I'm delighted to hear that the Sarah Hodgson's personal exposure to the risk of conviction has been ended, however unjustifiable any such conviction would have been.
I suspect that the prospects of success in any action for malicious prosecution will be low, as one of the matters that would need to be proved is that Merseyrail's prosecution was maintained with malicious intent. That's a high bar to surmount, and I suspect that any court hearing such a claim will be inclined to attribute Merseyrail's atrocious conduct to an excess of prosecutorial zeal that does not cross the threshold into malice.
That in no way alters the fact that there are a number of disturbing features in the way that Merseyrail has dealt with the case. It began with Merseyrail's unconscionable practice of providing ticket sale facilities at the end of passengers' journeys, encouraging the belief that it was acceptable to defer payment of the fare until the journey was complete, then penalising them for doing so. Merseyrail then proceeded on the footing that the right response to a passenger who dared to challenge the penalty fare imposed as a civil law sanction was to double down by institution of a criminal law prosecution.
Merseyrail commenced its prosecution for a Section 5(1) RoRA offence by means of the Single Justice Procedure. It had no authority to do so, and the effect of its improper use of the SJP was to bypass the protection against abuse of prosecutorial powers that scrutiny by the justices of an information laid in the time-honoured way is supposed to provide. That was the correct way for Merseyrail to have proceeded, and its failure to do so prompts inquiry into whether it is habitually exceeding its authority to invoke the SJP.
The magistrates court doesn't emerge from this with any credit, either, as it patently failed to note and act (as it should have) upon Merseyrail's abuse of the SJP when the case first came to the court's attention.
Extraordinarily, after Sarah Hodgson had made perfectly clear the basis on which she would defend, Merseyrail's prosecutor insisted that the prosecution was going ahead. This was despite the fact that the Penalty Fare Notice in Merseyrail's hands already demonstrated (by inclusion of the Sarah's name and address) that she had met one of Section 5(1)'s requirements and that consequently the prosecution was bound to fail. Merseyrail's defiant disregard of Section 5(1)'s correct interpretation begs the question: was this an isolated error confined to Sarah's case, or is it indicative of a widespread but mistaken belief in Merseyrail Enforcement that Section 5(1) makes ticketless travel a substantive offence? Furthermore, even if this was nothing more than an isolated error, the fact that it has been perpetuated beyond a case management hearing at Sefton Magistrates Court indicates that Merseyrail does not have in place appropriate mechanisms to detect and correct such errors – or, for that matter, its abuse of the Single Justice Procedure.
Railway operators enjoy the privilege of recourse to industry-specific criminal law provisions as part of their revenue protection toolkit. Their passengers are entitled to expect that this privilege will be exercised lawfully and responsibly. When, as in this case, it is apparent that the operator has not been doing so, it's legitimate to ask whether the privilege should be removed. In the present case, short of such removal there should at least be a searching inquiry into whether Merseyrail Enforcement is being properly managed so as to prevent the abuse of its powers as a prosecutor that this case has brought to light. Sarah Hodgson has told us that the Metro Mayor Steve Rotherham has expressed a willingness to pursue the concerns she has raised about Merseyrail's conduct in her case. I hope she will persevere in her efforts to make the Mayor honour the assurances he has given her, and that this will ultimately lead to the changes in Merseyrail's practices that are clearly needed.