Will I get fined ?

[Western Sunset]

Think I'd get the 'bus from Coulsdon to Reigate next time. Totally agree with Hadders in post #86.

 

[island]

Two questions:

1. Are the requirements of a Byelaw 18(1) offence established by entering a train when in possession only of a time-restricted ticket which, by reason of that restriction, is not valid for travel on that train?

Yes at a station with a booking office from which an excess fare could be obtained before travel.

No, otherwise – since the passenger is unable to obtain the necessary ticket.

1. If so, then to what extent does the obligatory charge of an excess in the circumstances contemplated by NRCoT Condition 9.5 constitute a defence to any resulting prosecution under Byelaw 18(1), and on what authority?

If a payment is taken for an excess fare, this seems to me to be an implicit agreement not to prosecute, and then a subsequent prosecution would undoubtedly be an abuse of process and liable to be dismissed. See for example R (Dean) vs Croydon Justices [1993] QB 769.

I do not concur with those upthread suggesting that the existence of a contractual term around excess fares bars prosecution in the case where a ticket inspector takes a passenger's details to report for prosecution. Firstly, a term of a contract between two parties cannot override the law. Secondly, this would imply that a passenger buying an off-peak ticket daily, travelling between two ungated stations, and paying an excess fare only the odd time an inspector appeared, would be entitled to do so. I cannot accept this; it is no different to the oft-cited passenger who "pays only when challenged" and, just like that passenger, is a clear RoRA offence.

 

[Bletchleyite]

I do not concur with those upthread suggesting that the existence of a contractual term around excess fares bars prosecution in the case where a ticket inspector takes a passenger's details to report for prosecution. Firstly, a term of a contract between two parties cannot override the law. Secondly, this would imply that a passenger buying an off-peak ticket daily, travelling between two ungated stations, and paying an excess fare only the odd time an inspector appeared, would be entitled to do so. I cannot accept this; it is no different to the oft-cited passenger who "pays only when challenged" and, just like that passenger, is a clear RoRA offence.

An interesting aspect of RoRA 1889 is that it appears to me that it can be prosecuted regardless of existence of facilities at the origin. This is quite possibly because in 1889, when it was passed, there was no such thing as a completely unstaffed station.

Regulation of Railways Act 1889

An Act to amend the Regulation of Railways Acts; and for other purposes.

www.legislation.gov.uk

5 Penalty for avoiding payment of fare.

(1)Every passenger by a railway shall, on request by an officer or servant of a railway company, either produce, and if so requested deliver up, a ticket showing that his fare is paid, or pay his fare from the place whence he started, or give the officer or servant his name and address; and in case of default shall be liable on summary conviction to a fine not exceeding [F4level 2 on the standard scale].

(2)If a passenger having failed either to produce, or if requested to deliver up, a ticket showing that his fare is paid, or to pay his fare, refuses [F5or fails] on request by an officer or servant of a railway company, to give his name and address, any officer of the company F6. . . may detain him until he can be conveniently brought before some justice or otherwise discharged by due course of law.

(3)If any person—

(a)Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof; or

(b)Having paid his fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof; or

(c)Having failed to pay his fare, gives in reply to a request by an officer of a railway company a false name or address,

he shall be liable on summary conviction to a fine not exceeding [F7level 3 on the standard scale], or, in the case of a second or subsequent offence, either to a fine not exceeding [F7level 3 on the standard scale], or in the discretion of the court to imprisonment for a term not exceeding [F8three months].

(4)The liability of an offender to punishment under this section shall not prejudice the recovery of any fare payable by him.

[F9(5)In this section—

(a)“railway company” includes an operator of a train, and

(b)“operator”, in relation to a train, means the person having the management of that train for the time being.]

It does therefore seem that a prosecution could be made under RoRA despite the NRCoT entry noted provided it could be proven beyond reasonable doubt that the passenger intended to avoid the fare (which would be difficult unless it was a repeated offence, I'd expect*). Note also that the RoRA specifically states that a prosecution does not prejudice collection of the unpaid fare. One could not be made under the Byelaws because:

18. Ticketless travel in non-compulsory ticket areas​

1. in any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel
2. a person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person
3. no person shall be in breach of Byelaw 18(1) or 18(2) if:
   1. there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey or
   2. there was a notice at the station where he began his journey permitting journeys to be started without a valid ticket or
   3. an authorised person gave him permission to travel without a valid ticket

In essence, 3.3 is satisfied by the writer of the Conditions of Travel giving that permission.

It's also notable that 3.1 says: "there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey"

Thus it seems if you can't buy the ticket you want (e.g. a Rover) you do have to buy a ticket even if it costs you more.

This further backs up my opinion that these laws are no longer fit for purpose and should be repealed.

* It appears to me, therefore, that at an unstaffed station with no TVM if a passenger boarded every day, selecting the front unit in the knowledge that the guard wasn't going to be there, and alighted at an unstaffed station with no TVM, that they could be prosecuted under the RoRA fairly easily, particularly if they also had a mobile device capable of being used to purchase a ticket as not using this, if they had it, would further emphasize the intention not to pay. Interesting.

 

[Snow1964]

Two questions:

1. Are the requirements of a Byelaw 18(1) offence established by entering a train when in possession only of a time-restricted ticket which, by reason of that restriction, is not valid for travel on that train?
   
2. If so, then to what extent does the obligatory charge of an excess in the circumstances contemplated by NRCoT Condition 9.5 constitute a defence to any resulting prosecution under Byelaw 18(1), and on what authority?

The 2 questions are not 100% relevant here, because there was an intervention by a railway employee (allowing the rejected off-peak ticket at entry barrier) to be accepted for entry to travel.

Regardless of how many hundreds of words are in standard terms and conditions, if a customer acts on what an employee says or does then trying to prosecute based on terms that were actively overridden by a person who should know them, is a big ask.

 

[John Palmer]

Thanks for the responses to my two questions. These were premised upon the OP facing prosecution for a Byelaw 18(1) breach. Although the OP hasn't confirmed it, examination of the words printed on the reverse of the letter from GTR posted here suggest that this is what is in prospect.

Enlarging the grant of authority to enter the platform at Coulsdon North into authority to enter the train seems problematic. It may well have lulled the OP into a temporary false sense of security as to the ticket's validity, but does it suffice to activate the Byelaw 18(3)(3) defence that “an authorised person gave him permission to travel without a valid ticket”?

The problem I see with running the abuse of process defence by reliance upon the Dean case arises from the commentary on that case in R. v Hamza [2006] EWCA Crim 2918 (link here), and in particular this passage at para. 54:

“These authorities suggest that that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment.”

The authorities being referred to are the Dean case and R v Townsend, Dearsley and Bretscher, another case relating to inducements to a defendant to believe he would not be prosecuted.

In the OP's case, reliance upon the charging of an excess as an implicit promise not to prosecute might be treated as falling well short of such an “unequivocal representation” - it is, after all, the prescribed way in which peak travel on an off-peak ticket will be dealt with for the purposes of travel contract. The OP's account of the RPI's statement that there would be no criminal law consequences comes much closer to the required “unequivocal representation”, but then there is the problem that this statement was made after questioning had been concluded, in which case it is difficult to see detriment to the OP by reliance upon it.

To be clear, I deplore the OP being faced with prosecution for a Byelaw 18 offence in circumstances of (1) the TOC having received payment of the full fare and having consequently suffered no loss and (2) the TOC's representative having issued an assurance that criminal proceedings would not ensue. I have difficulty seeing how prosecution in those circumstances could satisfy the public interest element of the CPS' Full Code test, but of course the CPS is not the prosecuting authority here.

 

[Watershed]

I do not concur with those upthread suggesting that the existence of a contractual term around excess fares bars prosecution in the case where a ticket inspector takes a passenger's details to report for prosecution. Firstly, a term of a contract between two parties cannot override the law. Secondly, this would imply that a passenger buying an off-peak ticket daily, travelling between two ungated stations, and paying an excess fare only the odd time an inspector appeared, would be entitled to do so. I cannot accept this; it is no different to the oft-cited passenger who "pays only when challenged" and, just like that passenger, is a clear RoRA offence.

I think there is a distinction to be drawn between the "valid ticket" of Byelaw 18 and the "without previously having paid his fare" of RoRA.

As strange as it might sound, a ticket can be valid without the passenger having paid the correct fare. For example, if you have a ticket which requires payment of an excess as in this case.

Normally, a contract cannot override the law, however Byelaw 18(3) provides that no offence is committed where the passenger has been authorised to board without a valid ticket. This means that the NRCoT can, in effect, negate Byelaw 18 in cases where it gives permission to board without a "valid ticket".

RoRA does not provide for such a defence/exception and therefore if the passenger in your example intended to avoid payment, they're guilty of an offence notwithstanding the fact they're acting within the NRCoT.

 

[island]

Normally, a contract cannot override the law, however Byelaw 18(3) provides that no offence is committed where the passenger has been authorised to board without a valid ticket. This means that the NRCoT can, in effect, negate Byelaw 18 in cases where it gives permission to board without a "valid ticket".

I am not sure I agree. Byelaw 18 (3) provides for a defence where "an authorised person gave [the passenger] permission to travel without a valid ticket". It seems to me that there must be (1) permission (2) given (3) by an actual person (4) to the passenger.

(1) A statement explaining how passengers with an invalid ticket might be dealt with isn't a permission.
(2) and (4) A condition of travel has not been "given" to anyone, certainly not specifically to the passenger.
(3) The person giving the permission must be a person and the passenger must be able to indicate who the person is (leaving the "bloke on the platform" question to another thread). Is the author of the NRCoT even an authorised person?

 

[Wolfie]

There was no need for any details to be taken, and rather concerning the OP reports that their photo was taken as well. The letter should not have been sent either as no offence has been committed.

Train companies should not be sending letters to deter similar incidents. As for it costing almost nothing to send these letters it's funny that they suddenly cost hundreds of pounds to send when they're seeking costs following a genuine ticketing issue.

Once the issue is resolved l would be sticking in a GPDR SAR to find out what has happened to that photo.

 

[John Palmer]

It occurs to me that the RPI's statement that no criminal proceedings would ensue may have encouraged a belief that no useful purpose would be served by preservation of the excess ticket then purchased. If GTR now allege that no such excess was paid then the failure to preserve that ticket is a detriment that flows from the RPI's representation that no prosecution would follow – the OP would instead have to rely on the less satisfactory evidence of bank transactions. That might improve the prospects for an 'abuse of process' defence.

Since the excess ticket was sold by a staff member other than the RPI who conducted the interview, I suspect that GTR's prosecution team may not have made the connection between the RPI's report and the purchase of the excess ticket. If GTR accept that the excess was paid then the disappearance of the excess ticket ceases to be a detriment to the OP. I would hope that the prosecution would then be discontinued but, if it is not, it would be one putting the public purse to the expense of hosting court proceedings arising from a byelaw infraction from which the TOC has suffered no loss.

 

[Fluffyducky95]

It occurs to me that the RPI's statement that no criminal proceedings would ensue may have encouraged a belief that no useful purpose would be served by preservation of the excess ticket then purchased. If GTR now allege that no such excess was paid then the failure to preserve that ticket is a detriment that flows from the RPI's representation that no prosecution would follow – the OP would instead have to rely on the less satisfactory evidence of bank transactions. That might improve the prospects for an 'abuse of process' defence.

Since the excess ticket was sold by a staff member other than the RPI who conducted the interview, I suspect that GTR's prosecution team may not have made the connection between the RPI's report and the purchase of the excess ticket. If GTR accept that the excess was paid then the disappearance of the excess ticket ceases to be a detriment to the OP. I would hope that the prosecution would then be discontinued but, if it is not, it would be one putting the public purse to the expense of hosting court proceedings arising from a byelaw infraction from which the TOC has suffered no loss.

I assume the RPI record the interaction? Do you think it’s likely they will pull up their footage to see that I brought the price difference ticket?

 

[WesternLancer]

I assume the RPI record the interaction? Do you think it’s likely they will pull up their footage to see that I brought the price difference ticket?

I would not put too much store on CCTV being scrutinized for this sort of thing really - not unless it also involved an assault / threats with knives etc etc. Others may say i am wring in which case I will bow to their knowledge.