Impending Prosecution advice

[BigEars]

Hi,

I wonder if anyone can help me. 3 years ago, yes I know it sounds ridiculous but it really was 3 years ago I was stopped on the train for sitting in 1st class with a standard ticket. The reason I was in the carraige was that there we no seats on standard carraiges. Half way through the journey revenue officers entered the carraige asking for tickets at which point 90% of the occupants simply got up and left. I decided at this point that I would rather pay the additional or penalty fare than stand up in cramped conditions.

When approached by the revenue officer I explained that I did not have a valid ticket and wished to pay the additional or penalty fare, which he refused. He stated that I couldn't pay on the train and as I was travelling without a valid ticket I was liable for prosecution. Again I offered to pay, I actually had my debit card in my hand but he reiterated his comments.

He than cautioned me wrote a statement and issued me with a notice. A few weeks later I received a letter from GA advising that I may be prosecuted and giving me the opportunity to give my version of events, which I duly did. I also wrote to the head of GA separately explaining what had happened.

I never received a response to either letter and have had no correspondence since. That is until yesterday I received a court hearing notice stating that I had to attend court on 24th June 2013 for fare evasion on 20/04/2010. It appears from the letter that a court case has already been adjourned by the prosecution, I don't no why or when as I have never received any correspondence from anyone since I returned the aformentioned form.

This all seems very strange that it's taken 3 years to come to court, I assumed when I heard nothing that the matter had been dropped, clearly not. I have been a season ticket holder for 31 years and have no convictions or warnings for fare evasion or anything else.

I wonder if someone could give me some advise of how to proceed, or could provide contact details for the people I should speak too. I travel between Liv St and Harlow Town daily on Greater Anglia Railways although it would have been National Express at the time of the offence.

Many thanks

 

[W230]

That is quite strange!

As this is a "summary" offence, a TOC has six months to lay the information before a court. However, they may still have done this within the 6 months and simply not followed up the prosecution.

I would expect a court to take a very dim view on proceedings taking 3 years to get to court though and would not be surprised if they simply threw the case out. There is no guarantee of that though.

There will be other more knowledgeable posters along shortly but I can't help wondering if it might be worth giving Greater Anglia a call about it to ask for a bit more information and/or write to them to see whether the matter could be settled out of court. Even though I would expect the court to bin the prosecution, I still wouldn't rely on it if I could take a less risky approach and obviously an offence was still committed...

 

[DaveNewcastle]

It does surprise me too that 3 years have passed without contact.
However, now that a Court date has been set, it is important that any correspondence is copied to the Clerk of the Court.

As you appear not to have been advised of the earlier listing date and subsequent adjournment, there does appear to have been a lapse in the admin somewhere (which is not uncommon).
I'm unable to give reliable advice without seeing the actual papers submitted to the Court and the opportunity to consider several factors that come to mind from your account of the matter. However, it is likely that there has been, somewhere in that 3 year process, some good reason to argue that the Claim against you can be set aside (abandoned).

Therefore, my advice is to either:-
a) take the letter from the Court to a local Law Firm which offers general Criminal Defence work and ask them to consider the papers and advise a course of action (but not for you to automatically agree that they will defend you in Court, which might be expensive); or
b) write to the Claimaint Company AND the Court explaining that this has arrived with no correspondence for 3 years and no record of an earlier date or adjournement and that in view of this, you wish to be served with copies of all the Prosecution Evidence, correspondence and to be granted additional time to prepare your response. Following their response to that request, and the information and the timeline that comes from that, I expect that we will be able to give you appropriate advice.

I'm sorry that it's not possible to give any confident advice based purely on what you have so far.

I would expect a court to take a very dim view on proceedings taking 3 years to get to court though and would not be surprised if they simply threw the case out.

On the contrary, the Court appears to have been quite happy to list it!
That's not to say that even a half-competent advocate would be able to persuade the bench to set the case aside when it is heard, but we need the facts before we can assess the liklihood.

 

[BigEars]

Thank you both for taking the time to reply, I did speak to a revenue inspector this morning at Liverpool St who advised that it was unusual for a case to take this long without any contact.

He did advise that the issue of penalty fares is a two tier system, basically if you are stopped by plain clothes Level 2 officers they won't allow payment of penalty fares or excess fare as they do not carry any machinery with them. Whereas if stopped by a uniformed revenue officer I would have been able to pay on the train.

Not sure if this is correct but seems a bit strange that I haven't been offered the chance to pay at a later date.

 

[34D]

Do you still reside at the address you lived at in April 2010?

DaveNewcastle a respected senior member on here has given you some excellent initial advice.

 

[stevefreestone]

I would suggest that given you attempted to pay and that the guard refused to accept it, they haven't got a leg to stand on. Surely they must be able to prove that you didn't and weren't prepared to pay up and the fact they turned down payment must work against them?
--- old post above --- --- new post below ---

That is quite strange!

As this is a "summary" offence, a TOC has six months to lay the information before a court. However, they may still have done this within the 6 months and simply not followed up the prosecution.

I would expect a court to take a very dim view on proceedings taking 3 years to get to court though and would not be surprised if they simply threw the case out. There is no guarantee of that though.

There is no time limit for criminal offences though, however courts do take a dim view you are right on cases not being brought up quickly, simply because in this case, it makes it very difficult for a defence to be formulated correctly.

 

[34D]

There is no time limit for criminal offences though, however courts do take a dim view you are right on cases not being brought up quickly, simply because in this case, it makes it very difficult for a defence to be formulated correctly.

An 'information' must be laid within six months.

Hence my question of whether or not he has moved house, to try and understand what has occurred.

 

[ian959]

I would suggest that given you attempted to pay and that the guard refused to accept it, they haven't got a leg to stand on. Surely they must be able to prove that you didn't and weren't prepared to pay up and the fact they turned down payment must work against them?

I believe the answer to that is no. Being a strict liability offence and quite clearly knowingly sitting in the first class section without a valid ticket would suggest no honest mistake means that the RPO is not obligated to issue a penalty fare nor accept payment there and then.

 

[DaveNewcastle]

On the details of what happened on that day, 3 years ago, then the helpful Inspector at Liverpool Street and ian959 are correct; the Inspector issuing the warning and taking a Statement for possible prosecution would NOT have been in a position to collect a fare (or on the spot penalty). The two procedures are effectively incompatible.

But I don't believe that we need to concern ourselves with the arguments over what happened that day any more. The central issue is to learn what has been happening over the intervening years. Perhaps BigEars moved home address, and perhaps one of several other posssibilities; such as new Evidence coming to light - possibly of a more serious nature (whether that is accurate Evidence or not); such as procedural error (possible triggerring the earlier adjournment); such as a matter of identity (either of BigEars of a family member or someone at that address then or now); some other incident which has brought BigEars to the attention of the Prosecutor- the list goes on and speculating doesn't assist us.

It is because there are several possible reasons for a 3 year delay that come to mind that I gave the advice that I did - firstly, find out what has been happening to cause this delay and what is in the bundle of Evidence against BigEars. Then make an assessment.

As for 'a leg to stand on', I would guess that if a case has taken 3 years and a change of Operating Company before coming forward and now finally has been listed, then the Company will have a assessed ther prospects with a little more confidence that a routine and current ticketining irregularity. I will assume that they believe they do have a robust 'leg to stand on' - whatever that might be.

. . DaveNewcastle a . . senior member on here . . .

Ha! Some days can feel more senior than others, thank you very much!

 

[jkdd77]

I warn that I am not legally qualified; however, as I understand it, the initial information for "summary only" offences must have been laid before the court within six months of the original offence. However, it is quite possible that this did happen, and that there is some reason (moving house?) why the OP was not previously informed of this, which is why more information would be helpful.

The OP's post implies that he or she is being prosecuted for fare evasion, presumably contrary to section 5(3)(a) Regulation of Railways Act 1889. It would be helpful if he or she could quote the precise charge listed on the summons.

It may be worth the OP, upon reviewing any evidence, to consider the CPS guidance on when delays in bringing prosecutions may constitute an 'abuse of process' at: http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/#b01
Generally speaking, prolonged delays caused by the conduct of the defendant will not qualify as 'abuse of process', but prolonged delays caused by the conduct of the prosecution may potentially qualify.

Needless to say, if the OP did go down this route, and seek to have the case dismissed on these grounds, it would be strongly advisable to be legally represented, which is unlikely to come cheap.

 

[34D]

As the OP hasn't posted for three days, I don't think there is anything else that we can speculate until (or if) they return to answer the various questions asked above by various posters.

 

[BigEars]

Hi,

Apologies for not responding sooner, I have been away.

I have lived at my current address for the past 16 years. I have not come into contact with any Revenue, Railway or Police Officer during this period for any offence or otherwise during this period. Nor has anyone else at my address.

I can only assume as DaveNewcastle suggested that this issue was caused by an admin error, I guess that they must be confident of a conviction otherwise they would not proceed, although this may well not be true and may just be procedure.

A friend of mine is linked to the BTP and they have stated the 6 month rule as well, so I guess I need to know when the original summons was issued. I intend to go to the Prosecution Dept on Thursday to advise that I have had no correspondence or information for 3 years and ask for all of the paperwork for the case. As DaveNewcastle suggested, I will notify the Court of this as well.

The offence I have been charged with is 'remained in a reserved seat on a train when not the holder of a valid ticket entitling you to be in that particular place. Contrary to byelaw 19 and 24 of the Railway Byelaws made under Section 219 of the transport act 2000'.

With regard to the two tier system, if plain clothes can't deal with me at the time purely because they do not carry the necessary machinery (Revenue Officer Liv St) and as I offered to pay why do they not simply give you the option to pay at a later date. I was not refusing to pay and had means to pay ?

Thanks for all of your continued help.

 

[michael769]

so I guess I need to know when the original summons was issued.

No the 6 month limit pertains to when information is laid before the court. The summons comes out after that, and so it is not unusual for a summons to be issued a little after the 6 months.

Does the summons include the "date of information"? If not I would suggest contacting the court and asking them for the date that information was laid.

While uncommon, I have encountered the odd case where information was laid after the deadline, and this was not noticed by the court until the defendant raised the issue - although nothing on this magnitude - so while unlikely it should be checked.

 

[ian959]

I have lived at my current address for the past 16 years. I have not come into contact with any Revenue, Railway or Police Officer during this period for any offence or otherwise during this period.

In your original post you admit to being stopped by an RPO 3 years ago and now you say you have had no contact with any such person in the past 16 years? Something does not add up there...

 

[BigEars]

In your original post you admit to being stopped by an RPO 3 years ago and now you say you have had no contact with any such person in the past 16 years? Something does not add up there...

Apologies what I meant was I have lived at my address for 16 years and haven't been stopped or spoken to by an RPO in the last 3 years since my offence.
--- old post above --- --- new post below ---

I believe the answer to that is no. Being a strict liability offence and quite clearly knowingly sitting in the first class section without a valid ticket would suggest no honest mistake means that the RPO is not obligated to issue a penalty fare nor accept payment there and then.

There was no mistake, the stickers on the window of the 1st Class unit state "Customers are reminded that they must be in possession of a First Class ticket when travelling in this accommodation, prior to boarding the train. Customers with a standard ticket or no ticket at all may be liable to pay a penalty fare".

I offered to pay a penalty or excess fare immediately, I had my debit card in my hand when showing him my season ticket. I did not attempt to evade payment like 90% of the other occupants of the carriage who simply got up and left. He stated I couldn't pay as 'If I hadn't stopped you, you wouldn't have stopped at the destination station and paid the excess so that is an offence". Clearly he doesn't know this to be true or accurate, that is only his opinion. It appears that I was denied what was stated in there own literature for the simple reason that plain clothes officers do not carry the necessary machinery to issue penalty fare tickets.

 

[jon0844]

I am pretty sure the stickers don't just say that, also stating that you could be prosecuted. The clue is in the word 'may'. If the only punishment was being made to pay £20 or twice the fare, wouldn't a lot of people try it on and just consider the penalty as being a sort of unofficial upgrade fee?

Also, if I was an RPI, if someone caught suddenly waves a debit card or a £20 note, I'd be inclined to believe that that person probably does this regularly and expects to get away with it most times and pay when caught on the few occasions a check is made.

If it's any consolation, on some occasions they'll do a check with more than one member of staff to stop anyone from being able to leave - boarding at the right set of doors to ensure this is possible without giving any advance warning (such as being seen walking through the train). On this occasion, those other people got lucky but it doesn't really matter.

 

[BigEars]

That is exactly what the sticker says, word for word. It does use the words 'may' but no other course of action is mentioned. I have attached a copy of the sticker for your perusal, just to confirm that what I am saying is correct.

If I was an RPI and someone offered to pay as soon as I asked to see their ticket, I would take it that they were willing to pay...... why would you not?? If I had no means to pay or was unwilling to pay then clearly that would be different.

As for me seeing the £20 as an upgrade fee, that is more than the upgrade would have been so I don't really get your point, unless you of course believe this is something I do on a regular basis, and you'd be wrong.

 

[benk1342]

If I was an RPI and someone offered to pay as soon as I asked to see their ticket, I would take it that they were willing to pay...... why would you not?? If I had no means to pay or was unwilling to pay then clearly that would be different.

Because there is a difference between being willing to pay on the 1/20 chance that an RPI comes along and being willing to pay even if you are not checked. The RPI (I think fairly) surmised that had you not been checked, you would not have paid. That is the "willingness to pay" that they are concerned about.

 

[jon0844]

BigEars, I stand corrected and apologise. It's surprising that there isn't the same wording used elsewhere (other TOCs) that say 'may' and also gives an alternative outcome of prosecution.

You might realistically believe that it means you may pay a penalty, or be allowed to pay to upgrade or even get nothing more than a warning. The reality is different.

I am not sure that failing to mention prosecution on signs could be used as a defence, but I'd have thought there's a change.. other members will no doubt give more valid advice than I can.

 

[DaveNewcastle]

I'll keep out of the dicussion about the merits of various arguments or signage for now, while BigEars is patiently waiting to learn what facts are actually on file against him. I'm still concerned that there may be something more substantial (true or otherwise) which has been lurking in that 3-year old file and which will have to be addressed once it is known.

But for reference, the criterion used to assess instances of a passenger found travelling in "a superior class" to that for which their ticket permits is in Gillingham v Walker in which the passenger was found not to have "paid his fare" although he had "paid a fare". It is a simple test of fact.
There are several instances in which passengers were prosecuted under earlier versions of the Byelaws for travel in First Class on Standard Class (or 3rd class) tickets which were lost on Appeal - the present Byelaws create an Offence where the passenger "remains in any" First Class accomodation.

 

[BigEars]

BigEars, I stand corrected and apologise. It's surprising that there isn't the same wording used elsewhere (other TOCs) that say 'may' and also gives an alternative outcome of prosecution.

You might realistically believe that it means you may pay a penalty, or be allowed to pay to upgrade or even get nothing more than a warning. The reality is different.

I am not sure that failing to mention prosecution on signs could be used as a defence, but I'd have thought there's a change.. other members will no doubt give more valid advice than I can.

No problem at all, i'd be interested in other rail companies wordings if they differ to Greater Anglia and are more specific about the punishment.
--- old post above --- --- new post below ---

Because there is a difference between being willing to pay on the 1/20 chance that an RPI comes along and being willing to pay even if you are not checked. The RPI (I think fairly) surmised that had you not been checked, you would not have paid. That is the "willingness to pay" that they are concerned about.

He did say I have reason to believe that you wouldn't have paid the excess fare at the destination station if I hadn't stopped you.... which is not an unfair comment but is only his opinion and not fact. He has never met me before, doesn't know my background or history so has no way of proving this one way or the other. Just because in most cases people wouldn't do this doesn't mean I wouldn't.
--- old post above --- --- new post below ---

I'll keep out of the dicussion about the merits of various arguments or signage for now, while BigEars is patiently waiting to learn what facts are actually on file against him. I'm still concerned that there may be something more substantial (true or otherwise) which has been lurking in that 3-year old file and which will have to be addressed once it is known.

But for reference, the criterion used to assess instances of a passenger found travelling in "a superior class" to that for which their ticket permits is in Gillingham v Walker in which the passenger was found not to have "paid his fare" although he had "paid a fare". It is a simple test of fact.
There are several instances in which passengers were prosecuted under earlier versions of the Byelaws for travel in First Class on Standard Class (or 3rd class) tickets which were lost on Appeal - the present Byelaws create an Offence where the passenger "remains in any" First Class accomodation.

I did go to see the prosection dept this morning to try and get some information or access to the case paperwork as you suggested.

They advised that as I haven't received any paperwork for the past 3 years and as a court case is looming, I should get a sworn Statutory Declaration from a local magistrates court and send this to the court holding the case. At which point all proceedings will stop. Then apparently it will be up to the railway company to decide whether they wish to re-serve the case. If they do, I will then be allowed access to the case file and all paperwork.

I would assume that they will continue with the case, so hopefully will receive the relevant information then. They seemed unsurprised by the 3 year delay etc and just smply said 'this can happen' and 'yes court cases do happen without the defendant being notified'. They didn't say it was correct, just that it happens. Any advice on the above or it's accuraccy would be gratefully received.

 

[DaveNewcastle]

Well, in view of the response you were given, I agree that a Statutory Declaration is the single most effective action you can take.
You will declare to the Court that you have had no communication nor correspondence and that you seek a stay of proceedings. In my view, if the matter really is just a one-off 'travel in the wrong class', then the Prosecution will probably abandon it; and if there is something more serious (whether true or otherwise), then we'll just have to wait for the papers to be served in due course to find out what it is.

Yes. Delays like this do happen, annoying for everyone as it may be.
I'm sorry that you aren't going to reach a full resolution just yet, but please do go to your local Magistrates Court Office (you can phone them first for opening hours, directions and advice on where to go) and make your Statutory Declaration as soon as is convenient, and make sure to tell the Court of the impending hearing against you which you wish to have stayed (otherwise the haering might still go ahead as it is quite soon now).

I suggest that you do one more thing after that to reassure yourself, and that is to call the Railway Company's Prosecutions dept again and make sure that they know that you have made the Declaration. Hopefully they will be able to confirm that the matter against you will not now be heard.

As for the details of the incident 3 years ago:

He did say I have reason to believe that you wouldn't have paid the excess fare at the destination station if I hadn't stopped you.... which is not an unfair comment but is only his opinion and not fact. He has never met me before, doesn't know my background or history so has no way of proving this one way or the other. Just because in most cases people wouldn't do this doesn't mean I wouldn't.

Please don't become too concerned by the apparent unfairness - it is how fare evasion is detected. If the Inspectors were able to collect Fares from everyone who offered payment when questioned, then they'd never detect a Fare Evader in their entire career. Every Fare Evader would simply pay when challeneged. The Inspector probably didn't judge you as harshly as you feel they did. They just recorded the fact for someone else further along the system to make a decision - sometimes people do ask for a First upgrade (or alternative ticket) from a ticket-selling guard, and are either sold it or given the chance to travel in Standard.
On that day, you were discovered by a Revenue Inspector. It happens. And it probably won't happen to you again!

 

[34D]

Some magistrates courts will let you turn up, and swear your oath before a JP informally.

Others will insist upon giving you an appointment, perhaps to arrive at the start of a days' proceedings.

If you get the latter, then it may be prudent to attend at the allocated day and time anyway (as by definition there will be a magistrate there).

I am not a lawyer, however I would be more inclined to show up at the hearing, explain to the bench that you have heard nothing, and would like to swear to that effect, and furthermore that you haven't received any paperwork or evidence.

If the bench are sufficiently impressed by your honesty, then there is a chance they will dispose of the matter there and then.

 

[michael769]

Some magistrates courts will let you turn up, and swear your oath before a JP informally.

There is no oath to swear. A statutory declaration is a written statement that must be signed in the presence of a Comissioner for Oaths.

This can be done for free in front of a magistrate at a court, or you can pay a solicitor (most of are also Commissionaires for Oaths).

 

[Fare-Cop]

Before anyone jumps on me, I'm not saying this is likely in this case, but it's always worth noting the possible penalty for making a false Statutory Declaration.

We did have a case only a few years ago where a Stat. Dec. was made by a defendant who had forgotten that he had written to the rail company immediately after receiving the Summons, had not subsequently submitted a plea and had moved after conviction in absence. The enforcement team caught up with him more than two years later and he made a declaration saying he knew nothing about the matter.

 

[Goatboy]

I have to say, although we all know 'better' the signage posted is ambigious and does give the distinct impression that if you stay in 1st without the right ticket, it's penalty fare, not prosecution, that will result.

TOC's *really* need to get the communication issues about this sort of thing in order. I think its perfectly fair and reasonable for a TOC to prosecute fare evaders but they really ought to make it far more clear exactly what you and cannot do and what the result of doing or not doing something is.

 

[34D]

There is no oath to swear. A statutory declaration is a written statement that must be signed in the presence of a Comissioner for Oaths.

This can be done for free in front of a magistrate at a court, or you can pay a solicitor (most of are also Commissionaires for Oaths).

This is incorrect as per my own experiences of swearing statutory declarations before a Magistrate.

Do you have any actual experience of the issue yourself?

 

[Fare-Cop]

I have to say, although we all know 'better' the signage posted is ambigious and does give the distinct impression that if you stay in 1st without the right ticket, it's penalty fare, not prosecution, that will result.

TOC's *really* need to get the communication issues about this sort of thing in order. I think its perfectly fair and reasonable for a TOC to prosecute fare evaders but they really ought to make it far more clear exactly what you and cannot do and what the result of doing or not doing something is.

I couldn't agree more, however the vast majority of customer relations managers seem to find the idea of actually stating the rules in clear language somehow 'threatening' and therefore not 'customer friendly'.

Personally, I have no idea why anyone should feel threatened by being correctly informed.



--- old post above --- --- new post below ---

This is incorrect as per my own experiences of swearing statutory declarations before a Magistrate.

Do you have any actual experience of the issue yourself?

A Statutory Declaration is a 'declared statement of fact' and can be witnessed by any Justice of the Peace, Commissioner for Oaths, Solicitor with current practising certificate, Notary Public or any other authorised person.

The statement must contain the following wording:

“I (name of person making statement) do solemnly and sincerely declare, that (details of statement being made) and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1835.”

As Michael says, it is not necessary to swear an oath, but I have personally observed at least one Legal Advisor in a Magistrates Court ask a person wishing to make a Statutory Declaration to do so.

So far as I can see, if that person declined to affirm or swear an oath, it would not make the Statutory Declaration any less valid under the rules in force.

The penalty for making a false statement on a Statutory Declaration form may be a conviction for an offence of Perjury and can include a term of imprisonment.

 

[michael769]

Do you have any actual experience of the issue yourself?

Yes....