Section 5(1) RoRA Prosecution

[KirkstallOne]

I am being prosecuted for a journey between Kirkstall Forge and Leeds last year.

I attempted to purchase a ticket on the platform but the machine froze as soon as I hit Quick Buy and was completely unresponsive for a minute or so with just part of the user interface displayed on the screen. I had never seen this behaviour before and it struck me as a serious fault so I gave up trying to obtain a ticket and boarded the train with the intention of paying on the train or at the station.

After getting to Leeds I tried to purchase a return from the window and was taken to one side and issued with a Penalty Fare, with the agent saying their app said the machine was working. This was despite me explaining it froze and having a return ticket stub from the same machine and the same journey still in my pocket from the day before.

I immediately appealed the penalty fare (as soon as I got to the office) with the same information above and a photograph of the previous days ticket stub.

This appeal was rejected due to ‘evidence showing the machine was working and issuing tickets around the relevant time’. I haven’t seen this evidence but don’t accept it as I am confident there must be a minute or two gap at minimum when the machine was frozen. I didn’t appeal again.

I have ignored some subsequent letters until receiving a final offer of settlement for £150 or to go to court under ‘Single Justice Procedure’. I submitted a not guilty plea and disputed the fact the machine was working in the small section you had to outline your defence.

I have now been sent a court date for prosecution under RoRA 1889 Section 5(1), this is apparently a case management hearing.

I am looking for some advice on what I am actually being accused of and whether the proper procedure is being followed.

From my limited understanding the 1889 act covers intent to evade a fare, and the fact I was trying to pay the fare at the ticket window shows that was not the case. Why wouldn’t they prosecute under the Penalties Fares Act with their evidence that they believe shows I should have obtained a ticket from the machine?

The other aspect that I am confused by is the Penalty Fares Act seems to say that once appealed any penalty fare becomes a civil matter for non-payment of fines and criminal prosecution for the same or related offences is no longer an option. I have also read several comments on this forum to that effect. Is this not the case in these circumstances?

Grateful for any advice and insight on this.

 

[Watershed]

It's ambiguous whether the freezing of the machine for a minute would constitute there being no facilities to buy a ticket - some train operators try to argue that you must arrive at the station an unstated amount of time before the train leaves, to make sure you have time to buy a ticket even if there are queues or other difficulties. But that is really neither here nor there at this stage; the offence you are being prosecuted under, section 5(1) of RoRA, is not about failing to use available facilities. It is about (allegedly) failing to either show a valid ticket, or pay the fare due, or give your name and address:

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 level 2 on the standard scale.

You did both of the latter and are therefore unambiguously innocent of any offence under section 5(1) of RoRA. Northern's description of the evidence/circumstances in their summons/SJPN will undoubtedly confirm this as well, so they are well and truly in the wrong for bringing this prosecution.

As for appealing the Penalty Fare meaning that prosecution is no longer possible, that is correct (subject to appealing within the time limits etc.), but unfortunately only in respect of section 5(3) of RoRA or the Railway Byelaws. The drafters of the Penalty Fares Regulations evidently didn't consider it necessary to state the obvious - that you can't prosecute someone whose name and address you have (otherwise how would you have issued the Penalty Fare?), for failing to provide their name and address!

Your 'not guilty' plea is clearly warranted under the circumstances, and in fact this might even be a candidate for a submission of 'no case to answer' or an application for the proceedings to be stayed as an abuse of process. On that particular aspect you'd be well advised to speak to a criminal defence solicitor, although perhaps some of the lawyers who frequent this section would also like to chime in.

Overall, Northern have brought an entirely unfounded prosecution, but unfortunately it won't necessarily be entirely straightforward to get it stopped at this stage. It's very frustrating that train companies such as them have the scot-free ability to impose this degree of unwarranted hassle and stress on people, but sadly this is the way the law stands at the moment.

 

[furlong]

It might be wise as a next step to try to obtain written confirmation that you no longer have to pay the Penalty Fare - you don't want them pursuing two separate actions through the courts!

 

[KirkstallOne]

Thanks for the replies that is reassuring. I wonder how often they try it on and just expect you will pay up under the threat of a criminal record. I really object to private companies having the power to prosecute, look at the post office scandal!

 

[John Palmer]

With few exceptions apparently not applicable here, train operators have authority to use the Single Justice Procedure to begin a prosecution for railway bylaw offences only. An operator seeking to commence a prosecution for an alleged offence under the Regulation of Railways Act 1889 should do so by laying an information in accordance with Section 1 Magistrates Courts Act 1980, as this is not a prosecution for a bylaw breach. If the body that is prosecuting you under section 5(1) RoRA 1889 is such an operator, there is an argument to be put to the court at the forthcoming case management hearing that the proceedings have been commenced under the SJP without the requisite authority, and as such are a nullity. The relevant provision is contained in the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016, and can be found at https://www.legislation.gov.uk/uksi/2016/430/made. Article 6 deals with Railway Operators and the scope of such operators' powers to avail themselves of the Single Justice Procedure.

To correct such an error, it seems the operator must lay the appropriate information under the Magistrates Courts Act as mentioned. However, since the offence is presumably said to have been committed last year, any such information could now only be laid more than six months after the alleged commission date. Since Section 5(1) offences are triable summarily only, their prosecution must be commenced within 6 months of the date of the alleged offence. As that 6 month period has apparently expired, any attempt to re-start the prosecution by the correct means should fail for being time-barred.

Should the case come to trial, the Penalty Fare Notice that was issued to you should contain your name and address, and can be introduced into documentary evidence that you provided these on request and thus can not be guilty of an offence under Section 5(1) RoRA 1889. The paperwork issued in connection with the prosecution may have failed to mention this part of Section 5(1) as the prosecutor may be seeking to suggest incorrectly that failure to produce a ticket showing that your fare is paid constitutes a substantive offence in its own right under the subsection.

It may be helpful if you can post images of the documents sent to you to initiate the prosecution, with personal information about you suitably obscured.

 

[KirkstallOne]

Thanks John really appreciate the help. I think the prosecution is just within 6 months of the alleged offence (22nd November 2022, SFP Notice 15th May 2023). I have uploaded some redacted documents:

- Appeal Rejection letter
- Single Justice Procedure Notice
- Penalty Fare Notice supplied as exhibit with SJP
- Was also supplied witness statement from RPO, says 'had occasion to speak to a passenger who gave their name as X', nothing about my explanation or that the occasion to speak to me was because they heard me try to buy a return from the window
- Summons for Section 5(1) of RoRA 1889 offence

Is it possible the prosecutions department haven’t realised there has been an appeal so they are just treating it as me completely ignoring it. Penalties Fares Act seems to say they can prosecute in that case.

 

[John Palmer]

That paperwork confirms my view that this is an attempt by a Railway Operator to commence a prosecution by means of the Single Justice Procedure in respect of an offence for which the operator lacks the requisite authority to employ that procedure. I know of no way in which this error can be retrospectively corrected. At the case management hearing the court should be invited to declare that it will not entertain this case as a lawful proceeding on the ground that the prosecutor had no authority under the 2016 Order to which I previously referred to institute this non-bylaw offence by means of the SJP. If the magistrate conducting the CM hearing is legally qualified he or she should recognise from a reading of the 2016 Order that such is the case. If it is a lay magistrate then the point should be referred to the legally qualified adviser to the justices, who should confirm the prosecutor's lack of authority.

It is also clear that, more than 6 months having elapsed since the incident giving rise to the attempted prosecution, Northern are out of time to adopt the correct method for starting a prosecution by laying an information, and should thus be unable to revive the prosecution. @furlong's point about seeking confirmation that you no longer have to pay the penalty fare is important, since abandonment of the civil debt claim and pre-emption of a prosecution will ensure that the matter is at an end.

Should that not suffice to dispose of the matter (and rejection of the want of authority point potentially constitutes a legal ground for appeal), then attention can be drawn to the truncated version of the offence alleged set out in the prosecution paperwork, which fails to cite all three points of failure required to give rise to a Section 5(1) offence, as quoted in @Watershed's post #2 above. The appropriate course might be to argue at the CM hearing that it would in any case be an abuse of process to allow the case to go forward, because it must be self-evident from the copy penalty fare notice in the operator's own hands that you gave your name and address on request, thus fulfilling one of the three obligations expected of you by Section 5(1), and that the prosecution consequently knows it cannot succeed.

It is possible that the prosecution will seek to counter this on the basis that failure to produce a ticket or pay your fare by itself constitutes an offence. I know of no decided case law on this, but previous discussion of the subject here pointed to the conclusion that this is an incorrect interpretation of Section 5(1). However, since this is a legal point about the correct interpretation of the statute, it may be an argument you would prefer to have conducted on your behalf by a lawyer. If the prosecution indicates at the CM hearing that it wants to pursue any legal argument that failure to produce a ticket or pay suffices to establish the Section 5(1) offence then you might say that you could not have been expected to be ready to meet such an argument, that you will wish to seek legal representation to do so, and that you wish to seek legal aid to cover the expense of such representation. Your prospects of obtaining legal aid are likely to be negligible, but a (failed) application for legal aid is a pre-requisite for obtaining an order for costs should you ultimately be acquitted. If you choose to retain a lawyer privately then any abortive application for legal aid lays the groundwork necessary for seeking a costs order to recover part of that expense - unfortunately your prospects of recovering the full cost of private representation are also negligible!

 

[kkong]

I attempted to purchase a ticket on the platform but the machine froze as soon as I hit Quick Buy and was completely unresponsive for a minute or so with just part of the user interface displayed on the screen.

I experienced this behaviour a few weeks ago with a ScotRail S&B type TVM.

It did sort itself out and come back to life after about 2 or 3 minutes.

As I was in no great rush, while the machine was frozen, I spoke with a ScotRail employee on the gateline to explain that the machine might need a reset, but they showed zero interest in the situation.

 

[miklcct]

I experienced this behaviour a few weeks ago with a ScotRail S&B type TVM.

It did sort itself out and come back to life after about 2 or 3 minutes.

As I was in no great rush, while the machine was frozen, I spoke with a ScotRail employee on the gateline to explain that the machine might need a reset, but they showed zero interest in the situation.

I think I have also encountered something like this in the past and I would immediately use another one to purchase my ticket.

 

[Watershed]

Thanks John really appreciate the help. I think the prosecution is just within 6 months of the alleged offence (22nd November 2022, SFP Notice 15th May 2023). I have uploaded some redacted documents:

- Appeal Rejection letter
- Single Justice Procedure Notice
- Penalty Fare Notice supplied as exhibit with SJP
- Was also supplied witness statement from RPO, says 'had occasion to speak to a passenger who gave their name as X', nothing about my explanation or that the occasion to speak to me was because they heard me try to buy a return from the window
- Summons for Section 5(1) of RoRA 1889 offence

Is it possible the prosecutions department haven’t realised there has been an appeal so they are just treating it as me completely ignoring it. Penalties Fares Act seems to say they can prosecute in that case.

Thanks for uploading those pictures. Could you also upload a copy of the witness statement, again with any identifying details (names/exact times/reference numbers) redacted? This will help us to confirm whether their own evidence demonstrates that you are not guilty.

I don't think the problem here is that the prosecutions team hasn't clocked the appeal - it's that they are so incompetent (it would be extremely concerning if it were malicious) that they don't realise no offence is made out under section 5(1) where details have been given for a Penalty Fare to be issued.

 

[kkong]

I think I have also encountered something like this in the past and I would immediately use another one to purchase my ticket.

In my case, it froze just after I asked it to print my ToD.

Not a great experience.

 

[skyhigh]

I think I have also encountered something like this in the past and I would immediately use another one to purchase my ticket.

And if there's only the one machine...?

 

[ainsworth74]

The OP may want to have a scan through this thread which appears very similar in nature to their situation where the OP in that thread was issued a Penalty Fare, appealed, had it rejected but was prosecuted anyway under RoRA S5(1) by Merseyrail who eventually dropped the prosecution but only after some considerable effort.

 

[KirkstallOne]

Thanks for uploading those pictures. Could you also upload a copy of the witness statement, again with any identifying details (names/exact times/reference numbers) redacted? This will help us to confirm whether their own evidence demonstrates that you are not guilty.

I don't think the problem here is that the prosecutions team hasn't clocked the appeal - it's that they are so incompetent (it would be extremely concerning if it were malicious) that they don't realise no offence is made out under section 5(1) where details have been given for a Penalty Fare to be issued.

I have uploaded the redacted witness statement below, thanks again to everyone for your really detailed advice.

 

[John Palmer]

It's a small point, but did the package of prosecution papers sent to you include the certified copy of the Penalty Fare Notice exhibited to the witness statement as Y.R.1? That exhibit forms part of the prosecution evidence, so if a copy of the exhibit has not been served upon you then there has been a further failure to provide you with a full copy of the evidence on which the prosecution rely. And if you have not received a copy of the exhibit then that prompts the question of whether a copy of it accompanies the witness statement lodged with the court - important as it enables the court to see for itself the details of your name and address that the penalty fare notice is expected to contain at the time it is issued.

More importantly, Exhibit Y.R.1 should set out your name and address, thereby demonstrating on the prosecution's own evidence that you satisfied one of the three obligations required of you by Section 5(1) RoRA 1889 and consequently that you cannot be convicted of that offence.

 

[furlong]

It's a small point, but did the package of prosecution papers sent to you include the certified copy of the Penalty Fare Notice exhibited to the witness statement as Y.R.1?

Second image in post 6, but key information blacked out.
OP - does what is blacked out contain your (correct) name and address?

 

[John Palmer]

Second image in post 6, but key information blacked out.
OP - does what is blacked out contain your (correct) name and address?

So it is - I can see the 'Y.R.1' marking on it - well spotted!

In view of the exchange of correspondence that has taken place it seems unlikely that the blacked out section doesn't contain the OP's correct name and address, but yes, it's important for the OP to confirm whether it does.

 

[AdamWW]

It is possible that the prosecution will seek to counter this on the basis that failure to produce a ticket or pay your fare by itself constitutes an offence. I know of no decided case law on this, but previous discussion of the subject here pointed to the conclusion that this is an incorrect interpretation of Section 5(1).

After getting to Leeds I tried to purchase a return from the window and was taken to one side and issued with a Penalty Fare, with the agent saying their app said the machine was working.

Would such an attempt not also have to rely on the omission from the official account that the OP attempted to pay the fare at the excess fares window?

I don't see how you can resonably refuse to let someone pay for their fare and then attempt to prosecute them for not having done so. Unless perhaps they can argue that the prosecution is actually for not paying the fare element of the penalty fare?

 

[fandroid]

The witness statement said that they phone the TVM supplier to verify if the machine was working. Does looking at an app count as phoning?


I know that the legal meaning of words can differ from the everyday meaning but that clause of the RoR act does say "fail to either show a ticket, or ....."

 

[KirkstallOne]

Yes the name given on the witness statement and name and address on the penalty fare notice are all my correct name and address.

Yes the witness statement and copy of penalty fare notice were included in the first Single Justice Procedure notice I received that asked me to plead guilty or not guilty.

Finally on whether they phoned the TVM supplier, I certainly don’t recall the RPO doing so, my recollection is that they checked something on their device without speaking to anyone although I wouldn’t be sure on this.

 

[furlong]

Finally on whether they phoned the TVM supplier, I certainly don’t recall the RPO doing so, my recollection is that they checked something on their device without speaking to anyone although I wouldn’t be sure on this.

If it got that far (and there appear to be plenty of hurdles in the way) and the issues with the witness statement were thought to be relevant, then in your response to the court (dealt with at the case management hearing) you'd need to say the inspector must attend so that your lawyer can ask the relevant questions.

 

[KirkstallOne]

The OP may want to have a scan through this thread which appears very similar in nature to their situation where the OP in that thread was issued a Penalty Fare, appealed, had it rejected but was prosecuted anyway under RoRA S5(1) by Merseyrail who eventually dropped the prosecution but only after some considerable effort.

Thanks for this, a lot to digest in that thread but it does seem a very similar situation - a prosecution has been initiated using S5(1) which is one of the only options after a penalty fare has been appealed. Presumably this course was decided after my refusal to pay the penalty fare which seems to run entirely counter to the spirit of the penalty fares regulations.

Very glad Sarah got the prosecution dropped. I am happy to fight this one, stubbornness is one of my many faults and I can live with a criminal record in the worst case.

 

[fandroid]

The OP may want to have a scan through this thread which appears very similar in nature to their situation where the OP in that thread was issued a Penalty Fare, appealed, had it rejected but was prosecuted anyway under RoRA S5(1) by Merseyrail who eventually dropped the prosecution but only after some considerable effort.

The thread mentioned is well worth reading by anyone interested in possible prosecutions after a Penalty Fare is challenged

 

[John Palmer]

There is another pertinent thread here: https://www.railforums.co.uk/thread...r-the-single-justice-procedure-notice.238488/ It's one of particular significance because, rather than involving Merseyrail, it relates to another prosecution brought by Northern Trains Ltd in substantially identical circumstances to those of @KirkstallOne's case, namely penalty fare → unsuccessful appeal → non-payment of PF → prosecution via SJPN under Section 5(1) RoRA 1889. This was a case in which Preston Magistrates convicted the OP in her absence of the Section 5(1) offence having (a) failed to detect the unauthorised employment of the SJP to initiate prosecution for a non-bylaw offence and (b) apparently failed to note from the the penalty fare notice exhibited to the prosecution's own witness statement that the accused must have complied with her Section 5(1) obligations by supplying her name and address on request.

Taken together, the Preston case and the present case raise the possibility that Northern Trains Ltd is improperly making systematic resort to prosecution by SJPN for a Section 5(1) RoRA offence where a penalty fare has been appealed and remains unpaid. The Preston case demonstrated a failure on the part of the justice system to ensure that due process was observed as regards the institution of proceedings and probably also involved a failure by the magistrates to satisfy themselves that the prosecution had proved the essential ingredients of the offence charged. They may well have been misled by Northern Trains' pernicious failure to spell out in full the terms of Section 5(1) and so missed the significance of the name and address having been given. That does not excuse the apparent failure of their legal adviser to bring to their attention the elements of the offence the prosecution was required to prove.

I'm glad to hear that @KirkstallOne is prepared to make a stand in court against Northern Trains, and would be interested to learn whether that appetite extends to taking steps beyond the current legal process to put an end to Northern Trains' developing pattern of using a Section 5(1) RoRA prosecution to penalise non-payment of a civil debt. How many other penalty fare recipients have been wrongly convicted of such an offence at the instance of Northern Trains, as in the Preston case?

 

[fandroid]

I know that the judicial system is desperately under resourced, but would it be possible to interest the CPS or even the DPP in abuse of process by organisations with private prosecution rights? There was an almighty fuss about the RSPCA not long ago, but I am not aware of who got involved there.

Are Northern Rail subject to FOI requests?

 

[ainsworth74]

Are Northern Rail subject to FOI requests?

Yes they are.

 

[island]

The witness statement said that they phone the TVM supplier to verify if the machine was working. Does looking at an app count as phoning?


I know that the legal meaning of words can differ from the everyday meaning but that clause of the RoR act does say "fail to either show a ticket, or ....."

A reading of the law suggesting that the passenger must show a valid ticket and pay the fare from where they came and give their name and address is patently absurd. They need only do one of the three.

I know that the judicial system is desperately under resourced, but would it be possible to interest the CPS or even the DPP in abuse of process by organisations with private prosecution rights? There was an almighty fuss about the RSPCA not long ago, but I am not aware of who got involved there.

I would suggest that matter would be appropriately raised in a fresh thread so that we can focus here on assisting our OP.

 

[KirkstallOne]

@John Palmer I am certainly interested in taking further steps to prevent Norther Rail from abusing the Penalty Fare process in future. I am hopefully getting formal legal advice for the forthcoming court case (3rd August) but will update this thread with any developments.

An FOI request is an interesting point, as a starter I would be interested to know how many Penalty Fares have been issued, unsuccessfully appealed, and have then resulted in a S5(1) prosecution being initiated, it seems this is the sort of information they would be obligated to provide.

On the question of whether the Penalty Fare is still outstanding, or has been cancelled as is required if prosecution was initiated using one of the offences enumerated in S11 (4) of the Penalty Fares Act, I have just been to Northern's website to attempt to initiate payment and it won't let me, saying 'Can't proceed - contact office'. So it seems that they have indeed cancelled the penalty fare.

Would the forum advise I seek written confirmation of this from the Northern Debt Recovery & Prosecutions unit ([email protected]).

I was thinking of something like this:

"Dear Sir / Madam,

I write to you regarding the prosecution you have initiated, relating to Penalty Fare Notice XXXX issued on the 22nd November 2022 @ XXXX.

As the matter is now being dealt with in a criminal court (case number XXXX) could you please confirm that the Penalty Fare is no longer due.

Yours faithfully,

NAMEANDADDRESS"

 

[John Palmer]

I can't immediately see any problem with your draft letter to the Northern DRPU, but it would be helpful to see exactly what the prosecution is claiming from you. This information probably appears on the reverse of the SJP Notice already posted, or on some other document in what's referred to on the SJPN as 'the attached pack'.

I assume that on the 'Summons on Referral to Court' the court has simply repeated verbatim the prosecution's Statement of Facts that should form part of the SJPN or its accompanying papers. By doing so it will have perpetuated any failure by the prosecution to set out the “or give the officer or servant his name and address” component of Section 5(1) RoRA in that Statement of Facts, thereby extending any obfuscation of the nature of the offence alleged that may have been created by the prosecution's wording. So it may also be helpful to see how the prosecution worded the Statement of Facts on its SJPN.

It would indeed be interesting to learn Northern Trains' response to your suggested FOI request. When a penalty fare is issued the recipient must give his name and address, so logically the circumstances giving rise to a Section 5(1) offence should not exist. That being the case, the question of whether there was a successful appeal against the penalty fare may be superflous. Of greater significance is the number of convictions for a Section 5(1) offence in cases where a penalty fare had also been issued, as this would be sufficient indication that such convictions may have wrongful to warrant further retrospective enquiry.

I'm glad to hear that you are formally seeking professional legal advice in connection with the forthcoming hearing on 3rd August. I doubt that there have been many previous challenges to a railway operator's recourse to the Single Justice Procedure to prosecute a RoRA offence, or that the giving of name and address in connection with a penalty fare's issue is commonly used as a defence to a Section 5(1) RoRA prosecution. You are, therefore, likely to be entering largely uncharted legal depths where assistance from a current criminal law practitioner could prove highly beneficial.

 

[KirkstallOne]

@John Palmer it is completely blank on the other side of the SJPN which now you mention it is strange because it specifically says "Details of the charge are overleaf". There is also some boiler plate from Northern which just says "the alleged offence is detailed on the Charge Sheet included in this notice" and an MC100 form (financial circumstances) which they have managed to print on both sides (this also includes the header you can see on the boilerplate).

Fairly sure the first time I read 'Regulation of the Railways Act 1889' was when the actual summons arrived.

(edit) Actually it does mention this on the settlement offer.