Merseyrail / Trainline disconnect

[Bletchleyite]

What an absolute mess - from the above the OP hasn't contravened 18.2, and 24.1 can't be contravened, it's a statement of what penalties apply.

Suspect they meant 18.1 and 24.2. But it's really quite incompetent.

This raises an interesting question - by virtue of being a bit different from the mainline, can Merseyrail override rights that come from the NRCoT, such as excesses? If not, and I thought not, might a legal firm be interested in a class action suit about their entire set of ticketing Byelaws as they're stricter than the NRCoT?

 

[cool110]

This raises an interesting question - by virtue of being a bit different from the mainline, can Merseyrail override rights that come from the NRCoT, such as excesses?

No

If not, and I thought not, might a legal firm be interested in a class action suit about their entire set of ticketing Byelaws as they're stricter than the NRCoT?

Those are exactly the same as the byelaws applying to all the other TOCs, the only difference is that they use the TfL version of byelaw 4 (possession of alcohol).

 

[gray1404]

I just cannot believe no one in Merseyrail is looking at this and seeing sense. Shows they have zero checks and balances in place.

Have you contacted your MP or a local Counsellor about this yet?

This is why it's so important anyone else in a similar position appeals.

 

[Bletchleyite]

No

That was my view too.

Those are exactly the same as the byelaws applying to all the other TOCs, the only difference is that they use the TfL version of byelaw 4 (possession of alcohol).

Presumably, then, "valid ticket" in 18.1 follows the NRCoT definition, i.e. that a geographically routed ticket that would otherwise not be valid is legally valid because of the provision for excessing. So I'll stick with "incompetent"

 

[Hadders]

This reply from Merseyrail is extremely disappointing, although not entirely unexpected.

You should be found not guilty in court however I have little faith in the court system to properly understand the issue. Consequently, I believe it's important that your represented by a solicitor who specialises in railway ticketing matters.

 

[John Palmer]

Short version: The only relevant charge is the one that appeared on the document headed 'Charge Sheet' that was served on the OP. That remains subject to the defect of failing to identify the legislation creating the offence charged, as required by Part 7.3(1)(a)(ii) of the Criminal Procedure Rules 2020. For that reason I consider that the position remains as set out in my post #145. Long version follows.

The Single Justice Procedure pack uploaded by the OP is no longer accessible, but so far as I recall it did not include any specification of a charge against the OP that identified Merseyrail Byelaw 18(2) (or, for that matter, Byelaw 24(1)) as the legislation creating the offence alleged. Instead, the only charge of which I am aware was that appearing on a document headed 'Charge Sheet'. That charge recited an extract from Section 5(1) Regulation of Railways Act 1889 without identifying that Act as the source of the charge's wording.

The procedure for instituting criminal proceedings by written charge, as applies to the OP's case, is set out in Section 29 Criminal Justice Act 2003. Subsection (1) of Section 29 states that:

“A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a “written charge”) which charges the person with an offence.”

That written charge can be accompanied, as in the OP's case, by a Single Justice Procedure Notice. Section 29(2B) of the 2003 Act goes on to provide:

“A single justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates' court specified in the notice a written notification stating—
(a)whether the person desires to plead guilty or not guilty, ...”

Section 29(3A) of the 2003 Act further provides that:

“Where a relevant prosecutor issues a written charge and a single justice procedure notice, the written charge and notice must be served on the person concerned, and a copy of both must be served on the designated officer specified in the notice.”

I've emboldened the text that is significant in the context of the OP's latest update. We know the terms of the written charge that was served on the OP; what we do not know is what version of the charge Merseyrail's prosecutor sent to the court. The OP says that she “went online to look at the process” and on doing so discovered a charge specified in entirely different terms, with a specific reference to Merseyrail Byelaw 18(2). I assume that she is referring to an online court record of the particular case which Merseyrail has brought against her.

What emerges from this is that that court record now reflects a charge against the OP that does not correspond in important respects with the charge served on her. I do not know how this state of affairs has come about, but three possibilities occur to me:

1. At the time of serving its charge on the OP Merseyrail's prosecutor served on the 'designated oficer' a different charge;
2. At some date after the charge was served on the OP (and a copy served on the 'designated officer'), Merseyrail's prosecutor sent a different charge to the court, and this different charge has been accepted by the court onto its record; or
3. The court has, without intervention on Merseyrail's part, substituted a different charge on its record for the one served on the OP.
   

As matters stand, the only charge the OP faces is the charge that appears on the Charge Sheet received by her and accompanying the SJPN. That charge is the only charge potentially capable of being valid, because it is the charge served on the OP in accordance with Sections 29(1) and (3A) Criminal Justice Act 2003, and thus constitutes the foundation on which these criminal proceedings depend for their validity. Paragraph 60 of the Chief Magistrate's judgment in the recent Northern Trains case has some relevance in this context by emphasizing the significant part the written charge played in those cases in determining whether the proceedings should be treated as a nullity. I refer to the charge as being no more than 'potentially' valid because the failure to comply with CPR Part 7.3(1) might induce magistrates to refuse an application to amend the charge and to decline to hear the case.

It seems unlikely that Merseyrail would, at the outset, have sent a charge in one form to the OP whilst sending a charge with entirely different wording to the 'designated officer'. The court changing the specification of charge on its own initiative strikes me as even more unlikely. That may leave possibility (2) as the one most likely. It may have been prompted by Mersyrail's error of failing to specify the source legislation being brought to its attention. In my view it would be serious further error on Merseyrail's part to prevail upon the court to place upon its record a charge against the OP in different form to the written charge served upon her, other than by making appropriate application to the court for leave to amend the charge (and plainly no such application can yet have been made). In turn the court should not have accepted such a change in the charge in the absence of a successful application for such leave to amend.

It is thoroughly unsatisfactory for the court's record of the charge faced by the OP to be in significantly different form from the 'written charge' that was served upon her. In my view she should send a copy of the written charge she received to the court, pointing out how it differs from the court record of it I presume she accessed online, and ask for an explanation of (a) how such differences have come about and (b) what the court proposes to do about them. This, of course, should be in addition to returning the appropriately completed form by way of response to the Single Justice Procedure Notice, and in addition to a covering letter calling attention to the infraction of CPR Part 7.3(1) on the lines I suggested in post #145. Until the court has addressed all these matters I do not see how the OP can be expected to deal with whatever charge she may ultimately be called upon to face.

 

[Chrius56000]

Yes.

In the summary you can quote "you will be charged the difference".

You could write that you explained twice, and they twice ignored the point in their purported replies.

One option is to link to one or more posts in this thread.

It's worth mentioning/linking to the background of previous error, for example:

Train company prosecutions

www.gov.uk

Another way of expressing the point is,

"Since Merseyrail is committed through Condition of Travel 9.5 to charge only an excess fare, its accusation that I 'avoided' a fare of £5.75 is necessarily false, as is its claim that a Penalty Fare was correctly charged."

. . .The only conclusion I can come to from this debacle is that Merseyrail is a malicious and spiteful train company that seems hell–bent on throwing a spurious charge at the OP that is both totally unwarranted and uncalled for, in total variance with the National Rail Conditions Of Carriage and it is furthermore trying to throw a charge at the OP in contravention of it's contract as a designated TOC as defined by Appendix A!

. . .The OP must write to the court pleading "not guilty" and state clearly that she regards the charge as null and void, which it is, because Merseyrail has not quoted the legislation which it is trying to throw back at her, secondly explain to the court that the proceedings fail to comply with CPR 7.3, and also write a very strongly worded letter to the CEO of Merseyrail explaining how NRCoT 9.5.2. applies and that the OP discharged her obligations under that paragraph by presenting an otherwise valid travel ticket under those terms, and the ONLY applicable sanction to her case was to pay the excess, which she offered as well as offering the equivalent of the Merseyrail fare I believe!

 

[some bloke]

I'm inclined to think the error is now not "significant" in the sense required, because you now know what the offence and legislation are and as a result the court will not be hindered.

However, it seems to me that Merseyrail may be breaching another rule by failing to establish through communication with you what is agreed and what disputed, since they have three times failed to answer your point.

The reason I wrote this

You can also ask them to disclose to you any evidence they have as to whether it is permissible to "excess" such a ticket.

is that they have to co-operate.

"Merseyrail will disclose any evidential material requested by a Defendant or their legal representative."

Understanding Revenue Protection

Merseyrail is committed to reducing the level of revenue loss due to fare evasion.

www.merseyrail.org

 

[yorkie]

I would allow the case to go to court.

We will do our best to put you in contact with a solicitor once you have a court date. Please contact me as soon as you have any updates on this.

I anticipate a very embarrassing defeat for Merseyrail.

 

[Haywain]

The OP must write to the court pleading "not guilty"

To plead not guilty suggests that you understand the charge and which legislation is being applied. The OP has no way of knowing that.

 

[some bloke]

You can plead not guilty and add a note to say that it's on the basis of the website version, and that the charge on the paperwork appears to resemble part of an offence under s.5(1) of the Regulation of Railways Act 1889.

You might email court staff today saying that's what you intend to do.

The court might decide that the error does, or might, hinder it because it has to spend time making sure what the charge is.

It seems important that Merseyrail and/or court are not distracted too much by this from understanding your defence.

If/when you inform the court of the procedural error, you can attach/include the email in which you informed Merseyrail of it.

That email would show the court (without you needing to spell it out) that Merseyrail also failed in their duty to inform the court after you told them.

The same applies if the focus of your communication to the court is "here's what I'm intending to do"/"this is the basis of the plea I am making now", rather than "I'm reporting a breach".

You can also mention that it was only yesterday that you saw the website version.

If I were you I would wait to see what @John Palmer and others have to say.

 

[John Palmer]

If I were you I would wait to see what @John Palmer and others have to say.

I hope I've made clear my assessment of the OP's present position in post #156, but I'll add a couple of further thoughts that occur to me.

Since the written charge served on the OP repeats in part the wording of Section 5(1) Regulation of Railways Act 1889 it is reasonable to infer that Merseyrail intended to allege commission of the offence created by that section. This notwithstanding that Merseyrail has no authority to use the SJP to bring a charge under that Act; it has wrongfully done so on at least one previous occasion.

If Merseyrail instead intended to allege an offence under its Byelaw 18.2 in the form that seems now to appear on the court record, then why was that wording not used to specify the written charge served on the OP? The very fact that Merseyrail used different wording suggests that it intended to charge a different offence.

If it is accepted that the offence alleged on the written charge appears to be one involving contravention of Section 5(1) RoRA then the OP has an unanswerable defence to that charge on the basis of the prosecution's own evidence, namely that a penalty fare was issued to her, that this could only have been done if she had given her name and address to the issuing official, and that by doing so she had taken one of the three courses exonerating her from commission of a Section 5(1) RoRA offence.

If Merseyrail instead intend to allege a breach of its Byelaw 18.2 then an entirely different question would be before the court: has the prosecution proved that the defendant failed to hand over her ticket for inspection and verification of validity? Put in slightly different terms, can the prosecution satisfy the court so that it is sure that Merseyrail's officials made the requisite request for handover of the Chester-Liverpool via Runcorn ticket held by the OP and that she failed to comply with that request? Those are the facts that the prosecution must prove and it seems likely that they will be in dispute.

I foresee the possibility that a further issue of interpretation of Byelaw 18.2 might arise in the event that Merseyrail, whilst conceding that the OP did produce her 'via Runcorn' ticket, contend that the wording of Byelaw 18.2 connotes the production of a ticket that was valid for the journey being made, and that the 'via Runcorn' ticket produced did not satisfy that condition so that the Byelaw was accordingly infringed. I do not agree with such an interpretation of Byelaw 18.2, but if it were held to be correct then the application of NRCoT 9.5.2 comes into play – but only in those circumstances.

The decided cases point to the likelihood that an application to amend the charge to one of breach of Byelaw 18.2 would be granted, at any rate provided such application is made promptly after the failure to comply with CPR Part 7.3(1) is brought to the prosecution's attention. The allegation of the byelaw offence would arise out of the same alleged 'misdoing', and the 'interests of justice' test would be satisfied by removal of any doubt the defendant might otherwise have as to the nature of the case she is being called upon to meet. Nevertheless it is still up to Merseyrail to make such an application to amend. Until such an application has been made, and granted by the court, it would be quite wrong for the case to proceed on the basis that a Byelaw 18.2 offence is being alleged, as suggested by the current state of the court record. The written charge served on the OP suggests no such thing.

Based as it is on an assumption that the written charge served with a Single Justice Procedure notice will be unambiguous, the procedure introduced by Section 29 Criminal Justice Act 2003 does not admit of a 'don't know' response to the question of plea. The response must make clear whether a 'guilty' or 'not guilty' plea is being tendered. If, as in this case, the written charge is ambiguous, I see no alternative to tendering a 'not guilty' plea until the nature of the charge has been clarified. On what basis could you sensibly plead guilty to commission of a criminal offence the nature of which has been concealed from you?

The court ought to take a grave view of the difference between the written charge served on the OP and the specification of charge that apparently forms part of the current court record. At best this must involve a serious error of administration. At worst it could have been the result of the prosecution having taken steps that have misled the court as to the nature of the charge brought against the OP, and could involve a failure to comply with Section 29(3A) Criminal Justice Act 2003, as quoted in my previous post. In my view the OP is fully entitled to an apology and an explanation of how this has come about, and for that reason my previous post recommended her to seek such an explanation when responding to the SJPN. It is important that if she does so she should enclose a copy of the written charge served upon her so that the court is left in no doubt about the extent of the differences between that written charge and the current state of the court record.

I think I've probably now said more than enough about my views of the matter.

 

[MTDar82]

It's very much appreciated, thank you. I have written to the court today.

 

[some bloke]

You could ask Merseyrail,

"Please disclose any material from the penalty fare appeal body which may support my claim that the proper remedy for the via Runcorn ticket was to charge an excess fare, in light of this report from 15 July that the appeal body in essence agreed with me:

https://www.railforums.co.uk/thread...entially-off-route.266483/page-3#post-6852568"

it seems to me that Merseyrail may be breaching another rule by failing to establish through communication with you what is agreed and what disputed, since they have three times failed to answer your point.

This is what I'm referring to (with some more parts emphasised):


"The duty of the parties

3.3.—(1) Each party must―

(a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction...

(2) Active assistance for the purposes of this rule includes―

(a) at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing;

(b) after that, communication between the parties and with the court officer until the conclusion of the case;

(c) by such communication establishing...

(ii) what is agreed and what is likely to be disputed,

(iii) what information, or other material, is required by one party of another, and why, and

(iv) what is to be done, by whom, and when (without or if necessary with a direction);

(d) reporting on that communication to the court ―

(i) at the first hearing..."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

"The duty of the court

3.2.—(1) The court must further the overriding objective by actively managing the case.

(2) Active case management includes―

(a) the early identification of the real issues;
...
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;

(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;

(g) encouraging the participants to co-operate in the progression of the case"

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

The Rules also include also this - bear (h) below in mind:

The duty of the participants in a case​

1.2.—(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective...

...

The overriding objective​

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes ― ...

(f) dealing with the case efficiently and expeditiously; ...


(h) dealing with the case in ways that take into account ―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases."

 

[John Palmer]

Attempts to establish what is and is not agreed between the parties are premature, because as yet there is no way of telling what the issues in the case will be.

The only charge currently forming the subject of these proceedings is the written charge sent to the OP with the SJPN. The legislative source of that charge remains obscure; all that can be discerned from its wording is that it may be intended to be an allegation of the offence set out in Section 5(1) RoRA 1889.

The charge currently appearing on the court record alleging a breach of Merseyrail Byelaw 18.2 is not the charge the OP faces because it does not reproduce the written charge sent to the OP.

If Merseyrail wish to allege a breach of Byelaw 18.2 they must apply to the court for leave to amend the written charge served on the OP so as to make it clear that this is the allegation they wish to pursue. If such leave to amend is granted then, and only then, does it become possible to relate the issues in the case to Byelaw 18.2, and to ascertain the extent to which the parties are in dispute about them.

The wording of Section 29 Criminal Justice Act 2003 makes the position clear: the written charge served on the defendant is the document that institutes criminal proceedings and defines the offence that person is alleged to have committed, and a copy of that written charge must be served on the court. The recording by the court of a differently worded charge does not supplant the original written charge, which remains in place unless and until amended by leave of the court.

The way in which such a differently worded charge came to form part of the court record could, however, prove highly pertinent to the outcome of any application for such leave to amend. I see no reason to suppose that the court has varied the terms of the charge on its own initiative, with the implication that such variation resulted from something said or done by Merseyrail. Should it emerge that Merseyrail has persuaded the court to substitute some different wording of the charge in the place of that appearing in the written charge served on the OP, other than by seeking leave to amend, then such conduct becomes a consideration for the magistrates to take into account when deciding whether to accede to any subsequent application for leave to amend.

In short, once a prosecutor has issued a written charge in accordance with Section 29(1), she is stuck with it unless she can persuade the court to allow its amendment. Prosecutors mis-specify a Section 29(1) charge at their peril.

 

[Fawkes Cat]

Attempts to establish what is and is not agreed between the parties are premature, because as yet there is no way of telling what the issues in the case will be.

The only charge currently forming the subject of these proceedings is the written charge sent to the OP with the SJPN. The legislative source of that charge remains obscure; all that can be discerned from its wording is that it may be intended to be an allegation of the offence set out in Section 5(1) RoRA 1889.

The charge currently appearing on the court record alleging a breach of Merseyrail Byelaw 18.2 is not the charge the OP faces because it does not reproduce the written charge sent to the OP.

If Merseyrail wish to allege a breach of Byelaw 18.2 they must apply to the court for leave to amend the written charge served on the OP so as to make it clear that this is the allegation they wish to pursue. If such leave to amend is granted then, and only then, does it become possible to relate the issues in the case to Byelaw 18.2, and to ascertain the extent to which the parties are in dispute about them.

The wording of Section 29 Criminal Justice Act 2003 makes the position clear: the written charge served on the defendant is the document that institutes criminal proceedings and defines the offence that person is alleged to have committed, and a copy of that written charge must be served on the court. The recording by the court of a differently worded charge does not supplant the original written charge, which remains in place unless and until amended by leave of the court.

The way in which such a differently worded charge came to form part of the court record could, however, prove highly pertinent to the outcome of any application for such leave to amend. I see no reason to suppose that the court has varied the terms of the charge on its own initiative, with the implication that such variation resulted from something said or done by Merseyrail. Should it emerge that Merseyrail has persuaded the court to substitute some different wording of the charge in the place of that appearing in the written charge served on the OP, other than by seeking leave to amend, then such conduct becomes a consideration for the magistrates to take into account when deciding whether to accede to any subsequent application for leave to amend.

In short, once a prosecutor has issued a written charge in accordance with Section 29(1), she is stuck with it unless she can persuade the court to allow its amendment. Prosecutors mis-specify a Section 29(1) charge at their peril.

A practical consequence of this is that it's really important for the OP to hang on to the paperwork they were sent, and take all of it with them to court: it's all too easy to imagine the prosecution saying something like 'it's a byelaw 18 charge - that's what we told the court' and the OP will need to show that whatever the prosecution told the court, that's not what they told the defendants.

 

[some bloke]

Attempts to establish what is and is not agreed between the parties are premature, because as yet there is no way of telling what the issues in the case will be.

Unless 3.3 and 1.2 (1)(a) include the need to clarify what is agreed and/or in dispute concerning procedural matters?

Also, where it is clear that the allegation has something to do with producing a ticket and ticket validity, would the judiciary not prefer a dispute to be resolved about the facts rather than for there to be a hearing about a procedural matter, which need not take place? I think the spirit of the rules includes that.

Would it be reasonable to say the purported SJPN is not valid, since there is no such offence as

"Failed to produce (PFN)"

and the words

"It is an offence to fail to either produce, and if so requested to deliver up, a ticket showing that your fare was paid"

presented with no reference to legislation, cannot fulfil the requirements of the 2003 Act that an SJPN has to charge the person with an offence, and/or the requirements of Criminal Procedure Rule Rule 7.3(1)?

 

[John Palmer]

The OP is blameless for the procedural chaos into which her case seems to have fallen. She didn't ask to be prosecuted. She didn't breach the rules by failing to identify the legislation creating whatever charge has been brought against her, The appearance on the court record of a charge bearing little resemblance to the written charge served on her was not of her doing. She has written to the court drawing its attention to these errors, and asked for an explanation of how they have occurred and what the court will do about them. I see no basis for faulting the way the OP has responded to them.

Since the words on the written charge are derived from Section 5(1) RoRA 1889, it is open to Merseyrail to proceed on the footing that the OP committed the offence created by that Section. Were it to do so, the OP would have a complete defence provided by the penalty fare notice bearing her name and address that is exhibited to the prosecution witness' statement. In any event, if Merseyrail elects to take that course its prosecution will be struck down as a nullity on the basis it had no authority to bring such a charge by means of the Single Justice Procedure. Not a likely course of action on Merseyrail's part, which seems to leave it with no options other than withdrawal of the prosecution or an application to amend the charge.

The OP should stand for no nonsense along the lines of “it's a byelaw 18 charge - that's what we told the court”. Whatever Merseyrail may have told the court doesn't change the written charge served upon her. That's the charge with which she must deal unless and until Merseyrail obtains leave to amend it.

 

[Fawkes Cat]

The OP is blameless for the procedural chaos into which her case seems to have fallen. She didn't ask to be prosecuted. She didn't breach the rules by failing to identify the legislation creating whatever charge has been brought against her, The appearance on the court record of a charge bearing little resemblance to the written charge served on her was not of her doing. She has written to the court drawing its attention to these errors, and asked for an explanation of how they have occurred and what the court will do about them. I see no basis for faulting the way the OP has responded to them.

I don't think that anyone is suggesting otherwise. But it is always good to be prepared for the possibility that the other side will not just roll over and accept that they're wrong. Plan to help the court with understanding what has gone wrong.

 

[MadMac]

The OP is blameless for the procedural chaos into which her case seems to have fallen. She didn't ask to be prosecuted. She didn't breach the rules by failing to identify the legislation creating whatever charge has been brought against her, The appearance on the court record of a charge bearing little resemblance to the written charge served on her was not of her doing. She has written to the court drawing its attention to these errors, and asked for an explanation of how they have occurred and what the court will do about them. I see no basis for faulting the way the OP has responded to them.

Since the words on the written charge are derived from Section 5(1) RoRA 1889, it is open to Merseyrail to proceed on the footing that the OP committed the offence created by that Section. Were it to do so, the OP would have a complete defence provided by the penalty fare notice bearing her name and address that is exhibited to the prosecution witness' statement. In any event, if Merseyrail elects to take that course its prosecution will be struck down as a nullity on the basis it had no authority to bring such a charge by means of the Single Justice Procedure. Not a likely course of action on Merseyrail's part, which seems to leave it with no options other than withdrawal of the prosecution or an application to amend the charge.

The OP should stand for no nonsense along the lines of “it's a byelaw 18 charge - that's what we told the court”. Whatever Merseyrail may have told the court doesn't change the written charge served upon her. That's the charge with which she must deal unless and until Merseyrail obtains leave to amend it.

Not my field of expertise by any stretch of the imagination, but I‘m trawling the memory banks here back to the previous Merseyrail case we had here. Wasn’t the “prosecutor“ who showed up actually an employee of a Local Authority who Merseyrail had basically contracted with and as such, was unfamiliar with Railway Byelaws and/or RoRa?

 

[John Palmer]

Not my field of expertise by any stretch of the imagination, but I‘m trawling the memory banks here back to the previous Merseyrail case we had here. Wasn’t the “prosecutor“ who showed up actually an employee of a Local Authority who Merseyrail had basically contracted with and as such, was unfamiliar with Railway Byelaws and/or RoRa?

A full trial had been anticipated before Sefton Magistrates, but the court had failed to notify the defendant that it would be nothing more than a case management hearing in view of the legal arguments of which she had given advance notice. Merseyrail apparently knew it would not be the trial hearing, so instructed a lawyer from Sefton Borough Council to appear as its agent - a common arrangement.

 

[JohnJBC]

Hi all, someone pointed me to this thread after I won my appear against Merseyrail in similar circumstances. My heartfelt sympathies to the OP - it's shocking how MR are treating honest travelers. I have posted a redacted copy of my appeal outcome letter in case it is of any use in the argument at this stage (even with just the TfW ticket, you shouldn't have been given a penalty fare). This is in thread https://www.railforums.co.uk/thread...ng-ticket-potentially-off-route.266483/page-3. Best of luck and if there is anything else I can do to help please let me know!

 

[some bloke]

Thank you @JohnJBC . @MTDar82 , as the letter says the company has been informed, you could send it to Merseyrail and ask this:

You could ask Merseyrail,

"Please disclose any material from the penalty fare appeal body which may support my claim that the proper remedy for the via Runcorn ticket was to charge an excess fare, in light of this report from 15 July that the appeal body in essence agreed with me:

https://www.railforums.co.uk/thread...entially-off-route.266483/page-3#post-6852568"

The reason I wrote this
is that they have to co-operate.

"Merseyrail will disclose any evidential material requested by a Defendant or their legal representative."

Understanding Revenue Protection

Merseyrail is committed to reducing the level of revenue loss due to fare evasion.

www.merseyrail.org

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

Attempts to establish what is and is not agreed between the parties are premature, because as yet there is no way of telling what the issues in the case will be.

I think the general thrust of what Merseyrail is alleging is clear enough for it to be required to respond to @MTDar82 .

As Merseyrail has not even acknowledged there is a procedural error, they might reasonably be expected to respond on the substantive issues as normal. It looks to me like they have breached multiple rules.

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

If they don't give up, one option is to ask the CPS to take over the case with a view to discontinuing it - while mentioning that there may be a wider public interest reason for the CPS to do so in light of the recent news of 74,000 or so erroneous convictions after train company prosecutions.

The CPS doesn't say here that it has discretion not to ask for information where the case is for a minor offence:

"Where the CPS receives a specific request to intervene in a private prosecution, the CPS should contact the private prosecutor and invite them to supply a complete set of the papers that they intend to use to support their prosecution. The CPS should request any information which undermines the prosecution or assists the defence with their case. The private prosecutor should also be asked for details of any complaint made to the police and the result of any police investigation.

The defendant should be separately contacted and invited to send to the CPS a copy of any papers which have been served on them by the private prosecutor. The defendant should be invited further to provide any other information they are prepared to disclose which may assist the CPS in the decision-making process. This may be information about their defence or about any relevant public interest considerations. The defendant is not obliged to provide anything to the CPS but, they should be given the opportunity to do so."

Private Prosecutions | The Crown Prosecution Service

www.cps.gov.uk

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

If you want to go to court to hold Merseyrail accountable, this may be of interest (bearing in mind that the charge would need to be amended before an acquittal):

"Withdrawal of Proceedings

Offences can be withdrawn by the prosecutor in the magistrates' court (only) at any time before adjudication by the court. If proceedings are withdrawn in anticipation that they may be re-instituted if additional evidence comes to light, this should be made clear in court.

Leave to withdraw is required. The court has complete discretion whether to grant leave. The prosecuting advocate will need to give sufficient reasons to satisfy the court that the application is a proper one. The defendant is entitled to make representations as to whether they should be entitled to an acquittal.

...

Offering No Evidence

The prosecutor may offer no evidence in either magistrates' court or Crown Court proceedings.

Magistrates' court

In the magistrates' court the effect of offering no evidence depends on the type of offence and whether the magistrates have accepted jurisdiction.

In a summary trial the prosecuting advocate may offer no evidence at any stage prior to evidence being heard. Where during the course of the prosecution case the prosecutor decides that the evidence cannot be relied upon and the prosecution should not seek a conviction they should call no further evidence and invite the court to acquit. Whilst it is the court’s decision on whether the evidence they have already heard is sufficient for the defendant to have a case to answer or not, in practice it is very unlikely that any magistrates’ court would not agree to acquit where the prosecution no longer sought a conviction. See R v Gordon (1993) 96 Cr App R 156 for the Court of Appeal’s decision where a similar situation arose in the Crown Court. Offering no evidence will result in the acquittal of the defendant."

Termination of Proceedings (Including Discontinuance) | The Crown Prosecution Service

www.cps.gov.uk

Perhaps there is a question as to whether, if a charge and so an SJPN are not valid in the first place, the invalid charge can lawfully be amended to a valid one.

Another option is to tell Merseyrail you will ask the CPS to intervene if they don't agree to apply for leave to withdraw the case.

 

[John Palmer]

@JohnJBC, thank you for uploading the Penalty Service decision upholding your appeal. Interesting to note that whereas on this thread much reliance has been placed on NRCoT 9.5.2, which appears under the heading 'Travelling Without a Valid Ticket', the assessor in your case has instead upheld the appeal on the basis of NRCoT 13.2, which comes in 'Part D: Using Your Ticket -> The Routes You May Use'.

At this stage, the one thing of which the OP must make sure is that her response to the SJPN reaches the court before expiry of the October 8th deadline. Whilst I note that she has written to the court, she doesn't say whether she has returned a 'not guilty' plea to it. If she has only sent a letter to the court rather than the SJPN response, she cannot now afford to await a court reply to her letter.

 

[gray1404]

Copy of @JohnJBC successful appeal against Merseyrail in exact same circumstances. The letter confirms the section and how the NRCoT should have been applied

The plea need to be returned to the Court by Tuesday. At the very least it needs to be sent first class on Monday.

I thought it would be useful for this document to be here for reference.

Also, although there is no requirement for the excess to be obtained before boarding, the ticket office at Chester is open until 22.30 hours so be prepared to state there is no requirement for an excess to be obtained before boarding

 

[Edvid]

The plea need to be returned to the Court by Tuesday. At the very least it needs to be sent first class on Monday.

If not already sent I would personally use Special Delivery - expensive, but unlike First Class (even if Signed For) would guarantee prompt delivery of OP's plea to the Court.

 

[MTDar82]

Thank you so much @JohnJBC and everyone as ever for your comments. I have sent not guilty plea plus cover letter by next day guarantee.

I will make sure its delivered tomorrow and if not will submit online as well. I will follow up with Merseyrail re disclosure of evidence later in the week.

I will make sure its delivered tomorrow and if not will submit online as well. I will follow up with Merseyrail re disclosure of evidence later in the week.

 

[pmaddy2001]

Hello
I have a story, but looking through previous responses it seems I have made a mistake. I boarded a train at Chester passing through the barriers with the return portion of a ticket back to Liverpool issued by TFW. I don't live in either of these places and it's not part of the network I use often. When I realised that the train I was attempting to board - which was on the platform ready to depart in the next minute or two - was Merseyrail not TFW I opened the trainline app and bought a single ticket for the train that I was boarding. Recognising that the payment had been taken by a notification on my phone, *for the train I was boarding*, I assumed I was good to go. I imagine you know what's coming. When I was asked to show my ticket I confidently opened the app only to realise that for this journey I needed to print the ticket - which, as a highly regular user of the trainline app (most workdays) I have never ever been asked to do. The train staff pratcically rubbed their hands together and summoned their colleague, both of them stood over me to ensure maximum intimidation while I tried to explain I had already paid not once but twice (Merseyrail & TFW). They could not have cared less and proceeded to treat me like a criminal, demanding my name, address, date of birth, height (!!) and issued me with a penalty fine and a (third) fare for whatever station we were up to.

I pointed out that the station I was travelling to has barriers and surely I could just print out the ticket at that end, that was no good to them because they said the ticket would just be refunded if I didn't do that - which I obviously couldn't do, due to barriers. They then proceded to advise me not to print out the ticket I had purchased and it would just be refunded on the app. This made no sense to me because if I received a refund then I would definitely have done the thought crime that they were accusing me of. So I got out at the station and stood in a line of people paying for their tickets at the other end - no penalty fares for them, obviously - and got the ticket printed.

I was so incensed by all of this and as it was late at night and I'm a woman travelling by myself in an unfamiliar part of the country, I genuinely felt like I'd been mugged. I went into a panic attack everytime I tried to deal with it over the next few days and I thought I'd just leave it till I felt calmer. (I have been suffering with a great deal of anxiety this year and have been to the doctor about it and everything.) They had explained to me that if I appealled within 21 days it would be half etc; what they didn't actually explain is that I only had 21 days to appeal at all, so I missed the deadline. I then received a letter saying I'd have to pay, which again, I didn't answer because I was at a loss to know what to do, and yes, I see that that has scuppered me. Now I have received court papers. If I'd known about this forum before I would have probably just paid it, even though I still don't see that I've done anything wrong and am absolutely appalled that Merseyrail can continue to get away with as much as they evidently do.

My question is really is there anything I can do at this stage? Having read through some of the posts on here I assume not, but honest to god, HOW are they allowed to terrorize paying customers like this? Why does the ombudsman allow it to go on?

TIA.

I am sorry this happened to you, i feel your pain the same thing happened to my friend and i last Saturday and spoiled the evening tbh. i've always know they don't accept digital tickets and you have to print off, but i assumed i could get a ticket on the train or buy one when i got there because i have done this before and they didn't fine me then, also when i have got to liverpool they have let me print the ticket out in the shop nearby. So we got fined and the lady my friend spoke to was so rude, patronising and intimidating. I've paid the fine because i know i won't win an appeal, its not worth the hassle. I don't get why they have to intimidate people, i will put a complaint in based on the lady's behaviour, the man i spoke to was perfectly fine. There's no need for it treating people like criminals. I actually walked up to her to ask could i buy a ticket i didn't attempt to go through the barrier!!

 

[Hadders]

I am sorry this happened to you, i feel your pain the same thing happened to my friend and i last Saturday and spoiled the evening tbh. i've always know they don't accept digital tickets and you have to print off, but i assumed i could get a ticket on the train or buy one when i got there because i have done this before and they didn't fine me then, also when i have got to liverpool they have let me print the ticket out in the shop nearby. So we got fined and the lady my friend spoke to was so rude, patronising and intimidating. I've paid the fine because i know i won't win an appeal, its not worth the hassle. I don't get why they have to intimidate people, i will put a complaint in based on the lady's behaviour, the man i spoke to was perfectly fine. There's no need for it treating people like criminals. I actually walked up to her to ask could i buy a ticket i didn't attempt to go through the barrier!!

It's not clear what you want from us but if you want advice about your case please start your own thread in line with our forum rules. We have a policy of only discussing one case per thread to avoid confusion and because experience has taught us that no two cases are ever the same, despite how similar they might appear to be at first.

 

[yorkie]

@MTDar82 do you have an update for this?

@pmaddy2001 can you please ensure that you create a new thread for your issue (you are welcome to link to this one from yours, if there is some similarity between them)