Applied railcard discount wrongfully

[twalcott]

Hello everyone,

I ran into some trouble recently: I started my journey from London Blackfriars to Brighton - I travelled with a discounted ticket from London Blackfriars to Brighton, knowing that I am not entitled to a discount: I don't have a railcard and I am above 25.

I know it's bad and that I should not have done it, however tough financial circumstances have forced me to make this unintelligent choice.

It was only when I got caught by the Revenue Protection Officer that I realised that I was committing a criminal offence. At first I was baffled - I replied to the officer's questions promptly and honestly, and of course gave him my name and contact details.

So I've been written down by the officer as wanting to deliberately avoiding to pay the right fare.

I had bought a return day ticket with the discount, and the officer took away the return ticket. He then gave me a paper slip to allow me to exit the station but did not give me anything else.

I have been on the phone with a solicitor. She gave me some sound advice on how to reply to their initial correspondance (a notice of prosecution I think was the term she used):

1. I have been out of work for three months and this is my second week at this new job in a major international financial firm - my financial situation is pretty dire (bank account has defaulted because of student loan payment, living on the last two hundred pounds on other account) and needless to say, a criminal record for a first time offender would have disastrous consequences on my ability to progress within this firm and travel abroad for both personal and professional purposes. I might even lose this job as my firm carries out checks regularly.

2. I was told to emphasise that I was a first-time offender and that I had not been cheating long (only three return journeys had been done in total using the discount).

3. According to the solicitor, the train company here is not known to prosecute systematically, so I hope that if I write a good statement upon receiving the notice of prosecution, I can write a letter that will appeal to them to not prosecute. Paying a fine is what I deserve, but I feel that a criminal record is very disproportionate... The solicitor told me I had good chances if I wrote a long apology letter, and also explained why I did it, and how a criminal record could have enormous negative impact of my situation.

What do you think? I'd love to have your thoughts on what she said. I will definitely not plead guilty and I definitely don't have the means to afford a solicitor...

 

[bb21]

I hope you didn't pay for that advice. We could have told you all that for free.

Except, what's with the "only three return journeys had been done in total using the discount" bit? Have you been caught before? Did you admit to having done this three times when questioned?

 

[TheEdge]

First of all I shall approach this like the prosecutions department and ignore all the boring irrelevant waffle about student loads, defaulting, money and jobs.

You have knowingly defrauded the railway and committed a criminal offense. If, like bb21 asks you already admitted to doing this more than once you can most likely kiss goodbye to any chance of an easy end to this. Directly addressing your points;

1. That's all utterly irrelevant. The railway doesn't care about that at all. You should have thought about that before you did this.

2. If you have admitted to doing it three times as per your solicitors instruction then you really have dropped yourself deep in it. TOCs tend to go easier of first offenses, assuming that's what this is...

3. There are no guarantees about what the TOC may or may not do but whatever the outcome it will be a damn sight more expensive than the 33% discount you tried to get yourself. Best outcome, they accept an out of court settlement from you, expect that to be several hundred pounds at the very very least. If they refuse a settlement and bring charges under the railway byelaws expect a fine of several hundred pounds plus a non-recordable criminal record that is instantly spent. (it doesn't show on a normal check, some debate to how it appears on more detailed checks) Worst case, they bring a prosecution under the Regulation of Railways Act (RoRA), several hundred pounds of fines and a recordable criminal record.

You could be charged under the RoRA and it would be a simple conviction but is slightly harder to achieve from the TOCs point of view, although admitting to the RPI you were avoiding the fare has made is easier for them. A byelaw conviction would be 100% successful.

FWIW you feeling a criminal record is disproportionate is another irrelevance. You defrauded the railway, its a criminal offence and carries a criminal record.

 

[DelayRepay]

The solicitor told me I had good chances if I wrote a long apology letter, and also explained why I did it, and how a criminal record could have enormous negative impact of my situation.

I think the other replies have covered the main points, but for what it's worth I would keep the letter short and to the point. Remember the TOC Prosecutions Department will receive dozens of similar letters and don't really want to read pages of sob-story.

I'm sure someone here will proof read the letter if you ask.

 

[Fare-Cop]

I would forget about the likelihood of a prosecution for non-recordable Byelaw offence if I were you

You will be better employed in focussing your mind on trying to persuade the TOC to allow an out of Court disposal, which if successful, is likely to cost you a three figure sum. An unnecessarily long letter is not likely to help either. Padding it out with irrelevance and repetition is not going to improve things. Do be accurate, fully apologetic and remorseful if you expect it to stand a chance of success

The alternative appears to be you will be charged with intending to avoid the correct fare due contrary to Section 5(3)(a) of the Regulation of Railways Act (1889)

Byelaw 18.1 is unlikely - you did buy a ticket before travelling albeit the wrong one so they will not want any argument about the wording of the charge
Byelaw 18.2 is not going to succeed - you did show a ticket when asked, but again it was invalid

Ministry of Justice guidance to prosecutors makes clear that the most appropriate charge in these circumstances is the RoRA S.5 offence

If you are unsuccessful in trying to convince the TOC to allow settlement the most likely charge will be the much more serious matter of 'intending to avoid the correct fare'.

bb21 and The Edge are right, the TOC will not be interested in your 'sob story', you need to concentrate on attempting to persuade the TOC that you understand that this is a very serious matter, that you are genuinely remorseful and that you can make an immediate & substantial financial recompense to make it worth their while not issuing a summons to Court.

 

[PauloDavesi]

If the OP had been registered as unemployed, the DWP would have provided funds to cover his/her travel to work for the period until the first salary is received. I wonder why the OP did not make use of such funding?

 

[Fare-Cop]

If the OP had been registered as unemployed, the DWP would have provided funds to cover his/her travel to work for the period until the first salary is received. I wonder why the OP did not make use of such funding?

Am I the only person wondering if a person who commits such a deliberate fraudulent act is suitable to be working for a "major international financial firm"?

I absolutely agree, but perhaps the OP was unaware of the social help that might have avoided this matter

A good first step would be to show the TOC that you are now purchasing weekly tickets, or given the declared financial circumstances, perhaps your firm will be prepared to assist with a loan for a longer period season ticket, paid for by salary deductions.

It's no good just telling the TOC that you are doing so, a clear photocopy of your weekly or period season, sent with your letter as evidence will have far greater effect.

 

[twalcott]

I hope you didn't pay for that advice. We could have told you all that for free.

Except, what's with the "only three return journeys had been done in total using the discount" bit? Have you been caught before? Did you admit to having done this three times when questioned?

No I didn't pay for advice.
Not been caught before, and didn't tell officer about previous times. So this is definitely a first time offence.

First of all I shall approach this like the prosecutions department and ignore all the boring irrelevant waffle about student loads, defaulting, money and jobs.

Ok I shall not emphasise on this on letter then, but I respectfully disagree. It's wrong but I did what I had to do to earn my living. It was either this or not go to work. But I won't insist on this point since the consensus it that TOC do not care.

I think the other replies have covered the main points, but for what it's worth I would keep the letter short and to the point. Remember the TOC Prosecutions Department will receive dozens of similar letters and don't really want to read pages of sob-story.

I'm sure someone here will proof read the letter if you ask.

bb21 and The Edge are right, the TOC will not be interested in your 'sob story', you need to concentrate on attempting to persuade the TOC that you understand that this is a very serious matter, that you are genuinely remorseful and that you can make an immediate & substantial financial recompense to make it worth their while not issuing a summons to Court.

Understood, really appreciate the practical advice and offer.

I absolutely agree, but perhaps the OP was unaware of the social help that might have avoided this matter

[...]

It's no good just telling the TOC that you are doing so, a clear photocopy of your weekly or period season, sent with your letter as evidence will have far greater effect.

I'll keep the receipts - regarding social help, I am not a UK citizen so I probably don't have access to that and I was not in a situation to be asking for financial help at the time. It seemed that asking for hundreds of pounds of public money was unnecessary and wasteful.


----

The solicitor also told me to mention temptation - what's your opinion?
Thank you all very much for your input!

 

[najaB]

So this is definitely a first time offence.

You mean it's the first time you got caught. It was illegal the other times as well.

Ok I shall not emphasise on this on letter then, but I respectfully disagree. It's wrong but I did what I had to do to earn my living. It was either this or not go to work. But I won't insist on this point since the consensus it that TOC do not care.

It doesn't hurt your case, but it really doesn't help it that much either. You do not need any more than one sentence that explains why you did it.

On the other hand, had I known it was a criminal offence I'd never would have tried it.

What's that old saying? Oh yeah, ignorance of the law is no excuse. So please don't include that in your letter.

The solicitor also told me to mention temptation - what's your opinion?

As above - it won't hurt, but actually doesn't help your case that much.

As said above your reply needs to get four points across:

1. That you recognise and admit that your actions were wrong.
2. That you now know that it was an offence and will never do it again.
3. That you understand that fare evasion costs them money and puts fares up for other passengers.
4. That you want to pay the outstanding fare and contribute to the costs they've incurred dealing with the matter, rather than add to their workload by taking the matter to court.

You may well be able to reach an agreement to close the matter without involving the Courts.

 

[twalcott]

You mean it's the first time you got caught.

However, TOC has no evidence of other offences. And there is actually nothing that suggests that the behaviour is a prolonged habit, because it isn't. My line of defence is that I only very recently started this new job (less than one week).

As said above your reply needs to get four points across:

1. That you recognise and admit that your actions were wrong.
2. That you now know that it was an offence and will never do it again.
3. That you understand that fare evasion costs them money and puts fares up for other passengers.
4. That you want to pay the outstanding fare and contribute to the costs they've incurred dealing with the matter, rather than add to their workload by taking the matter to court.

You may well be able to reach an agreement to close the matter without involving the Courts.

That's very helpful, thank you.

 

[ainsworth74]

For further discussion of DWP and support for Jobseekers that have just started work please see this thread. That will leave this thread clear for the OP.

 

[ainsworth74]

Whether or not it is right or fair that fare evasion is a criminal offence is off topic. If anyone wishes to discuss this please do so on a new thread. Posts in this section should be solely focused on assisting the OP to come a resolution with the railway with their issue.

I have edited a few posts that started taking off topic and removed a few posts that referred to that deleted content.

If we can now focus on what the OP needs to do in relation to resolving this issue with the railway that would be excellent.

 

[twalcott]

^No problem.

I'll come back once I have received the notice of prosecution and have drafted my statement. Apologies for the digression.

 

[ainsworth74]

No worries and we'll be happy to assist further at that time!

 

[twalcott]

Should I mention the nature of my job and how a criminal conviction could make me lose my job and future career prospects? It seems like a valid argument, used by many people in the same situation.

 

[Clip]

Should I mention the nature of my job and how a criminal conviction could make me lose my job and future career prospects? It seems like a valid argument, used by many people in the same situation.

No. It will have no bearing on how the TOC decides to go with this.

 

[ainsworth74]

If you wish to feel free however I fear, as Clip has stated, that it will have no bearing on how they decide to proceed. Far more important are the points that najaB raised:

As said above your reply needs to get four points across:

1. That you recognise and admit that your actions were wrong.
2. That you now know that it was an offence and will never do it again.
3. That you understand that fare evasion costs them money and puts fares up for other passengers.
4. That you want to pay the outstanding fare and contribute to the costs they've incurred dealing with the matter, rather than add to their workload by taking the matter to court.

 

[TheEdge]

As said several times already the railway doesn't care whatsoever about anything that isn't directly related to the ticket issue.

The advice from najaB is what you need to be following, nothing else. The people dealing with this have heard every sob story ten times over and don't care about them. Although, bonus points for not being a doctor, lawyer or moving to the USA, those are the normal sobs we see here!

 

[furlong]

Should I mention the nature of my job and how a criminal conviction could make me lose my job and future career prospects? It seems like a valid argument, used by many people in the same situation.

Yes, do consider this, just as the solicitor suggested.

For insight into how another train operating company, Northern, viewed an issue like this in 2013, read the first couple of pages of this document.

What is the impact on the defendant if convicted?

we sense and witness the reluctance of Magistrates to convict

 

[DaveNewcastle]

I think that three separate considerations are being conflated here.
1. A defendant's particular circumstances will be considered by the bench of a Magistrates after a conviction, and before determining the sentence.
2. Some benches (i.e. the Courts in some towns) are more likely to find for a private prosecutor and with a byelaw offence, than others. The variation across England may surprise some on here.
3. A defendant's particular circumstances and 'excuses' are completely irrelevant to a decision by the Court to find the Defendant 'guilty' or 'not guilty'. (It is arguable that they may have some bearing on a Prosecutor's consideration whether or not to take a matter forward for prosecution, but in view of the overwhelming number of suspects with 'excuses', that is unlikely to have significant leverage).

Hope this helps untangle some of the opinions in here. (But it's not just here that these are confused. Only today, the Lord Chief Justice of E&W was angered at a Defendant's Counsel persistently missing the distinction [Solicitor General v Cox & anr.])

 

[Clip]

Yes, do consider this, just as the solicitor suggested.

For insight into how another train operating company, Northern, viewed an issue like this in 2013, read the first couple of pages of this document.

Im sorry but I cant see anything in there that shows a persons circumstances give weight to a prosecution outcome. Have I missed something?

 

[DaveNewcastle]

Im sorry but I cant see anything in there that shows a persons circumstances give weight to a prosecution outcome. . . .

I agree that the Northern Rail policy document has no bearing on Court procedure - as I tried to clarify above, a suspect's circumstances may have some influence on a Prosecutor's decision to proceed to trial.

The prudent Prosecutor will always be mindful of the accused's ability to pay, and perhaps a private prosecutor will be more sensitive to this than the public Prosecutor. But the extent to which a Court might be sensitive to the impact of a sentence on a suspect before reaching a decision is more difficult to assess. A vexatious prosecution or a malicious prosecution can be terminated, but a sensitivity to the impact of a suspect's sentence is not a proper consideration for a Magistrate's Court while deciding the suspect's guilt. Only in Sentencing.

The procedure adopted when taking a matter forward for prosecution is detailled in the Criminal Procedure Rules (CrimPR), and Section 24.3 outlines the sequence of representations, and does provide a Defendant with the opportunity to "make final representations in support of the defence case"; it is this opportunity which all too often includes all the excuses which the bench isn't expected to take into consideration in reaching their decision.

 

[twalcott]

The consensus seems to me that using the professional circumstances as an argument is useful only when being prosecuted.

I won't mention it. I suspect the TOC will think I'm using that as an excuse to avoid prosecution too conspicuously.

On the other hand, should I try and explain (very briefly, in one sentence) why I did it? Is that something the TOC will be sensitive to? I'm afraid that just apologising, even profusely, will seem superficial and generic.

 

[najaB]

On the other hand, should I try and explain (very briefly, in one sentence) why I did it? Is that something the TOC will be sensitive to? I'm afraid that just apologising, even profusely, will seem superficial and generic.

As I mentioned above, mentioning it very briefly won't hurt your case.

 

[ian959]

Should I mention the nature of my job and how a criminal conviction could make me lose my job and future career prospects? It seems like a valid argument, used by many people in the same situation.

Playing devil's advocate, if I was sitting in the prosecutions office and get a bleating letter about how this could impact my career prospects, my first reaction would be: so why did you do it, if it would have that much impact on your career? Sit back and think: what would you think if you got such a letter, especially knowing that you had NO right to the discount you claimed?

 

[najaB]

Sit back and think: what would you think if you got such a letter, especially knowing that you had NO right to the discount you claimed?

That's why it should be no more than a sentence and tied in to the second point of the four I mentioned above.

 

[Panda]

I am not sure you get the point of it. You need to understand it first before attempting to write a letter. You seem to be looking for excuses and reasons why you were the victim here.

You have said that you were forced to do this through circumstances and that you had to do this.

You also say that it's wrong, but you keep trying to justify your actions as if it was right.

By apologising, you are admitting that you made a mistake. All your justifications and excuses simply make it seem like you still believe what you did was right and that you would do it again.

(And you definitely had other options - a coach may take longer and you might have to get up earlier, but it is much cheaper.)

 

[twalcott]

I'm not trying to pass off as a victim or find excuses. It's about showing true motives – not seem like a guy who ripped off the rail company just for the sake of it.

When travelling at peak time on first journey, I realised this was financially unsustainable (yes I know, TOC won't care). Travelling off peak did not seem like a possible solution with work hours but now I have no choice.

Regarding buses: the bus to arrive at a decent time is not only insanely early but the journey is longer than during day travel. And I did check before taking the train, a return off peak journey on train is still cheaper and faster than a return bus journey.

 

[JamesRowden]

Could you get a house share in Brighton? Unless of course it was your return journey which you were caught on.

 

[twalcott]

Could you get a house share in Brighton? Unless of course it was your return journey which you were caught on.

Couldn't afford to put down a deposit right now. Plus as long as I am on trial period, moving is out of the question as there are much more job opportunities in London in case this fails.