8.3 Current Framework - Other Procedures and relevant Legislation
The unusual arrangement described above, of 19th Century Acts applied to modern rail travel, of Byelaws and Criminal Offences prosecuted by Private Companies created under a hasty privatisation in 1996, and other factors such as liabilities under Contract Law and Tort, has created unintended complexity and some anomalies in the legal framework:
8.3.1 Contract Law
The greatest part of passenger rail travel in the UK falls under the general category of Contract Law.
Contract Law has its own body of Judgements which help to clarify the requirements for publicising Conditions and ensuring that parties to a Contract have some reference to those Conditions. A claim of a breach of Contract would be pursued as a Civil matter, not a Criminal Offence. There is a vast cannon of Case Law to amplify almost every conceivable variation on a Contract and which extends far beyond the scope of this document.
As discussed above, most disputes are focussed in the very narrow field of travel without a valid ticket, and although these fall clearly within the scope of a breach of Contract, they are nearly always captured by the Criminal Offences referred to above (either under one of the Railway Acts or under the Railway Byelaws), and consequently, they are generally pursued and prosecuted in England and Wales as Criminal matters and not as a breach of Contract. However, there are instances where a Railway Company simply sues a passenger for the value of an unpaid fare or for some other loss.
8.3.2 Torts
In common with most business transactions, an increasing degree of detail in the Terms and Conditions in Contracts over the years has seen more matters of dispute being argued under Contract Law. However, those Conditions do not remove a person's or a Company's exposure to liability under the Common Law Torts.
The most significant Tort as a basis for a claim against the Railways will probably be that of Negligence, both in terms of personal safety and of property, where the potential for a claim of damages might be a significant sum.
In the event of an injury arising on the Railways, it may be possible to set aside the need to demonstrate the cause of the injury under the
res ipsa loquitur principle, where the complexity of Railway operation may be beyond the normal person's comprehension. Claims of negligence have succeeded (See
Cooke and
Herrington) even where the injured persons had trespassed onto Railway property before sustaining injuries from its operational equipment and where there were defects in the railway's fences (but not in
Titchener where no defect was found).
Other Torts in claims against the Railways might be Misrepresentation and even false imprisonment.
It has been established that a claimant against the Railways can have a choice of framing their claim in terms of Contract Law or Tort, by Lord Esher MR in
Kelly v Metropolitan Railway [1895] 1 QB 944.
Torts which could be the basis of a claim by a Railway Company against a member of the public or a passenger would be Nuisance, Fraud or Trespass.
8.3.3 Liability for Luggage
A Railway Company may refuse to carry an item of luggage (or an animal) even if it has been carried on the earlier legs of a longer journey. Items may be refused if they obstruct doorways or corridors, may cause damage or inconvenience, may delay a train or is unsuitably packaged. A charge may be made for carrying golf clubs, surfboards, skis, large musical instruments and other large items.
Railway Companies are not liable for any item which a passenger leaves on a train (after the passenger has disembarked) or on Railway premises.
Luggage which is not the passenger's property and has not been trusted to the passenger's care has no right to be conveyed.
8.3.4 Youth Prosecutions
Age of Liability
The age at which a young person may become liable for a crime is 10 years in England and Wales and N.Ireland, and in Scotland it is 12. [There are proposals to raise these limits to being them closer to European averages]. However, a person under 18 years will be Investigated and Prosecuted under a Youth Justice System . Investigation requires the parent, guardian or responsible adult to be informed, and which permits the youth to provide a Statement but not to be interviewed without the adult. The Prosecution will be undertaken by a specialist Youth Offender Prosecutor in a Youth Court where certain protections will be in place and Statements of the youth's background will be provided. Sentencing options will be limited (see
Powers of Criminal Courts (Sentencing) Act 2000) to: Fines, Detention and Training orders, Youth Community Orders, Reparation and Referral Orders, Reprimands and Conditional Cautions, though in Railway ticketing matters, it is unlikely that a Youth would be Prosecuted. The age at the time of Conviction is normally the age which triggers the above Sentencing procedure, not the age at time of giving the Offence; a Youth aged 18 or over at the time of trial will be heard in the appropriate adult Court.
Liability of adult
Where a Youth or Child is suspected of an offence which does not involve an adult, then no adult (such as a parent or guardian) will be liable.
Where an Offence involves a Youth (as defined above) and also an adult, it may be heard in an adult Court.
Discharge
A Prosecution of a Youth for a minor Railway ticketing Offence which is brought to the Magistrates Court as for an adult would be likely either to be abandoned or to result in a Discharge (See Section 8.7.3.3 below).
Child travel
A passenger whose age entitles them to discounted tickets (the
Child Fare, See
Section 6.4.1) may, if relevant circumstances apply, be suspected of having committed an Offence. As above, such as person should normally be investigated under Youth Justice principles. A passenger entitled to free travel (under 5 years) would not be suspected of Committing an Offence, but as a 'gratuitous passenger' they are still under Contract to be conveyed, from which rights and responsibilities on the parties follow; a responsible adult will have the same responsibilities for the Child on the Railways as elsewhere.
8.3.5 Gratuitous Passengers
(Children, travel with Permission, Staff travel)
Passengers in these categories who are being permitted to travel, but who neither have a ticket nor are required to hold a ticket, are 'gratuitous passengers'. These might include children under the age at which a ticket is required, staff or other people with passes, permissions or rights to travel, even a child whose parent should have bought a ticket for them but has not done so (See
Austin vs Great Western Railway 1867). 'Gratuitous Passengers' will not, normally, have any Contractual rights to be conveyed and will not be bound by the
National Rail Conditions of Carriage. However they must be carried by a duty of care in tort and must observe the
Railway Byelaws (which apply to all persons on Railway property).
This category does not include passengers who have not been able to buy a ticket before boarding and where the Railway Company arranges for passengers to pay later (either on-board or at their destination). In that case, the passenger is subject to a Contract, evidenced by their own actions and by the Railway Company's arrangements for them, and the payment will be made at a later time.
8.3.6 Penalty Fares
Penalty Fares are not penal but are simply surcharges which may be imposed in certain circumstances where a valid ticket is not held and provide those Companies which use the arrangement, with an alternative to enforcing Railway Byelaw 17 or 18.
See Sections
10.4,
10.5 &
10.6 for full details and 8.2.4 (above) for the legislation.
8.3.7 Inter-Company detection of Offences and Prosecutions
A Railway Company (one of the TOCs) will be empowered to detect, investigate, claim and prosecute a person for a breach of Regulations or Laws where the breach involves one or more other Operators. This right arises from two principles: the relevant Statutes create Criminal Offences which therefore can be pursued either by the State or, by authority of the Statute, by Railway Officers; the Byelaws create Offences which may be pursued by any person. In practice, matters of suspected railway passenger ticketing offences or conduct and behaviour on Railway Property, will be Investigated and Prosecuted by the Railway Company affected by the matter, but there is no legal reason why one Company's Officers could not investigate a matter affecting other Companies, and this will happen quite naturally where the matter affects more than one Operator (e.g. use of a season ticket applicable on several Companies' trains) or by agreement (e.g. where two Companies serve the same route). Agreements between operators whose trains serve the same area are common, and staff employed by one Company will regularly interview passengers travelling on another Company's services where an Offence is suspected (e.g. a fare is thought not to have been paid).
However, there may be little benefit to an Operator in bringing a Prosecution against a passenger which only affects another Company's services unless such an agreement is in place.
8.3.8 Delegated Contracts
(Distinct from Delegated Legislation e.g. the power to create and enforce Byelaws).
Railway privatisation in 1996 created the power for a Railway Company to enter into a Contract with an intended passenger and to provide Evidence of that contract by issuing a ticket, even though the body which will be obliged to honour the Contract will be another Railway Operating Company. The mechanism under which the Railway Companies enter into such Contracts and then delegate the obligations to other Companies is enshrined in the Terms of their Franchise Agreement with the Department of Transport and the "
Ticketing & Settlement Agreement" to which all the Operating Companies and
Rail Settlement Plan Ltd. (RSP) are Contracted.
Rail Settlement Plan Ltd. is a wholly owned subsidiary Company of the
Association of Train Operating Companies (ATOC) and its responsibilities include the inter-company retailing of tickets, the management of revenue from those sales, the management of fares databases and third party suppliers of ticket retailing systems. It is under this mechanism that personnel from one Company can enforce a breach of Conditions in a Contract with another.
8.3.9 Debt Collection Agencies
Unpaid fares may be passed to railway-specific debt Collection Agencies. The most used Agencies are:
IPFAS (
Independent Penalty Fare Appeals Service), IAS (
Independent Appeals Service), IRCAS (
Independent Revenue Collection and Support) and RPSS (
Revenue Protection Support Services).
These agencies manage the collection of Unpaid Fares Notices and Penalty Fares and a Passenger's Appeals against these fares. Where an Appeal is made, it should be accepted that on receipt of that initial Appeal that no administrative charges will be applied (by the appeal body or any debt collection agency on behalf of the train operator) if that Appeal is received within the required period; these charges may be applied subsequently, once the appeal is resolved if the decision is in favour of the Railway Company. (This is the system currently used by IAS but not IPFAS. The latter only processes 'Penalty Fare' appeals).
[
RPSS (Revenue Protection Support Services) and IPFAS (Independent Penalty Fares Appeals Service, are both trading names of "Southeastern Railways")]
These agencies effectively just act as debt collectors, and will operate in the same manner as any other civil debt collectors such as those acting for a retailer, commercial institution or supplier of utilities. Any appeal made to them should be confined to matters of fact which challenge the collection of that debt. A dispute with the Railway Operating Company may be more effectively made directly to the Company.
8.3.10 Consumer Legislation
(Unfair terms in Consumer Contracts)
The Contract for the sale of Railway Tickets is subject the regulatory and statutory provisions of the Railways Acts and each TOC's franchise Conditions, including the
Ticket & Settlement Agreement, consequently, the sale of rail tickets for passenger travel on the rail network of Great Britain provided by the TOCs is not captured by those Consumer Regulations.
The
Unfair Terms in Consumer Contracts Regulations 1999 :
Terms to which these Regulations apply
4.—
- These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.
- These Regulations do not apply to contractual terms which reflect–
- mandatory statutory or regulatory provisions (including such provisions under the law of any Member State or in Community legislation having effect in the United Kingdom without further enactment);
Best Practice would require Railway policymakers to take account of
The Consumer Protection from Unfair Trading Regulations 2008; specifically Sections 3 (Prohibition of unfair commercial practices), 4 (Prohibition of the promotion of unfair commercial practices), 5 (Misleading actions) and 6 (Misleading Omissions). Many promotions, special offers and ancillary supplies and services could be captured by the UTCCR, even if tickets for rail travel are not.
The advertising and promotion of Railway Tickets, special offers, travel and other services are all subject to the scrutiny and direction of the
Advertising Standards Authority (ASA).
8.3.11 Accessibility of information
While the general Law applicable to rail travel and behaviour on Railway property is openly available, Copyright materials and industry documents may apply to the interpretation of ticket validity in some circumstances. The Railway industry is, in 2012, embarking on a programme of transparency and accessibility in its next round of ticketing conditions and it is aiming to eliminate the exceptional circumstances which conceal any conditions. Fares data are subject to Copyright and may not be copied or distributed without permission; fares data is publicly available at a retail cost, published by
The Stationery Office (TSO).
8.3.12 Double Liability
The creation of Byelaws also creates the potential for a passenger to incur double liability, first in the form of the Terms and Conditions of the contract to be conveyed, and secondly in the form of a simultaneous Byelaw Offence. The Byelaws create a statutory framework for dealing with a Civil matter. This would only arise in practice in exceptional circumstances.
However, in serious cases of breach of a Byelaw, the Railway officers may require a passenger to leave a train or Railway premises where failure to do so may amount to a Trespass. This may simultaneously allow them to treat the Contract for travel as discharged. Subsequently, the Railway operator would be at liberty to consider a claim for any unpaid fare and/or for any damages incurred. Similarly, a passenger found to be travelling without a ticket will be liable for the consequences of Trespass as well as the offence arising from their ticketless travel.
8.3.13 Obsolescent Law
The 19th Century legislation created a number of precedents which, at the time, will have assisted the Railway Companies in enforcing the Laws in a manner that was appropriate at the time; a time when passengers carried a lot of luggage and parcels, when there were numerous staff working on platforms and on trains, and when ticket selling was a simple personal and manual transaction over the counter at a Booking Office.
As discussed above, two of those Acts are still current statute and are used regularly: the
RoRA 1889 and
RCCA 1845 and some of the Judgements based on these Acts a hundred years ago are still cited as authorities today. However, there are also Judgements rising from those Acts which, due to changed circumstances and practices, would be in conflict with current practice or the Conditions of Carriage; there will have been no repeal of their Judgements, leaving scope for some uncertainty or errors of interpretation in a few situations.
