Penalty Fare not on the System

krus_aragon · 26 Jun 2019

tony_mac said:
Heading wildly off-topic, but at least one High Court judge disagrees with you.

Interesting reading. I don't suppose you can tell us where the quote's from?

RailUK Forums

tony_mac · 26 Jun 2019

krus_aragon said:
Interesting reading. I don't suppose you can tell us where the quote's from?

Balvinder Singh v Salinder Singh, Sukhjind Kaur, Glass Express Midlands Ltd, GEM Blinds Ltd
Case No: A30BM434
High Court of Justice Chancery Division Birmingham District Registry
[2016] EWHC 1432 (Ch), 2016 WL 03268479
Before: HHJ David Cooke

krus_aragon · 26 Jun 2019

tony_mac said:
Balvinder Singh v Salinder Singh, Sukhjind Kaur, Glass Express Midlands Ltd, GEM Blinds Ltd
Case No: A30BM434
High Court of Justice Chancery Division Birmingham District Registry
[2016] EWHC 1432 (Ch), 2016 WL 03268479
Before: HHJ David Cooke

Thanks. A bit of context helps.

ForTheLoveOf · 26 Jun 2019

Llanigraham said:
I think you will find that if you haven't informed the person that you intend to record the call then it cannot be used as evidence.

I am not sure where you have this understanding from, but as @tony_mac cites, it is simply not correct. I did allude to the remote possibility that such evidence may be disallowed, but then again that would take some very unusual circumstances to be the case. Judges are almost never going to reject relevant evidence, howsoever gathered, merely because they disapprove of its method of obtainment.

Llanigraham said:
Plus it has to have been recorded in a manner that does not allow tampering with it.

Whilst tamper-proof recording may lend the recording greater credence, I think it is very rare for one side to allege that a recording is inaccurate, misleading or fraudulent. Perhaps you are applying the criminal standard of evidence to this matter - the criminal standard is not the correct one, since an unpaid Penalty Fare would (theoretically) end up before the County Court, which of course applies the much lower civil standard of evidence.

tony_mac said:
Heading wildly off-topic, but at least one High Court judge disagrees with you.

It isn't actually even very off-topic - it is highly relevant if the OP decides to call GTR and to record it.

some bloke · 26 Jun 2019

The Singh judgement says in paragraph 5 that the recordings are of meetings.

https://www.casemine.com/judgement/uk/5a8ff74460d03e7f57eaa9b0

Telecommunications law is separate.

The suggestion above about asking GTR for permission to record may be unlikely to get a bad reaction, since the first request is to record and the second request is for confirmation if they do agree.

The idea of asking again isn't just to "get a criminal off the hook" but to see if there is any point sending the money, if the GTR office has no record of the penalty fare. In any case, it is perhaps worth bearing in mind GTR's misinforming passengers in the notice, as well as anything passengers might have done. The wrong idea that you have to pay even if you appeal might have put some people off appealing.

The question above was whether the intention of the advice to send a cheque is, or is partly, to avoid a risk of prosecution from asking again.

cjmillsnun · 27 Jun 2019

Saperstein said:
What’s the problem? She asked a question that’s all.

OK, maybe she did buy a childs ticket deliberately, or maybe it was a mistake, you and I don’t know for certain.

I don't normally pass comment on things like this but this one’s got to me a bit.

She’s been penalty fared at Brighton. She’s gutted. The last thing she needs is that kind
of attitude when she asks a civil question.

And as for the “usual suspects attempting to get you [Her] off the hook” I thought that that is what this part of the forum is all about, giving advice?

With all due respect, if you don’t like reading about this subject please don’t read this section of the forum!

With all due respect, the normality on this forum is to make people accountable for their actions. In this case the person travelled on a child ticket. You don't do this accidentally.

In that case, I like the poster you replied to would argue that they have been lucky, should pay the PF and move on.

In a lot of cases, the advice given to someone is to negotiate an out of court settlement with the TOC concerned. In this case that would be substantially more than the PF, so yes the poster was in order making the comments they did.

ForTheLoveOf · 27 Jun 2019

cjmillsnun said:
You don't do this accidentally.

How do we know the OP's age? They might be a child for almost all purposes throughout their life (not having the right to fully own property, not having the right to vote, etc.) and therefore consider themselves a child, and yet the railway might consider them an adult. It's perfectly feasible for infrequent passengers aged 16 and 17 to think they are entitled to a child rate ticket.

cjmillsnun said:
In a lot of cases, the advice given to someone is to negotiate an out of court settlement with the TOC concerned. In this case that would be substantially more than the PF, so yes the poster was in order making the comments they did.

I don't see what the relevance of other cases is, or how you can consider the other poster's comments in order. In this particular case GTR have decided to settle the matter by means of a Penalty Fare, a penalty laid down in law. They did so otherwise than in accordance with the law, and now they must face the consequences of that. I see no reason to condone their breach of the law.

farleigh · 27 Jun 2019

Excellent post ForTheLoveOf

najaB · 27 Jun 2019

ForTheLoveOf said:
They might be a child for almost all purposes throughout their life (not having the right to fully own property, not having the right to vote, etc.) and therefore consider themselves a child, and yet the railway might consider them an adult.

Please, not this again...

Saperstein · 27 Jun 2019

farleigh said:
Excellent post ForTheLoveOf

I couldn’t agree more.

ForTheLoveOf · 27 Jun 2019

najaB said:
Please, not this again...

All I'm trying to say is that an "adult" travelling with a "child" ticket is not necessarily always fare evasion. It is easy to jump to conclusions.

furlong · 28 Jun 2019

ForTheLoveOf said:
In this particular case GTR have decided to settle the matter by means of a Penalty Fare, a penalty laid down in law. They did so otherwise than in accordance with the law, and now they must face the consequences of that. I see no reason to condone their breach of the law.

How long has the company been using a pad like that? What have the bodies charged with representing the interests of passengers been doing all that time? Where was the ORR? The DfT? Transport Focus? London Travelwatch? How about the company ceases using that pad immediately and refunds every Penalty Fare it has issued using notices similar to that one? It's not difficult to produce notices that comply with the regulations both in letter and in spirit! I didn't mention it above as it has only peripheral relevance, but perhaps the most serious non-compliance is the apparent misrepresentation of the grounds allowed for appeal. There is no mention that you can appeal on the grounds that the PF was not issued in accordance with the requirements of the Regulations - but rather the notice states that in your appeal you should provide "the reason why you could not produce a valid ticket or authority to travel when requested" when no such requirement exists. In other words, people who might have had other valid grounds for appeal were not informed correctly of their rights and consequently might not have exercised them. (Appeal Panels do have discretion to accept late appeals.)

ForTheLoveOf · 28 Jun 2019

furlong said:
How long has the company been using a pad like that? What have the bodies charged with representing the interests of passengers been doing all that time? Where was the ORR? The DfT? Transport Focus? London Travelwatch? How about the company ceases using that pad immediately and refunds every Penalty Fare it has issued using notices similar to that one? It's not difficult to produce notices that comply with the regulations both in letter and in spirit! I didn't mention it above as it has only peripheral relevance, but perhaps the most serious non-compliance is the apparent misrepresentation of the grounds allowed for appeal. There is no mention that you can appeal on the grounds that the PF was not issued in accordance with the requirements of the Regulations - but rather the notice states that in your appeal you should provide "the reason why you could not produce a valid ticket or authority to travel when requested" when no such requirement exists. In other words, people who might have had other valid grounds for appeal were not informed correctly of their rights and consequently might not have exercised them. (Appeal Panels do have discretion to accept late appeals.)

I agree - it is demonstrative of a system where, despite notionally having a Rail Ombudsman, passengers' rights are still not properly secured and enforced by an independent body with teeth.

some bloke · 28 Jun 2019

ForTheLoveOf said:
The only stage at which prosecution is entirely ruled out is if the Penalty Fare is paid, or ...

I'm not sure paying completely removes the threat of prosecution. While it might be viewed as abuse of process, 11 (2) refers to a refund if a prosecution is brought.

https://www.legislation.gov.uk/uksi/2018/366/made

ForTheLoveOf · 28 Jun 2019

some bloke said:
I'm not sure paying completely removes the threat of prosecution. While it might be viewed as abuse of process, 11 (2) refers to a refund if a prosecution is brought.

https://www.legislation.gov.uk/uksi/2018/366/made

It doesn't state that it is permissible to bring a prosecution, just that if one is brought, any amount paid must be refunded. I am sure @furlong will be able to elaborate on the potential implications of a prosecution that's an abuse of process, if you wish.

The payment of a Penalty Fare is no different to the payment of a generic out of Court settlement. It settles the irregularity in the same way as any other settlement agreement, and is enforceable as such. If the TOC breaches the agreement then, unless they have valid grounds to do so (e.g. that fraudulent information about the journey or circumstances was used to induce them to agree to a Penalty Fare, which they only later discover), that is highly likely to see the prosecution thrown out.

Surreytraveller · 28 Jun 2019

some bloke said:
While the errors on the notice might be shocking, as @Throwaway68396It's lawful to record a phone call if you get permission beforehand. You can then say, "OK, so I've started recording the conversation as we agreed - could you just confirm that you've given permission?". In this case you wouldn't need to ask until/unless they say you don't need to pay. If they do say that, it would in any case seem reasonable to ask them to confirm it in writing before the deadline.

Its also lawful for a private individual to record a phonecall if you don't ask for permission. I don't know where the myth comes from that you can't - probably from companies that don't want individuals recording phonecalls that prove they are trying to get one over on the individual.
A private individual can record phonecalls as long as it is for their own purposes. Those purposes can include simply being able to remember what was said, or even to use as evidence against the company if they try to backtrack or deny what has been said.

ollyrogers · 28 Jun 2019

cjmillsnun said:
With all due respect, the normality on this forum is to make people accountable for their actions. In this case the person travelled on a child ticket. You don't do this accidentally.

Actually, it is entirely possible. My one (and only, I hasten to add) PF came just days after my 16th birthday, where, as I usually did at the time, I bought a child return from DID to OXF without remembering that I no longer qualified for the child ticket. Needless to say, I got my collar felt at the gateline in Oxford and was given my first taste of adult life.

Much as OP has done here, I tried to argue my case with the staff and indeed felt very aggrieved at the time that leniency couldn't be shown on account of my age, but it was a lesson learnt.

some bloke · 28 Jun 2019

Surreytraveller said:
Its also lawful for a private individual to record a phonecall if you don't ask for permission. ....A private individual can record phonecalls as long as it is for their own purposes. Those purposes can include simply being able to remember what was said, or even to use as evidence against the company if they try to backtrack or deny what has been said.

The distinction seems to be about who you play it to. I should have clarified - this is from a previous thread:

some bloke said:
Isn't the position as follows?

You may lawfully record your own contributions to a phone conversation, from mouth to microphone, without any special restriction on use.

You may lawfully record both or all parties' contributions to a phone conversation you take part in. However, legal problems may arise from playing the recording to someone else. You might want to use the recording in a way which, if you didn't have permission, would breach the employee's privacy (such as playing it to someone so that you can ask their advice).

In cases which may at some stage involve court, obtaining permission to record may turn out to be useful - including for the court's decisions about compensation.

This makes some points about use of such evidence in court:
https://www.dma-law.co.uk/is-it-illegal-to-record-conversations/

some bloke · 28 Jun 2019

Perhaps we can agree that

"if you pay a penalty fare, normally you wouldn't expect to be prosecuted"

rather than

"it means prosecution is entirely ruled out".

ForTheLoveOf · 28 Jun 2019

some bloke said:
Perhaps we can agree that

"if you pay a penalty fare, normally you wouldn't expect to be prosecuted"

rather than

"it means prosecution is entirely ruled out".

It's but a technicality to say that you can't be prosecuted vs you can't be convicted. A train company would be liable for damages in malicious prosecution (and potentially even a prosecution against themselves) if they conducted a prosecution they had agreed not to undertake by means of the issuance of a Penalty Fare.

Where there are Penalty Fares that have been issued on the basis of fraudulent information, it would of course be appropriate to give different advice, but it's off topic to venture into that when it isn't what is in question here

Deafdoggie · 29 Jun 2019

Just to clarify, you do not need permission to record a call for your own personal use. As long as it is only heard by you or the other person that is fine. If you want it to be heard by anyone else, then you do need permission (there are a few exceptions but none of them are relevant here) This is why, we in call centres say calls are recorded and monitored, as a Trainer/Supervisor/Manager may well listen to the call. It can also be played to trainees as an example of how call can be.

The only issue then, is if you wanted to use the call as evidence. You would probably have to ask a judge (or magistrate) if it could be used if you hadn't asked for permission. However, if the company is recording the call anyway, it is easier just to ask them for their copy! By continuing the call you gave your permission, and they clearly knew about it. I would be highly suspicious of anyone who would not carry on a conversation because you wanted to record it.

ForTheLoveOf · 29 Jun 2019

Deafdoggie said:
If you want it to be heard by anyone else, then you do need permission (there are a few exceptions but none of them are relevant here)

Perhaps if you are a company, but not as an individual. It's the other way around - you can record it, and there are only a few exceptions as to when you can't.

Deafdoggie said:
You would probably have to ask a judge (or magistrate) if it could be used if you hadn't asked for permission.

You'd have to ask for permission to adduce it regardless of whether the other party consented. Either way it's likely to be granted if it's relevant evidence.

Deafdoggie said:
I would be highly suspicious of anyone who would not carry on a conversation because you wanted to record it.

Many people, including me, are already highly suspicious of most TOCs' revenue departments so that wouldn't be anything new!

some bloke · 29 Jun 2019

If what is being suggested to people looking for advice is that recording a phone call secretly and then playing it to a third party is lawful, then that might need evidence or at least the views of lawyers.

some bloke said:
https://www.dma-law.co.uk/is-it-illegal-to-record-conversations/

some bloke said:
http://acitylawfirm.com/recorded-conversations/

The (old) advice Oftel gave is in line with that from both law firms linked to above, and to my knowledge other relevant sources in general:

Oftel previously said:
Recording or monitoring are only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party

https://webarchive.nationalarchives...rchive/oftel/consumer/advice/faqs/prvfaq3.htm

The quotation needs to be read in context: considerations include different rules for companies and individuals.

The Law Society's "Privacy Law Handbook" from 2010 (see page 119) can be previewed in Google Books.

ForTheLoveOf · 29 Jun 2019

some bloke said:
If what is being suggested to people looking for advice is that recording a phone call secretly and then playing it to a third party is lawful, then that might need evidence or at least the views of lawyers.

It is not a breach of privacy to record a phone call which is being made by a representative of a company who is acting on their behalf, especially considering that the call may already be being recorded on their side for internal purposes. There is nothing private about the conversation and no expectation of privacy whatsoever. For all you know the person on the other end could have the call on loudspeaker to 10 other people.

I strongly deplore continuing to veer so wildly off-topic on a subject which is of no importance or assistance to the OP in this matter. I have already explained why the OP simply shouldn't call them at all.

Deafdoggie · 29 Jun 2019

ForTheLoveOf said:
Many people, including me, are already highly suspicious of most TOCs' revenue departments so that wouldn't be anything new!

Good point!

Penalty Fare not on the System

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