When is prosecution the "right" resolution?

[AdamWW]

So to claim that people are choosing to pay a settlement solely because they're guilty is missing the point. It is likely the cheapest option whether they are guilty or not!

But also thanks to strict liability they may be guilty despite having had no intention to avoid the correct fare in the first place.

 

[nw1]

But also thanks to strict liability they may be guilty despite having had no intention to avoid the correct fare in the first place.

Which is why strict liability is silly and RoRA should be used if there is enough evidence for intent (doughnutting being one example, short-faring being another). To me the whole concept of strict liability seems like an authoritarian relic of a long bygone era. Not sure when the Byelaws came in but I'd guess pre-1960s because the whole attitude seems distinctly less-than-modern.

 

[Krokodil]

This would require the prosecution to either prove that the defendant knew their railcard was out of date, but used the discount anyway, or was reckless in their belief they were entitled to the discount (ie they should have known).

I didn't say anything about out of date railcards with regards to fraud by false representation. I had in mind the ones who never possessed a railcard in the first place.

Didn't we see a case where a company apparently used the threat of prosecution for such an offence to try to get someone to prove they held a railcard for every discounted journeyn they had purchased going back several years?

Yes. But again you may wish to revisit my precise wording. I was asking for examples where someone had actually ended up in court (or settled out of court), not ones where the TOC backed down before it got anywhere.

 

[AlterEgo]

Which is why strict liability is silly and RoRA should be used if there is enough evidence for intent (doughnutting being one example, short-faring being another). To me the whole concept of strict liability seems like an authoritarian relic of a long bygone era. Not sure when the Byelaws came in but I'd guess pre-1960s because the whole attitude seems distinctly less-than-modern.

The current bylaws were drawn up in 2005.

 

[AdamWW]

The current bylaws were drawn up in 2005.

Updates to previous ones, or something completely new?

 

[Fawkes Cat]

To me the whole concept of strict liability seems like an authoritarian relic of a long bygone era. Not sure when the Byelaws came in but I'd guess pre-1960s because the whole attitude seems distinctly less-than-modern.

To me, it feels like one of those pragmatic moves because 'normal' legal concepts don't give adequate protection. We quite often discuss the difficulties in showing intent to avoid a train fare to the criminal standard. But realistically, we all know that there are people who will swear blind that they got on the train without the right ticket entirely by accident - despite everyone realistically knowing that this is not the case. We all know that they're deliberately fare-dodging but we can't prove it to the necessary standard. So the law has been relaxed to include the strict liability offence - but with a less severe punishment available than for the RoRA intent offence.

I'd draw a parallel with the introduction of 'taking without consent' for motor cars. It's difficult to show that whoever made off with a car intended (that word again) to permanently deprive the owner of their vehicle (permanent deprivation of someone else's property being one of the important concepts in defining theft) - they will say (and who knows, they might mean it) that they always intended to bring the car back after going for a ride. So Twoccing is available as a charge when theft might not stick.

 

[AlterEgo]

Updates to previous ones, or something completely new?

The current set were created in 2005, not updated - but a set of Bylaws has been around since 1962 in some form or other.

As far as I know the strict liability matters in Bylaw 18 were new in 2005.

 

[Watershed]

Claiming a discount to which you are not entitled is fraud by false representation.

Except, as you've quoted, there are several elements that need to proven for this offence to be made out, which won't be the case in every instance of incorrectly applied Railcard discounts.

For example, how are you going to prove that the person knew their Railcard was expired? Sure, some people would be stupid enough to admit that, but if someone (rightly or wrongly) claims not to have realised then the prospects of conviction are limited.

The current set were created in 2005, not updated - but a set of Bylaws has been around since 1962 in some form or other.

As far as I know the strict liability matters in Bylaw 18 were new in 2005.

Byelaws have been around on the railway for about as long as they've existed. The 2005 Byelaws are very similar to their predecessors going as far back as 1962.

The crucial difference is that under the 2005 Byelaws, Byelaw 18 ceased to be one of the Byelaws for which there's no fine upon conviction (as is the case for Byelaw 17 - rendering a prosecution somewhat nugatory).

 

[AlterEgo]

The crucial difference is that under the 2005 Byelaws, Byelaw 18 ceased to be one of the Byelaws for which there's no fine upon conviction (as is the case for Byelaw 17 - rendering a prosecution somewhat nugatory).

Thank you for the correction; that is right, it has triggered my memory. That was the crucial change.

 

[greyman42]

And of course legal aid is means tested.

I believe Boris Johnson was recently granted legal aid? He is not short of a few bob.

 

[AdamWW]

I believe Boris Johnson was recently granted legal aid? He is not short of a few bob.

I do not think that was "legal aid" as we normally know it.

 

[Moonpie]

No it really isn’t

It could be depending on the the other criteria being met

 

[crablab]

The HoC Justice Committee reported on the safeguards available in private prosecutions a few years ago. I believe this was directly related to the Post Office's 'Horizon cases'.

You can read it here: https://committees.parliament.uk/publications/2823/documents/27637/default/

(I don't quote it here as it's a lengthy document, not directly relevant and available in accessible formats from parliament.uk)

One of the recommendations was that a central register of private prosecutions should be established - I was surprised when researching earlier comments on the number of Railway prosecutions that such a register didn't already exist! Others relate to the notification of the CPS (so they can intervene) and the inspection of those who bring private prosecutions.

---

Whilst drawing any comparison will have limits, I nevertheless think there are parallels to be drawn to the 'Horizon scandal', as it is known.

A crucial point is that there were sub-postmasters who plead guilty whilst they knew they had not committed the offences they were accused of (subsequently vindicated by the quashing of convictions). There are various individual accounts as to people chose to do this, but it's accepted that the Post Office was a formidable opponent. The Post Office was presenting evidence that the sub-postmasters (the defendants) could not comprehend or account for, in many cases were not given access to in full and who lacked the technical understanding to properly challenge. The Post Office is, it is said in some circles, abused its position to bully sub-postmasters into pleading guilty and/or agreeing to settlements on the basis of this evidence (which has subsequently turned out to be completely unreliable). Of course, the Post Office stood to gain financially by pursuing settlements or convictions - recovering losses, as they saw it.

One of the reasons the CPS was established was precisely to provide a dispassionate and unbiased review of the evidence to decide whether charges were supported by the evidence and in the public interest. I understand, although it's long before my time, that there had been cases where police were improperly pursuing prosecutions with evidence that had been extorted or worse. This was also a reason for the PACE (Police and Criminal Evidence Act) legislation. (I'm happy to be corrected on both points if they are wrong).

As I've said before on other threads, and I think has been mentioned above, my concern is that the TOC stands to gain financially in any event here. There is no disincentive for them not to threaten prosecution since it either leads to a settlement or a court order. Again, they may perceive it to be 'recovering their losses'. For those who are threatened with prosecution it's not hard to see why trying to agree a settlement behind closed doors is an attractive option - this is a clear benefit to the TOC and avoids any independent scrutiny. So the TOC is able to use the threat of a criminal penalty to extract a civil penalty - that seems unfair.

Ticketing disputes can be complex because the contracts, rights and obligations between the parties are inherently complex (and in some cases, ambiguous). The Railway is able to make assertions about the validity (or otherwise) of tickets in these cases which are not necessarily readily disprovable by the average person.

Even when settlements are reached it's not clear that the settlement is a particularly fair or just outcome. For example, charging the Anytime Single rate where a valid ticket was not held. That could be because a railcard discount was incorrectly applied, so the actual loss to the Railway was for the cost of the railcard subscription.

I appreciate there are people concerned on here about the revenue lost to fare evasion. I accept that there may well be many cases where prosecution was entirely appropriate and in response to a direct contravention. However unless and until someone is able to provide some figures on this it's difficult to make any comment on the 'magnitude' of 'correct' prosecutions or otherwise.

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== Doublepost prevention - post automatically merged: 27 Jun 2023 ==

For interest purposes, statistics on the number of bylaw prosecutions for Railway Byelaws 14(4) were obtained via FoI in 2018 (available here) and I've reproduced the table below:

Year​	Sections of Railway Byelaws​	Proceeded against​	Total Guilty​
​	​	​	​
2011​	14(1)​	15​	9​
​	14(2)​	55​	43​
​	14(3)​	46​	25​
​	​	​	​
2012​	14(1)​	8​	7​
​	14(2)​	158​	106​
​	14(3)​	112​	59​
​	​	​	​
2013​	14(1)​	7​	5​
​	14(2)​	97​	53​
​	14(3)​	67​	41​
​	​	​	​
2014​	14(1)​	7​	6​
​	14(2)​	102​	48​
​	14(3)​	73​	43​
​	​	​	​
2015​	14(1)​	12​	7​
​	14(2)​	84​	44​
​	14(3)​	63​	29​
​	​	​	​
2016​	14(1)​	17​	5​
​	14(2)​	162​	77​
​	14(3)​	147​	69​

 

[Y Ddraig Coch]

I don't think bar, habitual offenders who literally don't have a ticket or means to pay for on multiple occasions anybody should ever be prosecuted. I have no idea why the railway gets away with amount of bye laws it does.

Fine people ...ban people but unless there is violence or abuse or something that makes it criminal , its a civil matter that should be dealt with as such.

 

[Krokodil]

Fine people ...ban people but unless there is violence or abuse or something that makes it criminal , its a civil matter that should be dealt with as such.

You realise that in order to fine people you have to go through a criminal prosecution?

 

[Y Ddraig Coch]

You realise that in order to fine people you have to go through a criminal prosecution?

My apologies for the wrong turn of phrase. Strongly penalty fare then.....

 

[AdamWW]

My apologies for the wrong turn of phrase. Strongly penalty fare then.....

i paid a library fine once. The library didn't have to take me to court.

 

[Fawkes Cat]

A couple of comments on @crablab ’s considered post above (#103):

Ticketing disputes can be complex because the contracts, rights and obligations between the parties are inherently complex (and in some cases, ambiguous). The Railway is able to make assertions about the validity (or otherwise) of tickets in these cases which are not necessarily readily disprovable by the average person.

This is probably true, but on the basis of what we see, do the railways prosecute users of loophole tickets? I don’t recall any cases coming to us - and given that forum members can be enthusiastic about minimising their travel costs we could also have expected some of our members to have fallen foul of this if the railway did make a habit of prosecuting.

For interest purposes, statistics on the number of bylaw prosecutions for Railway Byelaws 14(4) were obtained via FoI in 2018 (available here)

Byelaw 14 is about ‘Traffic signs, causing obstructions and parking’ so there’s a limit to what conclusions we can draw from this when we’re considering fare irregularities. But the existence of this data does suggest that an FOI request about byelaws 17 and 18 would be responded to.

 

[nw1]

i paid a library fine once. The library didn't have to take me to court.

Same for on-the-spot fines for things like speeding isn't it? No court appearance there.

 

[Bletchleyite]

Same for on-the-spot fines for things like speeding isn't it? No court appearance there.

This comes up all the time and it's nonsense as it always was. The word fine simply means financial penalty - it's just derived from the first syllable of "FINancial".

A Court fine is just that - "a Court fine".

There are lots of other types of fine, e.g. library ones.