Are out-of-court settlements a fair way of handling fares disputes?

[py_megapixel]

This does show one of the issues with the "out of court offer" system used.

On the one hand, in this case we have someone who can seemingly afford to pay the £1,000-plus settlement they may eventually be offered -in full as a lump sum.

On the other, you may have someone who would be offered a much lower settlement for a much lower offence but has to go to court so they can arrange to pay in installments as they can't access a lump of cash.

Added to the way the system disproportionately affects those with less cash available, if someone has a job they would lose if they received a conviction, I would assume the employer has that clause due to wanting people of a certain character, rather than those who can throw money to make convictions go away?

Not a knock on the OP, but the system is crazy.

I thought this probably warranted a full discussion in its own thread: the quoted post above makes an excellent point.

 

[ForTheLoveOf]

I thought this probably warranted a full discussion in its own thread: the quoted post above makes an excellent point.

Out of Court settlements fundamentally only exist for the benefit of the TOCs, otherwise they wouldn't bother offering them. Are they fair? No, how can they be when they are based on the power imbalance of a government subsidised monopoly pitting its resources against an unknowledgeable individual, in a process fine tuned to the benefit of the former?!

 

[30907]

Out of Court settlements fundamentally only exist for the benefit of the TOCs, otherwise they wouldn't bother offering them. Are they fair? No, how can they be when they are based on the power imbalance of a government subsidised monopoly pitting its resources against an unknowledgeable individual, in a process fine tuned to the benefit of the former?!

They benefit the courts, by reducing the number of prosecutions.
They arguably benefit those individuals who would otherwise have been prosecuted, particularly those who would have been found guilty.
Against that, it is arguable that there is a perverse incentive to TOCs to pursue out of court settlements where they might have a poor case in law.

 

[island]

Fair is relative.

As one example, where someone has genuinely committed an RRA offence and wishes to avoid a criminal record, it would seem fair to me.

 

[Bletchleyite]

Fair is relative.

As one example, where someone has genuinely committed an RRA offence and wishes to avoid a criminal record, it would seem fair to me.

If one has committed a criminal offence, one should be prosecuted with that offence. Ideally this should happen every time the offence is committed, though realistically not.

I don't at all like this idea of simply using it as a means to extract money. I call that extortion, myself.

If the TOCs want the option to settle, it should be a simple case of sueing for the unpaid fare and enforcement costs with no criminal option.

 

[DarloRich]

Yes - out of court settlements are a standard way of reaching a conclusion to a legal matter without the need to trouble the court. Settlement is faster, less expensive, less risky and consumes less precious court time.

 

[Tetchytyke]

Yes - out of court settlements are a standard way of reaching a conclusion to a legal matter without the need to trouble the court.

Not for criminal matters they ain't.

 

[Bletchleyite]

Not for criminal matters they ain't.

Precisely.

If something is a criminal offence, then the ideal (beyond the obvious that nobody commits it and so nobody is prosecuted) is that 100% of people who do that thing are prosecuted for it. If that's not the ideal, then it shouldn't be a criminal offence.

It should be illegal to ask for a bribe not to press charges, effectively. That's extortion.

Yes - out of court settlements are a standard way of reaching a conclusion to a legal matter without the need to trouble the court. Settlement is faster, less expensive, less risky and consumes less precious court time.

When you sue someone, yes. So the railway, if it wishes to do that, should have to sue to recover unpaid fares plus reasonable enforcement and processing costs, and should lose the criminal offences (both Byelaw and RoRA, but certainly RoRA).

 

[py_megapixel]

When you sue someone, yes. So the railway, if it wishes to do that, should have to sue to recover unpaid fares and should lose the criminal offences (both Byelaw and RoRA, but certainly RoRA).

I think what @DarloRich might be trying to say is that the purpose of an out-of-court settlement is to avoid bothering the courts, so suing for unpaid fares defeats that purpose.

However, it does seem rather like, as you say, a bribe not to proceed with pressing charges. Which seems rather to be exploiting people's fear of being tried in court in order to extort money from them. Where it becomes unfair in my opinion is when the circumstances mean that innocent but wrongfully accussed passengers are paying the settlements just to make TIL (or whoever else) go away.

 

[DarloRich]

It isn't a bribe or extortion of any sort. It is an agreement to settle a matter without proceeding to court. It is an admission of guilt, an apology and payment of "compensation" to the injured party and is a possible solution because these offences are essentially private prosecutions for dishonesty. In any event is it that much different to accepting a police caution for a minor offence?

 

[221129]

Not for criminal matters they ain't.

So what is a fixed penalty notice then? Or an awareness course? All things you pay for after being caught committing a criminal offence instead of being prosecuted.

 

[Bletchleyite]

It isn't a bribe or extortion of any sort. It is an agreement to settle a matter without proceeding to court. It is an admission of guilt, an apology and payment of "compensation" to the injured party and is a possible solution because these offences are essentially private prosecutions for dishonesty. In any event is it that much different to accepting a police caution for a minor offence?

I think I still have a big issue with the idea of anyone other than the State being able to actually prosecute. Therefore, it's to me very similar to paying someone not to press charges, which I would have a huge problem with.

 

[DarloRich]

I think I still have a big issue with the idea of anyone other than the State being able to actually prosecute.

Absolutely and I agree in so far as I am uncomfortable with private companies like TOC's having this power. However, the state does not have the resources ( especially court resources) to prosecute serious crime within an acceptable timescale let alone low level stuff like this!

 

[Bletchleyite]

Absolutely and I agree in so far as I am uncomfortable with private companies like TOC's having this power. However, the state does not have the resources ( especially court resources) to prosecute serious crime within an acceptable timescale let alone low level stuff like this!

True, which is why my preferred option would be to decriminalise the matter and make it handled rather more like decriminalised parking penalties, as in most cases (I'd think most fare dodging is on local services as you've far less chance of being caught than if you're sat in one place for 3 hours on a train with more staff) the sums are in a similar order of magnitude. Thus, the TOC would issue a penalty fare, but would have to sue to recover it if the passenger didn't pay it, and in that context of course out of court settlement is fine because either way the TOC just wants and deserves its outstanding fare plus costs.

 

[Haywain]

Absolutely and I agree in so far as I am uncomfortable with private companies like TOC's having this power. However, the state does not have the resources ( especially court resources) to prosecute serious crime within an acceptable timescale let alone low level stuff like this!

I agree in general but the state does have the resources, just not the desire to use them.

 

[DarloRich]

I agree in general but the state does have the resources, just not the desire to use them.

It might have the cash to buy them in due course. It does not have the human resources at this moment. Today, the court system at all levels is falling apart.

 

[py_megapixel]

So what is a fixed penalty notice then? Or an awareness course? All things you pay for after being caught committing a criminal offence instead of being prosecuted.

I think I still have a big issue with the idea of anyone other than the State being able to actually prosecute. Therefore, it's to me very similar to paying someone not to press charges, which I would have a huge problem with.

Absolutely and I agree in so far as I am uncomfortable with private companies like TOC's having this power. However, the state does not have the resources ( especially court resources) to prosecute serious crime within an acceptable timescale let alone low level stuff like this!

Hang on a moment.... isn't this what the penalty fare system is supposed to be for?

I still maintain that penalty fares in this country are too low, but aside from that, I would suggest that the whole system might work better if TOCs were required to issue penalty fares in the first instance rather than proceeding to court (which these days seems to mean getting TIL to beg for a bribe not to proceed to court). This could be done requiring the passenger to show ID so that evidence of systematic fare evasion could be identified and prosecuted.

The problem with comparing an out-of-court settlement to a FPN for something like a minor motoring offence (such as parking obstructing a pedestrian crossing) is that it will be enforced by someone who is designated by the state or local authority to do so (a police officer or traffic warden), it will be for a predetermined amount, there can be unequivocal evidence that it has been correctly issued (photographs of the vehicle obstructing the crossing) and there is proper means to appeal it without going through the court (challenging the FPN with whichever body issued it) and then means to appeal it with an independent body if they reject it, still staying out of court.

Compare that to the bribes out-of-court settlements that the likes of TIL offer. They are seemingly randomly determined by bullying private organisations: you need only read a few threads on this very forum to get an idea of their (possibly malicious) incompetence. There is no way to challenge them other than going through court - they will reject evidence that you were innocent, and are playing on people's fear of being tried in court to get them to pay ridiculous settlements. There is no independent body you can go to. And finally (and I think this is the biggest issue) whoever is issuing these has an incentive to request these settlements, even if they believe they are incorrect to do so!

 

[NSB2017]

Putting aside who should be allowed to prosecute what, the other part of my issue is that bunging the TOCs a few quid out of court is a way for dishonest people to not let their employers know they are, in fact, dishonest!

I would imagine any company/organisation who would sack or discipline someone who is found guilty at court for fare dodging cares less about the fact they were found guilty in court, but more about the fact they are a fare dodger.

For all we know, the poster who is desperate to avoid court due to work is a senior police officer, Home Office civil servant, spook, etc (I doubt they actually are any of these things, but still) and the fact they can throw a grand or so at a TOC to hide the fact they were a repeat fare dodger doesn't take away from the fact they are a repeat fare dodger who acted in a clearly premeditated manner.

 

[Tetchytyke]

So what is a fixed penalty notice then?

FPNs for minor motoring infringements (parking, driving in a bus lane, etc) are not a criminal matter, they are the equivalent of a penalty fare and are enforced through the civil courts.

Other FPNs, such as speeding, are a criminal sanction in their own right and can be enforced as though they were a criminal fine.

All the examples you gave are defined sanctions to be issued in defined situations. The difference between that and TIL waving a damp finger in the air and deciding on a random settlement figure is night and day

Hang on a moment.... isn't this what the penalty fare system is supposed to be for?

I still maintain that penalty fares in this country are too low, but aside from that, I would suggest that the whole system might work better if TOCs were required to issue penalty fares in the first instance

Yep. Make Penalty Fares £50 and remove the right for TOCs to prosecute their own fare evasion. That's the solution.

 

[yorkie]

Hang on a moment.... isn't this what the penalty fare system is supposed to be for?

The view of Train Companies such as Chiltern is that Penalty Fares are simply for people who made a mistake:

A Penalty Fare is a charge that Chiltern Railways is allowed
to make under the Regulations and Rules. It is not a fine, and
anyone who is charged one is not being accused of avoiding,
or attempting to avoid, paying their fare.

‘Fare dodging’ is a completely different matter: it is a criminal
offence and we treat it as such by prosecuting offenders

For example if you board at a station like Garforth, and don't realise there is an obscurely located ticket machine on the platform towards Leeds (which anyone using the station could easily miss), and you could have used that machine, the relevant company might struggle with a prosecution but would be able to issue a Penalty Fare for your mistake. In the case of Northern, if you are unable to use the machine they may even attempt to issue a Penalty Fare if you fail to get a "Promise to Pay", even if the terms of the "Promise to Pay" are not appropriate for your situation.

If someone has, say, an out of date Season ticket, the company may decide to treat that as a mistake, and issue a PF, or they may decide to treat it as deliberate fare evasion, and ask you to pay them a settlement to avoid the risk of a criminal record. Many people would not want the risk of a court appearance or criminal record, so would pay whatever settlement is requested to make the matter go away.

There can be a huge imbalance of power in the relationship between train companies and their customers; far more so than in any other sector I can think of. No other industry can treat it's passengers in the manner that train companies can. Some train companies such as CrossCountry instruct dubious organisations, such as the unscrupulous Transport Investigations, to act on their behalf, see https://www.railforums.co.uk/thread...-til-court-threats.198679/page-2#post-4660852

 

[NSB2017]

On the issue of FPNs, they are civil matters that can become criminal matters if the person doesn't give their name and address. So someone dropping litter, for example, would be issued a £150-or-so FPN as a civil matter, but if they didn't give their details the relevant legislation makes that a criminal matter and it will invariably end up in court with extra costs and so on. Paying the FPN without escalating it usually also means the person's name isn't made public, as guidance is that "naming and shaming" for FPNs is excessive...although different interpretations are used in different areas.

 

[py_megapixel]

There can be a huge imbalance of power in the relationship between train companies and their customers; far more so than in any other sector I can think of. No other industry can treat it's passengers in the manner that train companies can. Some train companies such as CrossCountry instruct dubious organisations, such as the unscrupulous Transport Investigations, to act on their behalf, see https://www.railforums.co.uk/thread...-til-court-threats.198679/page-2#post-4660852

Ah yes... TIL. Never had an interaction with them personally but you need only read this forum to get an idea of the kind of company they are.

The view of Train Companies such as Chiltern is that Penalty Fares are simply for people who made a mistake:

If it's obviously a mistake, then why not just charge them the normal fare and send them on their way?

If it's a penalty, it's for doing something wrong, surely?

 

[Bletchleyite]

Yep. Make Penalty Fares £50 and remove the right for TOCs to prosecute their own fare evasion. That's the solution.

£100, reduced to £50 for a first offence in 12 months and if paid (or successfully appealed) within a month, is what I'd go for. No fare multiple, it would just be added to the appropriate walk-up fare that would have been due for the journey made had it been paid before boarding.

And yes, then, decriminalise.

For serious cases of organised fraud/falsification, there are existing general offences which are perfectly good.

 

[Puffing Devil]

Quite a few interesting points raised in this thread.

Unless you have been part of the criminal court system you may not have been aware of the wholesale reduction in court capacity in the UK. Since 2010 more than half of all Magistrates' Courts have been closed. Local justice is only local if you live in a large town.

There has been a shift to "justice" by Penalty Notice - with additional powers for the police to issue Penalty Notices for Disorder. Also, conditional cautions, with an element of punishment have been made available to the police. That could include a financial penalty imposed by the police - not a court. Many people are not aware that accepting a caution is accepting a criminal conviction and it will be a matter of record - either the Police National Database or the Police National Computer, or both.

Taking a case to court does not benefit a TOC directly. For a successful prosecution, they may gain their costs back and compensation for any fare evaded. That's all. However, a juicy out of court settlement goes directly into their, and their prosecuting agent's, pockets. We can perhaps now see why there's the attraction to settle out of court - easier, as there's no case to prepare, faster as it closes more quickly, and more cost-effective, as the TOC gets the cash.

It sticks in my throat that many people are effectively bullied into accepting a settlement for a ticketing matter as the prospect of going to court, or the chance of losing a case, is too much. Very much as when we temporarily had the "Criminal Courts Charge" when the potential costs of losing at trial force many to plead guilty.

I'm also very much against giving people the opportunity to avoid criminal prosecution for fare evasion as the TOC take a short-cut and secure the cash rather than the record. Imagine the uproar if a shop said we won't prosecute you for theft if you pay us £500?

Edit: There/Their typo

 

[Haywain]

It might have the cash to buy them in due course. It does not have the human resources at this moment. Today, the court system at all levels is falling apart.

The system is falling apart because the state chooses not to use the cash to provide the necessary resources.

On the issue of FPNs, they are civil matters that can become criminal matters if the person doesn't give their name and address. So someone dropping litter, for example, would be issued a £150-or-so FPN as a civil matter, but if they didn't give their details the relevant legislation makes that a criminal matter and it will invariably end up in court with extra costs and so on. Paying the FPN without escalating it usually also means the person's name isn't made public, as guidance is that "naming and shaming" for FPNs is excessive...although different interpretations are used in different areas.

So, an FPN is effectively an out of court settlement, just at a fixed amount.

 

[Tetchytyke]

So, an FPN is effectively an out of court settlement, just at a fixed amount.

No, it is a specific sanction for a specific offence. Depending on the FPN and who issues it, it might be a civil matter (parking and bus lanes), it might be a criminal matter (ASB) or it might be a civil matter that becomes a criminal one if it is not paid (littering, DVLA).

It is more akin to a Penalty Fare.

 

[Haywain]

No, it is a specific sanction for a specific offence. Depending on the FPN and who issues it, it might be a civil matter (parking and bus lanes), it might be a criminal matter (ASB) or it might be a civil matter that becomes a criminal one if it is not paid (littering, DVLA).

It is more akin to a Penalty Fare.

That can become a criminal matter...

 

[Mojo]

I would disagree with the arguments made that out of court settlements are unfair - being dragged through the legal system affects those in professional employment - if I were successfully prosecuted for many offences then I would be obliged to disclose this to my employer, and this would make my present employment untenable. The same would not be said for someone who is say, on benefits, or in the many forms of employment where having a criminal record would not noticeably impact on their lifestyle or continued employment.

 

[Starmill]

Given the TOCs are essentially entirety beholden to their contracting authority now, I would like them to be contractually prevented from bringing charges in England and Wales related to an attempt to avoid the payment of the correct fare, or for a breach of Byelaw 18. They would also be made to drop any outstanding cases. This would solve the problem of power imbalance in settlement negotiations literally overnight. They would still be permitted to make claims on another legal basis.

Of course, the Secretary of State and the others will probably never do it. If the government had an interest in this it would be only too easy for them to quickly legislate to remove these crimes. They don't though so the current situation prevails.

The situation in Scotland creates no noticeable enforcement headaches, despite the fact that the scope for these settlements doesn't really arise. There is no issue with the lawful refusal of boarding to someone who must have a ticket and doesn't, regardless of these crazy criminal sanctions.

 

[Puffing Devil]

I would disagree with the arguments made that out of court settlements are unfair - being dragged through the legal system affects those in professional employment - if I were successfully prosecuted for many offences then I would be obliged to disclose this to my employer, and this would make my present employment untenable. The same would not be said for someone who is say, on benefits, or in the many forms of employment where having a criminal record would not noticeably impact on their lifestyle or continued employment.

I have a job, which provides a good lifestyle and requires that I don't break the law. I also want to break the law. Is it OK if I avoid the consequences of my actions by paying a little more? Simple solution, don't break the law. Much like habitual speeders who complain when their driving licences are removed - don't speed, keep your licence.

No different to those on benefits who will not be able to take the job you have as they have a criminal conviction.