RoRA S5: Discussion around 'without having previously paid his fare'

Mod Note: Posts #1 - #15 originally in this thread.

If they are wanting to prosecute under Section 5(3)(a) of the Regulation of Railways Act 1889 ("RoRA"), they will have to prove beyond a reasonable doubt that:

(a) Your son travelled (or attempted to travel) on the train - this won't be hard to prove, and I don't think is being disputed;

(b) He hadn't paid his fare - this would seem to be easy to disprove given the valid season ticket in force;

(c) He intended to avoid payment of his fare - again, given the previous payment for a valid season ticket, this would seem easy to disprove.

I'm not an expert at these matters, far from it, however I'm struggling to see how a conviction under RoRA would succeed when met with your son's defence that he had a valid season ticket and explained this at the time (upon realising the forgotten ticket, not even attempting to leave the station before approaching staff).

This being said, the Railway Byelaws 2005 make various things a strict liability offence (i.e. intention is irrelevant, different to RoRA Section 5(3)(a)):

Byelaw 18(1) - the applicable one here as opposed to Byelaw 17, as compulsory ticket areas aren't involved AFAICT - makes it an offence to "enter any train for the purpose of travelling on the railway unless [you have] with [you] a valid ticket entitling [you] to travel." So this offence was committed when your son boarded the train at Cathays without having his season ticket on him. If any of the station staff asked to see his ticket, and he didn't show it (because he couldn't), that's a further defined offence under Byelaw 18(2): "A person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person."

Prosecutions under the Railway Byelaws are easier because they rely on the strict liability - there is no necessity to prove intent as in RoRA. However, accordingly, the result of a Byelaw conviction is less serious, with no record being made on the PNC and it being "spent" immediately (though the fine imposed may be similar, with perhaps slightly lower costs).

It is possible to avoid prosecution by agreeing an Out of Court administrative settlement with the train company - I am not sure whether or not Arriva Trains Wales commonly offers or accepts this, but if so, I would imagine the amount of any such settlement would typically be around £80-120, depending on the exact circumstances - you are usually reimbursing them for the costs they have incurred in investigating the matter so far.

I will defer advice as to what exactly to do next to other posters with more experience of prosecutions, but I hope the information I have given here is correct and useful to you. If there are any errors, I am happy to be corrected.

ForTheLoveOf said:

(a) Your son travelled (or attempted to travel) on the train - this won't be hard to prove, and I don't think is being disputed;

Click to expand...

No disagreement.

ForTheLoveOf said:

(b) He hadn't paid his fare - this would seem to be easy to disprove given the valid season ticket in force;

Click to expand...

Did he have his season ticket at the time? No. So he couldn't prove he had paid his fare.

ForTheLoveOf said:

(c) He intended to avoid payment of his fare - again, given the previous payment for a valid season ticket, this would seem easy to disprove.

Click to expand...

Paying for a ticket and having a ticket are two different things.

najaB said:

Did he have his season ticket at the time? No. So he couldn't prove he had paid his fare.

Click to expand...

I've just reread RoRA, and it actually says travels etc. ... "without having previously paid his fare". Unlike the Byelaws, I can't see any implication there that the payment of the fare must be proven at the time of travelling, merely that it must previously have been paid. If my reading is correct, that element of the offence therefore simply isn't satisfied. I vaguely remember a post by DaveNewcastle outlining some case law concerning a passenger who had bought a valid ticket and didn't show it, intending to use it on another journey, I believe. In that case, I think the prosecution was upheld. I'm not sure if that can be related to this matter, as we are told that OP's son didn't have a ticket on him to hide, and in the case of the season ticket, there would be no benefit derived from 'hiding' it (as opposed to a Carnet or single/return ticket.

najaB said:

Paying for a ticket and having a ticket are two different things.

Click to expand...

I agree, however I don't see that RoRA Section 5(3)(a) cares about having a ticket, just whether the fare has previously been paid. If Parliament had intended for failing to show a ticket to be an offence in itself, as it is under the Byelaws, they would have worded Section 5(3)(a) differently. They were clearly aware of the difference between paying for a ticket, and displaying it, as Section 5(1) makes not showing a ticket one of the three possible elements of an offence, but an offence under that Section is only completed when none of the three elements are required with - and we are told that OP's son offered to pay and gave his name and address, thus fulfilling 2 of the 3 requirements. This is echoed in Section 5(2).

ForTheLoveOf said:

Unlike the Byelaws, I can't see any implication there that the payment of the fare must be proven at the time of travelling, merely that it must previously have been paid. If my reading is correct, that element of the offence therefore simply isn't satisfied.

Click to expand...

If you ever find yourself on in the OP's position then please try that line of argument and let us know how you get on - it might work (since it was a season ticket) or (more likely) it won't. In effect, it's no different to someone who buys a ticket and then loses it.

najaB said:

If you ever find yourself on in the OP's position then please try that line of argument and let us know how you get on - it might work (since it was a season ticket) or (more likely) it won't. In effect, it's no different to someone who buys a ticket and then loses it.

Click to expand...

If, after the fact, the passenger can prove that his fare was paid before travelling (for example, by later finding the ticket again, or as in this case, a contemporaneously valid season ticket is produced), no offence is, AFAICT, committed under RoRA. Under the Byelaws, if they failed to show a ticket when asked and/or failed to have a ticket when boarding and able to buy one, certainly an offence. But not RoRA.

I've never been in the situation of realising I've forgotten my season ticket once I've boarded the train (the few times I've forgotten mine, I realised before arriving at the station, and so bought a ticket there and then later got it refunded upon presentation of the season ticket). If I forgot my season, didn't buy a ticket before boarding and boarded at a station where the ticket I wanted/would have bought was available, I would fully accept that I had committed a Byelaw offence. But not a RoRA offence, and I would fight any RoRA proceedings with the strongest means possible, due to the DBS/PNC implications.

ForTheLoveOf said:

If, after the fact, the passenger can prove that his fare was paid before travelling (for example, by later finding the ticket again, or as in this case, a contemporaneously valid season ticket is produced), no offence is, AFAICT, committed under RoRA.

Click to expand...

That might be as far as you're concerned, however that doesn't reflect legal reality.

najaB said:

That might be as far as you're concerned, however that doesn't reflect legal reality.

Click to expand...

I'd be happy for you to point out the part of RoRA S5(3)(a) that requires the passenger to show a ticket...

ForTheLoveOf said:

I'd be happy for you to point out the part of RoRA S5(3)(a) that requires the passenger to show a ticket...

Click to expand...

The NRCoT says that passengers who are unable to produce their season ticket or photocard are to be treated as having no ticket. The OP's son was asked to purchase a ticket and in reply said he had no money.

So, he travelled by train (check), he didn't pay (check) and had no means to pay (check).

najaB said:

That might be as far as you're concerned, however that doesn't reflect legal reality.

Click to expand...

I wouldn't be so certain about that. There's an array of legislation available separating out various situations and these things are pretty precise and distinct.

furlong said:

I wouldn't be so certain about that. There's an array of legislation available separating out various situations and these things are pretty precise and distinct.

Click to expand...

Do we agree that the NRCoT forms the contractual basis of travel? If so, then Condition 38 is of import:

38. Season Ticket or photocard unavailable for inspection
38.1 If you are unable to present a Season Ticket, or any photocard required with a Season Ticket, when asked by the staff or authorised agents of a Train Company, you will be treated as having joined a train without a valid Ticket and Condition 9 will apply.
38.2 If you possess a valid Season Ticket and/or photocard but were unable to present when requested because you had forgotten to carry it on that particular journey or mislaid it, the Train Company concerned may at their discretion refund any fare or Penalty Fare paid in accordance with section 9, less an administration charge not exceeding £10.
38.3 In order to claim such a refund, you will need to provide the retailer from whom you bought your Season Ticket with your Season Ticket (and photocard if applicable), together with the additional Tickets you have purchased or any Penalty Fares notices.
38.4 A maximum of two such claims will be considered in any 12 month period.

Click to expand...

@ForTheLoveOf is focusing on 38.2 but is ignoring 38.1 - the OP's son was unable to produce his season ticket and so was required to be treated as having no ticket. Had he been able to pay for a single ticket then he would have been able to take advantage of 38.2/38.3 and received a refund of the new ticket. However, since he was unable to purchase a ticket then the matter was reported as a 'travel with no ticket' scenario. They did themselves no favour with the 'see you in Court' reply.

najaB said:

Do we agree that the NRCoT forms the contractual basis of travel? If so, then Condition 38 is of import:@ForTheLoveOf is focusing on 38.2 but is ignoring 38.1 - the OP's son was unable to produce his season ticket and so was required to be treated as having no ticket. Had he been able to pay for a single ticket then he would have been able to take advantage of 38.2/38.3 and received a refund of the new ticket. However, since he was unable to purchase a ticket then the matter was reported as a 'travel with no ticket' scenario. They did themselves no favour with the 'see you in Court' reply.

Click to expand...

NajaB, the NRCoT is the contractual basis of travel. No-one is going to be prosecuted under NRCoT - they might be prosecuted under the Byelaws, RoRA etc. because their breach of NRCoT puts them in breach of those laws (e.g. using non-season split tickets without calling at the connecting station(s)), but not directly for breaking NRCoT.

I totally agree that, because NRCoT makes clear that not having your season ticket on you is treated as not having a ticket at all, it's a Byelaw offence. But, short of them refunding the season ticket, you will still have paid your fare when travelling on its permitted route(s), and that's what counts for RoRA S5(3)(a). When I asked you where this section made it an offence to have paid the fare but not to show a ticket, you referred me to NRCoT, so I don't see there's any part of RoRA OP's son is in breach of here.

ForTheLoveOf said:

But, short of them refunding the season ticket, you will still have paid your fare when travelling on its permitted route(s), and that's what counts for RoRA S5(3)(a).

Click to expand...

No, you will not. If you cannot present your season ticket "you will be treated as having joined a train without a valid Ticket and Condition 9 will apply."

As I said before, I'm sure we would all benefit from you conducting a practical proof of your argument.

najaB said:

No, you will not. If you cannot present your season ticket "you will be treated as having joined a train without a valid Ticket and Condition 9 will apply."

As I said before, I'm sure we would all benefit from you conducting a practical proof of your argument.

Click to expand...

"Without a valid ticket" (NRCoT) ≠ "without previously having paid his fare" (RoRA)

"Without a valid ticket" (NRCoT) = "unless he has with him a valid ticket entitling him to travel" (Byelaw 18)

If it weren't for the fact that doing this constitutes a Byelaw offence, I would happily demonstrate (oh, and also the fact that I've never, ever seen RPIs/conductors in my area report people for prosecution before, always a new Anytime ticket, at most a Penalty Fare if anything.)

ForTheLoveOf said:

But I have pointed out that, if as TIL have suggested in their letters, they intend to prosecute under RoRA, it would seem that OP's son might have a reasonable defence as they had paid their fare (though not shown a ticket).

Click to expand...

They do not have a reasonable defence.

ForTheLoveOf said:

...and also the fact that I've never, ever seen RPIs/conductors in my area report people for prosecution before

Click to expand...

How convenient.

najaB said:

They do not have a reasonable defence.

Click to expand...

For a crime they have not committed? I'm happy for the discussion to move elsewhere if needed, but I still don't see anywhere in RoRA that a crime is committed if you don't show a ticket, as long as you have previously paid your fare, and either buy a ticket when asked or give your name and address.

ForTheLoveOf said:

For a crime they have not committed? I'm happy for the discussion to move elsewhere if needed, but I still don't see anywhere in RoRA that a crime is committed if you don't show a ticket, as long as you have previously paid your fare, and either buy a ticket when asked or give your name and address.

Click to expand...

A ticket that is not present isn't a ticket. What is the difference between the OP's situation and someone who buys a ticket and 'loses' it, and then 'finds' it later if they get caught?

They would be guilty of a Byelaw offence quite clearly and may be liable to pay a Penalty Fare. However, I don't see it as being a RoRA offence as long as either they then bought a ticket when asked, or supplied their name and address.

NRCoT says that not having your season ticket with you means you are deemed not to have a ticket; this is different to if they had said that you are deemed not to have paid your fare. A clause like that, if enforceable, would make clear that forgetting/losing your ticket is a RoRA offence, even though the fare is paid.

But RoRA, in conjunction with NRCoT, clearly differentiates between not having a ticket to show, and not having paid the fare. It makes it an offence to be unable to show a ticket and then neither buying a new one nor giving name and address. If you therefore give name and address, so that correspondence can be entered into to establish whether a fare has been paid, you can make clear and prove that your fare was already paid, and then any prosecution under the offence of not having paid the fare, with intent to avoid it, would be unable to succeed.

What you consistently seem to be missing is that the passenger is required to pay for a new ticket and then apply for a refund on presentation of the missing season ticket. As such, they don't have a ticket for the journey they have made (or are making).

If they fail to pay the fare for the journey they are making at that moment then they are liable to a RoRA prosecution.

I have a Mersyrail All Zones Trio ticket.
If I don't have it on me when I commute to work I don't have a ticket and would need to buy one.
Following the discussion on the other thread I believe I would be able to claim this back provided I could produce my zone ticket . Is this correct ?
I certainly wouldn't be risk any prosecution as I could lose my job.

AntoniC said:

Following the discussion on the other thread I believe I would be able to claim this back provided I could produce my zone ticket . Is this correct ?

Click to expand...

Yes twice within a rolling twelve month period you can get it refunded twice as long as you can show a valid monthly or longer season ticket to the retailer that issued your season ticket (to enable them to keep track of how many refunds you've had!).

ForTheLoveOf said:

I'd be happy for you to point out the part of RoRA S5(3)(a) that requires the passenger to show a ticket...

Click to expand...

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

Click to expand...

It's subsection 1 of section 5.
http://www.legislation.gov.uk/ukpga/Vict/52-53/57/section/5
so why is subsection 3 relevant?

EM2 said:

It's subsection 1 of section 5.
http://www.legislation.gov.uk/ukpga/Vict/52-53/57/section/5
so why is subsection 3 relevant?

Click to expand...

It isn’t.

Looks like the OP is confused - from the original thread the defendant was indeed being prosecuted under 5.5.3(a)

Very much looking forward to the OP testing this out - the law has only been around since 1889(!)

TIL's letter threatened prosecution under Section 5(3)(a) of RoRA. To the best of my understanding, this refers to the following text:

(3)If any person—
(a)Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof; or
...
he shall be liable on summary conviction to a fine not exceeding [level 2 on the standard scale][level 3 on the standard scale], or, in the case of a second or subsequent offence, either to a fine not exceeding [level 2 on the standard scale][level 3 on the standard scale], or in the discretion of the court to imprisonment for a term not exceeding [three months].

Click to expand...

I don't see where this criminalises having paid the fare but not showing a ticket.

EM2 said:

It's subsection 1 of section 5.
http://www.legislation.gov.uk/ukpga/Vict/52-53/57/section/5
so why is subsection 3 relevant?

Click to expand...

The quoting there excluded the crucial continuation of that subsection, which goes:

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 1 on the standard scale][level 2 on the standard scale].

Click to expand...

The use of 'or' makes clear that a crime isn't committed until all three elements occur - i.e. until the passenger has neither shown a ticket, nor is willing or able to buy a ticket, nor given their name and address.

ForTheLoveOf said:

The use of 'or' makes clear that a crime isn't committed until all three elements occur - i.e. until the passenger has neither shown a ticket, nor is willing or able to buy a ticket, nor given their name and address.

Click to expand...

You simply said that you would be happy for someone 'to point out the part of RoRA S5(3)(a) that requires the passenger to show a ticket...', that's what I did. There are alternatives offered to that requirement, but it is stated in RoRA.

AlterEgo said:

. . . . - the law has only been around since 1889(!)

Click to expand...

Exactly ! And the wording which requires a passenger to produce a ticket for inspection was tested and clarified by then (under the Byelaws of the day) in Heap v Day (1886) 34 WR 627 ; 51 JP 213 then again in Hanks v Bridgman [1896] 1 Q.B. 253 ; 65 LJMC 41 where the passenger couldn't produce the ticket which they had previously paid for, wouldn't pay for a replacement, was convicted, appealed and the Court upheld the conviction. It was tested more recently in Burns v First Capital Connect [2012] EWHC 1305 where Burns did present his Oyster card which didn't have enough funds on its balance, and his conviction was overturned on Appeal because the Court found that by presenting his Oyster card for inspection he had complied with the requirement to 'hand over his ticket for inspection'.

ForTheLoveOf said:

TIL's letter threatened prosecution under Section 5(3)(a) of RoRA. To the best of my understanding, this refers to the following text:
. . .
I don't see where this criminalises having paid the fare but not showing a ticket.
. . .

Click to expand...

The offence of failing to present a ticket for inspection is captured by S.5(1) and if that incident is as it is described on this forum, and it does proceed to the issue of a Summons, then we can be sure that is what the Summons will allege. Absolutely sure. If the investigating officer has evidence to suggest that the passenger traveled without having paid and with intent to avoid payment, then we can be sure that is what the Summons will allege. Absolutely sure.

How can I be so sure? I couldn't possibly say on here. Sorry.

DaveNewcastle said:

It was tested more recently in Burns v First Capital Connect [2012] EWHC 1305 where Burns did present his Oyster card which didn't have enough funds on its balance, and his conviction was overturned because the Court found that by presenting his Oyster card for inspection he had complied with the requirement to 'hand over his ticket for inspection'.

Click to expand...

I'm confused by this one. While I can see that Burns has handed over his ticket, he surely could not show that his fare has been paid, if there was insufficient funds?

DaveNewcastle said:

How can I be so sure? I couldn't possibly say on here. Sorry.

Click to expand...

Mainly for @ForTheLoveOf (so that there's no doubt), @DaveNewcastle has seen more cases presented in Court than you've likely had hot dinners.

I'm not doubting anyone's knowledge or experience, it's just that some of the things people say don't seem to align with what the law says - so I want to know where this discrepancy arises.

EM2 said:

I'm confused by this one. While I can see that Burns has handed over his ticket, he surely could not show that his fare has been paid, if there was insufficient funds?

Click to expand...

Ah. But. The offence which FCC prosecuted was that Burns had failed to present his ticket for inspection. FCC didn't present any evidence at the Appeal.

DaveNewcastle said:

The offence of failing to present a ticket for inspection is captured by S.5(1) and if that incident is as it is described on this forum, and it does proceed to the issue of a Summons, then we can be sure that is what the Summons will allege. Absolutely sure. If the investigating officer has evidence to suggest that the passenger traveled without having paid and with intent to avoid payment, then we can be sure that is what the Summons will allege. Absolutely sure.

How can I be so sure? I couldn't possibly say on here. Sorry.

Click to expand...

There are three parts to (5)(1), (deliver a valid ticket, pay his fare or give name and address) and surely each of them must be satisfied for the offence to be made out. In the case where a passenger has given their name and address correctly and fully on request, he or she may well be guilty of other offences, perhaps including the (5)(3) offence depending on circumstances, but is surely not guilty of the (5)(1) offence.