no relationship with Trainline so can demand very little. And they really can't do anything to remove Trainline's accreditation if Trainline are meeting the requirements of it.

 

[Camsus]

And I think that the passenger would also be legally justified in ignoring such enquiries.

Besides if you take the view that the railway's loss for someone failing to renew a railcard is the actual money they have lost, not a theoretical amount based on treating each trip as if the passenger had jumped on a train without buying a ticket at all, then it doesn't matter to them how many times it got used - the "railway" is owed the renewal fee + plus a reasonable penalty.

If a passenger is caught using a railcard discounted E-ticket with an expired railcard, they would typically be questioned under caution. Say the TOC then obtains their purchase history from TL and sees X number of railcard discounted tickets were purchased since expiration date of said railcard. The TOC then offers the passenger an opportunity to pay back the fares plus costs, but the passenger either ignores them, or tells them where to go, it's very likely they'd end up in court being prosecuted for original offence.
You can see the attraction of cooperating with the TOC

 

[AdamWW]

If a passenger is caught using a railcard discounted E-ticket with an expired railcard, they would typically be questioned under caution. Say the TOC then obtains their purchase history from TL and sees X number of railcard discounted tickets were purchased since expiration date of said railcard. The TOC then offers the passenger an opportunity to pay back the fares plus costs, but the passenger either ignores them, or tells them where to go, it's very likely they'd end up in court being prosecuted for original offence.
You can see the attraction of cooperating with the TOC

Well yes I can see how they could dangle the original offence over someone to try to force them to incriminate themselves, and I think that's what they attempted in the case I referred to earlier (and of course even if you had a valid railcard but couldn't show it they can still do this as it was still a crime).

I suppose it depends on how much you want to keep it out of court.

Without cooperation I presume they would find it extremely difficult to prosecute for all but the offence detected directly.

Depending on how many times the railcard has been used since expiry and how extortionate the relevant anytime fares might happen to be, settling out of court could turn out to be much, much more expensive than pleading guilty.

 

[Doubleplus]

It's presumably only a matter of time before someone who is particularly stubborn and has enough time, money and energy to devote to the task, will let a court decide whether the railway is entitled to hundreds of pounds of undiscounted anytime fares (with no refund on the discounted tickets and railcard already purchased) or their clearly fair and reasonable offer of a backdated payment for the cost of the railcard, plus a reasonable fee for their costs incurred.

As I understand it, the law would be against them, so it's not a job for someone who is not willing to invest - and lose - that time and money, but ultimately laws sometimes do have to be challenged.

 

[AdamWW]

It's presumably only a matter of time before someone who is particularly stubborn and has enough time, money and energy to devote to the task, will let a court decide whether the railway is entitled to hundreds of pounds of undiscounted anytime fares (with no refund on the discounted tickets and railcard already purchased) or their clearly fair and reasonable offer of a backdated payment for the cost of the railcard, plus a reasonable fee for their costs incurred.

As I understand it, the law would be against them, so it's not a job for someone who is not willing to invest - and lose - that time and money, but ultimately laws sometimes do have to be challenged.

I think it would - somehow - have to get to a higher level than a magistrates court in order to set a precedent.

I could see such a court requiring the criminal to pay the difference between the discounted tickets they bought and the undiscounted equivalent - after all a railcard discount isn't retrospective. I would like to think that the cost of anytime tickets in addition to the fare originally paid would be seen as too much though.

If a TOC were hypothetically to insure itself against losses due to fare evasion, I'd love to see them try to argue with the insurance company that their loss was more than £30 though, never mind the difference between discounted and undiscounted fares.

 

[Camsus]

Well yes I can see how they could dangle the original offence over someone to try to force them to incriminate themselves, and I think that's what they attempted in the case I referred to earlier (and of course even if you had a valid railcard but couldn't show it they can still do this as it was still a crime).

I suppose it depends on how much you want to keep it out of court.

Without cooperation I presume they would find it extremely difficult to prosecute for all but the offence detected directly.

Depending on how many times the railcard has been used since expiry and how extortionate the relevant anytime fares might happen to be, settling out of court could turn out to be much, much more expensive than pleading guilty.

Very possible that a settlement would be more expensive than pleading guilty, however a huge factor to consider would be the potential impact that receiving a conviction may do to the individual concerned. Those working in financial services for example

 

[AdamWW]

Very possible that a settlement would be more expensive than pleading guilty, however a huge factor to consider would be the potential impact that receiving a conviction may do to the individual concerned. Those working in financial services for example

Is it really that strict?

A single prosecution under strict liability for something that is plausibly a genuine error?

This would end someone's career?

And if so I would question how demanding a fee to settle out of court that is far higher than the court would award is anything other than extortion.

 

[skyhigh]

Is it really that strict?

A single prosecution under strict liability for something that is plausibly a genuine error?

This would end someone's career?

And if so I would question how demanding a fee to settle out of court that is far higher than the court would award is anything other than extortion.

I would be very surprised if anyone ever lost their job for a strict liability byelaw prosecution unless they lied about it when they were required to disclose it. A prosecution under RoRA (which requires proof of intent) would be a different kettle of fish.

 

[Bletchleyite]

I would be very surprised if anyone ever lost their job for a strict liability byelaw prosecution unless they lied about it when they were required to disclose it. A prosecution under RoRA (which requires proof of intent) would be a different kettle of fish.

In effect a Byelaw prosecution is just a means of a Court imposing a fine.

 

[skyhigh]

In effect a Byelaw prosecution is just a means of a Court imposing a fine.

Exactly. Although it's a criminal conviction, the impact on day-to-day life for 99.9% of people is similar to getting a ticket for driving in a bus lane (or a fine for littering, which is also a byelaw offence in certain areas as I understand it).

 

[island]

Is it really that strict?

A single prosecution under strict liability for something that is plausibly a genuine error?

This would end someone's career?

Generally not. I am a senior manager in a bank and neither my current firm nor any other firm I have worked for would, to my knowledge, refuse to employ, or terminate the employment of, a member of staff solely because they had a single conviction for a single instance of fare evasion (byelaw or RORA), that was declared to us proactively or at the first time of asking.

It would be a different matter were we to first find out about such a conviction from another source, especially if the employee had wrongly declared they had no such convictions. It would also be a different matter if an employee had engaged in a course of conduct over an extensive period which called into question their honesty and integrity, whether or not they were prosecuted for none, one, or all of the instances of conduct. See also Jonathan Burrows of Stonegate.

And if so I would question how demanding a fee to settle out of court that is far higher than the court would award is anything other than extortion.

“Extortion” is not a crime in the law of England and Wales. You would be looking at blackmail contrary to section 21 of the Theft Act 1968, requiring the making of an “unwarranted demand with menaces”.

I expect you would struggle to prove to the criminal standard that a request for payment of unpaid rail fares and a contribution towards the cost of investigating same is “unwarranted” or that prosecutions are “menaces”, but (1) it would depend on the size of the demand; and (2) only a court can definitively rule on the subject. Nor do I think the CPS would consider such a prosecution to be in the public interest. Nor do I think any individual would have the resources to take on prosecuting it.

 

[AdamWW]

“Extortion” is not a crime in the law of England and Wales. You would be looking at blackmail contrary to section 21 of the Theft Act 1968, requiring the making of an “unwarranted demand with menaces”.

I expect you would struggle to prove to the criminal standard that a request for payment of unpaid rail fares and a contribution towards the cost of investigating same is “unwarranted” or that prosecutions are “menaces”, but (1) it would depend on the size of the demand; and (2) only a court can definitively rule on the subject. Nor do I think the CPS would consider such a prosecution to be in the public interest. Nor do I think any individual would have the resources to take on prosecuting it.

I did not suggest that it was criminal.

However it does not see moral to me for an out of court settlement to include recompense for offences which the court would not be prosecuting.

Generally not. I am a senior manager in a bank and neither my current firm nor any other firm I have worked for would, to my knowledge, refuse to employ, or terminate the employment of, a member of staff solely because they had a single conviction for a single instance of fare evasion (byelaw or RORA), that was declared to us proactively or at the first time of asking.

It would be a different matter were we to first find out about such a conviction from another source, especially if the employee had wrongly declared they had no such convictions. It would also be a different matter if an employee had engaged in a course of conduct over an extensive period which called into question their honesty and integrity, whether or not they were prosecuted for none, one, or all of the instances of conduct. See also Jonathan Burrows of Stonegate.

Thanks for a informed opinon. I think people can get a bit carried away with the possible consequences of a byelaw prosecution.

 

[43066]

Generally not. I am a senior manager in a bank and neither my current firm nor any other firm I have worked for would, to my knowledge, refuse to employ, or terminate the employment of, a member of staff solely because they had a single conviction for a single instance of fare evasion (byelaw or RORA), that was declared to us proactively or at the first time of asking.

This would likely be different in a professional services context, for example a practising solicitor or accountant who ended up being disciplined/banned from practicing by their respective professional body, which would be a real possibility, indeed a likelihood. And quite rightly so.

 

[AdamWW]

This would likely be different in a professional services context, for example a practising solicitor or accountant who ended up being disciplined/banned from practicing by their respective professional body, which would be a real possibility, indeed a likelihood. And quite rightly so.

Are we still talking about a single strict liability prosecution for having an expired railcard here?

 

[Bletchleyite]

This would likely be different in a professional services context, for example a practising solicitor or accountant who ended up being disciplined/banned from practicing by their respective professional body, which would be a real possibility, indeed a likelihood. And quite rightly so.

I don't think one Railway Byelaw prosecution would even be a bar to them provided it was honestly explained.

RoRA would, I agree with whoever said that, be different, as that's a proper conviction and implies it was wilful.

 

[yorkie]

Is it really that strict?

A single prosecution under strict liability for something that is plausibly a genuine error?

Passengers can be prosecuted when there is no intention of attempting to avoid the fare; there is a thread discussing this topic at:

Why is there such a disparity in outcomes? Surely it's time for a better system?

I was on a train this week which had two RPIs and one security officer board. In my carriage there were the following two people caught right near me, both of whom were given a simple penalty fare 1) No ticket with no attempt at an excuse as to why one was not purchased 2) Attempting to flash...

www.railforums.co.uk

Passengers have been prosecuted when the passenger did nothing wrong, for example:

Validity of ticket question ( London - Brookmans Park with itinerary via Hatfield ) FCC prosecution

I'm really hoping there are some experts on here who can explain things for me. My daughter travelled from Brookman's Park to King's Cross having bought a return ticket and adding in the travelcard option from the machine at Brookman's Park. On her return journey later that day she got a text...

www.railforums.co.uk

(This is a particularly good example as it did actually proceed to court; the train company lost the case and had to compensate the defendant)

This would end someone's career?

Below is a thread where an example was posted (post #30) of a non-recordable Byelaw offence became a big deal:

Police (and other professionals) misconduct hearings related to rail travel

People may be interest to see, and have observations upon, the following to Met Police Misconduct Hearings related to discounted risk travel. It would be interesting to hear any observations re the TOC evidence in each case. Seems to be a bit of a spate of these. Misconduct (gross misconduct...

www.railforums.co.uk

(in that case, the offence was serious enough tohave been prosected under the Regulations of Railways Act but that's a different argument/point altogether)

Sometimes there is sufficient evidence to demonstrate intent to avoid the fare, but train companies can avoid any requirement to demonstrate that intent, by prosecuting under the Byelaws instead of more appropriate legislation for the actual offence committed.

For someone to be guilty of a byelaw offence, they do not have to be attempting to avoid the fare and this absolutely can be down to a mistake (on the part of the customer, or even railway staff!) or being a victim of crime or misinformation.

But all of the above is best discussed in the relevant threads, rather than this one; hopefully you will find the links insightful.

 

[43066]

Are we still talking about a single strict liability prosecution for having an expired railcard here?

I don't think one Railway Byelaw prosecution would even be a bar to them provided it was honestly explained.

RoRA would, I agree with whoever said that, be different, as that's a proper conviction and implies it was wilful.

I was thinking more of a RoRA conviction there, which would be a slam dunk due to the dishonesty. A bylaw prosecution would likely depend on whether it was a one off offence which was a genuine mistake (of course it’s highly unlikely that someone would be prosecuted in this instance), or evidence of a wider a course of conduct which might indicate dishonesty, notwithstanding that the TOC had elected to prosecute under bylaws.

You don’t need to be convicted of any offence at all for your behaviour to be considered unethical, and the SRA would still consider any such behaviour which came to their attention, even if you’d (say) settled out of court with a TOC.

 

[Wolfie]

It's presumably only a matter of time before someone who is particularly stubborn and has enough time, money and energy to devote to the task, will let a court decide whether the railway is entitled to hundreds of pounds of undiscounted anytime fares (with no refund on the discounted tickets and railcard already purchased) or their clearly fair and reasonable offer of a backdated payment for the cost of the railcard, plus a reasonable fee for their costs incurred.

As I understand it, the law would be against them, so it's not a job for someone who is not willing to invest - and lose - that time and money, but ultimately laws sometimes do have to be challenged.

The problem is that what you say is perfectly correct with respect to civil cases. However the criminal legislation creates a strict or absolute liability. The TOC may ultimately get less compo but the traveller will get a criminal record.

For someone with national security clearances or DBS for carers that could be a major issue. Attempting to conceal the conviction would make things orders of magnitude worse.

 

[island]

This would likely be different in a professional services context, for example a practising solicitor or accountant who ended up being disciplined/banned from practicing by their respective professional body, which would be a real possibility, indeed a likelihood. And quite rightly so.

I don’t agree that it is anywhere near “a likelihood” for either of those roles that one might lose one’s career for a single conviction for a single offence. Indeed, accountants can only be subjected to a standard DBS check at entry to the profession, and not thereafter.

== Doublepost prevention - post automatically merged: 25 Apr 2023 ==

Below is a thread where an example was posted (post #30) of a non-recordable Byelaw offence became a big deal:

(in that case, the offence was serious enough tohave been prosected under the Regulations of Railways Act but that's a different argument/point altogether)

This was a case of someone who committed 55 offences.

 

[43066]

I don’t agree that it is anywhere near “a likelihood” for either of those roles that one might lose one’s career for a single conviction for a single offence. Indeed, accountants can only be subjected to a standard DBS check at entry to the profession, and not thereafter.

As far as the legal profession is concerned, you are mistaken. If a solicitor ends up with a dishonesty conviction it’s very much a likelihood. As I said afterwards, it’s less clear cut for a bylaw conviction.

Here is an example of someone who wasn’t even convicted of an offence, yet was sacked and struck off:

A question of honesty: solicitor struck off for fare evasion

Paul Bennett considers a real case in which a solicitor appeared at the Solicitors Disciplinary Tribunal for misconduct committed in their private life.

www.lawsociety.org.uk

The SRA alleged that by deliberately failing to pay rail fares worth approximately £650 for journeys undertaken over a three-month period in 2017, the solicitor breached either or both of Principles 2 and 6 of the SRA Principles 2011.

The respondent, a newly qualified solicitor, admitted fare evasion in her journeys to the office and once the outstanding fares were calculated by the rail company, she self-reported the matter to the SRA after a settlement had been made.

The solicitor was dismissed by her firm and expressed deep remorse for her actions, stating that she would usually do the right thing in both her personal and professional life.

The tribunal found that despite mitigating factors, including no previous disciplinary matters, her relative inexperience as a solicitor and self-reporting to the regulator, the fact remained that the misconduct only ceased when she was caught.

As a result, the solicitor was struck off and ordered to pay costs of just over £3,000.

Yes it’s actually that strict…

 

[Bletchleyite]

Again that's a series of offences that (as you quote) only stopped once caught, not a one-off offence.

 

[43066]

Again that's a series of offences that (as you quote) only stopped once caught, not a one-off offence.

This person was not even convicted of an offence. If a solicitor is found to have been dishonest they will almost certainly
be struck off, whether or not they are convicted of an offence, and even if the conduct isn’t criminal. It can include things like forgetting to file a document and lying about it.

Here is an overview:

Dishonesty - Lawyers Defence Group

Dishonesty is regarded as an extremely serious matter by all regulators and will normally result in disciplinary action being taken and will, if it is proven, almost invariably result in a striking off. This item looks more closely at what constitutes dishonesty.

www.lawyersdefencegroup.org.uk

Introduction​

The dishonesty of a solicitor, registered foreign lawyer, registered European lawyer, or the manager or employee of recognised bodies or recognised sole practitioner is regarded as an extremely serious matter and will almost certainly result in a referral to the Solicitors Disciplinary Tribunal and will, if it is proven, almost invariably result in a striking off. That was a principle set out in the case of Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin), where Mr Justice Coulson stated that where a solicitor was found to have been dishonest, unless exceptional circumstances could be shown, the normal consequences should be for a solicitor to be struck off the Roll of Solicitors.

For behaviour to be dishonest it does not necessarily have to involve acts which would amount to dishonesty for criminal law purposes – although any act of dishonesty by a solicitor or his or her employee could be sufficient to see that person referred to the Solicitors Disciplinary Tribunal, whether or not that dishonesty took place as part of a legal practice.

 

[danielcanning]

I would be very surprised if anyone ever lost their job for a strict liability byelaw prosecution unless they lied about it when they were required to disclose it. A prosecution under RoRA (which requires proof of intent) would be a different kettle of fish.

In effect a Byelaw prosecution is just a means of a Court imposing a fine.

Exactly. Although it's a criminal conviction, the impact on day-to-day life for 99.9% of people is similar to getting a ticket for driving in a bus lane (or a fine for littering, which is also a byelaw offence in certain areas as I understand it).

Unless you're planning on travelling to the USA on an ESTA when any conviction (or indeed arrest without charge) excludes you from the scheme...

 

[Bletchleyite]

Unless you're planning on travelling to the USA on an ESTA when any conviction (or indeed arrest without charge) excludes you from the scheme...

No, it doesn't. I'd suggest reading it again.

It says an arrest or charge "for an offence of moral turpitude", though there might be a more modern version of the wording. The UK doesn't have quite the same concept, a bit like the way they have misdemeanors and felonies but we just have crimes/offences. However basically an offence of moral turpitude is basically where you knew you were doing something morally wrong but still did it. A strict liability Byelaw offence charged because you accidentally travelled with a Railcard a couple of days out of date is no more "an offence of moral turpitude" than a parking ticket.

 

[AlterEgo]

No, it doesn't. I'd suggest reading it again.

It says an arrest or charge "for an offence of moral turpitude"

For the avoidance of doubt, the ESTA question is thus:

Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

 

[43066]

For the avoidance of doubt, the ESTA question is thus:

Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

So a fare-evasion-type conviction probably isn’t relevant.

However, if I was in the position of needing to apply for a U.S. visa waiver with such a conviction, I’d likely speak to a lawyer or immigration advisor with relevant expertise before deciding how to proceed. Knowing how ridiculously strict the US legal system can be, I’m not sure I’d want to risk answering the question incorrectly(!), albeit the risk of being discovered would be negligible.

 

[Bletchleyite]

So a fare-evasion-type conviction probably isn’t relevant.

I'd say a one-off Byelaw conviction for fare evasion wouldn't even vaguely fit that description, though multiple RoRA convictions might. A few hundred quid at worst isn't "serious harm" to a train operator. Thus that's actually less strict than the old "moral turpitude" version.

Interestingly it says "resulted in", not "allegedly resulted in", as such if found not guilty or released without charge presumably it doesn't apply at all, though I'd certainly seek advice on that!

 

[Wolfie]

Unless you're planning on travelling to the USA on an ESTA when any conviction (or indeed arrest without charge) excludes you from the scheme...

The EU ETIAS in theory won't be that strict. However if the UK EES is tighter against EU citizens that will likely change.

== Doublepost prevention - post automatically merged: 25 Apr 2023 ==

So a fare-evasion-type conviction probably isn’t relevant.

However, if I was in the position of needing to apply for a U.S. visa waiver with such a conviction, I’d likely speak to a lawyer or immigration advisor with relevant expertise before deciding how to proceed. Knowing how ridiculously strict the US legal system can be, I’m not sure I’d want to risk answering the question incorrectly(!), albeit the risk of being discovered would be negligible.

Agreed, particularly given that even having ESTA clearance doesn't mean that Homeland Security will actually admit you.

 

[Bletchleyite]

The EU ETIAS in theory won't be that strict. However if the UK EES is tighter against EU citizens that will likely change.

The US isn't either. On the old wording a lot of people read "arrested for a crime of moral turpitude" to mean "arrested", and also didn't take account of the fact that "arrested and released without charge" in the UK is functionally equivalent to "arrested and de-arrested" in the US - in the US you can be de-arrested which removes the record entirely, in the UK you can't.

Agreed, particularly given that even having ESTA clearance doesn't mean that Homeland Security will actually admit you.

Though equally they don't have the ability to carry out Developed Vetting, which you'd need to do to actually find out about a Byelaw conviction unless you told them. It doesn't even come up on an Enhanced DBS Check and they can't do that either.

 

[Wolfie]

The US isn't either. On the old wording a lot of people read "arrested for a crime of moral turpitude" to mean "arrested", and also didn't take account of the fact that "arrested and released without charge" in the UK is functionally equivalent to "arrested and de-arrested" in the US - in the US you can be de-arrested which removes the record entirely, in the UK you can't.



Though equally they don't have the ability to carry out Developed Vetting, which you'd need to do to actually find out about a Byelaw conviction unless you told them. It doesn't even come up on an Enhanced DBS Check and they can't do that either.

Having had DV since it was PV(TS) l have a fair idea what it entails....