Merseyrail prosecution

[Vespa]

They probably want to avoid setting a precedent which can be used for future prosecutions also if it was proven that the case should never have brought in the first place then the prosecuting staff would be having an "interview without coffee" to explain why they insisting on pursuing it when it would have been better not to, creating a problem for Merseyrail.

 

[Wolfie]

They probably want to avoid setting a precedent which can be used for future prosecutions also if it was proven that the case should never have brought in the first place then the prosecuting staff would be having an "interview without coffee" to explain why they insisting on pursuing it when it would have been better not to, creating a problem for Merseyrail.

One word: tough!

 

[AlterEgo]

They probably want to avoid setting a precedent which can be used for future prosecutions also if it was proven that the case should never have brought in the first place then the prosecuting staff would be having an "interview without coffee" to explain why they insisting on pursuing it when it would have been better not to, creating a problem for Merseyrail.

Magistrates’ Courts don’t set legal precedent.

 

[D821]

Magistrates’ Courts don’t set legal precedent.

True, but would potentially serve to highlight that this is a legitimate and proven defense for similar cases.

 

[Hodgs0]

She was as sweet as pie on the phone, totally different tone to their aggressive emails. I just found the whole “are you still planning for n proceeding with the prosecution” question hysterical. I just yes of course. That’s when she said they want a chat around that. Guess I’ll find out next week.

 

[John Palmer]

I assume your 6 May telephone call was from Michelle McLachlan, who has made it clear that in her view Section 5(1) RoRA makes “failure to produce a ticket an offence for which a fine can be imposed, even where the officer has been given the offenders name and address” so that “the prosecution will continue forthwith.” Has she now told you, in terms, that Merseyrail no longer wishes to proceed with your prosecution? If so, that needs to be confirmed to you and to the Court in writing, and, if you have incurred any legal costs in dealing with the matter, your opportunities for recouping these may be worth considering. If not, then you should be wary of engaging in any 'chat' with Merseyrail's prosecutions department, as it is difficult to see why, having charged you with an offence, they would now wish to have such a conversation other than to secure for themselves some additional advantage in the court proceedings currently in progress.

Of course it's possible that Merseyrail has now decided that Ms McLachlan's interpretation of what constitutes an offence under Section 5(1) is untenable and that prosecuting you under that subsection is likely to fail, but that doesn't emerge clearly from your account of recent events. If Merseyrail has indeed had such an epiphany then I should be interested to discover the number of previous occasions it successfully prosecuted an offence under Section 5(1) even though the accused had supplied their name and address, as it appears that every such conviction may have been improperly obtained. And, of course, there is the wider issue of the propriety of a railway company encouraging passengers to believe they can pay their fare at the end of their journey, thereby exposing them to criminal law penalties when the company changes its policy on a whim.

If you decide to have the conversation Merseyrail has requested, my advice is to establish at the outset whether Merseyrail now concedes that you committed no offence under Section 5(1) because you supplied your name and address as contemplated by that subsection. If Merseyrail is not prepared to make such a concession then I would be strongly inclined to take the conversation no further, as it is difficult to see how it could be to your advantage to do so.

 

[gray1404]

I would also advise you to record the phone call using a free app that you can download onto your phone when she calls on Monday. You are not a data handler so you're not required to make her aware that you are doing this.

 

[Haywain]

You are not a data handler so you're not required to make her aware that you are doing this.

It may not be necessary but it would be polite to do so.

 

[Watershed]

It may not be necessary but it would be polite to do so.

It is quite possible that the person at Merseyrail would not agree to continue the call if the OP said so. There is little benefit to saying that the call is being recorded, but it serves as valuable protection should the contents of the conversation be disputed at a later date.

I would advise to send Merseyrail an email summarising what was discussed in the call, immediately afterwards - for example, if they concede that section 5(1) simply does not apply in the OP's circumstances. This reduces the chances of a dispute down the line.

 

[Haywain]

It is quite possible that the person at Merseyrail would not agree to continue the call if the OP said so.

I agree that could happen but it doesn’t change my view that it is better to say that the call is being recorded.

 

[Watershed]

I agree that could happen but it doesn’t change my view that it is better to say that the call is being recorded.

There is literally no benefit to doing so.

It is independent evidence, whether obtained with permission or not. In the event that Merseyrail were silly enough to try and dispute that a transcript were accurate, a judge would hardly refuse to hear the evidence which would conclusively prove the matter one way or the other.

 

[Haywain]

There is literally no benefit to doing so.

Politeness doesn’t have to have a benefit.

 

[Watershed]

Politeness doesn’t have to have a benefit.

Merseyrail have hardly shown politeness, let alone reasonableness, to the OP. They are prosecuting them for an offence which by their own evidence they have not committed, after doing something which the company has endorsed by custom and practice and has now selectively clamped down on.

So perhaps you'll forgive me if I think that it's OK if the OP is a bit impolite (if you want to call it that) to Merseyrail.

 

[Tallguy]

Having Worked with the design and deployment of evidential audio and video recording systems, I strongly suggest that the OP records the conversation and at the outset informs everyone else on the call (Merseyrail May have others ‘sitting in’ on the call) that the conversation is being recorded. If Merseyrail wish to drop the case then they will need to inform you and the court in writing. I suggest you get this confirmation in hard copy on headed notepaper, not an e mail which could be claimed to be forged etc at a later stage.

 

[Watershed]

Having Worked with the design and deployment of evidential audio and video recording systems, I strongly suggest that the OP records the conversation and at the outset informs everyone else on the call (Merseyrail May have others ‘sitting in’ on the call) that the conversation is being recorded. If Merseyrail wish to drop the case then they will need to inform you and the court in writing. I suggest you get this confirmation in hard copy on headed notepaper, not an e mail which could be claimed to be forged etc at a later stage.

It is exceptionally unlikely that anyone would try and claim that an email is forged. Exactly the same could be said for company headed paper. Ultimately a very high burden of proof will be required before a judge will accept that evidence is fraudulent.

 

[John Palmer]

To me, there seems to be a distinct possibility that the conversation will be preceded by a pre-recorded Merseyrail rubric along the lines of "This call may be recorded for training or monitoring purposes", and that Merseyrail actively desire to have a verbatim recording of it. After all, it is Merseyrail that has requested the conversation, and this can only be because the company perceives the possibility of securing some advantage for itself by having it. Any such pre-recorded mesage would provide the OP with an opportunity to say that, since Merseyrail may be recording the call, it is her intention to make a recording for her own benefit. Merseyrail could scarcely object to the making of such a recording, and a refusal to continue the call because the OP was recording it strongly suggests a reluctance on the part of the company to engage openly with the person with whom it has said it wishes to have a discussion. How would the OP be placed in a more disadvantageous position than she is in by a refusal of the company to engage in a conversation because she is recording it?

 

[Fawkes Cat]

It seems to me that if Merseyrail want to have a chat, then that means that they think there's room for negotiation.

This is both good news and bad news. The good news is that it suggests that they are prepared to move away from prosecution. The bad news is that it also suggests that they are not completely prepared to concede and walk away (although I suppose it's possible that they want to discuss what sort of apology would be acceptable to you - which would be nice but I think is unlikely).

So if Merseyrail are looking to negotiate, you need to identify your negotiating position - what is the furthest you are prepared to go in their favour to bring the matter to an end?

And like any contentious discussion, it would be good to have someone sitting in on your side. So if there's a friend or relative you can rely on, might it be worth having the meeting on speakerphone? Even if the friend doesn't intervene, they can listen in and confirm what has been said.

 

[some bloke]

I think you're showing commendable energy and enthusiasm, on an issue which could benefit many other people.

There may be several reasons to keep communications with the company written.

One possibility is that they want to pre-empt bad PR, and they might use something you say out of context even if it's correctly quoted. We don't know where this issue is going, but if it turns out that the courts have wrongly convicted people and/or Merseyrail has obtained money by falsely representing the law, there might be a lot of publicity.

Another possibility is that they think they understand some things you don't - they might be right in some instances and wrong in others. Here too, you may end up saying something on the phone which can be misinterpreted.

A couple of points:

You could emphasise more that the fundamental reason why 5(1) can't be used for lawful conviction in cases such as yours is that it requires the person to fail to give name and address. It's incompatible with a penalty fare - at least normally - because the person gave those details for the PF. So the concern would be that people may have been wrongly prosecuted, wrongly convicted or wrongly induced to pay money on the basis of Merseyrail falsely representing the "offence" as simply "failing to produce a ticket". Penalty Fare Regulation 11 doesn't bar prosecutions under s.5(1) where there has been a penalty fare appeal decision.

I'm not sure it's convincing to interpret PF regulation 7 in the way you do. In fact Regulation 6 rather than 7 would be relevant to you if it applied, because you were a train passenger. The sub-paragraphs of each have the same text; the fuller extract reads (my emphasis):
"the operator of the train or the station, or a person acting or purporting to act on behalf of the operator, indicated that the passenger was, or persons generally were, permitted to travel by or be present on the train without having a travel ticket."
https://www.legislation.gov.uk/uksi/2018/366/made
"Persons generally" seems contrasted with "the passenger" rather than meant to imply "on trains generally". It seems to be about passengers in general - ie collectively - where there was a communication about one specific train. It doesn't seem to be about communications in general (or implied communications from the company's general practice) about trains.

It might be wise to keep to written communication, and to check drafts with people on here. If you go to court, you could find people dismissing arguments they aren't familiar with or don't understand. You could email them saying "on reflection I would like you to outline in writing the purpose of a phone call: I believe that there is no good reason to continue the prosecution and would appreciate your confirming this in writing at your earliest opportunity".

At the moment I'm not clear that there is an advantage to you and the cause from a phone call.

Thank you for making a stand.

 

[gray1404]

Having thoughts about this this morning it does strike me as suspect that merseyrail want to have this conversation. I mean why are they not willing to make the additional points I wish to make or ask there additional questions in writing or by email?

I have not got time to read through from the beginning of the thread today bought if the original poster has instructed your engaged with a solicitor at any point already then surely it would be for them to have the call with Merseyrail.

 

[some bloke]

Has she now told you, in terms, that Merseyrail no longer wishes to proceed with your prosecution? If so, that needs to be confirmed to you and to the Court in writing, and, if you have incurred any legal costs in dealing with the matter, your opportunities for recouping these may be worth considering. If not, then you should be wary of engaging in any 'chat' with Merseyrail's prosecutions department, as it is difficult to see why, having charged you with an offence, they would now wish to have such a conversation other than to secure for themselves some additional advantage in the court proceedings currently in progress.

Yes, and they might also try to use communications with you, including something you say on the phone, to look better in terms of PR, relations with the mayor's office, other political relationships, or someone's boss within the company.

If you decide to have the conversation Merseyrail has requested, my advice is to establish at the outset whether Merseyrail now concedes that you committed no offence under Section 5(1) because you supplied your name and address as contemplated by that subsection. If Merseyrail is not prepared to make such a concession then I would be strongly inclined to take the conversation no further, as it is difficult to see how it could be to your advantage to do so.

Yes. Conceivably you might persuade them on the phone to drop the case, but it seems to me preferable to try that in writing.

What would the best course be if they say on the phone that they are dropping the case? If they do that, they may have realised that old cases need to be re-examined. That could be a more serious matter which might benefit from careful handling via the written word.

A problem with phone calls can be that you end up having a conversation that you didn't intend.


Trying to looking ahead, and the wider issues:

Formal legal advice/representation: At some point it may be worth looking into whether there's a local law clinic/centre or individual lawyer who is prepared to take this on for free. If it emerges that other people have lost out from Merseyrail misrepresenting the law, some may be willing to pay for a solicitor together.

Publicity/politics/finding people: If the mayor, councillors, and/or other people who can get the public's attention are interested enough and it seems worthwhile, they could call for people who have suffered from this to get in touch. Or someone could put an advert in a local paper asking the same. Of course at this stage it is hard to guess how big or small the problem is, though it might be surprising if no further cases emerge. Perhaps it's worth bearing in mind that resources such as Twitter are free - there are many ways of publicising things; it may need time to think how to express things in watertight and concise ways.



== Doublepost prevention - post automatically merged: 8 May 2022 ==

[Added on 8 May] I've just remembered another source you can send to Merseyrail, the court, the mayor, the MP, and others.


Joshua Rozenberg
https://www.lawgazette.co.uk/commentary-and-opinion/virtual-realities/5060076.article

 

[John Palmer]

At first glance I thought that the Rozenberg reference might be to his piece about submissions made to the Court of Appeal by Attorney-General Braverman, to be found here. This thread is dealing with a proposition of law on the part of Merseyrail that is equally “striking and unusual” - judicial code for, putting it politely, “embarassingly wrong”.

I was surprised to discover that Rozenberg's piece actually deals with the charging of an offence under RoRA S.5(1) in the context of the introduction of the Single Justice Procedure. Surprised because, by virtue of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016, the range of offences for which railway operators can commence a prosecution by SJPN was then largely confined to those created by railway byelaws and did not extend to prosecution for a RoRA offence. (To elaborate, the SJP was a new method of instituting proceedings introduced by the Criminal Justice Act 2003. It was a procedure made available to 'relevant prosecutors' as defined by S.29 of the 2003 Act, and S.29(5)(h) made provision for additional prosecutors to be specified in an order made by the Secretary of State. A range of additional prosecutors was so specified in the 2016 Order, including, in Article 6, railway operators for a limited range of offences.)

Possibly the range of offences railway operators are permitted to prosecute via SJPN has been extended since the 2016 Order so as now to include RoRA offences, but I've been unable to find legislation creating such an extension of operators' powers - if there has been such an extension then no doubt someone better versed in criminal procedure than I will correct me. However, so far as I can tell from the copy paperwork she has posted, SJP proceedings against the OP for the offence alleged under S.5(1) RoRA were instituted by Merseyrail apparently in reliance upon an authority to do so that the company does not possess.

If I'm right about that, and Merseyrail had no authority to charge the OP with a RoRA offence by means of the Single Justice Procedure, then the status of the proceedings currently in progress comes into question. I suspect there must be an argument that if commencement of legal proceedings is attempted on the strength of an authority to do so that doesn't in fact exist, then such proceedings have to be treated as having been non-existent from the outset in the eyes of the law. And if that's the case, the error may be one that is incapable of rectification by application to the magistrates, because there would be no proceedings in connection with which such an application can be made. Alternatively, if magistrates do have jurisdiction to entertain such a corrective application, they could presumably correct the position only by a direction that the present 'proceedings' are at an end and that if Merseyrail still wishes to prosecute then the company would need to lay an information under the old, two-stage process.

I look forward to learning the upshot of any conversation with Merseyrail the OP may be having. If Merseyrail remains determined to press on with its prosecution of the OP, any such conversation notwithstanding, a challenge to the proceedings' legitimacy for the reasons discussed above may become worthy of consideration.

 

[Fawkes Cat]

At first glance I thought that the Rozenberg reference might be to his piece about submissions made to the Court of Appeal by Attorney-General Braverman, to be found here. This thread is dealing with a proposition of law on the part of Merseyrail that is equally “striking and unusual” - judicial code for, putting it politely, “embarassingly wrong”.

I was surprised to discover that Rozenberg's piece actually deals with the charging of an offence under RoRA S.5(1) in the context of the introduction of the Single Justice Procedure. Surprised because, by virtue of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016, the range of offences for which railway operators can commence a prosecution by SJPN was then largely confined to those created by railway byelaws and did not extend to prosecution for a RoRA offence. (To elaborate, the SJP was a new method of instituting proceedings introduced by the Criminal Justice Act 2003. It was a procedure made available to 'relevant prosecutors' as defined by S.29 of the 2003 Act, and S.29(5)(h) made provision for additional prosecutors to be specified in an order made by the Secretary of State. A range of additional prosecutors was so specified in the 2016 Order, including, in Article 6, railway operators for a limited range of offences.)

Possibly the range of offences railway operators are permitted to prosecute via SJPN has been extended since the 2016 Order so as now to include RoRA offences, but I've been unable to find legislation creating such an extension of operators' powers - if there has been such an extension then no doubt someone better versed in criminal procedure than I will correct me. However, so far as I can tell from the copy paperwork she has posted, SJP proceedings against the OP for the offence alleged under S.5(1) RoRA were instituted by Merseyrail apparently in reliance upon an authority to do so that the company does not possess.

If I'm right about that, and Merseyrail had no authority to charge the OP with a RoRA offence by means of the Single Justice Procedure, then the status of the proceedings currently in progress comes into question. I suspect there must be an argument that if commencement of legal proceedings is attempted on the strength of an authority to do so that doesn't in fact exist, then such proceedings have to be treated as having been non-existent from the outset in the eyes of the law. And if that's the case, the error may be one that is incapable of rectification by application to the magistrates, because there would be no proceedings in connection with which such an application can be made. Alternatively, if magistrates do have jurisdiction to entertain such a corrective application, they could presumably correct the position only by a direction that the present 'proceedings' are at an end and that if Merseyrail still wishes to prosecute then the company would need to lay an information under the old, two-stage process.

I look forward to learning the upshot of any conversation with Merseyrail the OP may be having. If Merseyrail remains determined to press on with its prosecution of the OP, any such conversation notwithstanding, a challenge to the proceedings' legitimacy for the reasons discussed above may become worthy of consideration.

This argument does of course rely on both Merseyrail and Joshua Rozenburg being wrong about whether RoRA can be dealt with under the SJP.

 

[jumble]

Politeness doesn’t have to have a benefit.

Merseyrail have hardly shown politeness, let alone reasonableness, to the OP. They are prosecuting them for an offence which by their own evidence they have not committed, after doing something which the company has endorsed by custom and practice and has now selectively clamped down on.

So perhaps you'll forgive me if I think that it's OK if the OP is a bit impolite (if you want to call it that) to Merseyrail.

You are forgetting one of the characteristics of the English is being scrupulously polite to people they don't like LOL

 

[Bletchleyite]

You are forgetting one of the characteristics of the English is being scrupulously polite to people they don't like LOL

One of the most perjorative words in the English language is "sir" when used in certain contexts

 

[some bloke]

I was surprised to discover that Rozenberg's piece actually deals with the charging of an offence under RoRA S.5(1) in the context of the introduction of the Single Justice Procedure.
...
If...Merseyrail had no authority to charge the OP with a RoRA offence by means of the Single Justice Procedure, then the status of the proceedings currently in progress comes into question.

Yes, the question of the single justice procedure and RoRA charges has come up before, with no argument against yours on whether it's allowed.

The Single Justice Procedure is for minor offences. If the analysis at the link below is correct and still applies, then the SJP can't be used for the more serious allegation of intent to avoid a fare. ...

https://www.railforums.co.uk/thread...single-justice-procedure.172797/#post-3705270

I thought after posting the extract that Rozenberg was probably wrong about the single justice part, but I was more occupied with looking for other sources to show the constituent elements of the offence (and had missed/forgotten that this case began with the option of SJP).

Perhaps the referral to a full court hearing despite the wrong paperwork (if it is wrong) is legitimised by section 16B of the Magistrates' Courts Act 1980 if not by section 1.1: https://www.legislation.gov.uk/ukpga/1980/43


....................................


Sarah, in case it's needed, here is the Scottish prosecution service's description of the offence.

As @Watershed has written, Merseyrail might like to consider whether Parliament would really have made a law saying, in effect, "people travelling and then failing to produce a valid ticket must be guilty of an offence, whatever the reason". The evidence is for situations where someone can't see that is very unlikely.


https://www.whatdotheyknow.com/request/criminal_offences_2#incoming-1610454

We might think the description could be even clearer, and the description of 5(3)(a) is misleadingly short, but it's clear that they don't think failing to produce a valid ticket is enough.

== Doublepost prevention - post automatically merged: 10 May 2022 ==

The next exhibit which Merseyrail or the court may be interested in is this:


https://heinonline.org/HOL/LandingPage?handle=hein.journals/lwjrnal24&div=46&id=&page=

If you end up in court, you could print a few copies of these on A4 for magistrates, clerk/legal advisor, and others. They might also be useful if after the criminal case is over - or perhaps before - you want to explain it to other people, given the wider issues.

== Doublepost prevention - post automatically merged: 10 May 2022 ==

Another one:


https://heinonline.org/HOL/LandingPage?handle=hein.journals/lglnws12&div=49&id=&page=

== Doublepost prevention - post automatically merged: 10 May 2022 ==


Has the law changed since then? Not in any relevant way: the web version has a button on the left for "Original (As enacted)".

https://www.legislation.gov.uk/ukpga/Vict/52-53/57/section/5

The two 1889 reports above write of people not having money with them, but that isn't an actual requirement.


Pretty colours can help get a message across:



https://global.oup.com/booksites/content/9780199594825/updates/ch_26/

Here again, despite what the book says, the law isn't actually "if [the person] is unable" to pay: if they give name and address, they are still innocent of this specific offence even if they refuse to pay. In any case Merseyrail haven't tried to fulfil the requirement to claim that you failed to pay, so in a way they've made two mistakes about the one section.

 

[Hodgs0]

https://www.legislation.gov.uk/uksi/2018/366/pdfs/uksiem_20180366_en.pdf look what I found on the explanatory notes section of the legislation written by a civil servant in the department for transport & he still works there… note point 7.1. I can’t wait for court next week.

 

[some bloke]

https://www.legislation.gov.uk/uksi/2018/366/pdfs/uksiem_20180366_en.pdf look what I found on the explanatory notes section of the legislation written by a civil servant in the department for transport & he still works there… note point 7.1. I can’t wait for court next week.

I don't think you can rely on that. It's just a note to help people understand the Regulations. I can't see how the fact that it exaggerates the extent to which the Regulations exclude prosecutions can have any legal effect on their scope: the Regulations say prosecution is barred in relation to specific legislation only, which doesn't include 5(1).

 

[Hodgs0]

I don't think you can rely on that. It's just a note to help people understand the Regulations. I can't see how the fact that it exaggerates the extent to which the Regulations exclude prosecutions can have any legal effect on their scope: the Regulations say prosecution is barred in relation to specific legislation only, which doesn't include 5(1).

Because it’s incompatible. It explains in plain English that their application of the law is wrong. I think it’s a relevant part of my evidence pack & provides avoidance of doubt as to their interpretation of the law.

 

[some bloke]

It's a mistake by the Department for Transport.

You only need the one point about name and address to show that conviction cannot be lawful.

To avoid complications and possible stress, you have to show it clearly. It's safer, it may help prepare people's minds if you do go to court, and it may be regarded as more helpful, to send the evidence on this point (the Police Law book extract and so on, with URLs) to Merseyrail and the court in advance.

 

[furlong]

It's a mistake by the Department for Transport.

(I disagree. You don't get elementary mistakes in that sort of text! It merely expresses the underlying well-established principle that the authorities cannot have two bites of the cherry a.k.a. double jeopardy. A train company cannot ordinarily impose a penalty on someone under the force of law then, some time later change it's mind and try to obtain a more serious alternative penalty without there being some exceptional reason, typically new information not in its possession when it imposed the original penalty which would have led it to a different decision. The regulation helps to make this explicit and sets out some additional protections including a time limit.)

You only need the one point about name and address to show that conviction cannot be lawful.

Indeed, don't add things that distract attention away from your mountain of information supporting the only point that matters.