Being prosecuted for using pay as you go oyster card belonging to someone else

[MikeWh]

Getting back on topic, I think we can all agree that the revenue department at GA should have checked with TfL before proceeding down the prosecution route.

 

[najaB]

I think their point is that if you travel on a £4 ticket instead of a £5 ticket you'll often NOT be allowed to pay the £5 fare (£9 in total), you'll be sent a letter with a settlement of what can often be £80.

Which is why in my post I made it clear I was talking about what I think *should* happen:

Where I might agree with it would be if....

rather than about what happens currently.

 

[najaB]

Getting back on topic, I think we can all agree that the revenue department at GA should have checked with TfL before proceeding down the prosecution route.

Definitely!

 

[yorkie]

Glad to see we are back on topic but if anyone wishes to post any ideas/suggestions (such as for how the system should work), or anything else not directly related to the specific issue at hand, we ask that you create a thread for this.

In most cases ideas/suggestions would belong in Speculative Ideas but the Fare Advice & Policy section may be appropriate in some cases; if in doubt please contact us.

 

[some bloke]

I think we can all agree that the revenue department at GA should have checked with TfL before proceeding down the prosecution route.

Should GA also have:

2. checked what discounts that type of card gave in the first place,

3. asked the passenger for his side of the story,

4. not misled by mentioning a "summons",

5. not misled by referring to "recordable" offences/irrelevant 1889 Act/"criminal record" (this was not in a general information document, but in a specific settlement offer to the passenger),

6. not used the highly inappropriate language,
"You have been charged with an offence *committed* on a Greater Anglia service"
[Are court staff aware of that phrasing, on a notice with the court system's insignia?]

7. not given an 0870 number for payment,

8. not written that the 21 days started with the date of posting, and

9. not ignored the passenger's question about compensation?


If a passenger were to ask the company to undertake that it would refrain from the bad practices in future and they refused, would the Rail Ombudsman see that as a legitimate complaint?

 

[Tetchytyke]

Getting back on topic, I think we can all agree that the revenue department at GA should have checked with TfL before proceeding down the prosecution route.

Indeed.

The RPI was wrong, but it's a relatively niche issue. RPIs make errors, that's why PFs have an appeals process.

But for the GA prosecutions officer to not bother themselves to check what the rules are is where the real issue is. And it is that lack of attention to detail, that lack of caring, that is what needs to be stamped down on.

However each time this happens, the TOCs and the likes of TIL are just giving themselves an extra bit of rope to hang themselves with.

 

[ForTheLoveOf]

However each time this happens, the TOCs and the likes of TIL are just giving themselves an extra bit of rope to hang themselves with.

I think you could call it an exchange of old rope for money

 

[Hadders]

Indeed.

The RPI was wrong, but it's a relatively niche issue. RPIs make errors, that's why PFs have an appeals process.

But for the GA prosecutions officer to not bother themselves to check what the rules are is where the real issue is. And it is that lack of attention to detail, that lack of caring, that is what needs to be stamped down on.

However each time this happens, the TOCs and the likes of TIL are just giving themselves an extra bit of rope to hang themselves with.

I completely agree with this. It's not really the RPIs fault, as I said further upthread. The real fault lies with GA Prosecutions Office who really should know better.

We've had at least two similar cases involving GTR. I do wonder whether TfL should send out some 'guidance' to TOC prosecution department on dealing with Oyster.

 

[talldave]

I wonder how many of these cards are in circulation. If they cause confusion due to their unique nature, perhaps life would be easier for everyone if they expired and were replaced with more conventional cards?

 

[some bloke]

It's understandable that the RPI didn't know expired photocards were transferable, and perhaps that 18+ cards give no discount on single fares.

But isn't it reasonable to think they could have gone to a ticket vending machine (or used a card reader - the documents say there were other staff "validating" tickets) to see if @Skadoosh was telling the truth that there was no discount on this card/for recent journeys/for this journey?

And couldn't the prosecutors have checked the card number to see whether there was a discount on it? The statement simply says it was a "discount card" and even omits that the date was 2008.

...................

Some material that could be quoted in a complaint:

"Only people who board a train without a ticket and without any intention of buying a ticket are taken to court"

https://www.greateranglia.co.uk/abo...icles/fare-dodgers-ordered-pay-almost-£400000

.................

"Greater Anglia recognises that a conviction in the court is a serious matter which could have ramifications in both your personal and working life. Greater Anglia will ensure that all the evidence and mitigating factors are investigated and considered before any such action is considered."

Revenue Protection & Prosecutions Policy | Greater Anglia

Revenue Protection & Prosecutions Policy

Introduction Greater Anglia is committed to reducing the level of revenue loss due to fare evasion. Anti-social behaviour towards our customers and members of staff is unacceptable; such behaviour can cause discomfort, distress and may be dangerous.

www.greateranglia.co.uk

 

[WesternLancer]

It's understandable that the RPI didn't know expired photocards were transferable, and perhaps that 18+ cards give no discount on single fares.

But isn't it reasonable to think they could have gone to a ticket vending machine (or used a card reader - the documents say there were other staff "validating" tickets) to see if @Skadoosh was telling the truth that there was no discount on this card/for recent journeys/for this journey?

And couldn't the prosecutors have checked the card number to see whether there was a discount on it? The statement simply says it was a "discount card" and even omits that the date was 2008.

...................

Some material that could be quoted in a complaint:

"Only people who board a train without a ticket and without any intention of buying a ticket are taken to court"

https://www.greateranglia.co.uk/about-us/news-desk/news-articles/fare-dodgers-ordered-pay-almost-£400000

.................

"Greater Anglia recognises that a conviction in the court is a serious matter which could have ramifications in both your personal and working life. Greater Anglia will ensure that all the evidence and mitigating factors are investigated and considered before any such action is considered."

Revenue Protection & Prosecutions Policy | Greater Anglia

Revenue Protection & Prosecutions Policy

Introduction Greater Anglia is committed to reducing the level of revenue loss due to fare evasion. Anti-social behaviour towards our customers and members of staff is unacceptable; such behaviour can cause discomfort, distress and may be dangerous.

www.greateranglia.co.uk

Good point - those GA quotes seem to have no more status than platitudes in this case. They should have offered a sum as a 'goodwill gesture' given there handling of this. The OP has been very reasonable all along and probably would have happily accepted such an offer.

 

[robbeech]

It's understandable that the RPI didn't know expired photocards were transferable, and perhaps that 18+ cards give no discount on single fares.

But isn't it reasonable to think they could have gone to a ticket vending machine (or used a card reader - the documents say there were other staff "validating" tickets) to see if @Skadoosh was telling the truth that there was no discount on this card/for recent journeys/for this journey?

And couldn't the prosecutors have checked the card number to see whether there was a discount on it? The statement simply says it was a "discount card" and even omits that the date was 2008.

But from what I’ve read here and elsewhere, isn’t it true that RPIs, at least working for some companies have targets to make? And isn’t it also true that the targets are counted on the gross figure rather than the net figure so this incident will still be a tick on that RPI’s score sheet. Huge incentive to prosecute where there is the slightest chance, the smallest deviation from the norm will do, and as others and I have mentioned above and many times before, it has the added bonus that most people won’t contest it because they assume the railway is correct due to the complexity of the rules.
I do agree that these cards should be removed but there would need to be a customer friendly and indeed neutral method to doing this. Contact from TFL, sending a new card in the post, easy transfer of PAYG balance when they use the new card. Alas, I’m not sure if such a smooth and transparent operation is possible.

 

[robbeech]

Good point - those GA quotes seem to have no more status than platitudes in this case. They should have offered a sum as a 'goodwill gesture' given there handling of this. The OP has been very reasonable all along and probably would have happily accepted such an offer.

Even after the initial post and few replies in this thread the OP was considering just paying it to make the problem go away. This is very common and I fully understand how people will get into this position, the railway as a whole takes advantage of this every single day. For some reason it is allowed to behave in this way, and there MUST be a reason why this is. Who else gains financially from people giving up and paying these out of court settlements to make the problem go away (despite them doing nothing wrong) I wonder.

 

[Skadoosh]

It's all part of the game to catch innocent people and bully/scare/force people to end up paying rather than going through the stress of court and convictions.

I was 50/50 about paying or going to court, but the expert advice here was unbelievable and saved me the visit to court.

 

[Western Sunset]

I really hope you will pursue things further with GA (and other organisations), about GAs bullying tactics and basically asking you for money with menaces.

 

[some bloke]

I was 50/50 about paying or going to court, but the expert advice here was unbelievable and saved me the visit to court.

To be fair, your first post was pretty good as the basis of a first letter to GA.

I'd like to think the overwhelming majority of magistrates would have said there was reasonable doubt as to whether you "knowingly" used the "ticket" outside the conditions, and so you weren't guilty.

Even if you'd been convicted on a techicality with no financial loss to the company, as @furlong said above, mags could convict with an absolute discharge (ie no fine).

isn’t it also true that the targets are counted on the gross figure rather than the net figure so this incident will still be a tick on that RPI’s score sheet.

Well, that seems ridiculous - rewards for delaying passengers with baseless threats.

@Skadoosh, you could say "I think you owe me an explanation" and ask whether such practices exist.

Perhaps arguably even being treated with great suspicion and delayed at the time is not acceptable where the card is very old, and there is no evidence that you weren't paying enough.

And it is far from obvious that, for example, referring to "recordable" offences - which seems like a baseless menace - is not part of a general pattern.

 

[MikeWh]

I do agree that these cards should be removed but there would need to be a customer friendly and indeed neutral method to doing this. Contact from TFL, sending a new card in the post, easy transfer of PAYG balance when they use the new card. Alas, I’m not sure if such a smooth and transparent operation is possible.

Absolutely impossible. There is no requirement to keep address details up-to-date for adult Oyster cards as they can quite easily be used anonymously. The chances of a student in 2008 still living at the same address in 2020 has to be slim. They may even have changed email addresses, or passed the card onto a family member or friend if they moved away from London. Eradicating these cards robustly would cost way too much money at a time when money is in extremely short supply.

 

[najaB]

But from what I’ve read here and elsewhere, isn’t it true that RPIs, at least working for some companies have targets to make?

I've seen people making similar claims, but nothing official to back it up.

 

[some bloke]

I'm not saying it is, but can anyone explain why a threat of prosecution when there had been no loss to the company or TfL, accompanied by a "Settlement Offer" mentioning a law which in fact was not being relied on at all, and the supposed possibility of the recipient being convicted of a "recordable offence" that would create a "criminal record", is not blackmail?

Theft Act Offences | The Crown Prosecution Service

www.cps.gov.uk

Theft Act 1968

An Act to revise the law of England and Wales as to theft and similar or associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post...

www.legislation.gov.uk

It seems to me that incompetence is a defence under 21(1)(a),
("[belief...] that he has reasonable grounds for making the demand")
because someone who makes a mistake can easily believe that they have good grounds.

But under 21(1)(b) the defendant also needs to have believed that
"the use of the menaces is a proper means of reinforcing the demand".

That seems to me to refer to the use of the menaces as they in fact were - in this case, as written.

If that interpretation is right, then it may seem at least arguable that if the prosecutor sent out a misleading threat, they would have to believe that the actual words were a proper means; and a belief that they had sent something proper when it wasn't (for example a standard form of words that should not be sent to this recipient) is not a defence.

@Skadoosh, it might be interesting if you were to ask GA to confirm whether they think there is anything improper in the correspondence they sent. They might say the part about the irrelevant 1889 law was for information only and was not intended to apply to all recipients. But this was a specific settlement offer to you, and I'm not clear why it's reasonable to expect members of the public to know that this didn't apply to them, or that they need to ask a lawyer to clarify it.

 

[MikeWh]

when there had been no loss to the company or TfL

Had the student card been eligible for a discount, even if no such discount was being used, it would still have been against the rules for the card to be being used by someone else.

 

[some bloke]

Had the student card been eligible for a discount, even if no such discount was being used, it would still have been against the rules for the card to be being used by someone else.

It seems to me that a defence against a charge of blackmail doesn't need there to be reasonable grounds for the demand (ie GA could make a demand based on ignorance of how rules apply and/or facts of this case and still not be guilty of blackmail) as long as the defendant believed there were reasonable grounds.

We're still left with (b) - whether they believed that the menace, which might be thought to include the parts about "recordable" offences and a "criminal record", was proper for a demand concerning a byelaw case.

 

[matt_world2004]

Given that the Oyster card discount expired in 2008 I am surprised AGA didnt try to prosecute him for using an expired ticket.

 

[najaB]

Given that the Oyster card discount expired in 2008 I am surprised AGA didnt try to prosecute him for using an expired ticket.

That would never have been on since the RPI would have been able to tell with a scan that it held valid Oyster PAYG credit.

 

[matt_world2004]

That would never have been on since the RPI would have been able to tell with a scan that it held valid Oyster PAYG credit.

Would have also have been able to tell weather there was a discount on it to based on my experience of inspector Oyster readers.

They usually flash three colours

green for no discount successful touch in
Orange for check photocard/season ticket
Red for no season ticket/no touch in

 

[island]

I'm not saying it is, but can anyone explain why a threat of prosecution when there had been no loss to the company or TfL, accompanied by a "Settlement Offer" mentioning a law which in fact was not being relied on at all, and the supposed possibility of the recipient being convicted of a "recordable offence" that would create a "criminal record", is not blackmail?

Theft Act Offences | The Crown Prosecution Service

www.cps.gov.uk

Theft Act 1968

An Act to revise the law of England and Wales as to theft and similar or associated offences, and in connection therewith to make provision as to criminal proceedings by one party to a marriage against the other, and to make certain amendments extending beyond England and Wales in the Post...

www.legislation.gov.uk

It seems to me that incompetence is a defence under 21(1)(a),
("[belief...] that he has reasonable grounds for making the demand")
because someone who makes a mistake can easily believe that they have good grounds.

But under 21(1)(b) the defendant also needs to have believed that
"the use of the menaces is a proper means of reinforcing the demand".

That seems to me to refer to the use of the menaces as they in fact were - in this case, as written.

If that interpretation is right, then it may seem at least arguable that if the prosecutor sent out a misleading threat, they would have to believe that the actual words were a proper means; and a belief that they had sent something proper when it wasn't (for example a standard form of words that should not be sent to this recipient) is not a defence.

I do not think this line of argument would get very far at all. It is well settled law that a belief which turns out to be wrong can be reasonable.

 

[some bloke]

I do not think this line of argument would get very far at all. It is well settled law that a belief which turns out to be wrong can be reasonable.

The legal tests don't say that the defendant in a blackmail case needs their beliefs to have been reasonable. As far as I can see, they just need the beliefs to have existed at the time.

"...for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
...(b) that the use of the menaces is a proper means of reinforcing the demand."

Theft Act 1968
https://www.legislation.gov.uk/ukpga/1968/60/section/21

The question I'm raising about the meaning of (b) is what the defendant needs to have believed:

"I thought I was making no improper menaces" - which would permit a defence of "I mistakenly sent a threat which I would have considered improper for that demand",

or

"I thought the menaces I in fact made were proper" - which wouldn't.

If someone sends a threat, do they have to make sure they believe it's proper, or can they just be very sloppy and then get away with it on the basis that they didn't really know what they were sending?

GA might say they believed the menace actually made was proper, on the basis that it was general information conveying no real threat, to the recipient, of a record on the Police National Computer.

But the main text ends,

"should *you* be convicted, will recieve a criminal record".

And the first sentence might also contribute to a misleading impression. In reality the single justice procedure notice is for a byelaw offence, seeming to show there was in fact no intention to prosecute for the more serious offence. Had the document been sent as "General Information" then (perhaps with some different wording) it might not have been so likely to mislead.



@Skadoosh, even if blackmail is far from what GA did, the legal tests here might provide ideas for a line of questioning, if you think you're entitled to an explanation. GA's answers as to what they thought they were doing with this threat, or a refusal to answer, might be revealing.

...........................

We're still left with (b) - whether they believed that the menace, which might be thought to include the parts about "recordable" offences and a "criminal record", was proper for a demand concerning a byelaw case.

 

[some bloke]

Adding to the confusion, Greater Anglia refers in the first sentence to "breaching Railway Regulations" instead of the Regulation of Railways Act.

Suppose a passenger can think clearly enough in all the confusion to research this. They could become even more confused/scared on not finding out what these supposed "Railway Regulations" were. Yet it might well appear from the document that the company was threatening court action on the basis of them.

To question these things, it isn't necessary to speculate on malice. (I'm not implying there is or isn't malice, just talking about how to communicate.) It's only necessary to question competence. Some other questionable aspects are here: https://www.railforums.co.uk/thread...ng-to-someone-else.205273/page-9#post-4640776 .

Related problems have been noted in cases involving other "investigators"/prosecutors.

Are the prosecution department's threats and offers not overseen by qualified lawyers?

 

[najaB]

Adding to the confusion, Greater Anglia refers in the first sentence to "breaching Railway Regulations" instead of the Regulation of Railways Act.

One presumes this is to cover the rare cases where the Railway Clauses Consolidation Act is invoked instead.

 

[some bloke]

One presumes this is to cover the rare cases where the Railway Clauses Consolidation Act is invoked instead.

I'm not clear how that could help excuse Greater Anglia's language. Most or all of the 1845 Act's mentions of "regulations" seem concerned with companies' actions, on such things as carriages and bridges - not any obligations on passengers. It doesn't use the official-looking term "Railway Regulations".

https://www.legislation.gov.uk/ukpga/Vict/8-9/20

 

[najaB]

I'm not clear how that could help excuse Greater Anglia's language. Most or all of the 1845 Act's mentions of "regulations" seem concerned with companies' actions, on such things as carriages and bridges - not any obligations on passengers. It doesn't use the official-looking term "Railway Regulations".

https://www.legislation.gov.uk/ukpga/Vict/8-9/20

As you said, "most" - the relevant section is 103:

if any person knowingly and wilfully refuse or neglect, on arriving at the point to which he has paid his fare, to quit such carriage, every such person shall for every such offence forfeit a sum not exceeding [level 1 on the standard scale]

While this wouldn't apply in this particular case it might be relevant to some cases for which that form letter would be sent.