Carnet problem - solicitor recommendation and any other comments?

[MikeWh]

Possibly, but there were c 1.5 billion train journeys last year, I'm willing to bet that more than 99.9% of them were completed without a prosecution or threat thereof.

Talk about completely changing the arguement.

Your suggestion was that TOCs don't make much by prosecuting innocent passengers. I countered that with the suggestion that a fair number (majority even?) don't get to court because they are settled beforehand. I'm further suggesting that someone who isn't au-fait with the rules and is so terrified of a court appearance that a (say £80-£100) payment to make it go away just seems the best outcome. That's all.

No, I'm going to dispute your other figure too. Why not more than 99.99%?

 

[TonyR]

The fanfold tickets were easier to make a mark on with the ballpoint, but none of them failed to make a legible mark. Could have needed go over it in a few places though.

Which going over can be enough for a claim that you have attempted to alter it.

Got some methylated spirits and a cloth. The ink came off in all cases, but with the majority of the ballpoint marks the ink-laden spirits soaked into the paper and left clearly visible marks.

You need to choose the right solvent and I was talking of the sort of permanent ink as in my photo above. Ball points are dfferent because the ball tends to indent the ticket as well as, if you are lucky, laying down ink. But you demonstrated the principle, you just need to refine it a bit.

 

[najaB]

Talk about completely changing the arguement.

Well, maybe yours but not the initial one by TonyR that TOCs are disinclined to make any changes to the system because it's a nice little earner for them. The point I was making is that train companies are in the business of making money from providing transportation - revenue protection is a cost of doing business, not a profit centre, and I'd be surprised if anybody involved has that attitude.

Witness the recent case where a poster was told the settlement amount they proposed was too much and they should go away and think about it again.

 

[jon0844]

I don't believe the carnet system is set up to catch people out, it has just been done the cheapest and laziest way.

The TOCs must be fully aware of all the frauds (including the excess one they stopped, which was a PITA for me as I always purchased off peak ones and excessed one to peak rate if I needed to travel before 0930).

As a result of there being loads of possible frauds, they have obviosuly told revenue staff to be that bit extra alert. Invariably some staff will be distrusting of everyone, and I used to find it most annoying when gates were set to reject them (presumably so staff could check the date) so when staff heard the seek assistance alert they were almost ready to read me my rights.

 

[cantabrigian]

Hi. I am making progress but would like to understand the byelaws a bit better. If I understand the principle correctly, they are strict liability, i.e. if you did it, you did it and doesn't matter why. I can follow that for byelaws 17, 18, 19, 21 and 22 because they simply define things that happen - e.g. travel without a valid ticket, sitting in first class without a first class ticket etc. But how does this work for rule 20 on alteration, where you are required to have intent to defraud, which in turn seems to suggest that why someone did something is relevant? Dave posted to the effect that the alteration is associated with a presumption to defraud but is that presumption rebuttable? And can there ever be an alteration without intent to defraud and what would be an example of that?

 

[DaveNewcastle]

Its simple. Its exactly as you've stated it!

Byelaws 17, 18 and 19 do indeed create 'strict liability' offences. The fact of the matter is all that is required to prove the offence.
Byelaws 20, 21 and 22 require an element of 'intent', which can only be proved as offences where there is evidence of that intent.

I wouldn't have phrased it by saying that the reason for a person doing something is irrelevant (although it may be), but that the offence as written involves two elements: an action and a specified intention. So, to prove an offence, evidence must be given that adequately demonstrate both elements.

 

[cantabrigian]

Thanks Dave; I think I got confused before. That does help me quite a bit.

 

[cantabrigian]

By way of update:

Following Dave's excellent advice about how, if I would hire a solicitor once I was out of my depth then doing so now might stop me getting there, I contacted a solicitor (not a railway specialist but someone working in criminal law locally), we obtained copies of the evidence GA was relying on (ie the ticket and the RPI's record of my statement) and wrote back to explain what had happened. Meantime, GA told my solicitor on the phone or by email that what they were investigating was possible "altering" of the ticket, which is as expected.

After a month or so, GA have now written to say that they "normally prosecute all instances of fare evasion" but having considered my comments they are "prepared to close the file" on payment of the "outstanding" fare (which I actually paid when I bought the ticket but outstanding is how they describe it) and an administration charge. This comes to just over £100, of which I think £80 is probably the admin charge, payable within 14 days. I am in the process of paying this.

All things considered, this is a good outcome: quite expensive but that is mostly the legal fees and it was my choice to pay for professional advice, no prosecution, and stressful but over now. Thanks to everyone for their help. I can post more detail if it's helpful for future reference but I don't think I'd be adding much to other threads about carnets.

Speaking of which, I have since finished the set of tickets that started this off and gone over to buying individual ones. They're a good idea in principle but it's too easy for things to go wrong.

 

[najaB]

By way of update...

Thanks for the update. Glad to hear you got a satisfactory outcome.

Speaking of which, I have since finished the set of tickets that started this off and gone over to buying individual ones. They're a good idea in principle but it's too easy for things to go wrong.

Unless you can afford to throw the occasional one away that's sadly true.

 

[talltim]

By way of update:

After a month or so, GA have now written to say that they "normally prosecute all instances of fare evasion" but having considered my comments they are "prepared to close the file" on payment of the "outstanding" fare (which I actually paid when I bought the ticket but outstanding is how they describe it) and an administration charge. This comes to just over £100, of which I think £80 is probably the admin charge, payable within 14 days. I am in the process of paying this.

Glad you got it sorted.
Wonder why they think there should be an admin charge. Either they they think you did 'it' so they should prosecute or they think you didn't, so there should be no charge.

 

[Llanigraham]

Glad you got it sorted.
Wonder why they think there should be an admin charge. Either they they think you did 'it' so they should prosecute or they think you didn't, so there should be no charge.

Err?
Because they have undertaken administration matters to resolve the matter?

 

[bnm]

The OP has stated they didn't alter the carnet with the intention to defraud. The TOC has decided not to prosecute after taking on board the OPs comments and closing the file. Yet the OP still has to pay the TOC £80.

That is grossly unfair. Surely after an amicable settlement costs should be 'drop hands' on both sides.

This wasn't strict liability where administrative penalties to avoid prosecution are (just about) acceptable.

 

[TonyR]

Sounds to me like the TOC has won - they got paid exactly the sort of sum they would expect to be paid in lieu of a prosecution plus the usual admin charge. Or is the OP allowed to counterclaim an "admin charge" for his legal costs in this?


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[Haywain]

Sounds to me like the TOC has won - they got paid exactly the sort of sum they would expect to be paid in lieu of a prosecution plus the usual admin charge. Or is the OP allowed to counterclaim an "admin charge" for his legal costs in this?

If the OP wants the TOC to change their mind and go ahead with a prosecution, I guess he can. It appears that they have decided against going to court by agreeing to settle - this does not mean that they do not feel that they have a case they could win.

 

[TonyR]

If the OP wants the TOC to change their mind and go ahead with a prosecution, I guess he can. It appears that they have decided against going to court by agreeing to settle - this does not mean that they do not feel that they have a case they could win.

They almost never go ahead with a prosecution. That would mean work and expense when they can easily extract £80 and an admin charge instead. Its what they offer almost everyone to settle.


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[Via Bank]

Err?
Because they have undertaken administration matters to resolve the matter?

Erm… hold on. The OP paid their fare and used the ticket correctly, and was (falsely) accused by the TOC of altering the ticket. Are we now suggesting that all legitimate pax may now have to pay on demand an extra £80 admin fee on top of their fare, for the trouble of being accused of defrauding the railway? This is GA's fault, they should foot their own admin bill.

These prosecutions of legitimate Carnet passengers seem to be becoming increasingly frequent. This is a disgrace. But, it seems, as in Vegas, the house always wins.

 

[najaB]

Are we now suggesting that all legitimate pax may now have to pay on demand an extra £80 admin fee on top of their fare, for the trouble of being accused of defrauding the railway? This is GA's fault, they should foot their own admin bill.

The OP had the choice of declining the offer on the table. It remains to be seen what would happen as a result.

 

[jon0844]

Taking it to court is clearly not something many people would want to do if they could help it.

We know that TOCs don't want to do to this. In the case of carnets, it would be near impossible to prove that a ticket was modified without proper forensic testing and the ticket having been securely sealed when taken, so the chances are everything would be dropped - but it's a case of calling their bluff.

I am sure that if a lot of people said to a TOC (where strict liability doesn't apply) 'okay, see you in court' then they'd back down - but it's easy to suggest this when it isn't you.

 

[bnm]

The OP had the choice of declining the offer on the table. It remains to be seen what would happen as a result.

That was of course the OPs choice. My point though is that the TOC should not be imposing an administrative penalty in this case. I struggle to understand either the moral or legal justification for such a penalty when the TOC has decided, after correspondence (because they were on a hiding to nothing?), to drop the matter. The reply from the TOC that they 'usually prosecute all cases of fare evasion' when there's no evidence of such in this case seems designed to put the frighteners on the OP. Suggesting the OP is lucky they are not being taken to court. I'd suggest the TOC is lucky it hasn't ended with egg on its face after perusing a hopeless case.

As I've already said I can understand (but don't agree with) an administrative penalty being sought in lieu of prosecution for a strict liability offence. But not one after a flimsy case has been dropped.

How often do the CPS claim their costs from a defendant they've decided not to prosecute?

Perverse decision. In fact I'd say little short of extortion. Yes, I know the legal definition of extortion before I'm jumped on for saying it. Morally reprehensible at least.

 

[Wolfie]

Taking it to court is clearly not something many people would want to do if they could help it.

We know that TOCs don't want to do to this. In the case of carnets, it would be near impossible to prove that a ticket was modified without proper forensic testing and the ticket having been securely sealed when taken, so the chances are everything would be dropped - but it's a case of calling their bluff.

I am sure that if a lot of people said to a TOC (where strict liability doesn't apply) 'okay, see you in court' then they'd back down - but it's easy to suggest this when it isn't you.

.. and that is exactly why the TOCs are taking a major risk - if they continue on the current track (of in my view abusing their current powers) full application of consumer rights legislation and decriminalisation of railway ticketing offences may well come under consideration - the latter is actively being proposed for TV licencing issues for example...

 

[DaleCooper]

I can't understand why the OP's solicitor hasn't challenged this, or did the solicitor actually advise paying the charge based on some information that we don't have?

 

[najaB]

That was of course the OPs choice. My point though is that the TOC should not be imposing an administrative penalty in this case. I struggle to understand either the moral or legal justification for such a penalty when the TOC has decided, after correspondence (because they were on a hiding to nothing?), to drop the matter.

It's a point of order, but it isn't being classed as a penalty and it doesn't appear from the TOC's response that they don't believe there is a case that could be tested in court. It would be interesting to know (from a purely academic point of view) what they would have done if the offer was rejected.

 

[cantabrigian]

I know why my solicitor has not challenged this. No instructions to do so were given by me because challenging it wouldn't be cost-effective.

For what it's worth, the administration fee doesn't bother me. I'd rather not have to pay it but agree with LlaniGraham that GAdid incur an administrative burden. Possibly they could have taken a more common sense view earlier and saved us both the trouble but from what I have read, carnet abuse is a real concern to them so it's no surprise they want to investigate.

If I had turned down the offer, I don't know what they would have done but if I had been prosecuted, I suspect I would have won in the end. It's just a shame from my side that I am caught in the gears because, like some other posters here, I seem to be open to disproportionate professional consequences for even minor offences. Were it not for that risk (low but large downside), if I'd been able to establish it was "only" a non-recordable bylaw issue, I probably would not have incurred the cost of having a solicitor reply on my behalf and might even have defended myself in court if I couldn't reach an agreement first.

What does irk me is being required to pay the "outstanding" fare as well as the admin charge. I don't like that because now I have paid twice for one journey and the implication is that they don't believe I paid it the first time. So I'm treated as if I did evade the fare but am being let off lightly when in fact I paid.

But there it is, at least it's over.

 

[DaveNewcastle]

I am sure that if a lot of people said to a TOC (where strict liability doesn't apply) 'okay, see you in court' then they'd back down - but it's easy to suggest this when it isn't you.

I respect your confidence in your opinion, but that opinion doesn't correspond with my own experience. Your confidence doesn't change the facts.

. . . . but if I had been prosecuted, I suspect I would have won in the end.

Similarly, I respect your confidence in your prediction, but (and I must be in a very negative frame of mind this evening) I can't share even slightly in your optomism either. Nothing that you have posted in this thread gives me that confidence.

In fact, cantabrigian, I think you have chosen the best possible outcome (in terms of probabilities, risks, costs and damage limitation), and you have achieved it. That should be enough to be pleased with.

 

[jon0844]

I respect your confidence in your opinion, but that opinion doesn't correspond with my own experience. Your confidence doesn't change the facts.

I think there have been many discussions on here where it's clear the TOC is bluffing and hoping to get you to settle out of court. I should have made it clearer that it isn't all cases/scenarios and certainly not strict liability stuff (I did say that).

It's rather like private parking companies that want you to settle their nice big parking ticket, and even give big discounts, but won't actually take you to court. Now I'm sure you will point out that some do, in some circumstances, but most don't. You also know that most people will pay for an easy life, or not truly believing that there will be no further action taken.

I wouldn't recommend anyone call a TOCs bluff of course.

 

[cantabrigian]

I respect your confidence in your opinion, but that opinion doesn't correspond with my own experience. Your confidence doesn't change the facts.

Similarly, I respect your confidence in your prediction, but (and I must be in a very negative frame of mind this evening) I can't share even slightly in your optomism either. Nothing that you have posted in this thread gives me that confidence.

In fact, cantabrigian, I think you have chosen the best possible outcome (in terms of probabilities, risks, costs and damage limitation), and you have achieved it. That should be enough to be pleased with.

Don't misunderstand me, I am pleased.

 

[trentside]

The OP has indicated that they're happy enough with the outcome so there seems no point in continuing the discussion.