. . .
As I was owed a refund by Oyster and the journey has been paid it is unlikely, due to a lack of intent to evade payment, no criminal offence has taken place, certainly not under the master Acts governing fare payments on the rail network. Under the by-laws the situation may be different but as yet I can not establish why there is a belief by some that a strict liability offence has been created.
The strict liability offence would be failing to present a valid ticket for inspection when requested by an officer of the railways (either of the offences in Railway Byelaw 18)
In this instance there are laws covering my situation which appear to both be within the reaches of the civil and criminal law. As there is ambiguity and no certainty the common law is not a meaningless consideration. As there is a contractual element to my situation, which in my opinion I have not breached but Greater Anglia believe to the contrary, it therefore attracts the attention of the common law regarding civil contracts. Can you please direct me to the parent Act of the by-laws? And could you please also tell me why the by-laws make provision for a strict liability offence?
The most recent 'enabling Act' for the Railway Byelaws is the
Railways Act 2005 S.46. (Before then, it was the
Transport Act 2000 S.219 and before that, the
Railways Act 1993 S.129 )
On Transport for London, the 'enabling Act' is
Greater London Authority Act 1999 S.17 and as amended by the
Transport for London Act 2008.
All the Railway Byelaws, except Byelaw parts of 16 and all of 17, create an Offence which carries a penalty. The ambiguity you refer to may exist in so far as a person who has alledgedly committed both an offence in statute and also an offence of the Byelaws may, for a period of uncertainty, be unsure whether they will be prosecuted under either. Similarly, the Investigator may be undecided during that period. However, there will be no doubt by the time a Prosecutor has filed their Claim to the Court and the accused person then receives their summons.
It should be of little concern to know that there may have been another Offence for which the person could have been prosecuted - but wasn't.
If you suspect that there is fault to be found under Contract Law then you will be at liberty to persue it, even a passenger who has not paid their fare may demonstrate that a Contract existed and consequently any breach by the carrier may be pursued. I'm very unclear what basis you think you have for a claim in Contract Law.
In Common Law, I'll guess that you have been considering a claim of Negligence against the Railway Company. However, nothing you have written here suggests to me that you have a sound basis to make such a claim.
The reason for the Byelaws to make provision for strict liability offences is in order to acheive their purpose. Until the Byelaws were refined as they are today, prosecutions were often protracted affairs requiring several Witnesses to attend Court (Inspectors at either end of a journey, the ticket seller, platform staff at intermediate stations, and sometimes private detectives following the passengers) and then, on evidential grounds, the prosecution of even some well-known fare evaders would fail. The effort in detecting the various frauds a century ago could be immense and quite disproportionate to the sums involved. Some Case Law to clarify the statutes (e.g. the meaning of 'intent') and the revisions to the Byelaws have made the detection of fare evasion relatively simple.
. . .as I understand it if there is an attempt to prosecute under the by-laws this will be an unrecorded offence, and therefore will not give me a criminal record. And if it is a prosecution under by-law 18 then only a fine can be imposed.
That would be correct, if the prosecution succeeded.
