When is prosecution the "right" resolution?

[SuspectUsual]

As an aside, if you aren't prosecuted one does have to wonder how bad a level of offending needs to be to get prosecuted

This reminded me that I've thought similarly a few times over recent months reading some of the threads posted on here.

What do people think is the threshold where an administrative disposal is no longer acceptable?

 

[fandroid]

A difficult one. My first thoughts were that the main objective for the railway company should be to obtain enough publicity to deter others. So, although it would mean just picking one or two out of the many cases they see, the examples should be of the sort of offences that are obviously dishonest, like short fareing. Best too if they get enough evidence for previous instances to be "taken into consideration". They wouldn't want a case where any potential sympathy was available.

Having said that, what sort of publicity would effectively reach young people? Press releases to local papers are unlikely to penetrate very far with that demographic! Possibly short videos launched on appropriate sites might be a better bet.

As for a policy that didn't necessarily involve publicity, any case where where there was a strong indication of persistent fare avoidance would look to be "fair" in the eyes of the travelling public. There is strong resentment among those who pay their way that dodgy travellers are allowed to "get away with it".

 

[Mcr Warrior]

What do people think is the threshold where an administrative disposal is no longer acceptable?

Are we talking about the total amount of fares avoided, or the number of times that an individual has avoided paying the correct fare? Or maybe both?

Personally, reckon that travel offences involving forged or counterfeited tickets/supporting documents, or repeated "doughnutting", shouldn't normally ever be considered for administrative disposal (i.e. the offender paying a cash sum to make the matter go away), as they normally demonstrate a clear pre-meditated intent to avoid paying the correct fare(s).

 

[Snow1964]

I tend to be of the opinion that where a person bought a ticket for the journey, but made some administrative mistake, (wrong train, wrong routing railcard expired since last use, etc) then these should be treated as pay difference and reasonable admin penalty (and no letter threatening possible prosecution)

Where person is clearly buying short fare to get through barriers, (or doughnutting to get through exit barriers too), or just bought ticket from previous station when ticket inspector spotted then clearly trying to avoid paying for the full journey and should go straight to penalty.

For those who clearly have a history showing avoiding paying for full journey multiple times, don't even bother with discussion, move to multiple offences being prosecuted, and let them explain a defence in court.

 

[43066]

As for a policy that didn't necessarily involve publicity, any case where where there was a strong indication of persistent fare avoidance would look to be "fair" in the eyes of the travelling public. There is strong resentment among those who pay their way that dodgy travellers are allowed to "get away with it".

Agreed.

Someone committing 65 separate offences of donutting (which will surely be a comfortable four figure sum), as per another thread, should certainly qualify. In any other sphere this would be regarded as serious and sustained criminality.

 

[Tetchytyke]

What do people think is the threshold where an administrative disposal is no longer acceptable?

The threshold for criminal intervention should be where actual fraud is involved- fake tickets, fraudulent delay repay claims, etc. I wouldn’t disagree if you included persistent doughnutting in with fraud.

Beyond that, there’s no need for the criminal law to be involved.

 

[Sonic1234]

Prosecution is a way for TOCs to extract a settlement, with no opportunity for appeal. Very few people will risk court, especially with criminal charges hanging over them. Some offer the settlement in their first letter now, you don't even have to go through the process of apologising and begging for one. Neither party wants to go to court, and the TOC gets less money if they do.

Would be interesting to know how many TOC cases are defended (successfully or not), I expect it is very few.

 

[43066]

Prosecution is a way for TOCs to extract a settlement, with no opportunity for appeal. Very few people will risk court, especially with criminal charges hanging over them.

Surely that’s a contradiction in terms? A settlement is an opportunity to avoid prosecution, and isn’t compulsory. Anyone who believes they’re innocent is entitled to insist on going before the magistrates court, and mounting a defence in the usual way. The reason very few risk court is because the small number of people actually reported for prosecution are overwhelmingly as guilty as sin.

The railway is funded by fare payers and taxpayers, and loses a cool quarter of a billion annually through evasion, so it’s desirable that money is recouped from malfeasors, whether that’s by penalty fares or settlements. It’s notable that people on here who moan about TOCs’ efforts to combat fare evasion are also quick to criticise fare rises, and don’t seem to have any answer as to who should cover the cost.

 

[AlterEgo]

Surely that’s a contradiction in terms? A settlement is an opportunity to avoid prosecution, and isn’t compulsory. Anyone who believes they’re innocent is entitled to insist on going before the magistrates court, and mounting a defence in the usual way. The reason very few risk court is because the small number of people actually reported for prosecution are overwhelmingly as guilty as sin.

"Guilty as sin" here encompassing people who have forgotten to renew railcards.

The railway is funded by fare payers and taxpayers, and loses a cool quarter of a billion annually through evasion, so it’s desirable that money is recouped from malfeasors, whether that’s by penalty fares or settlements. It’s notable that people on here who moan about TOCs’ efforts to combat fare evasion are also quick to criticise fare rises, and don’t seem to have any answer as to who should cover the cost.

Why is the railway special in 2023? There are many other services subsidised by the government which do not have specific legislation - especially strict liability legislation - which deal with failing to pay for services. Would you support the abolishing of strict liability Bylaw offences so the criminal law can deal only with people who have evaded the fare?

Unless there is absolutely clear intent to defraud or evade the fare then prosecution should be off the table completely. Recoup the fares through civil means. That's what basically every other service business would have to do.

It is a very British disease to want to criminalise everything. What is happening is TOCs are reporting a wide spectrum of people for prosecution and instead settling civilly anyway, usually only for a small fraction of the real total of fares evaded or mistakenly avoided. Why bother with the first part? They'd get more of the fare back by invoicing people and threatening County Court for the unpaid fares; see TfL who will only prosecute for a single Bylaw offence even when clear and repeated misuse is proven - and admitted to!

 

[island]

Prosecution is a way for TOCs to extract a settlement, with no opportunity for appeal. Very few people will risk court, especially with criminal charges hanging over them. Some offer the settlement in their first letter now, you don't even have to go through the process of apologising and begging for one. Neither party wants to go to court, and the TOC gets less money if they do.

Miseryrail even issue "out of court settlement notices" on board their trains.

 

[Moonpie]

The threshold for criminal intervention should be where actual fraud is involved- fake tickets, fraudulent delay repay claims, etc. I wouldn’t disagree if you included persistent doughnutting in with fraud.

Beyond that, there’s no need for the criminal law to be involved.

Isn't persistently abusing the system to not pay the correct price for a service that person is recieveing also fraud?

 

[AlterEgo]

Isn't persistently abusing the system to not pay the correct price for a service that person is recieveing also fraud?

It depends on the nature of the abuse as to whether it is a fraud or not.

 

[43066]

"Guilty as sin" here encompassing people who have forgotten to renew railcards.

In which case people should simply take the inevitable penalty fare/out of court settlement on the chin, and be more careful next time. We all know from this forum that people who have made genuine mistakes are invariably not prosecuted, and are let off with warnings/penalty fares. However the system needs teeth in order to be effective

Why is the railway special in 2023? There are many other services subsidised by the government which do not have specific legislation - especially strict liability legislation - which deal with failing to pay for services.

The railway is uniquely vulnerable to abuse given its open nature, especially the former southern region DOO bits of it. I could routinely visit my local unbarriered station, board a train and travel extensively around the network for free without being challenged. If I did it 100 times I would be unlucky in the extreme to encounter even one ticket check. Very few other businesses/services are in that position.

Would you support the abolishing of strict liability Bylaw offences so the criminal law can deal only with people who have evaded the fare?

As things stand, no I wouldn’t. Simply because it’s a solution looking for a problem. I might be persuaded if there was evidence that strict liability leads to the miscarriages of justices that are often wildly claimed on here, but I just don’t think it does. The majority of cases actually prosecuted involve sustained fare evasion, and even then they’re often offered out of court settlements. The problem with the current system as I see it is too little enforcement, not too much.

Unless there is absolutely clear intent to defraud or evade the fare then prosecution should be off the table completely. Recoup the fares through civil means. That's what basically every other service business would have to do.

In which case there’s basically no incentive to do anything other than travel ticketless every time and wait to be challenged. Anecdotally it sounds as though that happens in Scotland a fair bit, and why on earth would you do anything different? Anyone in favour of changing the current system to mirror thaf in Scotland needs to have a pretty compelling argument that it won’t increase the cost to the industry, and I’ve yet to see one presented.

It is a very British disease to want to criminalise everything.

In this case we are talking about changing the status quo and decriminalising something that has been criminal behaviour for a long time, under bylaws which are barely enforced anyway.

Repealing the bylaws is an obsession on here, but is there any support for this change amongst the wider passenger population? What really winds people up in my experience isn’t a theoretical risk of prosecution for making a mistake, it’s seeing others getting away with brazen Micky taking behaviour, such as pushing through ticket barriers, smoking aboard trains, playing music out loud etc. with no sanction. This kind of behaviour has reached epidemic levels post pandemic and personally I’d like to see more enforcement of both ticketing and bad behaviour type bylaw offences.

They'd get more of the fare back by invoicing people and threatening County Court for the unpaid fares; see TfL who will only prosecute for a single Bylaw offence even when clear and repeated misuse is proven - and admitted to!

I’m just not sure this follows. In reality many probably don’t have any assets, or have a terrible credit rating anyway, so wouldn’t care about a CCJ. Is there any actual evidence that pursuing civil claims would increase the losses recouped? It’s worth remembering that people on here appear to be in favour of a system where even penalty fares aren’t allowed, and simply don’t seem to regard the losses as an issue.

Your comment regarding TfL underpins the general theme of bylaws often being used to prosecute wrongdoing that could be dealt with more seriously (and perhaps should be). That isn’t really an argument in favour of repealing the bylaws.

 

[Fawkes Cat]

I think there are two questions that need to be looked at:

- if we were starting from scratch what structure of sanctions would be fair to both the railway and passengers? and
- given the current structure, what's the best way of using it?

The first question is a great one for speculation but the second one strikes me as more immediately relevant (and for the avoidance of doubt, I have deliberately used the subjective term 'best')

My take is that the best use of current powers is to minimise repeats of detected missed fares with the least pain for the customer - and at the same time, the least possible expense for the railway. That means that the result of getting your fare wrong should be just unpleasant enough to stop you doing it again.

In turn that means that one-off mistakes should be dealt with quickly, simply and cheaply (for everyone). Against which, cases of systematic fare dodging should be dealt with more heavily.

And at the risk of coming across all Dr Pangloss, that seems to be what we get. Of the (small?) proportion of all cases that we see here (I'm guessing most people deal with this themselves rather than seeking the help of an internet forum) and the even smaller proportion who let us know how things turn out, most cases end in an out of court settlement or penalty fare. Of those that don't, either we see the cases as eminently suitable for prosecution, or something has gone wrong procedurally.

To say 'nothing to see here' would be too blasé, but the system's not that broken.

 

[AlterEgo]

I think there are two questions that need to be looked at:

- if we were starting from scratch what structure of sanctions would be fair to both the railway and passengers? and

There is next to no chance that if the railways were a new invention in 2023, that they would be all three of the following:
a) a largely open system
b) have their own criminal laws identical to what we have at the moment
c) be private companies able to prosecute individual citizens for criminal offences

There would be no political argument to criminalise people who merely were unable to show a valid ticket on request and most people would probably think that pursuing people civilly - like almost every other business has to - and the existing criminal laws surrounding obtaining services by deception etc would be sufficient.

There is no evidence to suggest that the Scottish situation - where private prosecutions are effectively not an option - is any worse than it is in England and Wales. Scotrail is managing just fine to catch the worst offenders: https://news.stv.tv/scotland/hundre...00 ScotRail passengers,£17,500 worth of fares.

In which case people should simply take the inevitable penalty fare/out of court settlement on the chin, and be more careful next time. We all know from this forum that people who have made genuine mistakes are invariably not prosecuted, and are let off with warnings/penalty fares.

Not invariably, no! "Often" perhaps.

However the system needs teeth in order to be effective

Do you think County Courts are useless?

The railway is uniquely vulnerable to abuse given its open nature, especially the former southern region DOO bits of it. I could routinely visit my local unbarriered station, board a train and travel extensively around the network for free without being challenged. If I did it 100 times I would be unlucky in the extreme to encounter even one ticket check. Very few other businesses/services are in that position.



As things stand, no I wouldn’t. Simply because it’s a solution looking for a problem. I might be persuaded if there was evidence that strict liability leads to the miscarriages of justices that are often wildly claimed on here, but I just don’t think it does. The majority of cases actually prosecuted involve sustained fare evasion, and even then they’re often offered out of court settlements. The problem with the current system as I see it is too little enforcement, not too much.



In which case there’s basically no incentive to do anything other than travel ticketless every time and wait to be challenged. Anecdotally it sounds as though that happens in Scotland a fair bit, and why on earth would you do anything different?

Why do you think anyone pays their fares in Scotland?

Anyone in favour of changing the current system to mirror thaf in Scotland needs to have a pretty compelling argument that it won’t increase the cost to the industry, and I’ve yet to see one presented.

Why doesn't Scotland simply change its situation then if it's so awful?

Repealing the bylaws is an obsession on here, but is there any support for this change amongst the wider passenger population? What really winds people up in my experience isn’t a theoretical risk of prosecution for making a mistake

Of course not because most passengers, as we see here, are unaware that the railway has specific criminal law - much of it from Victorian times - on its side and not only that, as a private company it can prosecute you.

, it’s seeing others getting away with brazen Micky taking behaviour, such as pushing through ticket barriers, smoking aboard trains, playing music out loud etc. with no sanction. This kind of behaviour has reached epidemic levels post pandemic and personally I’d like to see more enforcement of both ticketing and bad behaviour type bylaw offences.

Well, those are anti social behaviour issues, nothing to do with Bylaw 18, which should be repealed. Why didn't you include "people who didn't renew railcards" in that? Because that's not the sort of thing that pees people off.

I’m just not sure this follows. In reality many probably don’t have any assets, or have a terrible credit rating anyway, so wouldn’t care about a CCJ. Is there any actual evidence that pursuing civil claims would increase the losses recouped?

Do you think most CCJs just go unpaid for ever?

A civil claim rests on the balance of probabilties for a start. Many "historic" offences we see here from hardened fare evaders cannot be prosecuted with a criminal law standard of evidence of beyond reasonable doubt. Nearly all of the cases we see here are, on the balance of probabilities, cases where the fare was not paid and the fare is due, sometimes 50 or 100 fold.

It’s worth remembering that people on here appear to be in favour of a system where even penalty fares aren’t allowed, and simply don’t seem to regard the losses as an issue.

But that is not what I think, so it is not relevant.

Your comment regarding TfL underpins the general theme of bylaws often being used to prosecute wrongdoing that could be dealt with more seriously (and perhaps should be).

Correct.

That isn’t really an argument in favour of repealing the bylaws.

It wasn't meant to be mentioned in support of their repeal, that argument was stated elsewhere.

 

[rob.rjt]

My take is that the best use of current powers is to minimise repeats of detected missed fares with the least pain for the customer - and at the same time, the least possible expense for the railway. That means that the result of getting your fare wrong should be just unpleasant enough to stop you doing it again.

In turn that means that one-off mistakes should be dealt with quickly, simply and cheaply (for everyone). Against which, cases of systematic fare dodging should be dealt with more heavily.

And at the risk of coming across all Dr Pangloss, that seems to be what we get. Of the (small?) proportion of all cases that we see here (I'm guessing most people deal with this themselves rather than seeking the help of an internet forum) and the even smaller proportion who let us know how things turn out, most cases end in an out of court settlement or penalty fare. Of those that don't, either we see the cases as eminently suitable for prosecution, or something has gone wrong procedurally.

To say 'nothing to see here' would be too blasé, but the system's not that broken.

Whilst hesitant to come in on a matter like this, some of the problem is that the resolution of "cheaply" does not seem to apply in many cases we see here.

For example, underpaying for a journey (off peak ticket being used for a peak journey, railcard discount being used at invalid time, ending short on an advance) - many people would see paying for a whole new ticket/penalty fare is overkill on behalf of the railway.

This is different to short faring/doughnutting where some of the journey is not covered by a ticket.

In the first cases (not ending short on an advance), the penalty should be an excess - quick, simple and cheap. The railway ends up with the money they should have had in the first place and have not lost out.
For ending short on an advance, the problem 'ordinary' people have is that it appears illogical. On a line A-B-C, If a ticket is held from A to C, it would seem obvious that it is valid at B. It would not occur to people that tickets could be priced higher for A-B than A-C.

Only in the latter case should prosecution be an option as these show an element of deliberation.

 

[Fawkes Cat]

In the first cases (not ending short on an advance), the penalty should be an excess - quick, simple and cheap. The railway ends up with the money they should have had in the first place and have not lost out.

But does the railway end up with a customer who won't make the error again?

 

[AlterEgo]

But does the railway end up with a customer who won't make the error again?

Many "errors" are "punishable" only by an excess, such as off route on a geographic route restricted ticket, and breaking journey when not permitted.

Are you arguing that stopping short on an Advance ticket should be an offence? Because it actually isn't, at the moment.

 

[Fawkes Cat]

Many "errors" are "punishable" only by an excess, such as off route on a geographic route restricted ticket, and breaking journey when not permitted.

Are you arguing that stopping short on an Advance ticket should be an offence? Because it actually isn't, at the moment.

No: I’m arguing about the best use of the current system. As I said in post #14:

My take is that the best use of current powers is to minimise repeats of detected missed fares with the least pain for the customer - and at the same time, the least possible expense for the railway. That means that the result of getting your fare wrong should be just unpleasant enough to stop you doing it again.

 

[AlterEgo]

No: I’m arguing about the best use of the current system. As I said in post #14:

So you’d actually like to remove existing passenger rights to excess fares, and charge them penalty fares or administration fees?

Sorry I’m not following here and I’m surprised to read that you support such an anti-customer perspective.

As it stands the fix for breaking one’s journey when not permitted is merely an excess to the fare which does. And the fix for travelling via London on a Woolwich-Gatwick ticket with a “not via London” ticket is an excess in one or both directions to the fare that does.

What sort of sanctions do you think should passengers in those situations face?

 

[Fawkes Cat]

So you’d actually like to remove existing passenger rights to excess fares, and charge them penalty fares or administration fees?

Sorry I’m not following here and I’m surprised to read that you support such an anti-customer perspective.

As it stands the fix for breaking one’s journey when not permitted is merely an excess to the fare which does. And the fix for travelling via London on a Woolwich-Gatwick ticket with a “not via London” ticket is an excess in one or both directions to the fare that does.

What sort of sanctions do you think should passengers in those situations face?

I rather misread the post I was originally commenting on. The relevant bit (which is more than I first quoted) is

For example, underpaying for a journey (off peak ticket being used for a peak journey, railcard discount being used at invalid time, ending short on an advance) - many people would see paying for a whole new ticket/penalty fare is overkill on behalf of the railway.

This is different to short faring/doughnutting where some of the journey is not covered by a ticket.

In the first cases (not ending short on an advance), the penalty should be an excess - quick, simple and cheap. The railway ends up with the money they should have had in the first place and have not lost out.

I only really looked at the Railcard issue. My understanding is that it is within the rules for that to be taken to prosecution, and as I am talking about the best use of the current system, I think it's legitimate to ask whether repetition can best be avoided by the imposition of a sanction beyond the fare due.

What I overlooked - to our mutual confusion - was the first clause about off-peak being used for peak travel. I agree that the current sanction is (or in practice is meant to be) limited to payment of the excess. As I am trying to think about how the current system should best be used, I express no view on whether this is appropriate or not.

 

[Krokodil]

The threshold for criminal intervention should be where actual fraud is involved- fake tickets, fraudulent delay repay claims, etc. I wouldn’t disagree if you included persistent doughnutting in with fraud.

Beyond that, there’s no need for the criminal law to be involved.

Knowingly discounting a ticket without possessing the railcard is fraud by misrepresentation.

 

[43066]

There is next to no chance that if the railways were a new invention in 2023, that they would be all three of the following:
a) a largely open system
b) have their own criminal laws identical to what we have at the moment
c) be private companies able to prosecute individual citizens for criminal offences

There are a million and one things that would be different if the railway had been invented in 2023, but it wasn’t, and we are stuck with the system as it stands. So I don’t see the relevance of this comment.

like almost every other business has to - and the existing criminal laws surrounding obtaining services by deception etc would be sufficient.

For the reasons I have noted above the railway isn’t like “almost every other business”.

There is no evidence to suggest that the Scottish situation - where private prosecutions are effectively not an option - is any worse than it is in England and Wales. Scotrail is managing just fine to catch the worst offenders: https://news.stv.tv/scotland/hundre...00 ScotRail passengers,£17,500 worth of fares.

But arbitrarily choosing a different system and saying we should adopt it unless someone else can explain why we shouldn’t isn’t a good argument for changing the status quo.

Anyone proposing a change needs to set out a proper argument as to a. What’s wrong with the current system (eg evidence of miscarriages of justice rather than theoretical risks that nobody cares about) and b. What effect the proposed change would have on the cost to the railway (and therefore taxpayers and farepayers) of ticketless travel.

Neither a or b is ever present in these discussions.

Not invariably, no! "Often" perhaps.

I’ve not seen a single example of a genuine mistake being prosecuted. It’s something that hardly ever happens, yet changing the law to eliminate a theoretical risk is an obsession on this forum.

Do you think County Courts are useless?

I know enough about the legal system to know that suing someone with no assets is a time consuming, expensive and ultimately fruitless endeavour. Why do you think TOCs don’t generally bring civil claims?

Do you think criminal courts are useless?

Why do you think anyone pays their fares in Scotland?

I have no idea. I suspect many more don’t than live down south. If I lived there, logically I likely wouldn’t bother.

Can you show any evidence that changing to the Scottish system would cost less in terms of fare evasion in England and Wales?

Why doesn't Scotland simply change its situation then if it's so awful?

Because Scotland is trying desperately to be different from England and Wales for the sake of it?

There’s no evidence the system in England and Wales is going to be changing either, so is that an argument that Scotland should adopt that?

Of course not because most passengers, as we see here, are unaware that the railway has specific criminal law - much of it from Victorian times - on its side and not only that, as a private company it can prosecute you.

I don’t buy this for a second. As a schoolkid a lot of my mates would bunk train fares, some would nick sweets from the local corner shop. We all knew that doing both were illegal, even if we didn’t know chapter and verse of the relevant offences.

Criticising the law because it’s “from Victorian times” is a non argument given how the legal system in this country has been developed. See also (for example) the offences against the person act. The basic crimes haven’t changed, so neither has the law.

The fact that the current railway involves private companies prosecuting is neither here nor there, because the same system also existed under entirely public sector BR - and indeed many TOCs are now in public ownership.

Ultimately prosecutions originated by the railway feed into exactly the same criminal justice system as those originated by the CPS.

Well, those are anti social behaviour issues, nothing to do with Bylaw 18, which should be repealed. Why didn't you include "people who didn't renew railcards" in that? Because that's not the sort of thing that pees people off.

Pushing through ticket barriers isn’t just an anti social behaviour issue, it’s specifically a ticketing/enforcement issue. As I’ve said I’d like to see both this and anti social behaviour dealt with, I certainly don’t want the current regime made even weaker.

People accidentally forgetting to renew railcards probably isn’t a big issue for many, yet people also generally aren’t prosecuted in this situation under the current system, so changing it for this reason is a solution looking for a problem. The problem is that currently far too much brazen behaviour goes unpunished - yet few people on here seem to have any answer to that.

Do you think most CCJs just go unpaid for ever?

A civil claim rests on the balance of probabilties for a start. Many "historic" offences we see here from hardened fare evaders cannot be prosecuted with a criminal law standard of evidence of beyond reasonable doubt. Nearly all of the cases we see here are, on the balance of probabilities, cases where the fare was not paid and the fare is due, sometimes 50 or 100 fold.

If the person has no assets there’s little point in suing them. On the other hand, if they know they’re guilty of a crime, they’re much more likely to agree to pay to settle the matter rather than going to court. That is a better outcome for fare payers and taxpayers than pursuing civil claims against people with no assets.

But that is not what I think, so it is not relevant.

I don’t follow. Above you’ve said you’re in favour of the Scottish system, which doesn’t impose penalty fares. So are you now saying you’re not in favour of the Scottish system being adopted in the rest of the UK?

 

[Adam Williams]

I’ve not seen a single example of a genuine mistake being prosecuted

This absolutely does happen. Train operators can (and do!) illegally issue penalty fares and prosecute passengers who have held valid tickets. I know the former happens because I've seen documentation from passengers and written to TOCs to ask them what on earth they were thinking (which got the matter dropped); and I know the latter happens because it was done to a former colleague of mine back when I worked in information security. He negotiated a settlement even though he was in the right because a criminal record would've had a career impact and he was too afraid to fight it.

People like @yorkie can attest that I'm not making this up!

I don't think this is particularly common but it happens, and frankly I think you're naive to continually dismiss it. Whether that should justify changing the current status quo is something up for debate but I'm inclined to think it should.

 

[43066]

This absolutely does happen. Train operators can (and do!) illegally issue penalty fares and prosecute passengers who have held valid tickets. I know the former happens because I've seen documentation from passengers and written to TOCs to ask them what on earth they were thinking (which got the matter dropped); and I know the latter happens because it was done to a former colleague of mine back when I worked in information security. He negotiated a settlement even though he was in the right because a criminal record would've had a career impact and he was too afraid to fight it.

You say it does happen but that give two examples where no prosecution actually took place.

I don't think this is particularly common but it happens, and frankly I think you're naive to continually dismiss it.

I’m sure people are occasionally improperly prosecuted in other areas. Of course that’s bad, but it isn’t an argument in favour of repealing the criminal law.

Is there any evidence that railway prosecutions are more likely to fail/be struck out for abuse of process than those brought by (say) the CPS?

 

[Adam Williams]

You say it does happen but that give two examples where no prosecution actually took place.

Because the TOC intimidated the passenger with the threat of a criminal conviction.

The PF example just illustrates general incompetence to me. Why should organisations that get something as basic as that wrong benefit from strict liability offences they can (threaten to) prosecute for?

Is there any evidence that railway prosecutions are more likely to fail/be struck out for abuse of process than those brought by (say) the CPS?

I think that anyone in law enforcement (and e.g. victim's charities) will tell you the CPS is very risk averse.

 

[Haywain]

I think that anyone in law enforcement (and e.g. victim's charities) will tell you the CPS is very risk averse.

That doesn't stop them getting things wrong.

 

[Bletchleyite]

This reminded me that I've thought similarly a few times over recent months reading some of the threads posted on here.

What do people think is the threshold where an administrative disposal is no longer acceptable?

Wilful fraud or falsification. Certainly faking tickets, but also stuff like doughnutting where it cannot possibly be anything other than deliberate.

The railway is not consistent enough at providing the means to purchase to prosecute in any other situation.

The Fraud Act provides the means to do this, hence why I would like to see the Byelaw offences and RoRA offences abolished. The railway can sue for unpaid Penalty Fares if it needs to, like any other business.

If the railway still thinks £50 is too low for a PF, as the usual level of £100 for a settlement implies, then that need revisiting. The whole idea of the PF increase was to allow a move away from these unregulated "fines".

 

[nw1]

In which case people should simply take the inevitable penalty fare/out of court settlement on the chin, and be more careful next time. We all know from this forum that people who have made genuine mistakes are invariably not prosecuted, and are let off with warnings/penalty fares. However the system needs teeth in order to be effective

They aren't necessarily prosecuted, no, but they are threatened. And that causes a lot of stress for people, as we've seen here repeatedly in many of the threads.

In my view threatening people for prosecution for forgetting their railcard/to renew their railcard is incredibly authoritarian. Just invoice them for the debt, plus give a non-criminal penalty (i.e. a Penalty Fare) if the desire is to ensure they don't do it again. Why not, in cases like this, treat them like a parking ticket, in fact, where a fixed penalty is given out for cases where people forget that their ticket has expired?

I myself have been in this kind of situation, in that I somehow mislaid the return portion of a ticket and only realised when I got on the train (barriers not present/not working). As soon as I realised I went straight to the guard and got a new ticket (a single), and didn't attempt to claim it back. The guard was reasonable when I explained what had happened, as most staff are, thankfully. That (having to buy a new single) was in my view was a reasonable "penalty" on my behalf for mislaying the ticket, but threats of prosecution would absolutely not be.

These mistakes are easy to make; most people are not so perfect that they are immune to making them, and penalties should reflect that.

The railway is uniquely vulnerable to abuse given its open nature, especially the former southern region DOO bits of it. I could routinely visit my local unbarriered station, board a train and travel extensively around the network for free without being challenged. If I did it 100 times I would be unlucky in the extreme to encounter even one ticket check. Very few other businesses/services are in that position.

Then the railway needs to tighten up checks (more barriers, more on-train ticket checks, or even bring back the old-fashioned staffed ticket barriers!). It should not criminalise people who have made innocent mistakes in an attempt to compensate for the inadequate level of ticket checking.

Working barriers at every station would help prevent innocent mistakes, for one thing.

The Byelaws offences are simply unreasonable, authoritarian nonsense. The RoRA exists to prosecute people who deliberately set out to deprive the railway of income, and this should be retained.

 

[AdamWW]

Wilful fraud or falsification. Certainly faking tickets, but also stuff like doughnutting where it cannot possibly be anything other than deliberate.

The railway is not consistent enough at providing the means to purchase to prosecute in any other situation.

The Fraud Act provides the means to do this, hence why I would like to see the Byelaw offences and RoRA offences abolished. The railway can sue for unpaid Penalty Fares if it needs to, like any other business.

If the railway still thinks £50 is too low for a PF, as the usual level of £100 for a settlement implies, then that need revisiting. The whole idea of the PF increase was to allow a move away from these unregulated "fines".

There seems to be an inconsistency between:
1) Penalty Fares. By law there is a multi-stage independent appeals process (with, I hope, staff with some familiarity with ticketing rules) and which has little risk to the passenger when used (i.e. they don't even sacrifice the chance to pay £50 not £100).
Also, there is a specific penalty element but the fare shouldn't be used as an additional penalty (by charging an Anytime fare even at off peak times).

2) Settlements under threat of prosecution. The only "appeal" is to take it to court which carries a much greater risk if unsuccessful, and where I would be concerned that the magistrate(s) would lack the knowledge to challenge the railway if they were taking an incorrect position.
Also, in addition to whatever fine that legislation has deemed relevant for the offence, the railway gets to effectively increase the fine by requiring reimbursements for invalid tickets(s) which can be greately in excess of the actual walk-up fare for the journey(s) made (and indeed much larger than the fine).

If all the protections in place for Penalty Fares are appropriate, why don't prosecutions (or threats of them) need similar safeguards?