Thameslink Notice of intention to prosecute

[Haywain]

I've now managed to breathe properly, take a step back, stop panicking, spoken to TFL and have re-drafted my reply - I would love more of your super helpful feedback!

<snip>

I don't think this letter will elicit the sort of response you are hoping for. It's too long (and difficult to follow) and you are pushing the blame elsewhere without any acknowledgment that GTR are out of pocket through no fault of their own.

 

[Nettan]

I don't think this letter will elicit the sort of response you are hoping for. It's too long (and difficult to follow) and you are pushing the blame elsewhere without any acknowledgment that GTR are out of pocket through no fault of their own.

I'm not sure how to not push the blame, as the blame does not sit with me. I'm trying to explain what happened. Any suggestions to how I can change this very welcome.

I've put a few suggestions and corrections of typos in above: I hope it's clear what I'm trying to suggest.

I think before sending your letter, it's important to think why the card was marked as 'surrendered' on 28 January 2021: if GTR come to the conclusion that you should have known that the card was surrendered then they could also come to the conclusion that you should also have known that the Oyster card wasn't valid after that date.

Thank you, much appreciated, I've made some changes. It's so good to get more eyeballs on. I see what you mean about the sentences.
And I have no idea why the card was marked as surrendered, I really don't. I'll call TFL back and see if they can shed some light. But obviously if I'd know I would not have used it.

 

[WesternLancer]

I'm not sure how to not push the blame, as the blame does not sit with me. I'm trying to explain what happened. Any suggestions to how I can change this very welcome.


Thank you, much appreciated, I've made some changes. It's so good to get more eyeballs on. I see what you mean about the sentences.
And I have no idea why the card was marked as surrendered, I really don't. I'll call TFL back and see if they can shed some light. But obviously if I'd know I would not have used it.

Could you explicitly state at some point that you have never made a request for the card to be 'surrendered' or some such to make it clear that it is no action you have taken.

Is it worth offering to pay them the fare you owe (unless that was taken off the oyster card anyway) - ie not offer to pay any more than the fare you owe.

It seems a bit worrying to any other payg user that a card could become invalid part way through a journey.

 

[njr001]

You say that you spoke to TFL today and they told you that your card was surrendered on 28th January do you mean 28th January 2021 and does this mean you haven't used your Oyster card between January & October last year?

 

[Nettan]

Could you explicitly state at some point that you have never made a request for the card to be 'surrendered' or some such to make it clear that it is no action you have taken.

Is it worth offender to pay them the fare you owe (unless that was taken off the oyster card anyway) - ie not offer to pay any more than the fare you owe.

It seems a bit worrying to any other payg user that a card could become invalid part way through a journey.

It's really worrying that this happened, I could not agree more! And I am never using Oyster again. I've amended to state that I never requested the cancellation, and I'll offer to pay the grand sum of £2.50 which is what Thameslink are owed, if this has not already been taken off my cancelled Oyster when I tapped in. Thanks for the input!

 

[WesternLancer]

It's really worrying that this happened, I could not agree more! And I am never using Oyster again. I've amended to state that I never requested the cancellation, and I'll offer to pay the grand sum of £2.50 which is what Thameslink are owed, if this has not already been taken off my cancelled Oyster when I tapped in. Thanks for the input!

Good luck with this - I do hope you can keep us posted as the case seems to raise wider issues of note.

Occurs to me that depending on how they respond (and any other info from TfL about your card) it may be that you should try to elicit the help of London Travelwatch over this (IIRC they take up individual cases as the 'a passenger champion')

Homepage - London TravelWatch

London TravelWatch is the statutory transport watchdog for London. We work on behalf of the public to improve travel across the capital.

www.londontravelwatch.org.uk

FWIW I have oyster cards that I don't use from one year to the next (eg if I don't go to London that often, or if I go and have a different sort of ticket on that day I would not have cause to use them) but I would expect them to keep working if I did nothing between visits/uses. I think I found one last year that had not been used for 3 years or so.

 

[Nettan]

Thank you, and I will do. You guys have been so helpful.

 

[MikeWh]

You say that you spoke to TFL today and they told you that your card was surrendered on 28th January do you mean 28th January 2021 and does this mean you haven't used your Oyster card between January & October last year?

Whilst 2021 would be useful in future, at this point we haven't reached 28/01/2022 so it's a kind of moot point.

Now, apologies for not seeing this earlier, but the gap between cancellation and trying to use it again makes me suspect you may have stumbled upon an unintended consequence of TfL's system. When a card is cancelled remotely a record is set up to kill the card when it is next touched. This will use the faster universal load facility. Records only stay on FUL for a maximum of six months before being added to a background list. The background list is only consulted when a touch is received by the central system. Thus the bus journey will have been accepted and that will have triggered the transfer of the kill record to the active FUL list. That can take up to half an hour to be propagated to all gates etc, so it is possible that the touch in at Finsbury Park would also have worked. But by the time you came to touch out at Kings Cross the bullet will have been fired.

I'm trying to get further info from my contact at TfL.

 

[Nettan]

Whilst 2021 would be useful in future, at this point we haven't reached 28/01/2022 so it's a kind of moot point.

Now, apologies for not seeing this earlier, but the gap between cancellation and trying to use it again makes me suspect you may have stumbled upon an unintended consequence of TfL's system. When a card is cancelled remotely a record is set up to kill the card when it is next touched. This will use the faster universal load facility. Records only stay on FUL for a maximum of six months before being added to a background list. The background list is only consulted when a touch is received by the central system. Thus the bus journey will have been accepted and that will have triggered the transfer of the kill record to the active FUL list. That can take up to half an hour to be propagated to all gates etc, so it is possible that the touch in at Finsbury Park would also have worked. But by the time you came to touch out at Kings Cross the bullet will have been fired.

I'm trying to get further info from my contact at TfL.

AMAZING! Thank you, and yes, it sounds very much like that’s what must have happened. would you know / find out if any money would have been taken off the card for the train fare? I know the bus fare was taken.

 

[MikeWh]

AMAZING! Thank you, and yes, it sounds very much like that’s what must have happened. would you know / find out if any money would have been taken off the card for the train fare? I know the bus fare was taken.

The money will have been deducted from the Oyster card, but it wasn't supposed to be there because the card had been surrendered. In effect it was phoney money. I'll let you know when I hear from my contact.

 

[dmncf]

Whilst 2021 would be useful in future, at this point we haven't reached 28/01/2022 so it's a kind of moot point.

Now, apologies for not seeing this earlier, but the gap between cancellation and trying to use it again makes me suspect you may have stumbled upon an unintended consequence of TfL's system. When a card is cancelled remotely a record is set up to kill the card when it is next touched. This will use the faster universal load facility. Records only stay on FUL for a maximum of six months before being added to a background list. The background list is only consulted when a touch is received by the central system. Thus the bus journey will have been accepted and that will have triggered the transfer of the kill record to the active FUL list. That can take up to half an hour to be propagated to all gates etc, so it is possible that the touch in at Finsbury Park would also have worked. But by the time you came to touch out at Kings Cross the bullet will have been fired.

I'm trying to get further info from my contact at TfL.

Good info. It might be worth double-checking with your contact at TfL whether the process of cancelling Oyster can be enacted via Oyster readers on buses, or whether this can only be done by Oyster readers at railway stations (such as Finsbury Park in the case of the OP). I recall that it used to be the case that Oyster top-ups paid for online could not be transferred onto the Oyster card via Oyster readers on buses because these readers didn't have a constant communication connection to the Oyster back office system, although I think this limitation was subsequently removed. I wonder if a similar limitation remains in place for cancelled / hotlisted cards.

 

[MikeWh]

If the card had only just been cancelled then it would have happened on the bus. The introduction of FUL means that anything can be done on any reader.

 

[Fawkes Cat]

Good info. It might be worth double-checking with your contact at TfL whether the process of cancelling Oyster can be enacted via Oyster readers on buses, or whether this can only be done by Oyster readers at railway stations (such as Finsbury Park in the case of the OP). I recall that it used to be the case that Oyster top-ups paid for online could not be transferred onto the Oyster card via Oyster readers on buses because these readers didn't have a constant communication connection to the Oyster back office system, although I think this limitation was subsequently removed. I wonder if a similar limitation remains in place for cancelled / hotlisted cards.

I'd had similar thoughts (although not starting from such a well-informed position). It seems to me that it might be helpful to the OP if someone could take us through the process of surrendering an Oyster card. In particular, I'm interested in what happens to the balance on the card and when. That's because if it's immediately returned to the cardholder AND if the return is electronic then
- there will be evidence on the Oyster cardholder's bank statement of the refund (which one might expect the cardholder to have noticed) and
- no money would have been held on the Oyster when it was used i.e. no valid ticket would have been obtained.

(I know that the above will sound as if I am trying to undermine the OP - but rather, I am trying to understand what happened. It might be necessary for the OP to negotiate from a different position if they turn out not to be fully in the right.)

What if - at the other extreme - money remains on a surrendered Oyster card until the cardholder takes steps to recover it? In that case, obviously there will be no audit trail on bank statements, but it also seems to me that - morally at least - there would still be value on the card for the cardholder to use. This would reinforce the argument that they had presented a card that they had no way of knowing was invalid, and which TfL and GTR could have taken the fare from, had they been so minded.

 

[Nettan]

I'd had similar thoughts (although not starting from such a well-informed position). It seems to me that it might be helpful to the OP if someone could take us through the process of surrendering an Oyster card. In particular, I'm interested in what happens to the balance on the card and when. That's because if it's immediately returned to the cardholder AND if the return is electronic then
- there will be evidence on the Oyster cardholder's bank statement of the refund (which one might expect the cardholder to have noticed) and
- no money would have been held on the Oyster when it was used i.e. no valid ticket would have been obtained.

(I know that the above will sound as if I am trying to undermine the OP - but rather, I am trying to understand what happened. It might be necessary for the OP to negotiate from a different position if they turn out not to be fully in the right.)

What if - at the other extreme - money remains on a surrendered Oyster card until the cardholder takes steps to recover it? In that case, obviously there will be no audit trail on bank statements, but it also seems to me that - morally at least - there would still be value on the card for the cardholder to use. This would reinforce the argument that they had presented a card that they had no way of knowing was invalid, and which TfL and GTR could have taken the fare from, had they been so minded.

Very interested in that too!

 

[MikeWh]

I'd had similar thoughts (although not starting from such a well-informed position). It seems to me that it might be helpful to the OP if someone could take us through the process of surrendering an Oyster card. In particular, I'm interested in what happens to the balance on the card and when. That's because if it's immediately returned to the cardholder AND if the return is electronic then
- there will be evidence on the Oyster cardholder's bank statement of the refund (which one might expect the cardholder to have noticed) and
- no money would have been held on the Oyster when it was used i.e. no valid ticket would have been obtained.

(I know that the above will sound as if I am trying to undermine the OP - but rather, I am trying to understand what happened. It might be necessary for the OP to negotiate from a different position if they turn out not to be fully in the right.)

What if - at the other extreme - money remains on a surrendered Oyster card until the cardholder takes steps to recover it? In that case, obviously there will be no audit trail on bank statements, but it also seems to me that - morally at least - there would still be value on the card for the cardholder to use. This would reinforce the argument that they had presented a card that they had no way of knowing was invalid, and which TfL and GTR could have taken the fare from, had they been so minded.

There are two ways to refund an Oyster card. The simple one is at an Underground station ticket machine. Only PAYG cards with less than £10 credit can be refunded this way. Because the card is present it is deactivated at the time so this issue cannot arise.

If there is more than £10, a season ticket, or any other reason that the cardholder can't get to a station then they need to phone up the contact centre or email/write to them. They will need to provide any password associated with the card. The refund will be processed and the cardholder will be told to destroy the card because it will no longer work. The problem is that the card isn't actually decativated until it tries to make a journey. I tested this out when I cancelled a card with a weekly ticket on it. Presenting it to the ticket machine at Crayford showed that it was still a valid card. Trying to touch in gave a red light, then the ticket machine also stated that it had been cancelled.

 

[island]

To add to MikeWh's good points, I have refunded an Oyster card online via Oyster self-service in the past, and it's also possible to post the card to TfL customer services with your bank details and they will pay it that way.

 

[Fawkes Cat]

There are two ways to refund an Oyster card. The simple one is at an Underground station ticket machine. Only PAYG cards with less than £10 credit can be refunded this way. Because the card is present it is deactivated at the time so this issue cannot arise.

If there is more than £10, a season ticket, or any other reason that the cardholder can't get to a station then they need to phone up the contact centre or email/write to them. They will need to provide any password associated with the card. The refund will be processed and the cardholder will be told to destroy the card because it will no longer work. The problem is that the card isn't actually decativated until it tries to make a journey. I tested this out when I cancelled a card with a weekly ticket on it. Presenting it to the ticket machine at Crayford showed that it was still a valid card. Trying to touch in gave a red light, then the ticket machine also stated that it had been cancelled.

To add to MikeWh's good points, I have refunded an Oyster card online via Oyster self-service in the past, and it's also possible to post the card to TfL customer services with your bank details and they will pay it that way.

Thanks for this.

If I've understood things properly, then around 28/1/21 one of four things must have happened:

1) The oyster cardholder went to a tube station and surrendered their Oyster. I'm discounting this as it seems to me that the OP would surely remember doing this during lockdown (when a lot of us weren't going out very much) - and in practice surely the card would have been taken off them - thus eliminating the risk of trying to travel. (edited in light of @Haywain's useful post below)
2) The oyster cardholder did something* that led to their card being surrendered and a refund was sent through to their bank/credit card/whatever: in this case I would expect to see something on the relevant statement for January or February 2021
3) The oyster cardholder did something* that led to their card being surrendered and no refund was sent through to their bank/credit card/whatever: this would reflect the facts as we have been given them (i.e. acceptance on the bus and the balance showing as £5)
4) Some sort of system error has occurred (Are Oyster card numbers unique? Are there check digits which would make it practically impossible to key in the number of one card when trying to key in the number of another one?) and the wrong card has been flagged as surrendered

* I'm being deliberately vague with my wording here: it may have been that the cardholder intentionally tried to surrender their card (and succeeded) or it may be that they did something else (a phone call to TfL? an email also to TfL? pressing buttons on the Oyster website under the belief that they would do something other than what they actually do?) which inadvertently led to the card being surrendered.

I think that this advances matters a little in that a check of bank (etc.) statements should be able to rule case (2) in or out: if it turns out that case (2) is possible then as I commented earlier that may change how the OP wants to phrase their response to GTR. It also seems to me that while case (4) is not unimaginable, it's not very likely, which probably leaves us with case (3). Given that it's almost a year since this happened, it's a lot to ask, but I would suggest the OP thinks very hard about whether they might have done anything around 28/1/21 which could have led to TfL thinking that the Oyster had been surrendered. Again, the aim of this is not that the OP will have to concede to GTR and invite them to prosecute, but it will allow the OP to explain how this confusion has arisen, and invite GTR to recognise it as an accident which won't be repeated (and so not something which needs punishing).

 

[dmncf]

Could the reasons why the card was cancelled include that it was a first generation Oyster card? Or would these still work properly in most scenarios?

 

[Haywain]

1) The oyster cardholder went to a tube station and surrendered their Oyster. I'm discounting this as it seems to me that the OP would surely remember doing this during lockdown (when a lot of us weren't going out very much) - and in practice surely the card would have been taken off them - thus eliminating the risk of trying to travel.

Refunding the card (when under £10) at a self-service terminal does not require the card itself to be surrendered; however, it does immediately disable the card so it would not then be accepted many months later on a bus.

 

[Hadders]

Could the reasons why the card was cancelled include that it was a first generation Oyster card? Or would these still work properly in most scenarios?

First generation Oyster cards are still perfectly valid and work ok. I've used the same first generation Oyster card regularly, with auto top-up enabled, since 2006.

 

[MikeWh]

Major update.

I have spoken to TfL this morning and confirmed that my scenario is correct. Adding records to FUL can take up to 30 minutes, and retrieving records from buses is slower than from stations. All of which leaves us in a not very nice situation. But...

I've been in conversation with the OP and he has now remembered that he phoned up and asked for the money on the card to be refunded so it wasn't tied up during lockdown. He didn't realise that this would cancel the card. TfL aren't sure whether a recorded conversation would be kept for as long as a year. This obviously changes things a little, but the fact still remains that the card appeared to work both on the bus and at the station, where it would even have confirmed what balance was (supposedly) on the card. I'm open to suggestions as to how to explain this in correspondance with GTR. It's messy because GTR are clearly owed money from the GTR-OP relationship, while the matter of cancellation is a separate TfL-OP relationship.

 

[Haywain]

I've been in conversation with the OP and he has now remembered that he phoned up and asked for the money on the card to be refunded so it wasn't tied up during lockdown. He didn't realise that this would cancel the card.

Even if he didn't expect the card to be cancelled, how did he expect it to work without any balance? I think the OP has to accept that GTR are right and look to settle with them.

 

[Fawkes Cat]

Major update.

I have spoken to TfL this morning and confirmed that my scenario is correct. Adding records to FUL can take up to 30 minutes, and retrieving records from buses is slower than from stations. All of which leaves us in a not very nice situation. But...

I've been in conversation with the OP and he has now remembered that he phoned up and asked for the money on the card to be refunded so it wasn't tied up during lockdown. He didn't realise that this would cancel the card. TfL aren't sure whether a recorded conversation would be kept for as long as a year. This obviously changes things a little, but the fact still remains that the card appeared to work both on the bus and at the station, where it would even have confirmed what balance was (supposedly) on the card. I'm open to suggestions as to how to explain this in correspondance with GTR. It's messy because GTR are clearly owed money from the GTR-OP relationship, while the matter of cancellation is a separate TfL-OP relationship.

The major impact is on the tone that the OP needs to take in their letter. Originally, the tone was that of injured innocence, which the OP then sensibly moderated to discussing the facts. I think that - although it may be difficult to swallow - they now need to move to being apologetic having made a mistake: they need to explain why they made the mistake (as I understand it, because between January and October 2021 they forgot what had happened and what TfL had not explained very clearly) and offer to do what they can to avoid GTR being out of pocket as a result of this unfortunate sequence of events. In other words, they need to see if GTR will agree to an out of court settlement of the fare not paid to GTR, and the costs that GTR has incurred.

This, obviously, will be much more expensive for the OP than GTR just dropping the matter. But if GTR will co-operate then it is likely to be cheaper than being taken to court - and while I can see that a prosecution might fail with a sympathetic magistrate who was prepared to give a lot of weight to the OP's mitigation, this is also likely to be a quicker and less stressful resolution than going through court.

 

[WesternLancer]

I've been in conversation with the OP and he has now remembered that he phoned up and asked for the money on the card to be refunded so it wasn't tied up during lockdown.

I guess this is the main thing it boils down to. The OP (understandably maybe given the events we have all been through since the sart of the pandemic) forgot this. And the obv thing to have doen would have been to check card balance ont he oyster before using it after a break of some time anyway (but do many of us do that - I don't)
BUT
It was accepted on the bus (and then the entry station gates), so the OP might reasonably assume that TfL had not refunded the money or all of the money (maybe). Had the OP only used the bus, then by the time they next used the card later in trhe day or next day if on a separate journey, the card would have not worked and the incident would never have happened.

However, that's not GTR's problem really - but then GTR should (maybe) not accept Oyster if TfL's system lead to confusion of this sort (as it leads to wasted staff time at GTR not of their making). In reality that is not practical so GTR should seek to either write it off / get TfL to pay them / get Tfl to improve systems
None of those things in practice is that likely (unless they just wrote this case off, which is the most likely of 2 v unlikely scenarios I list IMHO).

Which is maybe why I think the OP might best now enlist London Travelwatch in the matter? (as well as following advice in recent posts).

Because surely from GTR's point of view they would simply say 'you asked for your card balance to be refunded, then you managed to get on one of our trains, we are not that interested in how, and did not have a ticket when asked for one'

 

[MotCO]

The other way of looking at it is that there appears to be no intention not to pay GTR a fare, and this is reinforced by the fact the OP managed to get on the train without any restriction. It does seem to be an unfortunate sequence of innocent events, and I would hope that this can be resolved by paying the fare due to GTR plus a modest contribution to their costs (not the usual £100)

 

[Fawkes Cat]

The other way of looking at it is that there appears to be no intention not to pay GTR a fare, and this is reinforced by the fact the OP managed to get on the train without any restriction. It does seem to be an unfortunate sequence of innocent events, and I would hope that this can be resolved by paying the fare due to GTR plus a modest contribution to their costs (not the usual £100)

Although GTR will no doubt bear in mind that the byelaw offence of (to paraphrase) travelling without a valid ticket is a 'strict liability' offence - that is, there's no need for a prosecution to demonstrate intent to avoid paying a fare.

 

[robbeech]

I think we need to remember that in the case of starting a journey at Finsbury Park there is not really a case for ‘managing to get on a train’ as someone could, if they so wished just get on a train due to the lack of barriers.

If the card data shows a touch on a bus, and a touch in at Finsbury Park this will help, but it is far from ideal overall.

 

[[.n]]

Even if he didn't expect the card to be cancelled, how did he expect it to work without any balance? I think the OP has to accept that GTR are right and look to settle with them.

But that's the point with an Oyster isn't it - its not supposed to work without money on it (emergency bus trip allowance aside). So if you touch it on barrier and it lets you through then I would argue that the "railway" has given you permission to travel with a valid ticket as the barrier has done the checking and given a positive affirmation that it is okay to travel.

I've got maybe 15 oyster cards - I've no idea what the balances are on them - so if I presented one at a barrier - that's when I'm seeing if I have permission (credit) to travel. If not then I'd try another card (if I had one on me) or mutter darkly to myself and wander around trying to find some method of topping up

 

[island]

If I may do some amateur legal analysis, and recall the facts:

1. The OP claimed (and presumably received) a refund of the balance of their Oyster card in January 2021.
2. Rather than disposing of the card, they held onto it and eventually used it for two journeys in October 2021.
3. The card was accepted at the first two touches as, for the reasons MikeWh mentions above, it was not immediately detected as hotlisted.
4. At the third touch to exit Kings Cross, the systems having caught up, the card was disabled and exit refused.
5. The OP then had an interaction with revenue protection staff and was reported for consideration of prosecution.

Byelaw 18 (1) of the current Railway Byelaws states, so far as material, that

"...no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel"​

It has not been suggested that any of the three exceptions in byelaw 18 (3) (no working ticketing facilities at starting station, notice at starting station or authorised person giving permission to travel without a ticket) apply, and I shall assume for the analysis that they do not.

The definition of "ticket" in byelaw 25 includes, at (vi):

"any type of smart card, pre-pay, or other form of electronic ticket"​

Clearly, an Oyster card is a "ticket". Equally clearly, the Oyster card held and used by the OP was not "a valid ticket entitling him to travel"; as it had been cancelled.

As many here are aware, the offences under byelaw 18 are strict liability, meaning that you can commit one without intending to do so. In this respect they are similar to, for example, driving at excess speed in a car. The mere fact that someone enters a train without having a valid ticket with them completes the offence. As such, it seems to me that the OP is guilty of a byelaw 18 (1) offence.

I don't think an offence under byelaw 18 (2) has been committed, as the OP seems to have handed over their ticket, nor do I think an offence under section 5 of the Regulation of Railways Act has been committed, because of the lack of intent to avoid a fare.

Based on the above conclusions, I recommend the OP be considerably more conciliatory in the tone of their communications as a prosecution would almost certainly succeed – and cost a lot more than an out of court settlement.

I have not attempted to consider the morals of what might be "right" or "wrong" herein, only where things Stand legally.

But that's the point with an Oyster isn't it - its not supposed to work without money on it (emergency bus trip allowance aside). So if you touch it on barrier and it lets you through then I would argue that the "railway" has given you permission to travel with a valid ticket as the barrier has done the checking and given a positive affirmation that it is okay to travel.

Byelaw 18 (3) does not provide for "the railway" to give permission to travel without a valid ticket. It provides a defence to the offence of joining a train without a valid ticket if an authorised person gives the passenger permission to travel without a valid ticket, or a notice permits journeys to be started without a valid ticket.

A barrier/Oyster validator is not a person, so will not come under the "authorised person" limb. I also would not say it is a notice, but even if it could be classified as a notice, it could only be said to have permitted one journey to be started, not "journeys" in general; the byelaw clearly intends to refer to situations such as a booking office clerk attending to station duties or going on a break and sticking up a sign saying "pay on train".

So I'm afraid the fact the card operated the barrier/validator does not assist legally.

 

[UserM]

I would have to say that I wholeheartedly agree with this analysis by @island Whatever the moral wrongs - with I think are dubious - of this situation are. This is an offence under byelaw 18 (1) offence. As mentioned this being a strict liability offence the OP is bang to rights. I this urge them to change tune and attempt to settle.