First Capital Connect Notice of intention to prosecute

[itsy]

No minor errors will be corrected by the court under the "slip rule".

Has a summons been recovered yet? Is so what is the offence(s) listed on it?

The offence is listed as 'having entered a train for the purpose of travelling, did not have a ticket entitling travel' contrary to byelw 18(1) under section 219.

I'm guessing that out of court settlement is no longer on the cards and a guilty plea is all he can do, even given the lack of intention on his behalf.

 

[Ferret]

Itsy, remember a Railway Byelaw offence does not need intent to be proved. It would appear that FCC intend on making a point with regard to misuse of carnet tickets, as is their perogative, which I guess is why the out of Court settlement was not accepted.

 

[michael769]

Only your husband can decide how to plead.

There are others who have greater expertise in railway law who will no doubt give you some more definitive guidance but to help get the decision making going I would make the following observations:

The offence alleged is that of failing to produce a valid ticket when required to do so. Carnet tickets are only valid when endorsed with the date of travel before using it for travel. Therefore presenting an undated ticket means that he has failed to present a valid ticket and thus the offence is complete. As the offence is a strict liability matter provided the prosecution can present evidence to this effect the prosecution is likely to result in a guilty verdict.

The offence is not a reportable offence so (barring court errors) it should not result in a criminal record nor need to be revealed to potential employers so any fine issued would be the end of the matter.

Pleading guilty at the earliest possible opportunity (usually by post when responding to the summons) will gain an automatic discount in the fine of around 1/3.

If he does decide to go down the guilty plea route he should some thought into making a plea of mitigation. Only your husband knows what has been said to FCC (anything said is likely to turn up a evidence for the prosecution), but if he can convince the bench that he mad a genuine mistake, and his failure to date the ticket was not done in the hope the ticket was not checked and could be re-used, then it is possible he may be able to convince the bench that he is being a little hard done by and they may see fit to issue a reduced sentence. This is more likely to be successful if an early guilty plea is made.

Forgive me for being blunt but such a plea should only be made if it is true, if there is a chance that FCC have evidence to contradict anything in the plea the court would not take that very favorably.

While a local solicitor is unlikely to be fully up to speed on the minutia of railway law they will be familiar with the local court and be perfectly capable of helping to construct a plea of mitigation and can, if you husband wishes present it to the court. Most criminal defense solicitors offer a free initial consultation and will be happy to help him judge if it is worth engaging their services or if he wishes to prepare his own plea (which he can present without a solicitor).

IIRC the fine is set at Level II on the standard scale which means the starting point for the court will be the equivalent of 1 week's wages. If paying any fine is likely to cause hardship your husband can ask the court to be allowed to pay it off in installments.

I would urge your husband not to decide right away but to mull it over for a few days, in particular I would suggest checking back in case some of the more expert members of the forum are able to provide more specific advice for your case.

 

[Stigy]

The first bit is incorrect I'm afraid. Some TIRs I have submitted have ended up being prosecuted, with the TIR forming part of the evidence.

The TIR alone won't make it to court. They'd need to fill out an MG11 form in order to take the a matter to court, as this is the legal form of guidance for the Magistrates, and, as a witness statement, is a legally binding document.

I tend to report people only if I believe there is some form of intent there. If they don't cough to their intention under caution, and they don't demonstrate intention to avoid payment by their actions alone, I will still report the facts as I've conducted an interview under caution, and I don't like wasting my time.

Some people we know are trying it on (a lost ticket in some cases is a prime example!), but we don't have the evidence to proceed under the RRA 1889. This is where the Byelaws come in to their own as far as I'm concerned! I also believe the prosecutions teams will still prosecute using the Byelaws because the staff member has taken the time to report somebody for an offence, and therefore there are clear costs that need claiming back from the incident, plus it would have wasted the staff member's time to report the person if all non-RRA jobs were quashed. I for one would be annoyed if any jobs I couldn't assertain intent from were NFA'd, as opposed to put through as Byelaws, afterall, that's what they're there for!

 

[Ferret]

The TIR alone won't make it to court. They'd need to fill out an MG11 form in order to take the a matter to court, as this is the legal form of guidance for the Magistrates, and, as a witness statement, is a legally binding document.

Yes, that's what happens - an MG11 is created from what it says in the TIR, and then signed by myself. The TIR itself can and has been read out in Court on occasion. I guess it depends whether there's a Guilty plea or not!

 

[Stigy]

Yes, that's what happens - an MG11 is created from what it says in the TIR, and then signed by myself. The TIR itself can and has been read out in Court on occasion. I guess it depends whether there's a Guilty plea or not!

Yes, the TIR would probably be submitted as evidence (not essential, but sensible as this would have been filled out nearer the offence obviously), therefore will be available for the Magistrates to read should they want to.

 

[DaveNewcastle]

I don't think there's much that I can add to Michael769's post from yesterday.

Only the Railway Company's Prosecutor and your husband's fading recollection know what is written in the Statement taken on the day of travel, and any advice by way of a response he can make at this stage, without sight of that Evidence, is unsound.
However, at some point, a Summons will be sent to him, and it will include not only the date and place of the Hearing, but should also provide an opportunity to Plea by post and, crucially, a copy of the Prosecution's Evidence. That will be the moment to make an informed decision.

Despite the understandable anxiety and stress that this is causing, I'll also repeat Michael769's assurance that a Byelaw Offence is not a Criminal matter, and is similar to, for example, minor motoring Offences. You pay the Fine and move on; no lasting record.

Its unlikely that there is going to be any grounds on which he can challege the simple fact that the ticket wasn't valid and that he had admitted enough to clinch the accusation - it might just be easier to Plea Guilty by post and accept the Fine (reduced for early admission). But every case can be different, and much depends on circumstances - a local Criminal Solicitor (without specialist Railway knowledge - thy charge hundreds, or more!) might just find the opportunity to negotiate a compromise settlement, perhaps by phone, perhaps on the day of the Hearing; such a settlement might just allow the Company to walk away slightly better off than if they allowed the Court to impose a Fine and Costs, and avoid the Prosecution.

I only write this in repetition of Michael769's points as he did suggest others might be able to elaborate further. At this point, sadly not. But when you receive a copy of the Prosecution's Evidence, then there might be more to be said.
Don't worry, do remember that it isn't a Criminal matter.

 

[Robsignals]

The Carnet gives flexibility and a saving over a Season for non-daily travel but the down side of not having to buy a ticket each time is the risk of genuinely forgetting to enter a date which can easily result in a free journey. It's not surprising that any TOC would want to make a deterrent example of anyone caught, it could be said the risk of prosecution is the price for a Carnets advantages, a user must be very careful to follow the rules.