So this is a story that doesn't affect me but it does affect one of my flatmates. Our station is Abbey Wood and today he was travelling in to London Cannon Street on Southeastern and they ran a train with First Class and he elected to sit in it since its all declassified on our service. Normally our trains don't have First Class but they ran another type of Networker that has it; there is no first class services in the timetable and its impossible to buy a first class ticket from Abbey Wood to London Cannon Street since there isn't any first class. Yet in the incredibly rare Southeastern ticket inspection (which I don't believe happened) he and the other person sitting in the first class section were rung up for travelling in First Class without having a non-existent first class ticket. He didn't pay anything at the time and we don't quite know whether it'd be a penalty fair or some kind of legal thing that he'd go through yet.
Am I right in thinking that if they pursue him that its something that he can challenge? Surely if you can't buy First Class tickets and there aren't any First Class services provided (not even Thameslink has any; you can sit in first class wherever on our trains) then you can't be prosecuted for not having a ticket that its impossible to buy?
Just to give you an idea of the legal framework, there are, broadly speaking, three kinds of "penalties" that may be 'imposed' in the case of a ticketing irregularity:
Firstly, there is a Penalty Fare, issued under
The Railways (Penalty Fares) Regulations 2018. This is a penalty in a sense (and many people inaccurately call it a fine), but it is legally speaking merely a higher-than-normal fare which the passenger is civilly liable for if they do one of several things, including having a ticket that is invalid by reason of them being an adult when it's a child ticket, not having the Railcard which the ticket is discounted with, travelling in first class with a standard class ticket, or simply not having a ticket at all. A Penalty Fare may only be issued in certain circumstances; for example, the train company must put up clear posters at either the station where the passenger boarded, or where they changed to that train company's services, and those posters must contain a specified standard wording. There must also be ticketing facilities at the boarding station. I have never been to Abbey Wood station so I cannot say whether Southeastern have ensured that there is sufficient and correctly worded signage in place; however, it is almost certain to have had ticketing facilities due to the presence of the ticket machines.
Secondly, there is a criminal prosecution under Byelaw 19 of the
Railway Byelaws 2005. Byelaw 19 creates an offence which is committed when you remain in an area on a train which a notice states is reserved for someone else, or which is reserved for holders of tickets of a different class of accomodation to the ticket held. Byelaw 19 is what is known as a strict liability offence, which, similarly to speeding, is committed regardless of whether or not the passenger intended to commit the offence; the only defence is that the passenger had permission (whether written or verbal) to remain in the area in question (i.e. first class here) without a valid ticket.
Thirdly and finally, there is a criminal prosecution under
Section 5 (usually 5(3)(a)) of the Regulation of Railways Act 1889 (RoRA). Section 5(3)(a) creates an offence when a passenger travels, or attempts to travel, on a train without having bought a ticket, if they intend to avoid paying for the fare. So, unlike the first two options, it must be proven that the passenger had intent to avoid payment.
Now, in the context of your flatmate's predicament, the fact that there is no available first class ticket from Abbey Wood to London Cannon Street has only two relevant meanings - firstly, it produces a starting position where it would be difficult to prosecute for a RoRA offence, because it would be difficult to say that that your flatmate had intent to avoid a fare which was not even available for sale! Secondly, it is clearly morally unjust to penalise the passenger in such a circumstance. But morals, unfortunately, don't have any bearing on whether or not your flatmate is liable for a Penalty Fare, or liable for conviction under Byelaw 19 or RoRA.
What is far more relevant is that, in the National Rail timetable, no services at all for the route your flatmate took are timetabled to have first class accommodation (see attachment). In other words, any first class accommodation provided on the train stock that serves the route should be considered declassified and equivalent to standard class. This means that it is impossible for him to be liable for a Penalty Fare, or for him to be liable for conviction under Byelaw 19 or RoRA (assuming, of course, that he had a valid standard class ticket).
Coming to whether or not your flatmate can challenge what has happened, what his approach should be will depend on what Southeastern are doing or have done.
If they have issued him with a Penalty Fare, I would advise appealing this on the basis that, as per the timetable I have attached, there was no first class accommodation provided on the service which he was on, and hence the Penalty Fare is invalid. It is possible to appeal a Penalty Fare up to three times, if the appeals remain unsuccessful after a third round then it would be down to Southeastern to sue your flatmate for the value of the Penalty Fare if they so wished; alternatively they would have the option of cancelling the Penalty Fare and proceeding to prosecution if they so wished.
If, however, Southeastern have taken your flatmate's name and address, they may be considering prosecution under Byelaw 19 or RoRA. A prosecution under either would, in my view, be quite plainly malicious (both by the ordinary meaning of the word as well as the legal meaning of the word), and it would not be a particularly complex prosecution to defend (though the counsel of a solicitor may be preferable, the costs for this hopefully being awarded by the Court). Before proceeding to prosecution, most train companies write to the passenger concerned at the address which they have provided, usually asking for the passenger's version of events, or offering an out of Court settlement. If this happens, I would answer honestly as to what has happened, pointing out that it is plainly obvious that no offence has been committed. I would perhaps hold off pointing out that a prosecution may be considered malicious for the time being.
If your friend is able to post here himself that would probably be the best way forwards; alternatively it would be best if you can at least glean from him what has happened (i.e. whether he was issued with a Penalty Fare, and if so whether he has paid it or appealed against it, or whether instead his details were taken).
Hopefully this can all be resolved well before any Court appearance!
