Advice needed please!

Discussion in 'Disputes & Prosecutions' started by UKraven, 9 Dec 2019.

  1. UKraven

    UKraven New Member

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    Hi everyone,
    Sorry in advance for the long message.
    So here's the situation, I was caught skipping a fare on a cross country train from Wolverhampton to Stafford (running severely late, wrong I know but I'm rather new to computing and had been told I can buy on the train as a last resort but potentially be charged double)
    When the inspector came by I asked to buy a ticket, had my card out ready. But they decided I had tried to avoid entirely. I was told I'd have to be written up and asked for my details, and gave them, correctly.
    A letter has just arrived addressed to "Mr Ben Kay" (not my name, first name correct, second name reasonably close but no cigar, only the initial K is correct and is 1 letter too short)
    What should I do? My other half thinks I should reply saying there is no Mr Kay at this address?
    I will attach a picture of the letter.
    Thanks so much I'm advance!
    Ben. Screenshot_20191209-190431.png
     
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  3. Fawkes Cat

    Fawkes Cat Member

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    Welcome to the forum.

    The quick answer - no, you can't ignore the letter as being for someone else.

    You were expecting a letter from the railway, and a letter has arrived from the railway. It's addressed to a name pretty close to yours. It's reasonable to assume that the letter is for you.

    So you need to respond - if you don't, the railway will assume that you have no desire to work with them, and will move sooner rather than later to prosecution.

    How should you respond? Probably by saying sorry - and meaning it. Explain that you made a mistake, but you have learnt from it, and won't do it again. Ask if the railway will let you settle the matter by paying the fare and the costs that the railway have already incurred. This will cost one or two hundred pounds, but will be cheaper than going to court, and having to pay a fine and court costs as well.
     
  4. some bloke

    some bloke Member

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    If you post a draft reply on here (honest, clear and brief, along the lines @Fawkes Cat suggests), people can comment on it.
    That sounds more like it was deliberate - do you really mean that, or just that you were discovered without a ticket?
    That sounds more like you intended to pay.
    Offering to pay when asked doesn't in itself prove that the person always intended to pay.
    A prosecution, if it happened, might be for a less serious offence than that.

    The letter mentions two pieces of legislation. Under the Byelaws, ticketing offences are "strict liability", ie regardless of intent to pay or avoid paying. This is similar to speeding offences - if you mean to drive within the speed limit but weren't paying attention, you're still automatically guilty. Byelaw 18 is often used.
    https://www.gov.uk/government/publications/railway-byelaws

    The offence of intending to avoid a fare is under the Regulation of Railways Act 1889, section 5(3).
    https://www.legislation.gov.uk/ukpga/Vict/52-53/57/section/5

    As it's generally harder to prove intent, companies often use a byelaw or offer a settlement even if at first they refer to intent or the law that covers it.
     
    Last edited: 10 Dec 2019
  5. Haywain

    Haywain Established Member

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    If the OP joined the train at Wolverhampton passing the (almost certainly open) ticket office in the process, intent will be proved with relative ease.
     
  6. some bloke

    some bloke Member

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    I can imagine myself, in a rush to get to work and keen not to be late for a new job, intending to pass up the opportunity to pay because I wanted to jump on the train and pay later, not because I wanted to avoid paying entirely.

    I'd like to think magistrates wouldn't automatically convict without taking the credibility of the story into account.

     
    Last edited: 10 Dec 2019
  7. Haywain

    Haywain Established Member

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    Intent is judged by actions and words, not thoughts. The action of passing an opportunity to pay is going to look very much like intent, and offering to pay when checked on the train is the behaviour of many 'pay when challenged' fare avoiders.
     
  8. some bloke

    some bloke Member

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    "Will" or "might"?
     
  9. Llanigraham

    Llanigraham On Moderation

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    Intent WILL be proved. They passed atleast one opportunity to pay. Being late and rushing is not a legitimate excuse.
     
  10. 221129

    221129 Established Member

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    Will it's pretty much a slam dunk case.
     
  11. najaB

    najaB Veteran Member

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    Arguably two. The OP quite clearly has a smartphone (based on the photo), and a payment card. So they also failed to purchase online. Three if we count ticket office and machines a separate opportunities.
     
  12. UKraven

    UKraven New Member

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    Thank you all so much for your replies, I'll keep it short due to the time (nearly 1am, I will undoubtedly lose my job if I get a criminal record so sleeping is an elusive friend currently)
    I have altered a suggested letter I found on an older thread and would love to hear your thoughts:
    Dear Sir or Madam,

    Many thanks for your letter dated 06.12.2019 and offering me the opportunity to respond.

    On 16th November I boarded a Cross Country service from Wolverhampton to Stafford. As I was in a rush I boarded this service without having purchased a ticket at Wolverhampton, thinking I could buy one on board. When I met your agent on the train they informed me I had broken the law and took my details.

    I now realise that having boarded the train at Wolverhampton without buying a ticket was wrong and against the law, and that being in a rush to catch the next train is not a valid excuse. I would like to offer my unreserved apologies for my actions and thank the officer on the train for reminding me of the legal requirement to always purchase a ticket before boarding a train. I would also like to offer my reassurances that I have learned a lesson and will not board a train again without purchasing a ticket.

    I am aware that my actions have cost Cross Country Trains financially. I would like to remedy this situation and avoid it being escalated further by way of an administrative settlement. I would like to offer payment of the appropriate outstanding fare and to cover any additional administrative costs you have incurred as a result of my inappropriate actions.

    I look forward to hearing from you.

    Yours faithfully,
     
  13. some bloke

    some bloke Member

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    Seems pretty good.

    If the reason why you were in a rush (especially if something beyond your control) and/or reason why you felt you had to get that train (eg not being late for new job) seem particularly convincing you could mention them. They don't make the excuse valid in terms of the automatic offence, but might make the story more believable/yourself more relatable.

    If you mention that you're new to commuting and, if this is the case, that you haven't used trains frequently in recent years, those might help them understand why you didn't know the rules.

    If you were able to say, for example, "my credit card statements will show relevant payments for every day that I have been using the train, starting three weeks ago" that might help.

    None of the above are likely to need to be more than brief mentions.

    You could say "informing" rather than "reminding" as you've said you thought you could buy on board (or say that you had forgotten, if that was the case).

    Many people think that kind of thing - are you sure? What kind of job do you have, and is there a professional body or union which gives guidance or has a website with requirements?

    If it's very important to avoid a conviction, at some stage it might be worth considering hiring a solicitor (or at least getting a free initial consultation via a union, possibly home insurance or bank, or by finding a solicitor who deals with crime - some offer a free session).

    As you can see from other cases on here, you can keep trying to persuade the company (via email, letter and/or phone; possibly via a personal interview) to settle even if they start the prosecution process. The last resort before court would be for you and/or a solicitor to go early to the court, ask staff where the prosecutor is and attempt to persuade them in person.
     
    Last edited: 11 Dec 2019
  14. Brissle Girl

    Brissle Girl Member

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    Yes, it’s pretty good. I wonder whether thanking the officer who has nicked you might come across as unduly sycophantic. You’d only be thanking him if he let you off, which clearly hasn’t happened.
     
  15. 221129

    221129 Established Member

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    The current letter looks pretty good.

    All of this is completely irrelevant and not at all likely to be of any help, so i would personally keep it out.
     
  16. najaB

    najaB Veteran Member

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    It's not completely irrelevant but, by the same token, it's not something that you should dwell on. So (assuming this was the reason) something like "As I didn't want to be late for my first day in a new job I boarded this service without having purchased a ticket at Wolverhampton..." wouldn't be completely out of order.
     
  17. ForTheLoveOf

    ForTheLoveOf Established Member

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    Passing numerous opportunities to pay is clearly never a good idea, but the notion that someone who is in a rush and therefore runs straight to the train without a ticket, must buy a ticket on their phone to avoid being guilty of fare evasion under S5(3)(a) RoRA is... Let's just say a bit far-fetched.

    Of course I don't doubt there would be Magistrates out there that would convict on the basis of the number of opportunities passed prior to travel alone. That doesn't mean that all such convictions are legally safe - in the frequently cited case of Corbyn, the circumstances were that Corbyn left the station self-filling an IOU of sorts, but he never followed up these, and did so on a repeated basis.

    The similarities between that case and the OP's could hardly be further. In particular, the OP tells us that:
    Hardly the conduct of someone intending to avoid payment, is it?

    As to having the "opportunity" of buying a ticket on their phone, based on my experience of travelling on Voyagers, that is likely to be a difficult or impossible endeavour given the poor mobile signal which the construction and design of these units chase.

    Andthat's assuming the OP had a suitable app downloaded, was able to buy the appropriate ticket on it (what if the train they were on was the last train before Off-Peak tickets become valid, and wasn't selectable due to it having departed)... It's very difficult to count that as an opportunity to pay in the context of as short a journey as in this case.

    To summarise what I mean above, if TIL refuse to settle, and bring a prosecution under RoRA rather than the much more appropriate Byelaws, then the OP should consider carefully whether they may actually want to plead 'not guilty' rather than simply bowing to the pressure of a prosecution.

    It's worth bearing this in mind whilst engaging in correspondence with TIL, which, if it follows the seemingly typical pattern seen in many cases reported here, is likely to continue to allege a RoRA offence even where that's not appropriate for the circumstances.
     
    Last edited by a moderator: 11 Dec 2019
  18. Haywain

    Haywain Established Member

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    I refer you to my earlier comment.
     
  19. ForTheLoveOf

    ForTheLoveOf Established Member

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    The mere non-utilisation of ticketing facilities before boarding is not intent to avoid payment on its own, as much as TOCs would like it to be held that way. Of course many cases will have aggravating circumstances that add up to sufficiently prove intent to avoid payment but from the OP's description there don't appear to be any in this case.

    Thisis just one of the reasons why RPIs will often be told to ask whether the person intercepted would have paid their fare if they had not been "caught". An answer in the negative is of course usually sufficient to prove the intent to avoid payment.

    There is plenty of (predominantly older) case law out there on this subject. The fact that the TOCs have become rather more prosecution happy in recent years doesn't change the law or the standards of evidence required to achieve a S(5)(3)(a) conviction.

    As I've said, I don't doubt there will be some Magistrates who would convict on the basis of not buying a ticket before boarding alone, but I would strongly doubt that any such conviction is safe and it could be liable to be overturned on appeal.

    I don't see there's any point discussing this further until the OP receives further correspondence indicating what way CrossCountry want to proceed.
     
  20. Haywain

    Haywain Established Member

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    My apologies, I had no idea you were an expert on the subject.
     
  21. 30907

    30907 Established Member

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    As we don't know that the TOC will prosecute under RoRA rather than the Byelaws, how much of this is relevant?
     
  22. some bloke

    some bloke Member

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    Understanding that the company don't necessarily have a strong case for the more serious offence, and that his explanation could make a difference, might influence what @UKraven writes (probably only mentioning brief details in explanation) and improve his sleep.
     
  23. 221129

    221129 Established Member

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    The company have a very strong case for the more serious offence. The letter needs to focus on mitigating that and also focus on trying to achieve an administrative disposal.
     
  24. najaB

    najaB Veteran Member

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    I don't recall saying that anyone must use the app, just pointed out that the OP had an opportunity to purchase the ticket online, as well as from the TVM since they had a payment card.
    I also have no idea what the build quality of Voyager trains has to do with anything, since they should have purchased a ticket before boarding.
     
  25. Brissle Girl

    Brissle Girl Member

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    Indeed the build quality of a Voyager is surely irrelevant, as you are not allowed to buy a ticket via an app once you are on board?
     
  26. ForTheLoveOf

    ForTheLoveOf Established Member

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    I was pointing out that it is not something that can be counted as an opportunity to buy a ticket, given the mobile signal black hole that a Voyager appears to produce (unlike most other train types).

    That's an assertion that doesn't seem backed up by the facts in this case. Not everyone who boards without a ticket is a fare dodger and more evidence than merely being present without a ticket is needed to convict under S(5)(3)(a). The aggressiveness of Transport Investigation's and CrossCountry's approach to prosecutions doesn't change the evidence required to convict under that section.

    Your assertion appears incompatible with the fact that, to name just one example, it was held in Huffam v North Staffordshire Rly. Co. that Huffam had no intent to avoid payment, despite using an expired ticket and refusing to buy a new ticket. It is evidently accepted by the Courts that convicting someone of intent to avoid payment requires a considerable burden of evidence. Rushing onto a train to catch it - whether past ticketing facilities or not - is nowhere near sufficient evidence of such intent.

    I don't disagree that the OP should write in such a way as to discourage CrossCountry from trying on a RoRA prosecution, but it doesn't seem particularly helpful to try and frighten them into thinking they are guilty of something they're not.
     
  27. najaB

    najaB Veteran Member

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    Perhaps you should advise local magistrates that that is the case then.
     
  28. UKraven

    UKraven New Member

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    Thank you all so much for your help!
    I am sending off my email tonight and will post a copy on Monday as well. I will keep you all updated and thanks again for everyone's input.
    Does anybody know how long I should expect a reply or further action to take?
     

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