Ah, my error. Hopefully it won't come to that. My post #25 stands then - possibly concentrate more on the 'authority to travel' aspect in the final response and not the rest (which you may have already submitted on previous appeals). Remember that the final appeal is read by a different person who may be more interested in the technicalities.
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Unintentional invalid ticket
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Fawkes Cat
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Our general advice is a little different to this:
The final appeal is seen by completely new people. You have to assume that they won't have seen the previous appeals.
So you need to tell them everything about every point you want to raise.
Tell them about all the points you raised before: include all the details and don't assume that they will know what the previous appeals had been told.
Also tell them about any new points (here, that seems to be the 'authority to travel' aspect). Go into full details about those as well.
Fair points here.
Something similar happened to me once at Reading. I was travelling to Paddington for a training course and had accidentally bought a return ticket (in advance from the machine at the station) valid for the following day. It was spotted when I couldn't get through the barriers at Reading (before I travelled) and one of the station staff very kindly amended the ticket for me so I could use it. I suppose having not already boarded a train made the difference in how I was treated? Just interested....
John Palmer
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Let's not lose sight of the fact that, provided the operator does not abuse the applicable legal process, the OP is not at risk of prosecution: evidently this must be the case of a penalty fare having been issued as two appeals against it have already been adjudicated. So, magistrates will not be involved in a determination of whether opening a gate constitutes authority to travel on a ticket for a different date. Furthermore, the burden of proof will not lie on the OP to prove that such authority to travel was given by way of defence to a criminal charge.
I see no harm in the OP raising, as one of the grounds of a Final Appeal under Regulation 18 of the Railways (Penalty Fares) Regulations 2018, the argument that being permitted to pass through the gateline prior to train travel constituted permission given by “a person acting or purporting to act on behalf of the operator” to travel on such train without having a travel ticket, thereby making the case one captured by Regulation 6(2), and consequently one in which Regulation 6(1) provides that a penalty fare must not be charged. In turn that would make the case one in which an applicable ground of appeal is that “the penalty fare was not charged in accordance with the requirements of these Regulations” (Regulation 16(3)(a)), and as such an admissible ground of appeal to the Final Appeal panel under Regulation 18(2)(b).
It may well be important to establish exactly what submissions the OP has made in the First and Second Stage Appeals, and how (if at all) the appeal handler has responded to them. This is particularly true of factual assertions made by the OP in the First Stage appeal, because the stipulation in Regulation 16(4) that “it is for the operator on whose behalf the penalty fare was charged to provide evidence that reasonably demonstrates that any fact described by the appellant in relation to any of those matters (i.e. “matters specified in paragraph (5)”) is not true” may only apply to such matters as are asserted by an appellant in a First Stage appeal. This is so because there is no stipulation corresponding to that contained in Regulation 16(4) that is expressed to apply to a Second Stage Appeal under Regulation 17 or a Final Appeal under Regulation 18. The ramifications of this difference may call for further consideration.
Even if the Regulation 16(3)(a) ground of appeal is treated as being of dubious merit, an additional/alternative way of approaching the case is to take account of the effect of two of the operator's officials having checked the OP's ticket or having been prompted to take the opportunity to do so. The permission given to pass through the gateline is of particular significance. I don't go so far as @furlong in saying that the barrier's rejection of the ticket made the operator aware of the ticket's invalidity, as the programming of barriers may lead to rejection of tickets that are valid. The barrier's rejection does, however, put the operator on enquiry as to the ticket's validity: that, surely, is the whole purpose of using a barrier to check tickets. If the operator's official then allows the passenger to pass the barrier notwithstanding its rejection of the ticket the effect must be to reassure the passenger that he is entitled to travel. Even if this does not amount to the granting of permission to travel it is bound to lull the passenger into a false sense of security that his ticket is valid for travel and he is thereby deprived of his last opportunity before boarding the train to correct the invalidity of his ticket by amendment (@Skiddaw's case above) or purchase of a replacement. I would argue that the official's grant of permission to pass through the barrier after it had initially rejected the ticket amounts to a representation on behalf of the operator that the passenger's ticket is being treated as valid for travel. Relying on that representation the passenger then acts to his detriment by boarding the train when not in possession of a valid ticket. This seems to me to be classic case where it would be unconscionable for an operator to enrich itself by charging the passenger a penalty fare after such passenger had relied to his detriment upon the assurance given on behalf of the selfsame operator that his ticket was being treated as valid for travel by the grant of permission to pass through the barrier – an assurance, moreover, that was reinforced by the further check of his ticket that was made en route with no objection to its validity being raised. I suggest that this reasoning might be deployed as an additional ground of appeal under Regulation 16(3)(d) on the basis that it supplies a compelling reason why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare.
I see no harm in the OP raising, as one of the grounds of a Final Appeal under Regulation 18 of the Railways (Penalty Fares) Regulations 2018, the argument that being permitted to pass through the gateline prior to train travel constituted permission given by “a person acting or purporting to act on behalf of the operator” to travel on such train without having a travel ticket, thereby making the case one captured by Regulation 6(2), and consequently one in which Regulation 6(1) provides that a penalty fare must not be charged. In turn that would make the case one in which an applicable ground of appeal is that “the penalty fare was not charged in accordance with the requirements of these Regulations” (Regulation 16(3)(a)), and as such an admissible ground of appeal to the Final Appeal panel under Regulation 18(2)(b).
It may well be important to establish exactly what submissions the OP has made in the First and Second Stage Appeals, and how (if at all) the appeal handler has responded to them. This is particularly true of factual assertions made by the OP in the First Stage appeal, because the stipulation in Regulation 16(4) that “it is for the operator on whose behalf the penalty fare was charged to provide evidence that reasonably demonstrates that any fact described by the appellant in relation to any of those matters (i.e. “matters specified in paragraph (5)”) is not true” may only apply to such matters as are asserted by an appellant in a First Stage appeal. This is so because there is no stipulation corresponding to that contained in Regulation 16(4) that is expressed to apply to a Second Stage Appeal under Regulation 17 or a Final Appeal under Regulation 18. The ramifications of this difference may call for further consideration.
Even if the Regulation 16(3)(a) ground of appeal is treated as being of dubious merit, an additional/alternative way of approaching the case is to take account of the effect of two of the operator's officials having checked the OP's ticket or having been prompted to take the opportunity to do so. The permission given to pass through the gateline is of particular significance. I don't go so far as @furlong in saying that the barrier's rejection of the ticket made the operator aware of the ticket's invalidity, as the programming of barriers may lead to rejection of tickets that are valid. The barrier's rejection does, however, put the operator on enquiry as to the ticket's validity: that, surely, is the whole purpose of using a barrier to check tickets. If the operator's official then allows the passenger to pass the barrier notwithstanding its rejection of the ticket the effect must be to reassure the passenger that he is entitled to travel. Even if this does not amount to the granting of permission to travel it is bound to lull the passenger into a false sense of security that his ticket is valid for travel and he is thereby deprived of his last opportunity before boarding the train to correct the invalidity of his ticket by amendment (@Skiddaw's case above) or purchase of a replacement. I would argue that the official's grant of permission to pass through the barrier after it had initially rejected the ticket amounts to a representation on behalf of the operator that the passenger's ticket is being treated as valid for travel. Relying on that representation the passenger then acts to his detriment by boarding the train when not in possession of a valid ticket. This seems to me to be classic case where it would be unconscionable for an operator to enrich itself by charging the passenger a penalty fare after such passenger had relied to his detriment upon the assurance given on behalf of the selfsame operator that his ticket was being treated as valid for travel by the grant of permission to pass through the barrier – an assurance, moreover, that was reinforced by the further check of his ticket that was made en route with no objection to its validity being raised. I suggest that this reasoning might be deployed as an additional ground of appeal under Regulation 16(3)(d) on the basis that it supplies a compelling reason why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare.
Did the barrier staff notice and comment on the mistaken date, and let you through nevertheless? Or did they, like you, fail to notice the mistake? Either way it seems to me you were given authority to travel.
A similar scenario happened me over 10 years ago. I was lucky at the destination station as the staff member held me at the barrier while he went to consult a supervisor, and I managed to slip through un-noticed*. Naughty I know, but it was clear I had no intention to defraud. It had been a long journey with a couple of changes and several ticket inspections: none of them noticed my mistake.
*probably not by the CCTV but there have been no repercussions.
A similar scenario happened me over 10 years ago. I was lucky at the destination station as the staff member held me at the barrier while he went to consult a supervisor, and I managed to slip through un-noticed*. Naughty I know, but it was clear I had no intention to defraud. It had been a long journey with a couple of changes and several ticket inspections: none of them noticed my mistake.
*probably not by the CCTV but there have been no repercussions.
Thank you for your time and response. It has definitely helped me more confident on the appeal being successful. I’ll will be writing some of your wording to my appeal. Thank you !
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No it was also unnoticed by them aswell. I just feel like they want money out of me whilst I was being honest and made a genuine human error
They had a simple choice at that gateline, either to say "sorry but that ticket is not valid today and you will have buy another one", or to give you permission to travel on it, either implicitly, which they did by opening the gate, or explicitly by saying something appropriate, or even better, endorsing the ticket.
It's still not authority to travel which I maintain can only be given positively (yes your ticket is not valid, but I will make it so by endorsement, or otherwise I give explicit permission for you to travel despite me knowing your ticket isn't valid) and in context. Opening a barrier for someone with an Advance ticket and them then getting on the wrong train, for example, isn't a de facto authority to travel on the wrong train. We all know the employee made an absent mistake in opening the gate but it didn't render the OP's ticket valid when they were stopped, nor does it provide a defence.
The OP needs to provide some proof the barrier was opened *and* that they were given authority to travel. They cannot just assert this. I do not see the appeal succeeding on this basis.
I much rather prefer this line of reasoning, which doesn't quite go as far, by @John Palmer -
I concur.
Letting a passenger through a ticket gate cannot, on its own, constitute giving authority to travel without a valid ticket.
Additionally, in a prosecution case (which this is not), the burden of proving authority to travel was given falls on the passenger, who would be hard pressed to do so where an attendant merely opened the gate for the passenger.
But an on-board ticket collector also did not say that the ticket was invalid - does this imply tacit approval to travel?
My view is that authority to travel must always be a positive action made in clear knowledge that a passenger has the incorrect ticket, and not by omission. "Approval" doesn't come into it, and I don't think I would like to contest something like this and assert that authority to travel can be given "tacitly" or by omission. In any case, it is up to the OP to substantiate these facts, which will be extremely difficult anyway.
Isn't opening a ticket gate after looking at a ticket "positive action"?
The omission occurred in reading the ticket, not in opening the gate.
Yes it’s an error of omission, and we both know the gate agent didn’t give authority to travel in any meaningful sense. We both know they didn’t look at the date, register it, and say it was okay. They just mindlessly opened a gate.
Tetchytyke
Veteran Member
The ticket line person clearly made an error. The OP also clearly made an error.
Under contract law the usual outcome would be for the Courts to decide both parties relied on the errors of each other and that whatever happened happened. Nobody was unduly enriched, just get on with it. It is regrettable that the “independent” (LOL) appeals panel has not taken the same view.
Opening the gate for the OP was an error which he relied on to his detriment. In any other field this would be frowned upon by the courts, but in the railways everyone is fair game.
Once again, it’s just more fuel to the fire that the railways should have no rights to prosecute the criminal law.
Of course the OP may wish to apply for a refund of the ticket, depending on admin fees, to at least recover some of the money.
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I agree with all this - thankfully in this case it’s just a penalty fare under discussion though, and not a prosecution.
Would that be permitted, given that the ticket had been used for travel even though it wasn't actually valid?
It was an Advance ticket, and the date on the ticket has passed, so no possibility of a refund in any case.
If the OP's final appeal does succeed, then it's worth pointing out to them that the fare element of the Penalty fare is still payable. A bizarre notion when a Penalty Fare is decided to be entirely erroneous in the circumstances, but that's unfortunately what the Regs require.
My understanding is slightly differently. That the regulations do not require that fare element be cancelled. We have seen here examples where the TOC has cancelled the whole amount. I don't recall seeing an actual example where the appeal has been allowed, but the fare still demanded.
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