Help With Prosecution case from FCC

[needinghelp]

I'm looking for a bit of advice and help please.

I travel on the Thameslink line a few times a week and use a carnet ticket to travel. On the relevant day I had validated my ticket (putting the required date of travel on the ticket) before entering through the barriers at St Pancras but used a childs felt tip pen as I couldn't find my biro and needed to get the train.

I put the ticket through the barrier at St Albans to leave the station, but it didn't work. Looking at the ticket the pen had smudged and the date was now illegible. I went over to the gate and showed my ticket to the inspector who then said it was an invalid ticket.

To cut a long story short he didn't believe that my story re the pen and told me he would make a record of this which would go to the prosecution office to decide. I started to get upset (crying not angry) as I never intended to do anything wrong and felt awful being accused by the RPI in such a way plus the caution that he read out really scared me and the way he behaved towards me was very accusative and hostile .I have to add that I was in a hurry to pick up my young daughter and was nervous and worried about how long this would take.

He asked me for my address which I gave even though i was shaking and upset. He asked for some ID but i didn't have any. I then noticed that I had given him the wrong street for my address and had given him the street I had moved from 5 months ago, but the correct house name and postcode.

He checked with the office to validate my address but I wasn't listed on their records for some reason (even though we are on the electoral role). We then validated my address through phoning my husband. He then filled out the statement stating i was traveling with and invalid ticket and that i had given a false address.

I left the station in floods of tears and went home. 2 weeks later i received a letter with an intention to proceed to magistrates court. I responded with all the information above hoping that they would see the circumstances which led to the smudging of the ticket and that due to the stress caused I gave my old street name to the RPI.

I received this morning their intention, having reviewed my letter to proceed to court.

I'm in shock really - I can't believe that they are actually taking it this far. Does anyone have any advice as to whether I should just be trying to settle out of court with them? Or whether I would be best getting legal advice? Do you have any experience of what they are like in court? The thought of having to stand up in court against FCC and their lawyers frightens me to death.

Any help gratefully appreciated

 

[All Line Rover]

I'm sure someone will be able to help shortly. On this forum, we have some people who are very knowledgeable about legal matters.

It would be best if people could refrain from speculating about FCC "being cruel" (etc., etc...), because we don't know the circumstances that led up to this, and frankly any speculation won't help the OP. (I have learnt this from experience ).

 

[needinghelp]

Fair enough - ignore that comment. I just wanted people to understand the build up to why I got upset, my emotions taking control of my rational side!

 

[DaveNewcastle]

It appears that FCC have made a decision to proceed towards a Prosecution based on what their Inspector saw and heard on the day, what was written in his/her Statement reporting it, and what you have replied in your Written Statement. They will also have made a routine check on your address and check to see if there may have been any prior 'incident' like this.
These form the Evidence, and of course, none of us have access to those. Consequently, all advice on here is just a little in the dark.

However, it is always worth attempting to make a settlement if you have genuinely never done anything similar on the Railways, if you haven't any previous convictions and have nothing in your Statements which incriminates you any further. Are these assumptions correct?

Its an unfortunate incident, and unfortunate about the address - its going to be hard for anyone to beleive that you got such a simple matter wrong and so that factor alone is inevitably going to diminish the plausibility of the rest of your statements - but I'm sure all is not lost.
To avoid any confusion, you will eventually be sent a formal notification of the Prosecution which will give you the opportunity to Plea Guilty or Not Guilty, both of which can be done by post or in person in Court, or by a representative in the form of a Solicitor. So you need not stand in Court and be cross-examined / humiliated if you don't want to!
Some of us have done, and some of us quite enjoy it! Unfortunately, those that enjoy it the most are those that win the most.

That letter, when it arrives, will also enclose the crucial copies of the Witness Statements taken by the Rail staff, and at that point you will know exactly what you are up against; and any advice after that will be better informed.

I will assume that your preferred choice will be to attempt to make a settlement before it gets that far. This can be done by a letter. However, I'm sorry to say that the address muddle is making that offer less likely to be accepted.

Its often possible to resolve these matters, even if a Court Hearing is scheduled, without a Solicitor and maybe even without the Court Hearing, but again, I fear the address muddle will complicate matters - depending on exactly how that has been recorded. My expectation is that the accusation of 'giving a false name and address' is not going to go away easily, though we have previously had success even with those circumstances!

My hesitation in suggesting that you speak with a general practice High Street Solicitor is that most are unfamiliar with Railway Law and assume (wrongly) that it is either similar to simple Commercial transactions or else serious Criminal Offences whereas it lies rather uniquely between the two. However, if the 'false name and address' issue is crucial to the Prosecution, then I will certainly advise contacting a Solicitor; it will be vital to ensure that they are familiar with Railway Law and we will be able to assist you in passing on the relevant background knowledge. Specialist Railway Solicitors are very very expensive. At this stage, I'm not persuaded that their fees would be the most appropriate use of your money, so lets just wait before deciding that.

I'm assuming that the letter you have received so far does not include those Witness Statements, and so all those considerations lie in the future. Does it explain exactly which Offence you are being considered as having alledgedly committed? Either in words or by Section of an Act? That will assist in determining what level of Fine the Company may look to the Court to award if they succeed.

Perhaps then, this is the time to consider writing a letter of apology to the Prosecutions Manager, explaining how you realise that you were very silly and have learlt your lesson and don not wish to cause them any more inconvenience any more than you wish the embarrasment to continue; closing with an offer to recompense the Company for their time and inconvenience.

Once that is done, you will have some time to wait for its acceptance or refusal and for copies of the Witness Statements before choosing the next actions.

I don't expect this is much consolation, but I hope it clarifies the rather complex and slow maze of Procedures in these matters.

 

[benk1342]

What a shame---I know this doesn't help right now but the Carnets often don't work very well and it can be difficult to get even a normal biro to write on them properly. I use them periodically because they can be a substantial savings over anytime returns (for me 5 days' worth of Carnet use is cheaper than a weekly season), but I am nervous every time I do, even though I am very careful to write the date clearly and firmly.

I'm the last person to whine about TOCs being cruel, and I am a firmly in the "if you don't have a valid ticket you are responsible even if it was an honest mistake" (etc) camp. But there have been discussions on here recently about (a) how much discretion staff have to let things slide, and (b) how the really, really difficult fare-evaders can get away with murder because it costs the TOCs more to delay a train and get the police involved than to let some jerk ride without a ticket. And I think it is a shame that people like that get off scott-free while someone whose carnet smudged because ATOC can't be bothered to use ticket stock that holds ink properly and who approached staff voluntarily ends up getting prosecuted.

All of that said, this seems to be a situation where the "false address" was the real problem. Presumably the first step for staff would have been to offer a penalty fare, right? Doesn't that come before the asking-for-an-address stage? If the ticket smudged (bad luck, honest mistake, etc) then you are still responsible for paying a penalty fare, but I don't see why it would go beyond that point. (Someone with more knowledge of the ticket-checking process please correct me if I'm wrong.) In other words, what happened during the part where you "cut a long story short"?

 

[ralphchadkirk]

Unfortunately, the address problem will not work in your favour, mistake or not.

Have they provided you with details of the exact offence they are intending to prosecute you under?

 

[needinghelp]

the 'cutting a long story short' was the bit where i tried to explain the situation to the RPI - ie that there was no intent to travel without a valid ticket. I tried to appeal to his better judgement but to no avail.

He didn't offer to pay a penalty fare at all. I don't know if he should have done?

 

[47421]

take a look at http://www.penaltyfareappeal.co.uk/wordpress/?page_id=689

may be worth dropping [email protected] and [email protected] a line, think they have some direct FCC experience

 

[needinghelp]

the offences they have stated are;

- Giving a false address
- Entering a train for the purpose of travelling without a ticket entitling travel

thank you for your help - DaveNewcastle you may have a point about the apology, i did try already but keen to try anything to avoid going to court.

 

[Ferret]

I'm looking for a bit of advice and help please.

I travel on the Thameslink line a few times a week and use a carnet ticket to travel. On the relevant day I had validated my ticket (putting the required date of travel on the ticket) before entering through the barriers at St Pancras but used a childs felt tip pen as I couldn't find my biro and needed to get the train.

I put the ticket through the barrier at St Albans to leave the station, but it didn't work. Looking at the ticket the pen had smudged and the date was now illegible. I went over to the gate and showed my ticket to the inspector who then said it was an invalid ticket.

To cut a long story short he didn't believe that my story re the pen and told me he would make a record of this which would go to the prosecution office to decide. I started to get upset (crying not angry) as I never intended to do anything wrong and felt awful being accused by the RPI in such a way plus the caution that he read out really scared me and the way he behaved towards me was very accusative and hostile .I have to add that I was in a hurry to pick up my young daughter and was nervous and worried about how long this would take.

He asked me for my address which I gave even though i was shaking and upset. He asked for some ID but i didn't have any. I then noticed that I had given him the wrong street for my address and had given him the street I had moved from 5 months ago, but the correct house name and postcode.

He checked with the office to validate my address but I wasn't listed on their records for some reason (even though we are on the electoral role). We then validated my address through phoning my husband. He then filled out the statement stating i was traveling with and invalid ticket and that i had given a false address.

I left the station in floods of tears and went home. 2 weeks later i received a letter with an intention to proceed to magistrates court. I responded with all the information above hoping that they would see the circumstances which led to the smudging of the ticket and that due to the stress caused I gave my old street name to the RPI.

I received this morning their intention, having reviewed my letter to proceed to court.

I'm in shock really - I can't believe that they are actually taking it this far. Does anyone have any advice as to whether I should just be trying to settle out of court with them? Or whether I would be best getting legal advice? Do you have any experience of what they are like in court? The thought of having to stand up in court against FCC and their lawyers frightens me to death.

Any help gratefully appreciated

Can you remember what questions he asked you under caution and what answers you gave? Also, did he withdraw the carnet ticket and issue you what's called a zero-fare as a receipt?

 

[needinghelp]

It was the standard questions from what i can remember. He was answering them on a pad of pre-printed paper if that helps.

I answered them all accurately - i can't remember them all but it was
Can you afford to pay for the ticket - yes
Did you intend to travel with an invalid ticket - no

The remainder I can't remember but answered them all with an honest answer which I think was the right way to do it.

He did withdraw the carnet ticket and no i didn't get a zero fare recipt.

 

[MikeWh]

If you genuinely have moved last autumn and the address that you gave was a hybrid of your current and previous addresses and you have any of the documentation from the transfer (sale letter, rent agreement etc) which proves when it happened and hopefully includes both addresses, then this might help along with your apology.

Assuming everything you have told us is correct then I have every sympathy with your situation. Being in trouble with the police or similar is a situation that you cannot really imagine what it is like unless it happens. I had a run in with a policeman once a long time ago, and I can still remember every detail as though it was yesterday. It was truly one of the worst days of my life ever, alongside only being made redundant from work and waking up one morning finding water gushing out of a hole in my immersion tank. Add in worries about what would be happening with your daughter and it is no wonder that you weren't thinking straight.

Having said all that, giving a false address is bad, but there must be a difference between knowingly doing it and making a genuine mistake due to stress and the correct information not being securely planted in your brain. Hands up all those who have written the wrong year on a cheque in January, for instance.

 

[RJ]

FCC are notorious for being robust where it comes to dealing with ticketing misdemeanors. If it was any other TOC then I might have had enough hope to provide some words of comfort, but I personally can't do that.

Why anyone would write a date on a ticket with a felt tip pen is beyond me. I refuse to believe that there was not a single biro pen to be found at St Pancras station, whether borrowed from a clerk in the ticket office (10 seconds walk from the gateline,) or by one of the RPIs/gateline assistants on the barriers. I also refuse to believe that someone genuinely expected a date written with a felt tip pen to remain legible, especially after rather instantaneously placing it through a barrier. If the date is not legible then the ticket is not valid. Only way the OP will get off is if there's proof that the FCC inspector was wrong and that they held a fully valid ticket (in this case requiring a clearly dated box.) Defence on the basis on leniency is almost akin to asking to be prosecuted.

Many people come to be surprised at "how far" TOCs take these matters. It would seem that some TOCs are tired of chancers paying a pathetic £20 Penalty Fare and wish to send out the message that it's not to be tolerated. I use boxed tickets every so often and the dates are filled in prior to travel and not with a pencil or pen that can easily be rubbed off. The consequences of being lackadasical towards holding a valid ticket are not worth it. Pity others have to find out the hard way! Next time, waiting 15 minutes for the next train to ensure you hold a valid ticket might be a better option than risking prosecution.

 

[yorkie]

He didn't offer to pay a penalty fare at all. I don't know if he should have done?

I think you mean charge a penalty fare, but sorry the short answer is: no. The long answer is: if an inspector, who has the relevant training and authorisation to do so, has reasonable* grounds to believe that you intended to avoid paying for a valid ticket, then they can choose not to sell a fare and instead report the matter for prosecution.

(* it may not seem reasonable to you, or to anyone who is pro-passenger, but what counts is if it seems reasonable to them)

And if anyone is thinking of commenting on the rights and wrongs of this, my recommendation would be not to debate the rights & wrongs of either Penalty Fares and/or prosecutions in this thread as it won't help with this situation, and to keep the thread directly relevant to the OP.

 

[transmanche]

I've never used one of these carnets, but if they operate the barrier they must have magnetic stripes. Surely that will record that the ticket was used at St Pancras, plus the date/time of use - and prevent it being used to operate a barrier on subsequent days?

I would have thought the official should have checked the ticket to verify this. If it showed it was used today, it would support your story. If it showed it having been used before... then that would be evidence of fraud.

 

[dvboy]

I can't offer any advice, but do offer my sympathy, I believe this is a case where the RPI could have shown leniency towards a genuine mistake caused by a known problem with railway tickets and the card they are printed.

The fact that you had a ticket that is validated by writing a date on it suggests to me that you had no intention of travelling without a valid ticket, and I would have thought that intent would be hard to prove. I don't know Railway Law so not sure if intent is a factor to be considered.

Hindsight is a wonderful thing but probably not much consolation; the best kind of pen to use for writing on open dated tickets such as carnets or X in X rovers is a Sharpie. I wouldn't use anything else.

ATOC should be doing something about the card tickets are printed on as often markings from guards' pens and grippers smudge, or the print on the ticket itself fades to ineligibility.

I assume they look like this (google searched)?

 

[Ferret]

It was the standard questions from what i can remember. He was answering them on a pad of pre-printed paper if that helps.

I answered them all accurately - i can't remember them all but it was
Can you afford to pay for the ticket - yes
Did you intend to travel with an invalid ticket - no

The remainder I can't remember but answered them all with an honest answer which I think was the right way to do it.

He did withdraw the carnet ticket and no i didn't get a zero fare recipt.

Hmmm, if they've retained the ticket as evidence and are proceeding to prosecution, it does suggest that they are very confident of succeeding with the case. The problem with the incorrect address is that it is further evidence against you, and the post by RJ sums up my worst fears about how a Magistrate may view things. Forgive me for my bluntness but the felt tip pen idea may well be seen as a little foolish - especially when buying a biro from a newsagents would cost pennies - and there are always such shops around railway stations.

At this stage, I'm minded to say that keeping this out of Court by offering to settle before it gets that far is going to be the way to go. I'm sure some of the regulars on here will be happy to assist you in how to go about this to maximise the chances of FCC accepting your offer so that you can move on from this unfortunate experience.

Best wishes

Ferret

 

[benk1342]

I've never used one of these carnets, but if they operate the barrier they must have magnetic stripes.

They do have magnetic stripes and operate barriers, but in my experience the barriers at King's Cross (and probably St. P as well) are set to reject them so that you have to show a staff member who can verify that you've validated it and can take it off you (so that you don't just use it again in the evening, as they are reversible). So regular carnet users will not bother trying the barrier and will just approach staff instead.

Obviously that's not what happened here---just adding information to the pot.

 

[EM2]

...buying a biro from a newsagents would cost pennies - and there are always such shops around railway stations...

Believe it or not, WHSmith at STP do not sell a basic Bic biro. I needed one a while ago, and the cheapest they had was over two quid!

 

[Ferret]

Believe it or not, WHSmith at STP do not sell a basic Bic biro. I needed one a while ago, and the cheapest they had was over two quid!

Rip-off Britain is alive and well.

 

[Stigy]

I think you mean charge a penalty fare, but sorry the short answer is: no. The long answer is: if an inspector, who has the relevant training and authorisation to do so, has reasonable* grounds to believe that you intended to avoid paying for a valid ticket, then they can choose not to sell a fare and instead report the matter for prosecution.

(* it may not seem reasonable to you, or to anyone who is pro-passenger, but what counts is if it seems reasonable to them)

And if anyone is thinking of commenting on the rights and wrongs of this, my recommendation would be not to debate the rights & wrongs of either Penalty Fares and/or prosecutions in this thread as it won't help with this situation, and to keep the thread directly relevant to the OP.

I see what you're saying, but just to clarify things, if any member of staff believes that an offence could have been committed, they can report the facts to the TOC. No intention need be suspected, although I believe that's where discretion comes in to it. I would only report someone for a ticket issue if I believe that under questioning I could ascertain it was their intention to avoid payment, or if they've had previous PFs before etc. PFs need never be used if the staff don't want to use them, and any PF issue is a potential MG11 issue. If they don't admit to their intent to avoid payment, it's one of those things, and they can just as easily be prosecuted under the relevant Byelaw.

 

[needinghelp]

Thanks for all of you comments.

I really think my best course of action is to try and avoid going to court and am considering writing a letter of apology to FCC but without admitting liability (as I don't want this to become evidence if they still proceed to court) Does anyone have any advice as to whether FCC might be amenable to settling in someway rather than taking on a costly case even if they thing they are likely to win?

Regarding the bye laws that i'm being prosecuted under, i've taken this from the relevant site.

18. Ticketless travel in non-compulsory ticket areas
(1) In any area not designated as a compulsory ticket area, no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel.
(2) A person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person.
(3) No person shall be in breach of Byelaw 18(1) or 18(2) if:
16
(i) there were no facilities in working order for the issue or validation of any ticket at the time when, and the station where, he began his journey; or
(ii) there was a notice at the station where he began his journey permitting journeys to be started without a valid ticket; or
(iii) an authorised person gave him permission to travel without a valid ticket


Am I right in thinking that as I was let through the barrier at St Pancras that under 18 (3) point(iii) I can't be prosecuted?

Thanks again.

 

[First class]

I suspect you are guilty of the Byelaw 18 offence as the method for validitating your ticket you used was not acceptable (and clearly stated in the Terms of the product), and thus invalidated your ticket causing you to be upon the railway without a valid ticket.

Tickets are valid for 3 months from date of issue.
Passengers MUST validate the ticket using permanent ink before boarding the train.
Attempted fraudulent use will result in withdrawal of this ticket, payment of full fare for the journey being made and a possible criminal charge.

It could also be argued that using a non-permitted felt tip pen to write on the ticket "damaged" or "altered" the ticket and hence invalidated it as per Section D(23) National Rail Conditions of Carriage. This would then cause you to be without a valid ticket and again lead back to Railway Byelaw 18.



The prosecutor will often have a choice between specific legislation relating to the form of transport, and proceedings under the Theft Act 1978, or Forgery and Counterfeiting Act 1981.

Section 5 Regulation of Railways Act 1889 is usually used for offences of fare evasion on the railways for:

travelling/attempting to travel on a railway without having previously paid the fare and with intent to avoid payment thereof; or

having paid the fare for a certain distance, knowingly and wilfully proceeding by train beyond that distance without previously paying the additional fare for the additional distance and with intent to avoid payment thereof or

having failed to pay the fare, giving in reply to a request from an officer of a railway company a false name and address.

Section 103(a) Railway Clauses Consolidation Act 1845 covers a person refusing to quit a carriage on arrival at the point to which he has paid his fare.

Both section 5 and section 103(a) are summary only offences. "Intent to avoid payment" in section 5 does not mean a dishonest intent, but an intent to avoid payment of the sum actually due.

There are provisions in the Railway bye-laws which cover fare evasion, but in the vast majority of cases it will be appropriate to use the section 5 offence.

They may consider using the provisions of the Fraud Act 2006, where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority.

Where tickets have been altered or defaced they could also consider a charge under the Forgery and Counterfeiting Act 1981.

 

[Fare-Cop]

I see that you have posted this same query on other websites

I think the advice given on virtually all of these is that you may contact FCC and see if they are prepared to allow an out of court settlement, but you should only do this if you believe that you may have committed an offence.

If not and if you genuinely believe that you did nothing wrong, then you should say so and have their evidence tested.

Remember that to prove fare evasion the Magistrates must be convinced beyond reasonable doubt that you intended not to pay the fare due.

The offence of giving false details contrary to Section 5.3.c of the Regulation of Railways Act (1889) can only be charged as supplemental to section 5.3.a 'intent to avoid of the fare due'

If the intent charge fails, the false particulars charge fails too.

 

[First class]

Remember that to prove fare evasion the Magistrates must be convinced beyond reasonable doubt that you intended not to pay the fare due.


If the intent charge fails, the false particulars charge fails too.

Wholly incorrect, sorry.

That may be the case for a breach of the Regulation of Railways Act 1889, but the Railway Byelaws do not require or permit magistrates to consider the intention of the offender.

In preparing to prosecute this case, I'd probably go for:

Byelaw 18(1)
Byelaw 23(1)

Did he have a valid ticket? I believe that technically speaking, no. He invalidated his ticket by using a type of pen other than that specified in the terms and conditions of the product.
Did he give the correct name and address? No. Regardless of the intent, he hasn't provided the correct address, therefore he is guilty.

If you can't settle this out of court, (I doubt you will be able to in this case), then I'd plead guilty but really try and explain to the magistrates about the moving house etc to see whether they can be lenient in sentencing.

 

[Username]

Am I right in thinking that as I was let through the barrier at St Pancras that under 18 (3) point(iii) I can't be prosecuted?

Thanks again.

Do you mean that you did not insert your ticket into an automatic gate at St Pancras but instead showed it to a gateline assistant who visually inspected it before letting you through?

I'm fairly sure that similar instances have cropped up in the past and the company response has been that the member of staff involved did not possess the necessary authority to satisfy 18(3)(iii).

 

[First class]

Do you mean that you did not insert your ticket into an automatic gate at St Pancras but instead showed it to a gateline assistant who visually inspected it before letting you through?

I'm fairly sure that similar instances have cropped up in the past and the company response has been that the member of staff involved did not possess the necessary authority to satisfy 18(3)(iii).

Of some relevance, the NRCoC states:

59. Limitation of authority of a Train Company’s staff or agents
A Train Company’s staff or agents have no authority to waive or change these
Conditions.

 

[benk1342]

Under American rules of evidence settlement offers cannot be used as evidence of liability. Does anyone know whether this is the case here?

 

[First class]

Under American rules of evidence settlement offers cannot be used as evidence of liability. Does anyone know whether this is the case here?

They can be used, even if it is headed "Without prejudice".

Usually, for first time minor offenders, a TOC will accept a "admin penalty" and them to sign an admission of guilt/reprimand stating that they won't do it again.

If they subsequently do it again, then the original signed reprimand/letter could be used to show that they knew full well the consequences of their actions.

It may even be in the Defence's favour that this is submitted as it could show to the court that an attempt to compensate and mitigate was made.

 

[Yew]

Permanent Ink? On 'normal' paper a felt tip is pretty difficult to remove without solvents, so does that make it permanent ink? However on a laminated ticket surface even a sharpie can be removed with solvents. and I have no doubt if you searched 'how to remove biro from laminated card' you could find something to do it