Used offensive language at a conductor

[gray1404]

Confirmed in correspondence?

In post 1 the OP says they phoned Northern who confirmed this.

 

[AlterEgo]

In post 1 the OP says they phoned Northern who confirmed this.

Yeah, seen - but no allegation has been made in writing that I can see.

 

[Puffing Devil]

Thanks for your response, what I am questioning is whether to respond to the prosecution letter from the train operator myself or use a solicitor which at present appears to upwards of £2.5k

From the letter that you've now posted, there is nothing to reply to, as it's just a fishing expedition. They may, or may not, have a statement or bodycam footage. If you write a letter of contrition, you give them enough to move the case forward in the absence of any other evidence.

You could ask them to lay out the allegations specifically in order to respond. However, as others have said, you need to be extremely careful in responding to avoid incriminating yourself.

Again - how valuable to you is a clean criminal record? In the worst case (conviction and fine), it would be spent, i.e. no need to declare, after a year. If may still show up on DBS checks for up to 11 years.

 

[Haywain]

You could ask them to lay out the allegations specifically in order to respond.

Having done that verbally makes such a response very difficult, in my view.

 

[Titfield]

This seems to me to be one of the most difficult cases to give advice / guidance on.

1. If the OP does not respond then potentially there are two courses of action by Northern 1) proceed with a prosecution 2) No further action.

2. If the OP does respond by way of an apology then potentially there are two courses of action by Northern 1) reject apology and proceed with a prosecution 2) Accept apology and no further action.

3. If the OP does respond by way of an acknowledgement (simply confirming that there was an incident) then potentially there are two courses of action 1) proceed with a prosecution 2) no further action.

4. Do nothing and ignore. Then potentially there are two courses of action 1) proceed with a prosecution 2) no further action.

In my opinion Northern's course of action will depend on the strength of evidence and degree of abuse they have*. If they have got bodycam footage which clearly records aggressive behaviour and the sound of deeply offensive language by the original poster then I believe they will move to prosecute. This may only be halted if they can persuaded by a very sincere and contrite apology. If they do not have bodycam evidence or the language and actions are at the lower end of the scale then they may be less likely to move to prosecute because their legal advisors will say there is less chance of a successful prosecution.

*(I have thought about the individual member of staff's view and that the company may wish to be seen to be supporting employees by cracking down on abusive behaviour but I think this just leads back to the strength of evidence / degree of abuse that Northern have which ultimately will determine the course of action they face).

The OP needs to try and be as honest with themselves as they can be and try and recollect exactly what was said, how it was said and whether they have any reason to believe it was recorded.

If to the best of their knowledge and belief that Northern do have sufficient and strong enough evidence to obtain a successful prosecution they need to consider giving a very sincere and contrite apology. This may be the time to consider engaging a solicitor as an apology backed up by a solicitors letter may be more likely to get Northern to accept the apology with no further action than if the OP just wrote the letter themselves. If the apology is rejected then at least the tendering of an apology can be entered as evidence in the case and may persuade the Magistrate to impose a lighter sanction than otherwise. A solicitor may be able to give guidance as to how offensive the language and behaviour was which may further guide the OP as to what action then to take.

If the OP considers that there may not be sufficient or strong enough evidence to obtain a prosecution for example if the "outburst" was not recorded or if it was very brief or not directed at the member of staff or the words whilst inappropriate were not the worst language which could have been uttered then they may consider simply acknowledging the letter and not providing Northern with anything that could be used against the OP and thus firmly placing the decision back to Northern solely on the basis of the evidence Northern already has.

It may be worth the OP considering paying for a 30 minute session with a solicitor to discuss their behaviour and then decide what course of action to then take.

I do not think we can judge which course of action is preferable ie the greater chance of giving the OP the outcome they desire because we simply do not know the strength of evidence (or the degree of offensive language or actions used) that Northern have. The OP needs to be honest with themselves and then act accordingly.

 

[Cantab26]

This seems to me to be one of the most difficult cases to give advice / guidance on.

1. If the OP does not respond then potentially there are two courses of action by Northern 1) proceed with a prosecution 2) No further action.

2. If the OP does respond by way of an apology then potentially there are two courses of action by Northern 1) reject apology and proceed with a prosecution 2) Accept apology and no further action.

3. If the OP does respond by way of an acknowledgement (simply confirming that there was an incident) then potentially there are two courses of action 1) proceed with a prosecution 2) no further action.

4. Do nothing and ignore. Then potentially there are two courses of action 1) proceed with a prosecution 2) no further action.

In my opinion Northern's course of action will depend on the strength of evidence and degree of abuse they have*. If they have got bodycam footage which clearly records aggressive behaviour and the sound of deeply offensive language by the original poster then I believe they will move to prosecute. This may only be halted if they can persuaded by a very sincere and contrite apology. If they do not have bodycam evidence or the language and actions are at the lower end of the scale then they may be less likely to move to prosecute because their legal advisors will say there is less chance of a successful prosecution.

*(I have thought about the individual member of staff's view and that the company may wish to be seen to be supporting employees by cracking down on abusive behaviour but I think this just leads back to the strength of evidence / degree of abuse that Northern have which ultimately will determine the course of action they face).

The OP needs to try and be as honest with themselves as they can be and try and recollect exactly what was said, how it was said and whether they have any reason to believe it was recorded.

If to the best of their knowledge and belief that Northern do have sufficient and strong enough evidence to obtain a successful prosecution they need to consider giving a very sincere and contrite apology. This may be the time to consider engaging a solicitor as an apology backed up by a solicitors letter may be more likely to get Northern to accept the apology with no further action than if the OP just wrote the letter themselves. If the apology is rejected then at least the tendering of an apology can be entered as evidence in the case and may persuade the Magistrate to impose a lighter sanction than otherwise. A solicitor may be able to give guidance as to how offensive the language and behaviour was which may further guide the OP as to what action then to take.

If the OP considers that there may not be sufficient or strong enough evidence to obtain a prosecution for example if the "outburst" was not recorded or if it was very brief or not directed at the member of staff or the words whilst inappropriate were not the worst language which could have been uttered then they may consider simply acknowledging the letter and not providing Northern with anything that could be used against the OP and thus firmly placing the decision back to Northern solely on the basis of the evidence Northern already has.

It may be worth the OP considering paying for a 30 minute session with a solicitor to discuss their behaviour and then decide what course of action to then take.

I do not think we can judge which course of action is preferable ie the greater chance of giving the OP the outcome they desire because we simply do not know the strength of evidence (or the degree of offensive language or actions used) that Northern have. The OP needs to be honest with themselves and then act accordingly.

I would broadly agree with this assessment. The letter from Northern is clearly a fishing expedition aimed at inducing the OP into incriminating himself.

As things stand, there is unlikely to be any benefit gained from responding to it.

In these circumstances, if a response is to be provided (noting that only the OP can accurately judge what happened and its relative seriousness), it should not admit anything. Instead, it should invite Northern to put their cards on the table.

For example: “It is not clear from your letter what is alleged to have happened. If you would please provide further particulars by return then this will assist. Please also provide a copy of the “evidential report” to which your letter refers.”

However, I would still caution the OP against sending any response to this letter without consulting a solicitor first. Most high street solicitors who deal with criminal defence work will offer a free initial consultation.

To the OP: contact a local solicitor; arrange a free initial consultation; take the letter along with you; and be completely honest with the solicitor about your recollection of what happened. He will then be able to give you informed advice on the best way forward, including whether or not to reply to this letter.

 

[Titfield]

I would broadly agree with this assessment. The letter from Northern is clearly a fishing expedition aimed at inducing the OP into incriminating himself.

As things stand, there is unlikely to be any benefit gained from responding to it.

In these circumstances, if a response is to be provided (noting that only the OP can accurately judge what happened and its relative seriousness), it should not admit anything. Instead, it should invite Northern to put their cards on the table.

For example: “It is not clear from your letter what is alleged to have happened. If you would please provide further particulars by return then this will assist. Please also provide a copy of the “evidential report” to which your letter refers.”

However, I would still caution the OP against sending any response to this letter without consulting a solicitor first. Most high street solicitors who deal with criminal defence work will offer a free initial consultation.

To the OP: contact a local solicitor; arrange a free initial consultation; take the letter along with you; and be completely honest with the solicitor about your recollection of what happened. He will then be able to give you informed advice on the best way forward, including whether or not to reply to this letter.

Yes I agree that the OP should consult a solicitor for advice. To respond without such guidance could set in motion an unstoppable train of events (apologies for the pun).

 

[Cantab26]

@Need help: contact a local solicitor; arrange a free initial consultation; take the letter along with you; and be completely honest with the solicitor about your recollection of what happened. He will then be able to give you informed advice on the best way forward, including whether or not to reply to this letter.

 

[Danberto]

I'd agree with Titfield. Ultimately this comes down to what the OP knows. What was said will determine whether or not to respond to the train company letter.

I don't think that if the matter goes to court there would be a chance of a settlement as the train company has a duty of care to it's employees and so addressing matters like this would likely generate good PR with the workforce & the potetial workforce. Although not Northern Rail, I am fairly certain that I've seen posters up in stations operated by my local train operating company stating that any attacks on their workforce is taken very seriously by them so I would expect this line to be taken by all train companies.

If it looks like going to court, get a solicitor.

 

[Need help]

Hi thanks for the insight, I have a couple of questions.

 

[WesternLancer]

Hi thanks for the insight, I have a couple of questions.

1. The letter states I have a deadline to respond, this may not give me enough time to speak to a solicitor and get a response if required over. Can these issues get an extension?

2. If I was to respond with a contrite apology and the TOC subsequently decides they wanted to prosecuted would a solicitor at that stage be able to halt proceedings?

3. Worst case scenario and there is a prosecution, can someone confirm what law I will be deemed to have broken?

I know some of these questions are difficult to answer however this issue has made me incredibly anxious and stressed.

Thanks

ref 1 - I would think that advice above of replying with :

For example: “It is not clear from your letter what is alleged to have happened. If you would please provide further particulars by return then this will assist. Please also provide a copy of the “evidential report” to which your letter refers.”

would be a response before deadline and make them send you clear material that could then inform what you do next / discuss with a solicitor.

Others have given excellent advice tho so I expect will be back to address your important questions

 

[Titfield]

To reply to the points raised:

1. You could send Northern a simple email stating that given the issue that has been raised and its possible consequences for you, you require time to consult with a solicitor and therefore would they please consider extending the deadline for a full response by an additional 7 days to (insert date). Having said that you could contact a solicitor on Monday and stress the deadline to the solicitor. They may be able to send a holding letter to Northern to allow time for a consultation to be held. It really is up to Northern whether they would stay taking any action but the fact that you have reached out to them should at least encourage them to look at the request in a favourable light. A failure to reply almost always results in action being taken by the Operator.

I have just seen @WesternLancer response and that certainly has merit as it would certainly assist in discussing the issue with a solicitor. However I would still suggest ringing a solicitor first thing Monday to determine the time scale they would be able to see you by.

2. Northern would consider on its merits any response / intervention letter from a solicitor between their (Northerns) decision to issue proceedings and the actual court appearance itself.

3. I am sorry but I am not sure of the exact law. It could be The Criminal Justice and Public Order Act 1994 inserted Section 4A into the Public Order Act 1986. However I am legally qualified so can not advise on this.

 

[skyhigh]

ref 1 - I would think that advice above of replying with :

For example: “It is not clear from your letter what is alleged to have happened. If you would please provide further particulars by return then this will assist. Please also provide a copy of the “evidential report” to which your letter refers.”

would be a response before deadline and make them send you clear material that could then inform what you do next / discuss with a solicitor.

Others have given excellent advice tho so I expect will be back to address your important questions

Problem with this approach will be if there's a record that the OP phoned and was told the allegations. It could look like the OP was trying to stall or be difficult when the company has already explained the allegations.

Again the OP will know what they did and how serious this could be. It is probably best to get proper advice as @tspaul26 says.

 

[KirkstallOne]

I am sorry but I am not sure of the exact law. It could be The Criminal Justice and Public Order Act 1994 inserted Section 4A into the Public Order Act 1986. However I am legally qualified so can not advise on this.

The letter seems to make it clear this would be a RoRA or bye-law charge, presumably a bye-law charge as this specifically covers offensive language.

I would reiterate the advice given. This letter is a fishing expedition, do not reply to this with any details about the specific incident or any apology for or explanation of what occurred. You must force Northern to show their hand, either by not answering at all or answering only to request more details.

I would probably send a very short reply requesting more details, mainly just to make them aware that you have received the letter and are engaging. Otherwise they might think you will just ignore any summons which would make any prosecution easier.

 

[skyhigh]

For what it's worth, I just had a look through some of the 2022 court results and there were a handful of prosecutions for abusive behaviour, all prosecuted under byelaw 6.1. I have no data on how many cases were investigated, settled or no further action taken for comparison.

 

[Titfield]

Collectively we (the forum responders) have differing opinions on the best course of action.

For this reason alone I would suggest consulting a solicitor as the first action and do nothing else until you have got legal advice how best to proceed.

 

[Haywain]

Collectively we (the forum responders) have differing opinions on the best course of action.

For this reason alone I would suggest consulting a solicitor as the first action and do nothing else until you have got legal advice how best to proceed.

I second this, especially as it is the advice given by @tspaul26 who has some expertise in such matters.

 

[Need help]

For what it's worth, I just had a look through some of the 2022 court results and there were a handful of prosecutions for abusive behaviour, all prosecuted under byelaw 6.1. I have no data on how many cases were investigated, settled or no further action taken for comparison.

Thanks for looking into, is it possible to find out the details

 

[Cantab26]

1. The letter states I have a deadline to respond, this may not give me enough time to speak to a solicitor and get a response if required over. Can these issues get an extension?

It is a completely arbitrary deadline. Speak to a solicitor first. There is no need to tell Northern that you are doing so or to request any “extension”.

2. If I was to respond with a contrite apology and the TOC subsequently decides they wanted to prosecuted would a solicitor at that stage be able to halt proceedings?

No, and your letter would almost certainly have made your position worse to boot.

3. Worst case scenario and there is a prosecution, can someone confirm what law I will be deemed to have broken?

They would probably go for a Byelaw 6 prosecution (should things go that far). Anything else is likely to be outwith their ‘comfort zone’.

Bottom line: contact some local solicitors who deal with criminal defence work first thing on Monday morning and request a brief initial consultation. Most will do it for free or at low cost.

 

[Need help]

It is a completely arbitrary deadline. Speak to a solicitor first. There is no need to tell Northern that you are doing so or to request any “extension”.

No, and your letter would almost certainly have made your position worse to boot.

They would probably go for a Byelaw 6 prosecution (should things go that far). Anything else is likely to be outwith their ‘comfort zone’.

Bottom line: contact some local solicitors who deal with criminal defence work first thing on Monday morning and request a brief initial consultation. Most will do it for free or at low cost.

Thank you I really appreciate your advice

 

[skyhigh]

Thanks for looking into, is it possible to find out the details eg what was potentially said which created a need to prosecute. Happy to do this myself if you pointe in the right direction

Unfortunately I don't have any further information.

 

[pethadine82]

Can you respond with an acknowledgement and ask them under a Subject access request for the data then reply based on what data they hold. Eg video footage, or notes made by the staff?

 

[Cantab26]

Can you respond with an acknowledgement and ask them under a Subject access request for the data then reply based on what data they hold. Eg video footage, or notes made by the staff?

I would recommend against doing this:

1. It is aggressive and could well escalate matters as a result when Northern might otherwise have elected to drop the matter.
2. A subject access request is likely to be refused (in relevant part) in reliance on the ‘detection, investigation and prosecution of crime’ exemption. That refusal is likely to be justified based on the limited information we have of the case and background.
3. Even if a refusal is not justified, it will take quite some time to overcome it during which proceedings may well be instituted which renders the whole exercise a waste of time (see also point 1.).

My advice remains to consult with a criminal defence solicitor before the OP makes any reply to Northern (orally or in writing).

 

[Need help]

Hi

 

[Starmill]

Hi I emailed a solicitor who called me back today who stated he was unaware of any instances of a byelaw 6.1 prosecution on its own (however doesn’t mean there isn’t any). His response was to write a contrite apology referencing a one off incident and good nature

It's plain there are convictions under Bylaw 6, just few of them.

 

[Need help]

It's plain there are convictions under Bylaw 6, just few of them.

Yes that is what he stated and I am led to believe

 

[RPI]

I've known plenty of Byelaw 6 prosecutions, but, usually added onto a fare evasion case