Alleged fraud case: is it reasonable for TOCs to accept tickets and later state it's fraud? Could an MP help?

[Titfield]

The correct way of looking at this, though doubtless it is not a "happy way" is that the real cost of this to you is £100 - the admin fee being charged by the TOC plus any "lost fares" - ie any fares you have paid already which have been disregarded by the TOC in their calculation of the fares you should have paid.

I would pay the sum to settle the matter but then I think I would seriously consider making a complaint to Trading Standards as to how the booking system displays fares and any restrictions which may apply to the use of railcards in purchasing those fares.

Some of the wording used by TOCS is less than clear and arguably ambiguous. After you have settled I would ask the TOC if they hold the Plain English Campaign Crystal mark and if not why not.

 

[Deafdoggie]

The correct way of looking at this, though doubtless it is not a "happy way" is that the real cost of this to you is £100 - the admin fee being charged by the TOC plus any "lost fares" - ie any fares you have paid already which have been disregarded by the TOC in their calculation of the fares you should have paid.

I would pay the sum to settle the matter but then I think I would seriously consider making a complaint to Trading Standards as to how the booking system displays fares and any restrictions which may apply to the use of railcards in purchasing those fares.

Some of the wording used by TOCS is less than clear and arguably ambiguous. After you have settled I would ask the TOC if they hold the Plain English Campaign Crystal mark and if not why not.

I think this is an excellent post.

 

[Poller2712.]

The correct way of looking at this, though doubtless it is not a "happy way" is that the real cost of this to you is £100 - the admin fee being charged by the TOC plus any "lost fares" - ie any fares you have paid already which have been disregarded by the TOC in their calculation of the fares you should have paid.

I would pay the sum to settle the matter but then I think I would seriously consider making a complaint to Trading Standards as to how the booking system displays fares and any restrictions which may apply to the use of railcards in purchasing those fares.

Some of the wording used by TOCS is less than clear and arguably ambiguous. After you have settled I would ask the TOC if they hold the Plain English Campaign Crystal mark and if not why not.

Very true!! Thank you

 

[Snow1964]

Certainly a mitigation could be that the tickets were scanned and not challenged at the time, muddying the waters somewhat, but it would take someone either very confident in representing themselves to challenge this in court, or to pay a Solicitor a fair chunk of money to do so, when again, it isn't a clear cut defence.

What is not acceptable is if any guard scanned the ticket and said anything like, that's ok, or ticket is good etc. Because then instead of buyer beware and your responsibility. A servant of the employee has confirmed it.

There is another complication with these tickets, the £12 minimum doesn't apply weekends, bank holidays and certain months of the year (July and August), so your 55 trips must exclude any in these periods, otherwise settlement amount is wrong.

 

[scrapy]

The value of fares that we dispute totals £391.42 and we are happy to limit the contribution towards our investigations costs at £100.

I thought all off peak and anytime fares were rounded to 5 pences. Unless there was some sort of promotional 1 pence fare (I know Northern have done these in the past, but not for off peak or anytime), then I would be asking for a breakdown of the fares due, it doesn't seem right.

 

[AdamWW]

I don't think that being given permission to travel will prevent the purchase of the ticket and subsequent use from being considered fraudulent by the courts.

For a fraud prosecution the court must have to decide on intent.

I would have thought that the fact that using the tickets went unchallenged would be helpful to a defence that it was unintentional.

Why would I go reminding myself of terms and conditions to make sure that I'm using tickets properly if the railway company is telling me they're valid?

 

[scrapy]

There is another complication with these tickets, the £12 minimum doesn't apply weekends, bank holidays and certain months of the year (July and August), so your 55 trips must exclude any in these periods, otherwise settlement amount is wrong.

Whilst you're correct about weekends and bank holidays, the minimum fare still applies in July and August before 10am on a 26-30 railcard. It's the 16-25 card where it doesn't.

For a fraud prosecution the court must have to decide on intent.

I would have thought that the fact that using the tickets went unchallenged would be helpful to a defence that it was unintentional.

Why would I go reminding myself of terms and conditions to make sure that I'm using tickets properly if the railway company is telling me they're valid?

Agreed, there is no way that a fraud prosecution would succeed. A RORA would probably not succeed but I have seen less convincing prosecutions succeed. A court would however be bound to find guilt in a bylaws prosecution as no valid to ticket was held at the point of boarding and intent is not needed, however unfair this may seem.

 

[Poller2712.]

I thought all off peak and anytime fares were rounded to 5 pences. Unless there was some sort of promotional 1 pence fare (I know Northern have done these in the past, but not for off peak or anytime), then I would be asking for a breakdown of the fares due, it doesn't seem right.

I know I do completely agree with what you’re saying. At this point I just want it settled. My partner said exactly the same as you.

 

[AdamWW]

Whilst you're correct about weekends and bank holidays, the minimum fare still applies in July and August before 10am on a 26-30 railcard. It's the 16-25 card where it doesn't.

Oh goodness. This gets even more subtle!
So someone moving up to a 26-30 railcard and diligently reading the ToCs has to spot that as well - and it is very easy to fail to notice omissions like that.

A court would however be bound to find guilt in a bylaws prosecution as no valid to ticket was held at the point of boarding and intent is not needed, however unfair this may seem.

Yes there is no flexibility there in.

But could a court decide to given an absolute discharge if they felt that the prosecution was unreasonable?

I know I do completely agree with what you’re saying. At this point I just want it settled. My partner said exactly the same as you.

If it were me I would settle to get it out of the way.

I would then be pursuing whatever action I thought possible over the way it was handled and in particular the threats of getting the police to investigate it as fraud.

 

[Haywain]

then I would be asking for a breakdown of the fares due, it doesn't seem right.

Erm...

This amount is non-negotiable as it is entirely in your favour.

 

[Poller2712.]

Erm...

But a breakdown isn’t asking to negotiate it’s just asking for a breakdown

 

[Haywain]

But a breakdown isn’t asking to negotiate it’s just asking for a breakdown

I can quite see them as regarding it in exactly the same way.

 

[HurdyGurdy]

A court would however be bound to find guilt in a bylaws prosecution as no valid to ticket was held at the point of boarding and intent is not needed, however unfair this may seem.

Where there is evidence in a witness statement from a conductor or ticket inspector, that the defendant did breach 18(1), with no need to prove intent, the court is bound to find the defendant guilty. But without such a witness statement does the stored data, from ticket purchases and scans on its own, provide the evidence a charge, let alone a conviction, requires?

And that's before you think about the integrity of the stored data itself. Is it reliable? Can it be manipulated or misrepresented? Is there an audit trail?

If TOCs thought of actually bringing prosecutions, as opposed to just making threats, on the basis of their stored data, the temptation would be to find a way to get expert witness evidence to trial to state that 2+2=5, fill the evidence gap and secure a conviction. That's what Post Office Limited thought and though it worked for a while, it hasn't turned out terribly well for them.

 

[maniacmartin]

It’s not clear to me whether £391.42 represents the entire cost of the tickets, or the difference in the cost of tickets the OP purchased and what they should have purchased.

If it’s the former, maybe they can ask the retailer for a refund of the 55 invalid unused tickets. I personally wouldn’t rock the boat any more by attempting this though, as I prefer a less stressful life.

 

[Deafdoggie]

Where there is evidence in a witness statement from a conductor or ticket inspector, that the defendant did breach 18(1), with no need to prove intent, the court is bound to find the defendant guilty. But without such a witness statement does the stored data, from ticket purchases and scans on its own, provide the evidence a charge, let alone a conviction, requires?

And that's before you think about the integrity of the stored data itself. Is it reliable? Can it be manipulated or misrepresented? Is there an audit trail?

If TOCs thought of actually bringing prosecutions, as opposed to just making threats, on the basis of their stored data, the temptation would be to find a way to get expert witness evidence to trial to state that 2+2=5, fill the evidence gap and secure a conviction. That's what Post Office Limited thought and though it worked for a while, it hasn't turned out terribly well for them.

This is why those who use a solicitor get out of court settlements apart from the most serious cases of blatant evasion. Even then solicitors get the fares to be repaid reduced.

 

[AdamWW]

If TOCs thought of actually bringing prosecutions, as opposed to just making threats, on the basis of their stored data, the temptation would be to find a way to get expert witness evidence to trial to state that 2+2=5, fill the evidence gap and secure a conviction. That's what Post Office Limited thought and though it worked for a while, it hasn't turned out terribly well for them.

And it would be nice to think that following the Horizons scandal a court would no longer accept a company declaring their own software entirely bug-free as conclusive evidence.

But I don't know if that's actually true.

 

[MrJeeves]

It’s not clear to me whether £391.42 represents the entire cost of the tickets, or the difference in the cost of tickets the OP purchased and what they should have purchased.

It would be rather difficult to be either considering fares are always multiples of 5p.

I would guess that interest may have been applied to older purchases or something similar.

 

[Haywain]

Even then solicitors get the fares to be repaid reduced.

Sometimes they might, but often the solicitors deal with the matter before any settlement has been offered so you cannot know if they have achieved any reduction.

And it would be nice to think that following the Horizons scandal a court would no longer accept a company declaring their own software entirely bug-free as conclusive evidence.

But I don't know if that's actually true.

The court will decide on the evidence produced by both sides. It is for the defence to cast doubt on the prosecution evidence. If the defence doesn't dispute such evidence, the court will accept it.

 

[HurdyGurdy]

And it would be nice to think that following the Horizons scandal a court would no longer accept a company declaring their own software entirely bug-free as conclusive evidence.

if you look at what actually happened with Horizon, it was not as straight forward as one court after another just accepting what the Post Office said about its system. There were shocking failures at all levels of the legal establishment, both criminal and civil lawyers, whether directly employed by or supposedly independent of the Post Office. They all had duties to the court to follow very specific rules for private prosecutors and act fairly. But nobody was checking that they did that, whether it was instructing expert witnesses, disclosing information and documents to the defence or even asking the right questions. It was simply taken on trust that as lawyers, they would be scrupulously diligent, honest and fair. It resulted in the courts not seeing the evidence the Post Office did not wish them to see.

No changes to that system of implicit trust have been made and Horizon is not even the first example of it failing. The only stand out is the scale of the failure. From the evidence heard so far at the public inquiry, the inescapable conclusion I've come to is that something similar could easily will inevitably happen again.

 

[NewcastleBrown]

Sometimes they might, but often the solicitors deal with the matter before any settlement has been offered so you cannot know if they have achieved any reduction.


The court will decide on the evidence produced by both sides. It is for the defence to cast doubt on the prosecution evidence. If the defence doesn't dispute such evidence, the court will accept it.

It is also worth adding that there is a presumption that any computer system is working correctly, so it is up to the defence to show that it is not, which can be hard to do

There is an interesting article on it here

The effect of this repeal was that the old common law presumption returned, meaning that is was again for the defendant to show that a computer was not operating correctly, rather than for the prosecutor to show that the computer was operating correctly.

 

[Hadders]

Moderator Note - can we keep this thread on topic which is to assist the OP. Discussion about Horizon should be in a separate thread.

Thanks.

 

[HurdyGurdy]

can we keep this thread on topic which is to assist the OP. Discussion about Horizon should be in a separate thread.

The OP's thread is here: Letter from TFW about Misuse of 26-30 railcard*settled*

This thread was spun out from the OP's thread (by a moderator?) specifically to discuss the more general topic separately. One aspect is; TOCs alleging fare evasion - even fraud - and threatening prosecution using data collected from IT systems, rather than witness evidence from ticket inspectors.

Bearing in mind that the Post Office is a company, which:

1. made allegations of criminal offences
2. sought cash settlements for alleged financial losses, where
3. the only evidence was data stored in its own IT system, then
4. carried out its own investigations, and
5. prosecuted its own cases.

If what went on with Post Office Limited, under the direction of BEIS is not directly relevant to what several TOCs are increasingly engaged in, while directed by or under contract to government bodies, I don't know what is.

I respectfully suggest that Horizon is on topic.

 

[furlong]

A court would however be bound to find guilt in a bylaws prosecution as no valid to ticket was held at the point of boarding and intent is not needed, however unfair this may seem.

(Not if an abuse of process application succeeded. Or less likely, the validity of such a byelaw neglecting intent was successfully but probably expensively challenged.)

 

[island]

If it’s the former, maybe they can ask the retailer for a refund of the 55 invalid unused tickets.

As refunds can only be claimed within 28 days of the expiration date of a ticket, I do not think this is possible.

 

[AdamWW]

The OP's thread is here: Letter from TFW about Misuse of 26-30 railcard*settled*

This thread was spun out from the OP's thread (by a moderator?) specifically to discuss the more general topic separately. One aspect is; TOCs alleging fare evasion - even fraud - and threatening prosecution using data collected from IT systems, rather than witness evidence from ticket inspectors.

Bearing in mind that the Post Office is a company, which:

1. made allegations of criminal offences
2. sought cash settlements for alleged financial losses, where
3. the only evidence was data stored in its own IT system, then
4. carried out its own investigations, and
5. prosecuted its own cases.

If what went on with Post Office Limited, under the direction of BEIS is not directly relevant to what several TOCs are increasingly engaged in, while directed by or under contract to government bodies, I don't know what is.

I respectfully suggest that Horizon is on topic.

And this has certainly made me wonder if I should be avoiding e-tickets for as long as I possibly can.

The court will decide on the evidence produced by both sides. It is for the defence to cast doubt on the prosecution evidence. If the defence doesn't dispute such evidence, the court will accept it.

If I was the defendant in one of these cases and my defence didn't suggest that the software was at fault, I think I'd want my money back.

As the link provided by @NewcastleBrown explains, the presumption is that software does not contain bugs and the defence has to prove otherwise - which will require access to information that the prosecuting side won't be keen to provide.

I think there was one case where the defendent produced expert evidence that Horizons was at fault (despite most of the necessary records having been deleted) and the prosecution successfully argued that as Fujitsu had confirmed their software didn't make errors, the expert must be biased and therefore their evidence was invalid.

As refunds can only be claimed within 28 days of the expiration date of a ticket, I do not think this is possible.

I suspect even within 28 days you wouldn't get a refund as they would be considered to have been used for refund purposes. (Though not used when it comes to making inflated claims as to the railway's loss)

 

[scrapy]

But could a court decide to given an absolute discharge if they felt that the prosecution was unreasonable?

Yes they could, but this wouldn't absolve the OP from compensation or costs and they would still technically get a criminal record (although immediately spent), it's just the court wouldn't impose any extra punishment. I've seen this recently where a friend was prosecuted by the DVLA. When the absolute discharge was given they thought they were in the clear, however it turned out they still had to pay £350 ish and had a criminal record.

 

[AdamWW]

Yes they could, but this wouldn't absolve the OP from compensation or costs and they would still technically get a criminal record (although immediately spent), it's just the court wouldn't impose any extra punishment. I've seen this recently where a friend was prosecuted by the DVLA. When the absolute discharge was given they thought they were in the clear, however it turned out they still had to pay £350 ish and had a criminal record.

Interesting.

So in most cases they'd still end up paying what to all intents and purposes is a fine, given that the railway will be demanding not their actual financial losses but the amount they argue that they are contractually due.

I presume though that an immediately spent criminal record would only be an issue in limited circumstances.

 

[Haywain]

which will require access to information that the prosecuting side won't be keen to provide.

I suggest you look up the rules of disclosure.

 

[AdamWW]

I suggest you look up the rules of disclosure.

I'm aware of that, thanks, but I'm also aware that you have to be able to trust the prosecuting organisation to act against its own interests and to be honest about what evidence exists.

As pointed out below:

if you look at what actually happened with Horizon, it was not as straight forward as one court after another just accepting what the Post Office said about its system. There were shocking failures at all levels of the legal establishment, both criminal and civil lawyers, whether directly employed by or supposedly independent of the Post Office. They all had duties to the court to follow very specific rules for private prosecutors and act fairly. But nobody was checking that they did that, whether it was instructing expert witnesses, disclosing information and documents to the defence or even asking the right questions. It was simply taken on trust that as lawyers, they would be scrupulously diligent, honest and fair. It resulted in the courts not seeing the evidence the Post Office did not wish them to see.

No changes to that system of implicit trust have been made and Horizon is not even the first example of it failing. The only stand out is the scale of the failure. From the evidence heard so far at the public inquiry, the inescapable conclusion I've come to is that something similar could easily will inevitably happen again.

 

[SussexSeagull]

Sorry, but it isn't the passenger's fault if technical limitations mean their ticket isn't checked properly and it is entirely reasonable to conclude your ticket was legitimate if it had checked several times previously.

That said I might be tempted to pay up and close the issue.