Railway Byelaw 18

[kg94sat]

Hello All

I keep seeing in the forums that a breach of Railway Byelaw 18 is a strict liability offence. Why is this so?

How does one determine if a particular byelaw is Strict Liability?

Thanks

 

[island]

A law is strict liability if one can be convicted of breaking it without having an intent to do so. Many road traffic laws (speeding, drink-driving, etc.) are strict liability. Assault, on the other hand, is not (if I kick your leg when I'm walking down a train aisle because I didn't see you, that's not generally an offence).

As to why byelaw 18 is strict liability, I suspect it is for ease of prosecution more so than anything else.

 

[Ferret]

A law is strict liability if one can be convicted of breaking it without having an intent to do so. Many road traffic laws (speeding, drink-driving, etc.) are strict liability. Assault, on the other hand, is not (if I kick your leg when I'm walking down a train aisle because I didn't see you, that's not generally an offence).

As to why byelaw 18 is strict liability, I suspect it is for ease of prosecution more so than anything else.

It's not just byelaw 18 - it's the rest of the byelaws too!

 

[kg94sat]

Island and Ferret

My question is when reading through legislation that give force to these byelaws, how do we determine if they are strict liability laws?

Thanks

 

[ralphchadkirk]

Strict liability is where intent does not need to be proven to convict. These are mainly regulatory offences - like parking on a double yellow line, or being on a train without a valid ticket. Sometimes they can be very unfair (Ref: Storkwein case), but usually they are there to regulate society.

Strict liability offences can be found where there are no words indicating a mental element - e.g. "knowingly" or "maliciously".

 

[First class]

For some of the Byelaws there are other laws which are more appropiate when intent is involved.

RoRA 1889 - Section 5 instead of Byelaw 17/18
Section 5 Public Order/Breach of the Peace/Criminal Damage instead of Byelaw 6
Drunk & Incapable instead of Byelaw 4
Dangerous Dogs Act 1991 instead of bits of Byelaw 16

etc etc

 

[DaveNewcastle]

I agree with the above explanations and could add:
Strict Liability generally follows from a Statute which describes the Offence by reference to a failure: e.g. An Offence is Committed when a person does such-and-such and fails to display the proscribed notice as defined in section nn;

Its also woth noting that the framwork under which Byelaws are created is far more relaxed than a Staute of Law. There will be powers devolved to specific bodies which authorise them to create Byelaws within their jurisdiction and in doing so, they will have a specified procedure of notifying a higher authority of their Byelaws, such as placing them in front of a Department Minister for a number of days. This is clearly a lot more responsive than attempting to pass a Bill through the busy Houses of Parliament.

 

[kg94sat]

DaveNewCastle

Sweet Vs Parsley is the authority on if a legal statute is strict liability. The case lays down the following checks

1. Wherever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, words importing mens rea must be read into the provision.
2. It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
3. The fact that other sections of the Act expressly require mens rea is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. It is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament.

Based on the conditions and reading the Railways Act of 2005; I believe it is possible that byelaws are after all not strict liability

 

[ralphchadkirk]

Sorry, but they are and this has been tested in Court hundreds of times.

Your quotation is from Lord Reid who states that for true crimes as opposed to quasi-criminal crimes. "True crimes" are where the social stigma following conviction and the punishment available to be imposed show this to be a truly criminal offence. That therefore does not apply to bylaws.

 

[kg94sat]

Ralph

The conviction results in a criminal record consequences of which can be severe for people in certain professions. They can loose their jobs. There is a known case of a migrant who was refused Indefinite Leave to Remain on the basis that he had a criminal record as he was convicted under Section 18 of the byelaw

Under these circumstances, it can be implied that the severity of the consequences warrants application of Sweet Vs Parsely for prosecution under Byelaw 18

 

[ralphchadkirk]

Ralph

The conviction results in a criminal record consequences of which can be severe for people in certain professions. They can loose their jobs. There is a known case of a migrant who was refused Indefinite Leave to Remain on the basis that he had a criminal record as he was convicted under Section 18 of the byelaw

Under these circumstances, it can be implied that the severity of the consequences warrants application of Sweet Vs Parsely for prosecution under Byelaw 18

As I said, this has been tested in Court a number of times. If this was true do you not think that if it was not true strict liability it would have come up before now?

AFAIK no criminal record is obtained from a bylaw conviction.

 

[kg94sat]

I am not a lawyer. I am trying to get to first principles here. first of all the number of prosecutions that we hear are based on guilty pleas or admission of guilt. And people not attending to challenge the prosecution in court.

There is regular advice given to "apologize grovelling to the TOC" by posts in the forums. By doing so the defendant is admitting guilt. Even if they were advised to apologize everyone should be advised to do so with the phrase "without prejudice" included in the title, which prevents the apology being used as evidence of guilt in the court.

Coming back to the strict liability clause of byelaws. I am not a lawyer. But this is what the Crown Prosecution Service guidance on prosecution for Fare Evasion states

There are provisions in bye-laws which cover fare evasion, but in the vast majority of cases it will be appropriate to use the section 5 offence.

http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_transport_offences/#evasion

I am wondering why they would say so rather advising to take the easier route of a strict liability prosecution. Also note the emphasis on

vast majority of cases

 

[First class]

Just to throw this in:

Code for Crown Prosecutors - Considerations

The principal purposes of transport legislation are:

1) to preserve the safety and comfort of passengers and staff
2) to prevent acts of dishonesty by either passengers of staff.

A prosecution for contravention of transport legislation will certainly be in the public interest:

1) where public safety has been placed at risk
2) where passengers or staff have sustained loss, damage or personal injury
3) where serious or widespread disruption and inconvenience has been caused to persons using the transport system.

A prosecution may not be required where there is a purely technical breach of the law if:

1) there has been no risk to public safety and
2) the offence resulted from a genuine oversight or misunderstanding and
3) no injury or loss has been sustained by either passengers or staff.

Fare Evasion

You will often have a choice between specific legislation relating to the form of transport, and proceedings under the Theft Act 1978, or Forgery and Counterfeiting Act 1981. See the Fraud Act 2006 and Forgery and Counterfeiting elsewhere in the Legal Guidance.

Section 5 Regulation of Railways Act 1889 (Stones 7-7043) is usually used for offences of fare evasion on the railways for:

1) travelling/attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof; or
2) having paid the fare for a certain distance, knowingly and wilfully proceeding by train beyond that distance without previously paying the additional fare for the additional distance and with intent to avoid payment thereof or
3) having failed to pay the fare, giving in reply to a request from an officer of a railway company a false name and address.

Section 103(a) Railway Clauses Consolidation Act 1845 (Stones 7-7001) covers a person refusing to quit a carriage on arrival at the point to which he has paid his fare.

Both section 5 and section 103(a) are summary only offences. "Intent to avoid payment" in section 5 does not mean a dishonest intent, but an intent to avoid payment of the sum actually due.

There are provisions in bye-laws which cover fare evasion, but in the vast majority of cases it will be appropriate to use the section 5 offence.

Consider using the provisions of the Fraud Act 2006, where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority.

Where tickets have been altered or defaced consider a charge under the Forgery and Counterfeiting Act 1981.

 

[ralphchadkirk]

first of all the number of prosecutions that we hear are based on guilty pleas or admission of guilt.

Not sure how that is relevant. Lots of people who are being prosecuted don't come on this forum (perhaps they should!). The number of cases on this forum bears no relation to the number of people actually being prosecuted.

There is regular advice given to "apologize grovelling to the TOC" by posts in the forums. By doing so the defendant is admitting guilt.

Usually because there is absolutely no chance of success in their case.

Even if they were advised to apologize everyone should be advised to do so with the phrase "without prejudice" included in the title, which prevents the apology being used as evidence of guilt in the court.

No, as they are advised to apologise if there is no chance of success and the TOC's case is watertight anyway.

Coming back to the strict liability clause of byelaws. I am not a lawyer. But this is what the Crown Prosecution Service guidance on prosecution for Fare Evasion states

Fare evasion is usually prosecuted under s5 RRA as intent can be pretty easy to prove in fare evasion cases.

 

[OwlMan]

posted in error

 

[kg94sat]

Owlman

The point being: should not the the intrepretation of law and approach to prosecution by CPS (Crown Prosecution Service) be a reliable barometer to assess the validity of byelaw prosecution; more so considering these are private prosecutions brought on by TOC

 

[kg94sat]

If say TOC's private prosecution team is taking a case to court over a trivial issue ( where passenger has clearly shown intent to buying ticket but does not have a valid ticket) under strict liability assumption, would it be possible to request the CPS to take over the prosecution? It is possible that CPS could take over the prosecution and drop the prosecution based on their guidance.

Here is the CPS link to private prosecution
http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/

 

[Ferret]

Kg94sat, I doubt it! The law states you must be in possession of a valid ticket where there was an opportunity to buy. If it's a private prosecution then there is no need for CPS involvement.

To add, not every case will go to prosecution. Some people settle out of Court with the TOC, some will be dropped through lack of evidence. It's reasonable to assume that a TOC Private Prosecution will only go ahead if there is an overwhelming likelihood of success for the TOC concerned.

 

[kg94sat]

Ferret

My understanding of the CPS link is that

a) defendant can request CPS to intervene in the case. The permission of the private prosector is not required
b) Upon receiving the request the CPS

will contact the private prosecutor and invite them to supply you(CPS) with a complete set of the papers they intend to use to support their prosecution

c) CPS has the option to intervene

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

Anyone with legal background would be able to help if this is a possibility. If CPS ends with too many such requests, there are chances that non-sense of Byelaw prosecutions would be discontinued

 

[AlterEgo]

Ah, so the hundreds and hundreds of lawyers who have defended people accused of strict liability offences on the railway, over the last x years, have all missed this trick.

 

[Ferret]

Ah, so the hundreds and hundreds of lawyers who have defended people accused of strict liability offences on the railway, over the last x years, have all missed this trick.

My thoughts entirely! Evidence - well, TOCs only back a certainty in my experience. Public interest - well, prosecuting people who fail to pay their fare has to be in the public interest. Otherwise, who'd buy a ticket?!

 

[kg94sat]

Alter Ego / Ferret

The TOCs should not be worried when a person takes this approach because they would have ample evidence for a successful prosecution, wouldn't they?

As for the hundreds of lawyers that AlterEgo mentions, I am curious to know where that number comes from

 

[Ferret]

Interesting last point kg49sat. Lots of people choose to represent themselves when summonsed to Court to answer a case such as travelling without a ticket. Not the smartest move in many cases!

Still, I'm sure plenty of people do get representation... Not sure where Alter Ego could pull an accurate figure from though!

 

[DaveNewcastle]

I confess that I've been struggling to see where the line of questionning in this thread might be going.

I wonder if there might be some misapprehensions.

first of all the number of prosecutions that we hear are based on guilty pleas or admission of guilt. And people not attending to challenge the prosecution in court.

As the majority of passengers charged with a S.18 Byelaw Offence will already have been detected having committed the Strict Liability Offence (and a Statement taken which confirms the facts), then there is not very much impact following from their admission or not, simply the amount of written and/or oral evidence which may need to be presented. Preparation of that evidence will, however, have a significant bearing on the level of Costs the TOC's Prosecutor will be seeking.

There is regular advice given to "apologize grovelling to the TOC" by posts in the forums. By doing so the defendant is admitting guilt. Even if they were advised to apologize everyone should be advised to do so with the phrase "without prejudice" included in the title, which prevents the apology being used as evidence of guilt in the court.

I think ralphchadkirk has responded adequately. I will only repeat my comment above that the admission of Guilt or otherwise in a Strict Liability matter will have little consequence for the Judgement, there is little prospect of success in a Not Guilty Plea; but it is likely to affect the level of Costs.
In fact, there are much greater prospects of success by the Passenger from pursuing other strategies such as examining documents for technical errors, weaknesses in Witness Statements, evaluating the Accused's background against likely Sentencing outcomes and arcane ticketing technicalities.

I really don't see where the questions relating to the CPS can help us.

As for the hundreds of lawyers that AlterEgo mentions, I am curious to know where that number comes from

There are general practice High Street solicitors who will assist a Client accused of a ticketing Offence, and they will rely on their experience in general Criminal Proceedings before a Hearing in a Magistrates Court, and do so with reasonable prospects (in my opinion) based on that experience. There are merely a handful of Solicitors with Railway Ticketing expert knowledge, and sadly, the want of that knowledge may occassionally result in a Conviction or OOC Settlement which might have been avoidable.
However, the fees charged by those very few expert Solicitors prepared to contest the Claim in the Mags is in the area of £5000, and so their advice and representation has not been an attractive option for many Accused of Fare Evasion or Ticketless Travel.

Consequently those seeking to Defend the Claim tend to instruct a local general purpose Law Firm or to represent themselves - I agree with Ferret that self-representation is a hazardous route for the inexperienced!
There are thousands of successfull Prosecutions annually. I doubt figures are collated which would tell us how many different Solicitors are instructed.

 

[Ferret]

Well, my thanks to DaveNewcastle for eloquently putting it to bed I feel! As regards the point made by kg94sat on evidence, it may be worth mentioning that quite often, the evidence concerned will be a verbal admission of the offence made under caution to a PACE-trained RPI and therefore recorded. Perhaps this may be a good moment to ask DaveNewcastle to comment on the legal issues arising from this regarding somebody's right to legal representation?

 

[DaveNewcastle]

Sorry, Ferret, I don't think I quite follow your question.
Representation is available whether or not a Witness Statement has been made (and whether or not the Statement was taken in compliance with PACE guidelines). Perhaps you were more interested to know how one would go about preparing a Defence AFTER learning that one's Client had already made a Witness Statement which appeared to confirm Guilt?
If that's what you're interested in then I guess the procedure is very similar to any of the popular Criminal matters in which the Police may take a Statement from a Suspect at an early stage in their enquiries and before the Suspect has instructed a Solicitor.

Much would depend on the details, but if a S.18 Byelaw Offence was being pursued against a Passenger who had already made some sort of admission, then I could imagine a good 30 - 60 minutes worth of questionning to see what avenues remained open for further pursuit. There's usually some chink or other that allows daylight through!

Realistically, it all includes an element of value for money - to take an extreme example, if the Defence team sought to Question several Witnesses in Court, the costs may become disproportionate to the benefit of securing a Prosecution. All Court Hearings should be pragmatic - its usually the inexperienced who are representing themselves that carry on incurring costs despite diminishing prospects, based solely on some sense of principle.

Returning to Statements taken under Caution, I will say that some that I have seen fall short of the standards which I'd expect from a PACE - trained interviewer.

 

[kg94sat]

Dave

My comment about "Without Prejudice" is in reference to the "Notice of Intention to Prosecute" that the TOCs send before the actual prosecution commences. A grovelling apology as a reply to this letter is admission of guilt if the line "Without Prejudice" is not included in the reply.

 

[AlterEgo]

As for the hundreds of lawyers that AlterEgo mentions, I am curious to know where that number comes from

It was a guess and I think you knew that.

 

[ralphchadkirk]

Dave

My comment about "Without Prejudice" is in reference to the "Notice of Intention to Prosecute" that the TOCs send before the actual prosecution commences. A grovelling apology as a reply to this letter is admission of guilt if the line "Without Prejudice" is not included in the reply.

If the letter contains evidence that could lead to conviction then 'without prejudice' will have no effect. You cannot use 'without prejudice' to withhold information or evidence from a court.

 

[Ferret]

Sorry, Ferret, I don't think I quite follow your question.
Representation is available whether or not a Witness Statement has been made (and whether or not the Statement was taken in compliance with PACE guidelines). Perhaps you were more interested to know how one would go about preparing a Defence AFTER learning that one's Client had already made a Witness Statement which appeared to confirm Guilt?
If that's what you're interested in then I guess the procedure is very similar to any of the popular Criminal matters in which the Police may take a Statement from a Suspect at an early stage in their enquiries and before the Suspect has instructed a Solicitor.

Much would depend on the details, but if a S.18 Byelaw Offence was being pursued against a Passenger who had already made some sort of admission, then I could imagine a good 30 - 60 minutes worth of questionning to see what avenues remained open for further pursuit. There's usually some chink or other that allows daylight through!

Realistically, it all includes an element of value for money - to take an extreme example, if the Defence team sought to Question several Witnesses in Court, the costs may become disproportionate to the benefit of securing a Prosecution. All Court Hearings should be pragmatic - its usually the inexperienced who are representing themselves that carry on incurring costs despite diminishing prospects, based solely on some sense of principle.

Returning to Statements taken under Caution, I will say that some that I have seen fall short of the standards which I'd expect from a PACE - trained interviewer.

Well, my question was that in conducting an interview under caution, are TOCs not required to offer the opportunity to get legal representation to the interviewee? Could the interviewee refuse to comment until he's consulted a solicitor as to his rights?