Expired railcard - letter received

[John R]

From a straightforward prosecution yes. But not for fraud AIUI, highly unlikely though that possibility is (which I think everyone agrees on).

However it was the principle I was thinking of - it wasn’t a random fishing expedition, given an offence had already been committed, which is what you were suggesting in the quote I highlighted.

 

[modernrail]

From a straightforward prosecution yes. But not for fraud AIUI, highly unlikely though that possibility is (which I think everyone agrees on).

However it was the principle I was thinking of - it wasn’t a random fishing expedition, given an offence had already been committed, which is what you were suggesting in the quote I highlighted.

I think it is random. WMT is not suggesting is has evidence of wrong doing for behaviour on any other date.

It is a well understood principle that English law treats individual offences as just that. Even multiple similar offences are individual counts. I think the multiple offence point then ends up as an aggregating factor at sentencing, which may increase the tariff/sentence that can be applied.

For a prosecuting authority to breach that principle without any evidence and then seeking to fill the evidential gap through breaching the right to avoid self incrimination, feels like the crossing of multiple lines.

If they do have evidence, it should be detailed in the letter so that the recipient can (a) take appropriate legal advice before responding and (b) be considered to have been treated fairly by the prosecuting authority in terms of process.

That’s my view anyway. Interesting discussion.

 

[Haywain]

It is a well understood principle that English law treats individual offences as just that. Even multiple similar offences are individual counts. I think the multiple offence point then ends up as an aggregating factor at sentencing, which may increase the tariff/sentence that can be applied.

That's not necessarily true - fraud can be made up of mutiple individual matters which may not stand up on their own but cumulatively show intent.

 

[modernrail]

I think it is random. WMT is not suggesting is has evidence of wrong doing for behaviour on any other date.

It is a well understood principle that English law treats individual offences as just that. Even multiple similar offences are individual counts. I think the multiple offence point then ends up as an aggregating factor at sentencing, which may increase the tariff/sentence that can be applied.

For a prosecuting authority to breach that principle without any evidence and then seeking to fill the evidential gap through breaching the right to avoid self incrimination, feels like the crossing of multiple lines.

If they do have evidence, it should be detailed in the letter so that the recipient can (a) take appropriate legal advice before responding and (b) be considered to have been treated fairly by the prosecuting authority in terms of process.

That’s my view anyway. Interesting discussion.

T^hat's not necessarily true - fraud can be made up of mutiple individual matters which may not stand up on their own but cumulatively show intent.

To be deleted

T^hat's not necessarily true - fraud can be made up of mutiple individual matters which may not stand up on their own but cumulatively show intent.

Hmm I not sure on that.

However, if trying to show that then the self incrimination problem with WMT’s approach feels even more relevant. If they are intending to link events to show that a standard for intent has been met, that should be made really clear so that the accused can discuss the acquisition with a legal adviser. In the letter sent they are only asking the recipient to potentially self-incriminate themselves in relation to activity on a specific date.

Is there an offence of fraud under the Regulation of the Railways Act 1889? From a quick look I couldn’t see one, only fare evasion.

If there is no offence of fraud under that Act the letter is even worse than I thought. It should clearly state the accusation is either of fare evasion under clause x of the 1889 Act and or Fraud under clause x of the Fraud Act. That then allows the recipient to be clear as to the potential action and the tests as set out in the relevant Act.

Honestly, I don’t know where to start with that letter would have been booted back at me with a red pen cross through the whole thing and with a stern warning from the supervising partner not to write in sloppy legal gibberish, whilst potentially blowing the case by introducing the risk of self-incrimination. Perhaps I am missing something particular to the railway that permits lower standards.

They may also be mixing strict liability and non-strict liability offences but that’s another can of worms.

 

[guilbert]

For multiple journeys offences, as this appears to be, WMT may well attempt to reclaim any monies owed through the county court, TOC's have been doing this.

Is there any evidence of this? A (admittedly brief) search here didn't find anyone asking for advice and the first couple of pages of a google search was customers suing TOCs rather than the other way round.

 

[Cuthbert]

To be deleted


Hmm I not sure on that.

However, if trying to show that then the self incrimination problem with WMT’s approach feels even more relevant. If they are intending to link events to show that a standard for intent has been met, that should be made really clear so that the accused can discuss the acquisition with a legal adviser. In the letter sent they are only asking the recipient to potentially self-incriminate themselves in relation to activity on a specific date.

Is there an offence of fraud under the Regulation of the Railways Act 1889? From a quick look I couldn’t see one, only fare evasion.

If there is no offence of fraud under that Act the letter is even worse than I thought. It should clearly state the accusation is either of fare evasion under clause x of the 1889 Act and or Fraud under clause x of the Fraud Act. That then allows the recipient to be clear as to the potential action and the tests as set out in the relevant Act.

Honestly, I don’t know where to start with that letter would have been booted back at me with a red pen cross through the whole thing and with a stern warning from the supervising partner not to write in sloppy legal gibberish, whilst potentially blowing the case by introducing the risk of self-incrimination. Perhaps I am missing something particular to the railway that permits lower standards.

They may also be mixing strict liability and non-strict liability offences but that’s another can of worms.

Railway Bye Law 17.1 and 18.1 mentions entering a train for the purpose of travel without a valid ticket.
And I think Regulation of Railways Act 1889 5.3 If any person- (a) Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof.

But I am no law buff so I might be wrong I just read through both and saw those.

 

[furlong]

Perhaps I am missing something particular to the railway that permits lower standards.

What you're missing is that, on the face of it, the purpose of the letter appears to be to encourage people to incriminate themselves and then as a direct result agree to give the railway a sum of money.
There is no meaningful oversight as the sorts of people who allow these situations to escalate to court aren't the sorts of people able to pay for professional advice, so they get away with what they are doing unchallenged. Professional advice would anyway tend to lead to a settlement whatever the abuses.

The ORR review is a chance to shine a light on what's going on, but there are two significant problems. Firstly the ORR already has the powers to address some of the abuses but actively chooses not to use these powers, so the body asked by the government to perform the review needs to be willing to apportion some criticism on its past self; and secondly the core problem was one of legal process so why is the review not being led by a legally-qualified professional (e.g. judge or KC) and why are only railway bodies mentioned as providing input, rather than making it clear that a substantial amount of direction will need to come from legal experts? (The Law Commission should also be invited take a look.)

 

[modernrail]

Is there any evidence of this? A (admittedly brief) search here didn't find anyone asking for advice and the first couple of pages of a google search was customers suing TOCs rather than the other way round.

What you're missing is that, on the face of it, the purpose of the letter appears to be to encourage people to incriminate themselves and then as a direct result agree to give the railway a sum of money.
There is no meaningful oversight as the sorts of people who allow these situations to escalate to court aren't the sorts of people able to pay for professional advice, so they get away with what they are doing unchallenged. Professional advice would anyway tend to lead to a settlement whatever the abuses.

The ORR review is a chance to shine a light on what's going on, but there are two significant problems. Firstly the ORR already has the powers to address some of the abuses but actively chooses not to use these powers, so the body asked by the government to perform the review needs to be willing to apportion some criticism on its past self; and secondly the core problem was one of legal process so why is the review not being led by a legally-qualified professional (e.g. judge or KC) and why are only railway bodies mentioned as providing input, rather than making it clear that a substantial amount of direction will need to come from legal experts? (The Law Commission should also be invited take a look.)

Yes, very odd not to have legal professionals and/or the Law Commission involved. Perhaps I will encourage my friend to complain to the ORR.

 

[JordR]

I just looked at the ORR response form. If you answer 'no' to the question "Have you (intentionally or unintentionally) boarded a train in Great Britain without a ticket, or with an invalid ticket, or been told by rail staff that this is the case?" then it ends immediately, so seems like without working around that people with potentially valid opinions (many from this forum) aren't being invited to respond?

 

[RPI]

Is there any evidence of this? A (admittedly brief) search here didn't find anyone asking for advice and the first couple of pages of a google search was customers suing TOCs rather than the other way round.

I've certainly seen it at the TOC I work at