EM2
Established Member
Thanks Dave, that makes sense. Although FCC not presenting evidence doesn't!
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RoRA S5: Discussion around 'without having previously paid his fare'
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DaveNewcastle
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I haven't discussed this with them, but it seems very safe to make this assumption:-
FCC as the respondent to the Appeal, had fully grasped that the actual charge of 'failing to present his ticket for inspection' which the lower Court had convicted, could not be sustained with any evidence or argument. When there is no reasonable prospect of succeeding in an Appeal, there is no point in presenting any evidence - not even much point in attending the Court unless there is going to be a costs order to discuss.
[I often see Appeals where the respondent gives no evidence - the most significant I recall was 2 or 3 years ago where there was a very serious allegation against one of England's larger police forces, including collusion, rape, corruption, failure to disclose evidence etc., heard in the highest Criminal Court of the land by the Lord Chief Justice and 2 other senior criminal appeal Judges. The respondent didn't even attend, they just sent a note-taker who didn't have a "right of audience" to speak in Court. As you can imagine, the Lord Chief Justice was furious at the force for the waste of time and incompetence of its legal team in allowing the matter to reach the highest Court and then not sending anyone to present any evidence, explanation or even an apology]
The moral of this tale is surely :- when we know we're wrong, don't pretend otherwise or make excuses. Accept failure and accept the consequences of failure.
DaveNewcastle
Established Member
Where I think you are struggling is in overlooking an overarching principle of law in action. Its a Constitutional principle. An Act can't be crititised for "criminalises having paid the fare but not showing a ticket" because Acts of Parliament cannot 'criminalise' anyone. Only the Judiciary can do that, a Judiciary which is constrained by Statutes, common law, other precedents and procedure rules which include a raft of rights and principles (i.e. jurisprudence), but in Criminal cases, that menu of constraints include the rights of citizens to defend themselves with Evidence which refutes an accusation of an Offence.
So, the distinction I'm trying to illustrate to you is between, on one hand, the text of an Act, which merely outlines Parliaments intentions in defining offences, and on the other, the duty of Courts to test the Evidence of cases brought forward for prosecution against that body of jurisprudence which only after adhering to the proscribed procedures, can determine that a citizen is a 'criminal'.
In the present example, the Act does appear to capture the circumstances which were reported by the Company. But crucially, the evidence appears to suggest that the offence was not committed (i.e. that a crime was not committed). This dichotomy arises every day across all aspects of Criminal Law - people's actions appear to fall within the scope of an Act of Parliament, but, on investigation, the Evidence doesn't sustain that appearance.
The popular shorthand for all this is to say that a UK citizen is 'innocent until proven otherwise'.
And that 'the burden of proof is on the accuser'.
And that the standard of evidence in Criminal cases is 'beyond reasonable doubt'.
Does this help with your understanding ?
No it's not clear at all because the people posting have got confused over the 1889 sec 5 offence and the a possible bye law offence. As I have said no offence has been committed under the railways act 1889 section 5 because he gave his name and address everthing else is irrelevant because he compiled with the requirements of sec 5. Go and read the act and you will see he has complied with the law. All three sections allow for the giving of a name and address as a defence.
Here is the act: in order to be convicted you must have failed to comply to excatly what is stated. He complied by giving his name and address.
(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 [F1level 1 on the standard scale][F2[F3level 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 [F4or fails] on request by an officer or servant of a railway company, to give his name and address, any officer of the company F5. . . 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,
Puffing Devil
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They do not.
S 5(3)(c) establishes the penalty for providing a false name or address
S 5(3)(a) deals with travel with intent to avoid payment
S 5(3)(b) is over travelling
You don't drop through the sections of the act as an IF..THEN..ELSE flowchart, each section stands in its own right.
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Section 1 is satisfied because he give his name and adresse. Quote: Or give the officer or servent his name and adress.End quote. Which he did. So no offence there.
Section 2 is satisfied because he gave his name annd address. Quote: On request by an officer or servant of a railway company to give his name and address end quote. He gave his name and address. So no offence there.
Section 3 is satisfied because he had previously paid his fare by having a season ticket. Quote:Travels or attempts to travel on a railway without having previously paid his fare end quote. He did not attempt to travel without previously paying his fare. So no offence there.
Here is a copy of RORA 1889 sec 5. All three sections have provisions for the giving of a name and address as a defence.
(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 [F1level 1 on the standard scale][F2[F3level 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 [F4or fails] on request by an officer or servant of a railway company, to give his name and address any officer of the company F5. . . 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 [F6level 2 on the standard scale][F2[F7level 3 on the standard scale]], or, in the case of a second or subsequent offence, either to a fine not exceeding [F6level 2 on the standard scale][F2[F7level 3 on the standard scale]], or in the discretion of the court to imprisonment for a term not exceeding [F8three months].
END.
In this case the provision to allow a name and address to be given is a defence against prosecution for offences under sections 1 and 2.
The defence under section 3 is that the fare had been paid previously by way of a season ticket.
As a result I fail to see how a conviction could be secured under this RORA 1889 sec 5.
I am happy for someone to explain why the above does not establish a defence unless I have read the evidence from the OP wrong?
Section 2 is satisfied because he gave his name annd address. Quote: On request by an officer or servant of a railway company to give his name and address end quote. He gave his name and address. So no offence there.
Section 3 is satisfied because he had previously paid his fare by having a season ticket. Quote:Travels or attempts to travel on a railway without having previously paid his fare end quote. He did not attempt to travel without previously paying his fare. So no offence there.
Here is a copy of RORA 1889 sec 5. All three sections have provisions for the giving of a name and address as a defence.
(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 [F1level 1 on the standard scale][F2[F3level 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 [F4or fails] on request by an officer or servant of a railway company, to give his name and address any officer of the company F5. . . 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 [F6level 2 on the standard scale][F2[F7level 3 on the standard scale]], or, in the case of a second or subsequent offence, either to a fine not exceeding [F6level 2 on the standard scale][F2[F7level 3 on the standard scale]], or in the discretion of the court to imprisonment for a term not exceeding [F8three months].
END.
In this case the provision to allow a name and address to be given is a defence against prosecution for offences under sections 1 and 2.
The defence under section 3 is that the fare had been paid previously by way of a season ticket.
As a result I fail to see how a conviction could be secured under this RORA 1889 sec 5.
I am happy for someone to explain why the above does not establish a defence unless I have read the evidence from the OP wrong?
Because you're reading it wrong. The requirement is to show your ticket on request, or to pay your fare on request, or provide your name and address on request. Failing to do any of them puts you foul of the law. It doesn't say fail to show your ticket and fail to pay your fare and fail to give your name and address.
Simple really.
Sorry but you have got that completely wrong 100%.
The law is you only have to do one of those three things in order not to have committed an offence.
1 provide a ticket for your journey or
2 pay for a ticket for your journey or
3 give your name and address.
It's called three fails.
That means you have to fail ALL three to have committed an offence.
Think of it like this. If you were correct(which you are not) everyone traveling on a train would have to not only produce a ticket for their journey,they would also have to give their name and address as well as purchase a ticket otherwise they would be committing an offence.
You have interpreted the law wrong.
In that case, so have the Courts.
With respect, people have been found guilty of RoRA act offences despite giving name and address so Magistrates are also interpreting the law incorrectly.
"Every passenger shall on request..."
I do find it surprising how much confusion there is around this.
The phrase '3 fails', which I believe some people may be getting confused with allows for a different action on behalf of the inspector. I'll come back to explain that in a moment.
It is the above interpretation that is incorrect, falcon has it wrong
To be considered guilty of an offence under S.5(3) of RoRA [1889] a traveller does NOT need to have failed all three of the numbered clauses to have committed an offence.
All that needs to be evidenced to report an offence are the following:
a) the traveller could have paid their fare before travelling
b) the traveller did not hold a ticket and had not previously paid their fare
c) the traveller intended to avoid paying, or intended to pay that fare only if they were asked to do so
The most commonly referred to Appeal Court ruling is that involving Piers Corbyn (1978).
He was convicted on 42 counts of intending to avoid his fare and he had given his correct name and address in every case prior to being reported.
An inspector who genuinely believes that a traveller intended only to pay if asked, or caught out in some way, is perfectly entitled to report that allegation and is not obliged to ask the traveller to pay the fare before doing so.
It will be for the Court to decide on the evidence presented whether the inspector's evidence and the case put by prosecutor have proven the offence, or, whether the defendant been successful in rebutting that allegation
The Act is clear in its' wording, Section 5 says '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
It does NOT say 'rail staff must request the fare'.
To return to the point about '3 fails' that is often referred to by RPIs, this relates to S.5(2) of RoRA [1889] and it is this section that requires all three failures to allow the rail staff an authority to 'detain him until he can be conveniently brought before some justice or otherwise discharged by due course of law.'
This is something that is very, very rarely done nowadays, but BTP would be asked to effect the arrest if it proved necessary.
The phrase '3 fails', which I believe some people may be getting confused with allows for a different action on behalf of the inspector. I'll come back to explain that in a moment.
It is the above interpretation that is incorrect, falcon has it wrong
To be considered guilty of an offence under S.5(3) of RoRA [1889] a traveller does NOT need to have failed all three of the numbered clauses to have committed an offence.
All that needs to be evidenced to report an offence are the following:
a) the traveller could have paid their fare before travelling
b) the traveller did not hold a ticket and had not previously paid their fare
c) the traveller intended to avoid paying, or intended to pay that fare only if they were asked to do so
The most commonly referred to Appeal Court ruling is that involving Piers Corbyn (1978).
He was convicted on 42 counts of intending to avoid his fare and he had given his correct name and address in every case prior to being reported.
An inspector who genuinely believes that a traveller intended only to pay if asked, or caught out in some way, is perfectly entitled to report that allegation and is not obliged to ask the traveller to pay the fare before doing so.
It will be for the Court to decide on the evidence presented whether the inspector's evidence and the case put by prosecutor have proven the offence, or, whether the defendant been successful in rebutting that allegation
The Act is clear in its' wording, Section 5 says '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
It does NOT say 'rail staff must request the fare'.
To return to the point about '3 fails' that is often referred to by RPIs, this relates to S.5(2) of RoRA [1889] and it is this section that requires all three failures to allow the rail staff an authority to 'detain him until he can be conveniently brought before some justice or otherwise discharged by due course of law.'
This is something that is very, very rarely done nowadays, but BTP would be asked to effect the arrest if it proved necessary.
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DaveNewcastle
Established Member
[EDIT - I was writing this simultaneously with Fare-Cop writing the above! with which I agree.]
Section 5(3) does NOT 'allow for the giving of a name and address as a defence'.
Section 5(3) captures 3 unconnected actions by a passenger or intended passenger, 5(3)(a) or 5(3)(b) or 5(3)(c).
Where any one of these three is proved, the offence is complete.
Where there is a connection, it is in the 'failure to pay his fare', which is captured in 5(3)(a) when it is combined with 'an intent to avoid payment' and in 5(3)(c) where it is combined with providing a false name and address when these are requested.
But, crucially, if a fare is not paid and there is evidence of intent to avoid payment, then providing a correct name and address does not undermine a prosecution and conviction.
In the example of the passenger claiming to have a season ticket but who is unable to provide it at the time of travel, but who is able to provide it subsequently in a timely manner and demonstrates some grounds for confidence that it was not being used by another person at the time, then the evidence would be weak in securing a prosecution. This flows from the policy of interpreting 5(1) to allow extended time for the production of the season ticket and in being an event occurring only once or twice a year.
If the passenger claiming to have a season ticket is unable to provide it subsequently, perhaps because the claim was untrue in some respect, then the evidence would be strong in securing a prosecution. The name and address would be immaterial to proving the offence, though may, of course, be relevant in serving a summons.
This is incorrect.
Section 5(3) does NOT 'allow for the giving of a name and address as a defence'.
Section 5(3) captures 3 unconnected actions by a passenger or intended passenger, 5(3)(a) or 5(3)(b) or 5(3)(c).
Where any one of these three is proved, the offence is complete.
Where there is a connection, it is in the 'failure to pay his fare', which is captured in 5(3)(a) when it is combined with 'an intent to avoid payment' and in 5(3)(c) where it is combined with providing a false name and address when these are requested.
But, crucially, if a fare is not paid and there is evidence of intent to avoid payment, then providing a correct name and address does not undermine a prosecution and conviction.
In the example of the passenger claiming to have a season ticket but who is unable to provide it at the time of travel, but who is able to provide it subsequently in a timely manner and demonstrates some grounds for confidence that it was not being used by another person at the time, then the evidence would be weak in securing a prosecution. This flows from the policy of interpreting 5(1) to allow extended time for the production of the season ticket and in being an event occurring only once or twice a year.
If the passenger claiming to have a season ticket is unable to provide it subsequently, perhaps because the claim was untrue in some respect, then the evidence would be strong in securing a prosecution. The name and address would be immaterial to proving the offence, though may, of course, be relevant in serving a summons.
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I'm not sure there is anything to add to what has been said by DaveNewcastle and Fare-Cop (who both speak from a position of great experience on the matter) other than to say that if RoRA S.5 did work in the way that falcon suggests I wonder why no enterprising solicitor has used such a defence successfully either in court or to appeal a judgement against a client?
I agree section 3 does not have a defence for giving a name and address that is sec 1 and 2.
I did state later in that post that the defence under section 3 was the fact that he had previously paid the fare by having a season ticket.
So therfore NO offence has been committed under RORA 1889 sec 5.
One can speculate on event like inability to produce a season ticket at a later or other matters as much as one likes. The facts are that the evidence as posted by the OP can only give rise to the fact there is no offence under RORA 1989 sec 5.
Certainly most people on this forum have experince and can read the RORA 1889 sec 5 and it as clear as bell that the wrong thing is being done in trying to prosecute someone for leaving a season ticket at home. It is something that happens quite frequently on the railway.
It migh be a solicitor has put a successful defence (I don't know why in the circumstance the OP has stated he would have to). We are not privy to what goes on in all the magistrates courts in the UK.
Regardless of speculating on other cases.
I have just looked at the evidence from the OP and then read the RORA 1889 sec 5 act and it is as plain as day there is a defence under all three sections. As I have stated in detail earlier.
You are able to read it, go and read it and see if the critira has been satisfied for yourself (it's only the english language).
Did the OP give his name and address and had he previously paid his fare?. Yes he did and he had.
I really don't see any confusion at all.
EM2
Established Member
Well Dave would be, because it would become case law and thus enshrined, as have the cases that he has already referred to.
Whether Dave has refered to case law or not is not relevant in this case.
Each case stands on it's own.
I would expect that most people can read the RORA sec 5 and understand plain english.
Here it is again with the defences pointed out for anyone to read.
If some one is called to court this is the offence that is read out to the accussed.
He pleads guilty or not guilty to the words as stated in this offence.
The person is not guilty of any offence under the RORA sec 5 the defences are highlighted in red.
Might I enquire what your legal qualifications are?
EM2
Established Member
I didn't say that it was.
Your assertion was that 'We are not privy to what goes on in all the magistrates courts in the UK.'. Solicitors are, that is their job.
BestWestern
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He was however unable to provide evidence of having paid the fare at the point of travel, was therefore obliged to provide payment at that time, and was unable to do so. Offence therefore committed, question is perhaps whether following the forgotten season procedure would have overridden that offence. Sadly he failed to follow any procedures relating to a forgotten season ticket and invited ATW/TIL to pursue the matter in court, which they have duly progressed accordingly.
I could tell you anything.
I'd appreciate an honest answer. But if that's too much bother.
EM2
Established Member
From the Crown Prosecution Service:
https://www.cps.gov.uk/legal-guidance/transport-offences
In other words, 'did the passenger do the first thing, or did they do the second thing, or did they do the third thing?' Not 'did they do all of the things?'.
I am sorry I don't know what your point is.
If it is over the definition of the three fails rule there has been some confusion over how it is applied at various points in this thread.
It has been cleared up and the confusion was an tangential to the main point of an offence under the RORA.
The position has been clarified in post number 50# by myself to show no offence has been committed by the OP. All three sections have a defence.
If you feel that you have logical reasoned argument in favour of prosecution and can show why an offence has been commmitted please post I am more than happy to read it.
Perhaps you should explain that to the countless magistrates who have convicted despite the defendant giving their name and address.
EM2
Established Member
I don't have to show it. Solicitors and the CPS already have done.
DaveNewcastle
Established Member
Such a 'defence' would indeed require 'evidence'. The appropriate 'evidence' for 'having paid his fare' would be a ticket, presented on request. That evidence is strikingly absent, therefore the 'defence' is unsubstantiated.
Any prosecution requires the 'evidence' (which as you rightly claim) is particular to each case, and it also requires 'authorities' (from the body of prior judgements) which gives clarity over how the statute is to be applied in all those cases. As Fare-Cop notes, the leading authority on RoRA S5 is in Corbyn v Saunders which gives some help in how the word 'intent' is to be read from the Act ("There is no reason to import into the RoRA 1889 S.5 the word “permanently”) and it is even more salutory to understand the judgement in Browning v Floyd because it is in there that the phrase 'intent to avoid payment' is given a less powerful interpretation than in common speech ("Intent to defraud does not matter.").
A Court would also be required to look at the broader scope of the interpretation of the word 'intent' from Section 8 of the Criminal Justice Act and a raft of judgements analysing and clarifying how a Court is to consider any evidence of 'intent' (including Denning LJ who confirmed that a Court "is not required to look into the mind" of an accused. but must infer 'intent' "from their actions and words").
So, no, each case does not stand on its own. It is a fundamental principle of UK Law that the decisions of the higher Courts are incorporated into the body of Jurisprudence which applies to all Courts thereafter. That's why Courtrooms and Law firms' offices are lined with Law Reports and bound copies of historic judgements, and is why it is often said that a law firm is as good as its librarian.
Additionally, Courts are bound by the Criminal Practice Directions, a large body of regulations and procedures, which includes many rules regarding 'evidence'.
The lack of ticket is the hurdle you have to overcome in your analysis. It's apparent from the correspondence quoted and the OP's posts that the ticket had not been presented to the investigating office by the time of their last posting. A Byelaw exists to require it to be produced on demand (2005 Railway Byelaws - Byelaw 18) and if the ticket isn't subsequently presented, then the passenger would have fallen within the scope of that Byelaw.
You might be surprised if you knew the qualifications and experience of some of the people who have already contributed their knowledge to this thread.
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