Fallout for rail prosecutions from Post Office scandal

[infobleep]

So, a 'Parliamentary' railcard?

I prefer one that is only valid on parliamentary services with no list of the parliamentary services to make it ambiguous and open to mistakes.

 

[nanstallon]

If the railway is anything like the Civil Service the people who prepare the paperwork for the Court case are not legally trained, they just follow specific instructions on how and what to do, the correct wording and how the paperwork has to be completed. It would then be checked and authorised by a senior officer to confirm that everything was correct, who also wasn't legally trained.

In the cases I took, I would often have been the person who interviewed the miscreant, the person who completed the paperwork, the person who served the Summons, and the person who presented the case in Court. All done as laid down in the specific Rules and Codes, and "signed-off" by the HEO in charge of the Dept in our office. The only Lawyers that would have been involved would have been when the original Rules and Codes were written. I know from friends in 2 Departments that the system is still the same, as it is where local authorities prosecute.

As far expecting the CPS to take over every single prosecution going through the Court system, you have to be joking. They don't have enough personel at the moment to cope with their current workload which is one of the reasons Court cases are taking so long to get to Court, plus the Courts themselves haven't got enough minutes in the day to hear many more cases.

Nevertheless, it is a fact that cases brought by private prosecutors (for example the Post Office, TOCs and local government) are too often conducted without full compliance with the rules as to disclosure of documents and other materials that may assist the defence. CPS lawyers are at least trained to comply with these, and to exercise an independent professional judgment on whether the prosecution should proceed. The answer to staff shortages is to recruit, offering an attractive career. You can't get justice on the cheap.

 

[ainsworth74]

You can't get justice on the cheap.

That is, however, Government policy. Particularly over the last fourteen years. Whilst they like to talk tough on crime this Government have eviscerated the criminal justice system at every level. Be that the courts themselves, the police, the CPS, the legal aid system, forensics labs, probation services, the prisons, or any other component. The funding and capacity of these elements have all be slashed. Some have latterly started to be rebuilt, the police for instance have increased the number of officers again, but the damage has been deep and will be extremely long lasting. We are at the point, for instance, that there are a shortage of barristers to prosecute serious sexual offences because there are too few who are willing to take on the responsibility and trauma of doing so.

I see no indication that that policy is likely to change. Though they will, of course, continue to talk about cracking down and being tough on crime.

 

[Llanigraham]

That is, however, Government policy. Particularly over the last fourteen years. Whilst they like to talk tough on crime this Government have eviscerated the criminal justice system at every level. Be that the courts themselves, the police, the CPS, the legal aid system, forensics labs, probation services, the prisons, or any other component. The funding and capacity of these elements have all be slashed. Some have latterly started to be rebuilt, the police for instance have increased the number of officers again, but the damage has been deep and will be extremely long lasting. We are at the point, for instance, that there are a shortage of barristers to prosecute serious sexual offences because there are too few who are willing to take on the responsibility and trauma of doing so.

I see no indication that that policy is likely to change. Though they will, of course, continue to talk about cracking down and being tough on crime.

Where's the "Like" button!!

I have said numerous times in the past that there are too many people (here) who do not understand just how the Court system works. The Single Justice System was introduced to try and quicken the system but even that isn't perfect as there are now shortages of Magistrates.

I wonder how many of those proposing a mass recruitment project in both the Civil Service and private legal system are willing to pay the extra taxes that will be required to pay for it?

 

[fandroid]

In an ideal world, and I take the point about serious current underfunding of the whole justice system, there would be a form of external quality control and inspections for organisations that regularly undertake private prosecutions. The point of that would be to ensure that those organisations have compliant systems that meet all the guidelines and laws.

It could actually be self-funding, with those organisations paying an annual fee for the right to prosecute

 

[Puffing Devil]

That is, however, Government policy. Particularly over the last fourteen years. Whilst they like to talk tough on crime this Government have eviscerated the criminal justice system at every level. Be that the courts themselves, the police, the CPS, the legal aid system, forensics labs, probation services, the prisons, or any other component. The funding and capacity of these elements have all be slashed. Some have latterly started to be rebuilt, the police for instance have increased the number of officers again, but the damage has been deep and will be extremely long lasting. We are at the point, for instance, that there are a shortage of barristers to prosecute serious sexual offences because there are too few who are willing to take on the responsibility and trauma of doing so.

I see no indication that that policy is likely to change. Though they will, of course, continue to talk about cracking down and being tough on crime.

Well said. Even when Starmer eventually takes charge, the ground has been so well salted that it will take decades and billions to restore all of our public services.

 

[mike57]

Moderator note: Split from

Urgent - court case Friday 12th April

Hello, I'm wondering if you can help me please as I'm in a horrible situation. Last year, I took a journey from Sheffield to Manchester Airport via Manchester Piccadilly. I had a ticket for the journey. On the day, the trains were a total mess at Manchester Piccadilly and I couldn't find my...

www.railforums.co.uk

Original thread was in response to a private prosecution by a TOC.

Maybe its time for the courts to set out what they see as 'reasonable' before a private prosectution is begun, and set some criteria at a national level. :Italic, my edit

My thoughts:

Did the passenger have a valid ticket for the journey in question, but didn't use it on the right train, If YES then:

Was there disruption affecting the route on the day in question
Is the passenger in any way vunerable, and did this contribute to the error.
Are there any other mitigations

Any cases that meet these criteria should not then be brought to court, and if they are then the TOC should be penalised in some way. If the TOC wish to persue it as a civil matter that is their right.

This would differentiate between fare evaders and those who get caught up in disruption, get confused, or receive conflicting advice from platform staff.

 

[Haywain]

Maybe its time for the courts to set out what they see as 'reasonable' before a prosectution is begun, and set some criteria at a national level.

My thoughts:

Did the passenger have a valid ticket for the journey in question, but didn't use it on the right train, If YES then:

Was there disruption affecting the route on the day in question
Is the passenger in any way vunerable, and did this contribute to the error.
Are there any other mitigations

Any cases that meet these criteria should not then be brought to court, and if they are then the TOC should be penalised in some way. If the TOC wish to persue it as a civil matter that is their right.

This would differentiate between fare evaders and those who get caught up in disruption, get confused, or receive conflicting advice from platform staff.

The courts are there to decide whether the criteria for bringing a case to court have been met, and in doing so they either convict or acquit the defendant. Asking the courts to decide in advance would be asking for the trial to be held before the defendant has been told about it, and that would not be in the interests of justice.

 

[island]

Maybe its time for the courts to set out what they see as 'reasonable' before a prosectution is begun, and set some criteria at a national level.

This is absolutely not the function of the courts. It is for Parliament to decide.

 

[pedr]

As part of their role in the administration of justice and influence over the criminal procedure rules, the judiciary of England and Wales could alter some aspects of the current approach to private prosecutions, though that would involve at least the agreement of the UK government and probably Parliament (in ratifying changes to the Procedure Rules).

Individual magistrates' courts could probably implement different approaches to the Single Justice Procedure, including taking more action than they currently do when faced with SJPN notices which suggest more complex situations than the norm. I think some mitigating statements might be open to being interpreted as inconsistent with an indicated guilty plea, for instance. That wouldn't help the significant number of cases where the magistrate is 'entitled' to consider the non-response of the defendant as a plea of guilty, though.

 

[mike57]

As part of their role in the administration of justice and influence over the criminal procedure rules, the judiciary of England and Wales could alter some aspects of the current approach to private prosecutions, though that would involve at least the agreement of the UK government and probably Parliament (in ratifying changes to the Procedure Rules).

To be honest I am very uneasy about the whole concept of private prosecutions, recent news stories in other areas (i.e. post office scandal) back that feeling up. It seems to be open to abuse. Maybe a totally different process is needed.

Edit, after post split

At the very least there should be oversight by an independant body, maybe integrated into the Crown Prosecution Service, to audit individual private prosecutions where concerns have been expressed and also on a random basis to ensure that correct processes are followed, evidence is disclosed etc. Then to look at the wider 'public interest' test and to investigate if there appears to be other irregularities, for example there must of been a spike in prosecutions during the time that the Horizon system was causing errors, this would trigger further investigation.

From a rail point of view making a mistake, getting confused, or getting conflicting or wrong advice during disruption should be a civil matter, it should only become a criminal matter if its clear that the intent was to evade the fare

 

[fandroid]

Digital Fraud Email from WMT?

Dear all, I would be very grateful for any advice. I recieved an email from WMT a few weeks ago about digital fraud that they suspected me to have done. Basically I was reported a few months ago for not having a railcard. I was unable to show my railcard because my phone had died but I had a...

www.railforums.co.uk

The thread above describes actions from WMT that strike me as venturing into Post Office abuse of process territory. A dead phone meant a valid Railcard (a digital-only card too!) could not be displayed. WMT appear to have accepted evidence of the card's existence, but are now demanding evidence of previous Railcards for up to 5/6 years previous.

 

[Cloud Strife]

From a rail point of view making a mistake, getting confused, or getting conflicting or wrong advice during disruption should be a civil matter, it should only become a criminal matter if its clear that the intent was to evade the fare

I would argue that there is absolutely no reason for fare evasion to be a criminal matter, unless there's actual fraud involved. For instance, jumping the barriers or tailgating is an obvious fraud, but the act of getting on a train without a ticket is not fraud in itself.

I saw a situation on a Koleje Dolnośląskie train last week that made me think about the UK situation. The passenger didn't have his student ID card with him, so he was given a simple choice: either pay the fare (with the substantial additional fare on top for not having approached the conductor first), or leave at the next stop. The traveller wasn't threatened with a huge fine, nor prosecuted, he was simply given a choice that undoubtedly caused him a lot of inconvenience.

 

[Fawkes Cat]

the act of getting on a train without a ticket is not fraud in itself.

Isn't it? Surely someone doing this is presenting themselves as having everything they need to travel when they haven't.

 

[AlterEgo]

Isn't it? Surely someone doing this is presenting themselves as having everything they need to travel when they haven't.

Not if you just board without a ticket having passed the ticket office. That’s not a fraud at all, which requires you to make some sort of representation.

By your definition a squatter is also a fraudster because they’re in a house when they shouldn’t be. But that isn’t how it works.

 

[mike57]

fare evasion to be a criminal matter, unless there's actual fraud involved

To me if your actions are seen to be deliberately avoiding paying the fare then that is fraud, i.e. you have no intention of paying/buying a ticket if you can get away with it. If you get hung up in the complexity that is the current ticketing system then the intent is not to avoid paying the fare, just that you pay the wrong fare/have the wrong ticket, those are two very different scenarios, and need to be dealt with in very different ways.

 

[Titfield]

To me if your actions are seen to be deliberately avoiding paying the fare then that is fraud, i.e. you have no intention of paying/buying a ticket if you can get away with it. If you get hung up in the complexity that is the current ticketing system then the intent is not to avoid paying the fare, just that you pay the wrong fare/have the wrong ticket, those are two very different scenarios, and need to be dealt with in very different ways.

You would think so but consider this:

a) Do not buy a ticket at all. Scenario A. Throw book at them.

b) Buy the wrong ticket. Scenario B. Treat them leniently. Ask them to pay the difference in the fare.

But say I was of wrong doing intent. Then all I would do is buy the cheapest fare I could find. Then scenario B would apply and I would be treated leniently.

As only a small % of fare evaders are caught, in my case there is a very strong possibility I would get away with it a few times (ie be in pocket) and on the time i was caught I would then and only then have to pay the fare I should have paid in the first place.

This is why we have the Penalty Fares System which strikes a balance between treating the genuine honest mistake leniently and having to recognise those who calculate the chances of getting caught and what that entails.

One of the problems is the complexity of the fare system. Something needs to be done about the absolute plethora of railcards (especially the various "teen" cards") as they seem to cause confusion. Secondly something needs to be done about advance fares on short journeys where the fare saving is minimal (compared to a flexible fare) but seems to catch out many people who havent realised it means one specific train only.

The other area which needs tackling is the online booking interface which enables a "i have a railcard" default position. This needs rethinking as we see quite a few problems where the discount keeps on being applied even though the customer / booker's railcard has expired (or will expire at the time of travel).

 

[SteveM70]

To me if your actions are seen to be deliberately avoiding paying the fare then that is fraud, i.e. you have no intention of paying/buying a ticket if you can get away with it. If you get hung up in the complexity that is the current ticketing system then the intent is not to avoid paying the fare, just that you pay the wrong fare/have the wrong ticket, those are two very different scenarios, and need to be dealt with in very different ways.

Fraud is a very specific offence though, and merely deliberately avoiding paying the fare isn't necessarily fraud, it depends on how that is done. Falsifying a railcard is potentially fraud, for example

 

[AlterEgo]

To me if your actions are seen to be deliberately avoiding paying the fare then that is fraud, i.e. you have no intention of paying/buying a ticket if you can get away with it. If you get hung up in the complexity that is the current ticketing system then the intent is not to avoid paying the fare, just that you pay the wrong fare/have the wrong ticket, those are two very different scenarios, and need to be dealt with in very different ways.

In fairness, “to me” is just your opinion. It’s not a fact. Deliberately avoiding paying for something is not necessarily a fraud depending on the manner in which it is done.

 

[LondonExile]

I think there's a couple of different fraud offences which could be relevant in a railway context.

Section of the Fraud Act 2006 is "Fraud by false representation", which requires you to dishonestly make a representation (either express or implied) that you know to be false, intending to make a financial gain, or cause a loss to another (including a risk of loss). I think a good example here would be lying about your starting station when being issued a penalty fare, or making dishonest claims for Delay Repay.

Sections 1 & 3 of the Forgery and Counterfeiting Act 1981 would be applicable to someone creating fake tickets or fake railcards etc.

Section 11 of the Fraud Act 2006 is for "Obtaining services dishonestly", which requires that you obtain a service by a dishonest act, knowing they need to be paid for, but intending to not pay in full. I think most Section 5 RORA offences, would also count as Section 11 Fraud Act offences.

I'd personally support removing ticketless travel from Byelaws, and keeping both S5 RORA and the offences above. Penalty Fares, including enforcement through the civil courts should remain, along with criminal prosecutions for the most egregious offences, but ditch the strict liability ones which I don't feel are proportionate to what is typically the offence committed.

 

[island]

along with criminal prosecutions for the most egregious offences

Define "most egregious offences", and when you do, explain how you will work out that someone is committing one of them as opposed to a "less egregious offence".

 

[Fermiboson]

Define "most egregious offences", and when you do, explain how you will work out that someone is committing one of them as opposed to a "less egregious offence".

Most egregious offences - systematic and long term (~1yr) fare evasion worth, say, >£1k, forgery of railcards (as opposed to just using an expired one or a screenshot of one) or tickets, resale of priv tickets/equivalent, fraudulent refunds/delay repay claims

Not most egregious offences - forgetting railcards, using a ticket on the wrong date, travelling beyond destination, off peak at peak times, invalid route, etc.

The trouble, of course, is that most of the egregious offences can only be detected at the frontline level via something that looks like a not most egregious offence (e.g. it’s impossible to catch a long term fare evader without stopping them somewhere and catching one invalid ticket). And if TOCs conduct extensive investigations into every suspicious case, costs notwithstanding, that will undoubtedly lead to a lot of complaints of being stopped and told that it’s only a civil matter then getting a letter from the fraud team.

And ultimately, the TOCs simply want money via out of court settlements. Something like “you MAY be investigated for fraud” would already be enough, I suspect, to scare a lot of people into paying whatever they ask for.

 

[Cloud Strife]

Most egregious offences - systematic and long term (~1yr) fare evasion worth, say, >£1k, forgery of railcards (as opposed to just using an expired one or a screenshot of one) or tickets, resale of priv tickets/equivalent, fraudulent refunds/delay repay claims

Yes, this is acceptable. All of those things would pass the "bloke in the pub" test, and I don't think anyone would object to a serial fare dodger getting the book thrown at them if there was clear evidence of them doing exactly that. However, I'd say that the evidence should require more than "simply didn't pay for a ticket", it would probably need them to be stopped and given some kind of document that required them to pay the fare within a few days. Then if they built up >£1k worth of unpaid tickets, it would meet the criteria. If they pay, then it would remove the cost of the ticket from the "fraud count".

(e.g. it’s impossible to catch a long term fare evader without stopping them somewhere and catching one invalid ticket).

It's perhaps not so impossible. One simple and straightforward method could be to get photographs of the offender after each 'promise to pay within 7 days' type ticket is issued, and if they hit the >£1k mark, then it could automatically put out an alert that the person is wanted for fraud. The police should then be involved from that moment, making it a serious matter.

I think simply not having a ticket is not fraud, even if someone does it every day.

 

[island]

The trouble, of course, is that most of the egregious offences can only be detected at the frontline level via something that looks like a not most egregious offence (e.g. it’s impossible to catch a long term fare evader without stopping them somewhere and catching one invalid ticket). And if TOCs conduct extensive investigations into every suspicious case, costs notwithstanding, that will undoubtedly lead to a lot of complaints of being stopped and told that it’s only a civil matter then getting a letter from the fraud team.

Yes, I think you have made my upcoming point for me

 

[Fermiboson]

I do suspect there is still a way to strike a balance. Strict liability could go, for example, which would disallow conviction beyond a reasonable doubt of a lot of one off offences. One could also imagine some sort of cross TOC standardised offer for people caught for the first time, which goes like:

It is [TOC]’s policy to prosecute all serious and intentional fare evasion under [Fraud Act/etc]. However, we recognise that honest mistakes can be made, and upon reviewing the circumstances of your case would therefore like to make a standard offer.

If the total amount of fares evaded (i.e. The total ticket cost you should have paid for the journeys you made, minus the total ticket cost that you have actually paid) is less than £1000, you are offered the opportunity to pay in full the amount of fares evaded within 21 days. You should send a full list of all journeys you believe you have made without paying the correct fare to […] and [payment method etc]. If you do not pay back this amount, we reserve the right to pursue the sum through civil claims, in addition to an extra sum representing the administrative costs resulting from your fare evasion, as well as the interest resulting from the amount owed (calculated at standard BoE rates).

If the total amount of fares evaded is more than £1000, [TOC] policy is to prosecute the offence under [RoRA, Fraud Act, etc]. However, we are prepared to make a final out of court settlement offer, consisting of the sum of Anytime [single/return] tickets for every journey made fraudulently, without regard for the fares already paid. This amount must also be paid within 21 days [etc.] If this amount is not paid, [TOC] reserves the right to proceed to a criminal prosecution.

Please note any fraudulent reply or misrepresentation to this letter is a serious criminal offence and lead to further escalation.

This would remove the need for any awkward/sweeping changes to legislation. It makes the TOCs less money though, so is also unlikely to happen without external pressure.

Some people would still find the letter anxiety inducing, but I suspect most fare evaders have a very good idea of whether the amount they evaded is greater or less than £1k (and if you make an honest mistake that costs that much, that’s just impressive, really).

 

[Egg Centric]

Something like “you MAY be investigated for fraud” would already be enough, I suspect, to scare a lot of people into paying whatever they ask for.

Some people would still find the letter anxiety inducing, but I suspect most fare evaders have a very good idea of whether the amount they evaded is greater or less than £1k (and if you make an honest mistake that costs that much, that’s just impressive, really).

Both of these sound idealistic to me. You said before you came from a non UK country, was it somewhere like Singapore where people are smart and conformist? I think almost no one is going to be scared by the first one for two reasons (they won't see it and they won't think it applies to them). As for the second, well maybe if you phrased it logarithmically but I don't think most of them have that good an idea actually - again because of our nutty fare structure as well as the arrogance, intransigence, and insouciance of the typical proper fare evader.

 

[Fermiboson]

You said before you came from a non UK country, was it somewhere like Singapore where people are smart and conformist?

Please see my previous posts on orientalism. I don’t know why you consider conformism a good thing.

With regard to the other point - sure. But nothing in this thread is about minimising consequences for fare evasion in general, it’s about giving a way out for honest mistakes and giving second chances for small fry (and/or proportionality of consequences). If someone is smart enough to be scared they’ll be able to minimise their own consequences, without requiring myriad knowledge of all the various legal things and/or being made to pay extortionate, questionably calculated out of court settlement offers. If someone responds to being caught lying by further lying, they’ll reap what they sow - and I think everyone will agree that they brought whatever consequences they suffer wholly upon themselves.

I agree with the point about the complex fare structure. There’s also the issue that many fares may be available for a given journey. However, people should have a good idea of what journeys they have fare evaded on (and if the amount of journeys is so large as to be unable to be listed individually, they should estimate it liberally given how long/often they have been doing it), and by sending an honest list of the journeys concerned the TOC will be able to work out if the person made an honest mistake in calculating the fares and send a clarifying letter. From a public interest perspective, the TOC may even choose to refund some of the (fines/settlement) paid if they calculate that it has been overpaid - it presents the TOC as reasonable and leaves the company with a grateful customer as opposed to a grudging one-time payout.

I have no legal experience nor policy experience so I don’t doubt there are many practical problems with what I have proposed - but I believe it is a good framework/principle to start from.

 

[Egg Centric]

Please see my previous posts on orientalism. I don’t know why you consider conformism a good thing.

I had a ten second look at your profile to see if I could see a link to orientalist posts; afraid you'll have to link to them

As it happens I don't consider conformism a good thing at all. What I'm trying to do is apply a mental model to your mental model, if that makes sense? It seems to me unlikely in the extreme that any significant number of fare evaders will be put off in a UK context by dire warnings about fraud prosecution so given what I've picked up about you (which may be incorrect and if so I apologise - but aiui you're a clearly far more switched on than average poster oxonian who moved from somewhere further afield relatively recently) the most plausible reason for our different perspective was the said move. Many assumptions underlying so castles made of sand n all that...

That said I think it's a very common error to overestimate the efficacy of deterrence.

 

[RPI]

I would argue that there is absolutely no reason for fare evasion to be a criminal matter, unless there's actual fraud involved. For instance, jumping the barriers or tailgating is an obvious fraud, but the act of getting on a train without a ticket is not fraud in itself.

I saw a situation on a Koleje Dolnośląskie train last week that made me think about the UK situation. The passenger didn't have his student ID card with him, so he was given a simple choice: either pay the fare (with the substantial additional fare on top for not having approached the conductor first), or leave at the next stop. The traveller wasn't threatened with a huge fine, nor prosecuted, he was simply given a choice that undoubtedly caused him a lot of inconvenience.

Yeah great, "pay this large amount of money now, or get off in the middle of nowhere stranded".

Incidentally, what was the "substantial" additional fare on top? So effectively a penalty fare, but one that must be paid on the spot no matter what, with no chance of appeal?

 

[Peter Sarf]

I had a ten second look at your profile to see if I could see a link to orientalist posts; afraid you'll have to link to them

As it happens I don't consider conformism a good thing at all. What I'm trying to do is apply a mental model to your mental model, if that makes sense? It seems to me unlikely in the extreme that any significant number of fare evaders will be put off in a UK context by dire warnings about fraud prosecution so given what I've picked up about you (which may be incorrect and if so I apologise - but aiui you're a clearly far more switched on than average poster oxonian who moved from somewhere further afield relatively recently) the most plausible reason for our different perspective was the said move. Many assumptions underlying so castles made of sand n all that...

That said I think it's a very common error to overestimate the efficacy of deterrence.

To me the point is that persistent transgressors of the same fares rules should be considered for criminal conviction. This avoids the one off mistakes. It is immoral to attempt to give someone a criminal conviction for a first transgression as it makes no distinction between people making a mistake and deliberate act. Obviously if it can be established that the person under suspicion has made concerted efforts to to evade a fare (for example by forging a railcard) then go for a conviction.

Really anything that can be construed as a genuine one off mistake should not be pursued through the courts.

The fact that a TOCs policy shows they do not adhere to any respect for people leads me to have little respect for the TOC.

Just as the very one sided approach by the post office must have consequences for those who were happy to ignore caution. Especially when it appears a cover up of the problems in their own system (Horizon) was leading to criminal convictions of potentially (it transpires definitely) innocent people.