Merseyrail prosecution

[Hodgs0]

Hi

I travel to work every day on the Merseyrail network and can prove £1000’s spent on purchasing tickets almost daily.

One day in November there was a large queue for the train, which were on reduced timetable due to covid.

I decided to get on because I needed to get to work & knew based on previous experience during pandemic that what had become custom & practice for Merseyrail was to have a ticket desk at moorfields for this situation so you can pay other end.

I had used this desk facilitated by Merseyrail themselves on several occasions previously so boarded train with every intention of paying at other end at a station that has barriers.

On this particular day however, the ticket station was not facilitated & instead they were fining people.

I found this to be unreasonable & unduly unfair with no fair warning given that on this day they would not operate the system that has become custom and practice.

Since then the ticket desk has been in operation again & I have photographic evidence.

I did appeal but it was rejected. Now I have to decide whether to plead guilty or not guilty in court and am worried about facing court costs of £1000 if they reject my not guilty status.

Can any one offer advice. I do feel strongly that they have been unduly unfair & operate one system 99% of time and then change without fair warning 1% of time. I do feel I can prove I had clear intention to pay.

 

[AlterEgo]

What is the offence for which you are being prosecuted?

 

[Mcr Warrior]

What is the offence for which you are being prosecuted?

Presumably, either...

Entering any train for the purpose of travelling on the railway without a valid ticket entitling travel.

and/or

Failing to hand over a ticket for inspection and verification when asked to do so by an authorised person.

 

[AlterEgo]

Presumably, either...

Entering any train for the purpose of travelling on the railway without a valid ticket entitling travel.

and/or

Failing to hand over a ticket for inspection and verification when asked to do so by an authorised person.

If it is either of those, the OP is guilty because they are strict liability offences. They walked past an opportunity to pay and travelled on a train without a ticket.

It’s important to ascertain this isn’t a RORA prosecution though, just to be on the safe side.

 

[Watershed]

Hi
I travel to work every day on the Merseyrail network and can prove £1000’s spent on purchasing tickets almost daily. One day in November there was a large queue for the train, which were on reduced timetable due to covid. I decided to get on because I needed to get to work & knew based on previous experience during pandemic that what had become custom & practice for Merseyrail was to have a ticket desk at moorfields for this situation so you can pay other end. I had used this desk facilitated by Merseyrail themselves on several occasions previously so boarded train with every intention of paying at other end at a station that has barriers. On this particular day however, the ticket station was not facilitated & instead they were fining people. I found this to be unreasonable & unduly unfair with no fair warning given that on this day they would not operate the system that has become custom and practice. Since then the ticket desk has been in operation again & I have photographic evidence. I did appeal but it was rejected. Now I have to decide whether to plead guilty or not guilty in court and am worried about facing court costs of £1000 if they reject my not guilty status. Can any one offer advice. I do feel strongly that they have been unduly unfair & operate one system 99% of time and then change without fair warning 1% of time. I do feel I can prove I had clear intention to pay.

Were you issued with a Penalty Fare? And if so, did you raise an appeal through the correct procedures?

This is of vital importance. Depending on the circumstances, it may be the case that Merseyrail are barred from prosecuting you.

Whilst I completely appreciate where you are coming from, the 'fairness' or otherwise of the situation unfortunately has no bearing on the outcome.

The one bit of good news that we can give is that it is almost certain you won't face a bill of £1000, even if you are found guilty at Court. The typical fine for an offence such as this would be around 100% of your weekly income, plus you would be required to pay any fare outstanding, costs (likely around £100) and the Victim Surcharge (10% of your fine).

 

[furlong]

As Watershed says, if it was a Penalty Fare which you appealed correctly then there might be a relatively straightforward way out of this.

Completely unreasonable and unfair, yes. Not supposed to happen, either, but none of the bodies with the power to do anything about it seem to care. So you're into the realm of political campaigning. The now defunct SRA made its views clear against this sort of thing in respect of Penalty Fares but that function got absorbed into the DfT which has obvious conflicts of interest and quietly discarded the SRA's rules that train companies were by then quite openly breaching without consequence, and had separately quietly rewritten the byelaws (while "losing" the relevant paperwork, according to an FOI request) which helped companies prosecute cases that would previously have been pointless for them to pursue (previously considered 'ultra vires' but reset by the rewrite and not yet challenged successfully).

If the Penalty Fare exemption doesn't apply, there is still a legal mechanism that would allow a court to consider it, to use your words, "unreasonable and unfair" (the actual legal test is stricter), but you'd really need to take professional legal advice to try to understand whether it's worth pursuing and to be prepared to pay out to potentially take it to the higher courts with no guarantee of any success - the lower courts can be understandably reluctant to accept this type of argument but occasionally people get lucky.

That argument boils down to: how can something be condoned by a company one day with no indication given that there is anything wrong, then the next day that same company decide they'll prosecute it as a criminal offence, and does this bring the law into disrepute? Is the company complicit in the commission of the offence it is prosecuting? Or rather is this "something so unfair and wrong that the court should not allow a prosecutor to proceed" ?

 

[Hodgs0]

As Watershed says, if it was a Penalty Fare which you appealed correctly then there might be a relatively straightforward way out of this.

Completely unreasonable and unfair, yes. Not supposed to happen, either, but none of the bodies with the power to do anything about it seem to care. So you're into the realm of political campaigning. The now defunct SRA made its views clear against this sort of thing in respect of Penalty Fares but that function got absorbed into the DfT which has obvious conflicts of interest and quietly discarded the SRA's rules that train companies were by then quite openly breaching without consequence, and had separately quietly rewritten the byelaws (while "losing" the relevant paperwork, according to an FOI request) which helped companies prosecute cases that would previously have been pointless for them to pursue (previously considered 'ultra vires' but reset by the rewrite and not yet challenged successfully).

If the Penalty Fare exemption doesn't apply, there is still a legal mechanism that would allow a court to consider it, to use your words, "unreasonable and unfair" (the actual legal test is stricter), but you'd really need to take professional legal advice to try to understand whether it's worth pursuing and to be prepared to pay out to potentially take it to the higher courts with no guarantee of any success - the lower courts can be understandably reluctant to accept this type of argument but occasionally people get lucky.

That argument boils down to: how can something be condoned by a company one day with no indication given that there is anything wrong, then the next day that same company decide they'll prosecute it as a criminal offence, and does this bring the law into disrepute? Is the company complicit in the commission of the offence it is prosecuting? Or rather is this "something so unfair and wrong that the court should not allow a prosecutor to proceed" ?

Hi thank you for your responses, I did follow the appeals process accordingly. Yes I am being prosecuted for boarding the train without a ticket even though it has become custom & practice over an extended period of time to be allowed to do this & I have done it on a few occasions myself. I even did it last week as they still have this arrangement in place!

Were you issued with a Penalty Fare? And if so, did you raise an appeal through the correct procedures?

This is of vital importance. Depending on the circumstances, it may be the case that Merseyrail are barred from prosecuting you.

Whilst I completely appreciate where you are coming from, the 'fairness' or otherwise of the situation unfortunately has no bearing on the outcome.

The one bit of good news that we can give is that it is almost certain you won't face a bill of £1000, even if you are found guilty at Court. The typical fine for an offence such as this would be around 100% of your weekly income, plus you would be required to pay any fare outstanding, costs (likely around £100) and the Victim Surcharge (10% of your fine).

Yes I followed the appeal process. So why might they be barred from prosecution?

 

[Haywain]

Hi thank you for your responses, I did follow the appeals process accordingly. Yes I am being prosecuted for boarding the train without a ticket even though it has become custom & practice over an extended period of time to be allowed to do this & I have done it on a few occasions myself. I even did it last week as they still have this arrangement in place!

To be clear, were you issued a Penalty Fare - which would have been for £20 or twice the full single fare for your journey - or were your details taken for potential prosecution?

 

[Hodgs0]

To be clear, were you issued a Penalty Fare - which would have been for £20 or twice the full single fare for your journey - or were your details taken for potential prosecution?

I was issued a £20 penalty fair which I appealed on the basis already outlined.

I was issued a £20 penalty fair which I appealed on the basis already outlined.

I couldn’t pay the £20 at that point it wasn’t on spot fine. They also took details.

 

[Bletchleyite]

Hi thank you for your responses, I did follow the appeals process accordingly. Yes I am being prosecuted for boarding the train without a ticket even though it has become custom & practice over an extended period of time to be allowed to do this & I have done it on a few occasions myself. I even did it last week as they still have this arrangement in place!

This is a problem on the railway generally, but to be fair to Merseyrail there is plenty of publicity that makes it clear that you must buy a ticket before boarding, and that has been the case for many years now. That window is probably there to deal with situations where it was not possible to do so, and they can check if they want to e.g. by ringing the relevant booking office and asking if they had gone to the loo at the relevant time (most are single-staffed and have no TVM as a backup, so with a frequent service this will happen), or finding out if the TVM at one of the unstaffed Cheshire stations wasn't working.

"Paying at the other end" was common practice in the 1990s and earlier, staff would often invite you to do so, but unfortunately that was for most people a euphemism for "not paying".

I was issued a £20 penalty fair which I appealed on the basis already outlined.


I couldn’t pay the £20 at that point it wasn’t on spot fine. They also took details.

To reduce the confusion, could you post, with personal details and reference numbers redacted, a copy of all the documentation, letters etc you have had so far and how you replied to them?

 

[island]

I was issued a £20 penalty fair which I appealed on the basis already outlined.


I couldn’t pay the £20 at that point it wasn’t on spot fine. They also took details.

Sorry for going over and over this but it is really important that we get this exactly right.

1) Were you issued, at the time of travel, with a Penalty Fare notice, a document bearing the words "Penalty Fare" (May have been printed on till roll type paper or some other method)? Yes/No only
2) If the answer to 1) is Yes, did you appeal it in writing and get an acknowledgment of the appeal? Yes/no only
3) How many times did you appeal, and what dates?

 

[Watershed]

Yes I followed the appeal process. So why might they be barred from prosecution?

If:

• You were issued with a Penalty Fare
• You raised a first-stage appeal against that Penalty Fare in the correct manner (before the deadline was up, to the correct appeals body etc.)
• Merseyrail didn't notify the appeals body that they were cancelling the Penalty Fare before the appeals body decided whether to accept or reject your appeal, or before the 21 day period for the appeals body to make a decision elapsed

then regulation 11(3) of the Railways (Penalty Fares) Regulations 2018 prohibits Merseyrail from bringing a prosecution. The intention of this is effectively to prevent TOCs from prosecuting cases where the passenger is engaging with the Penalty Fares appeal system.

The reason we're asking for further clarification is to make sure that all these conditions are met. It's a very tightly defined defence/argument, so you need to be sure it's watertight if you're going to rely on it.

 

[Hodgs0]

If:

• You were issued with a Penalty Fare
• You raised a first-stage appeal against that Penalty Fare in the correct manner (before the deadline was up, to the correct appeals body etc.)
• Merseyrail didn't notify the appeals body that they were cancelling the Penalty Fare before the appeals body decided whether to accept or reject your appeal, or before the 21 day period for the appeals body to make a decision elapsed

then regulation 11(3) of the Railways (Penalty Fares) Regulations 2018 prohibits Merseyrail from bringing a prosecution. The intention of this is effectively to prevent TOCs from prosecuting cases where the passenger is engaging with the Penalty Fares appeal system.

The reason we're asking for further clarification is to make sure that all these conditions are met. It's a very tightly defined defence/argument, so you need to be sure it's watertight if you're going to rely on it.

Yes I raised stage 1 in time it was rejected. My stage 2 re-appeal was slightly late.

 

[Watershed]

Yes I raised stage 1 in time it was rejected. My stage 2 re-appeal was slightly late.

That's fine, it's only the stage 1 appeal that matters. Presumably Merseyrail didn't cancel the Penalty Fare, as otherwise the appeals body wouldn't have allowed you to raise a stage 2 appeal.

Therefore you want to write to Merseyrail, inviting them to withdraw their unlawful prosecution (cite the law above). If they refuse to do so, you'll obviously need to raise it at Court.

 

[Hodgs0]

That's fine, it's only the stage 1 appeal that matters. Presumably Merseyrail didn't cancel the Penalty Fare, as otherwise the appeals body wouldn't have allowed you to raise a stage 2 appeal.

Therefore you want to write to Merseyrail, inviting them to withdraw their unlawful prosecution (cite the law above). If they refuse to do so, you'll obviously need to raise it at Court.

No I had no notification the penalty fare had been cancelled. All correspondence has been with the third party company they engage with. I have record of all emails from them.

 

[Watershed]

No I had no notification the penalty fare had been cancelled. All correspondence has been with the third party company they engage with. I have record of all emails from them.

Good, you'll want to make sure you can present evidence of all the correspondence, appeals etc. in case it's needed.

 

[Hodgs0]

Yes I raised stage 1 in time it was rejected. My stage 2 re-appeal was slightly late.

This is the response to my appeal.

Sorry for going over and over this but it is really important that we get this exactly right.

1) Were you issued, at the time of travel, with a Penalty Fare notice, a document bearing the words "Penalty Fare" (May have been printed on till roll type paper or some other method)? Yes/No only
2) If the answer to 1) is Yes, did you appeal it in writing and get an acknowledgment of the appeal? Yes/no only
3) How many times did you appeal, and what dates?

1) yes on till roll type thing still got it
2) Yes, fined on 9/11 appealed it on 11/11 got a letter on 23/11 saying they were busy & would reply soon got response on 29/11 invited to reappeal
So I did , then this was rejected & I received a court summons.

This is a problem on the railway generally, but to be fair to Merseyrail there is plenty of publicity that makes it clear that you must buy a ticket before boarding, and that has been the case for many years now. That window is probably there to deal with situations where it was not possible to do so, and they can check if they want to e.g. by ringing the relevant booking office and asking if they had gone to the loo at the relevant time (most are single-staffed and have no TVM as a backup, so with a frequent service this will happen), or finding out if the TVM at one of the unstaffed Cheshire stations wasn't working.

"Paying at the other end" was common practice in the 1990s and earlier, staff would often invite you to do so, but unfortunately that was for most people a euphemism for "not paying".



To reduce the confusion, could you post, with personal details and reference numbers redacted, a copy of all the documentation, letters etc you have had so far and how you replied to them?

Yes I will upload tonight. Just busy in work today but really appreciate advice & support. Thanks.

 

[island]

Okay, many thanks for that.

A prosecution cannot validly be taken in this case for the reason mentioned in post 12.

Please let us know if you would like assistance writing your reply to Miseryrail. Note that if they do not accept it, you may still have to attend court, but you should almost certainly be found not guilty.

The outstanding amount of the Penalty Fare, if you haven't already settled it, remains due.

 

[furlong]

Note that if they do not accept it, you may still have to attend court, but you should almost certainly be found not guilty.

Although you might need some legal help to understand court procedure as there's more than one option available - you might first try to stop the court reaching the stage of even taking your plea, so it never gets as far as considering evidence (and whether or not there is a case to answer) and reaching a verdict.

 

[gray1404]

This is yet another example, as another case occurred only today on the forum, of Merseyrail not applying the penalty fares regulations correctly. Such conduct, such as in this case bringing about a prosecution when it is prohibited by the penalty fares regulations, is totally unacceptable. I stress the fact Merseyrail have breached the regulations in bringing about this prosecution.

If they are not going to add here to the regulations then their penalty fares scheme needs to be suspended. I would therefore report this breach of the regulations to the DFT and ORR accordingly.

In addition, once the prosecution matter has been dealt with in the matter has either been found not guilty or dropped, I would make a formal complaint to Merseyrail demanding compensation for their failures and breach of the regulations. If they refuse this ask for a managerial review and if they still do not talk hold the complaint to take the matter to the rail ombudsman.

 

[furlong]

This is yet another example, as another case occurred only today on the forum, of Merseyrail not applying the penalty fares regulations correctly.

The other case revolves around interpretations of the regulations and what constitutes proper practice, not "correct" application of the regulations which are open to multiple interpretations.

If they are not going to add here to the regulations then their penalty fares scheme needs to be suspended.

This was possible under the old regulations, but it isn't any longer - there is no 'scheme' to 'suspend' - regulations would have to change.

 

[gray1404]

The other case revolves around interpretations of the regulations and what constitutes proper practice, not "correct" application of the regulations which are open to multiple interpretations.


This was possible under the old regulations, but it isn't any longer - there is no 'scheme' to 'suspend' - regulations would have to change.

Many thanks for your reply. So just to check I've got this right under the Old regulations it was possible to temporarily suspend an operators scheme. However under the new ones it isn't even if they are not adhering to the regulations correctly. Is that correct? If so it begs the question what enforcement options are there for an operator such as Merseyrail who are not adhering to the regulations.

 

[island]

@Hodgs0

We would very much like to help you here as you have a very solid defence against the prosecution – but you really do need to respond to Bletchleyite's request to upload all documentation you have, not just half of one page. In particular, it is essential we see the most recent document which you say is asking you whether to plead guilty or not guilty. Naturally you can (and should) block out personally identifying information.

These documents usually have tight timescales for reply (e.g. 21 days) and if you don't respond in time you could well end up with a criminal record.

 

[Hodgs0]

Original notice

Their responses

Details of my original appeal

This is the response to my appeal.


1) yes on till roll type thing still got it
2) Yes, fined on 9/11 appealed it on 11/11 got a letter on 23/11 saying they were busy & would reply soon got response on 29/11 invited to reappeal
So I did , then this was rejected & I received a court summons.


Yes I will upload tonight. Just busy in work today but really appreciate advice & support. Thanks.

This is the response to my appeal.


1) yes on till roll type thing still got it
2) Yes, fined on 9/11 appealed it on 11/11 got a letter on 23/11 saying they were busy & would reply soon got response on 29/11 invited to reappeal
So I did , then this was rejected & I received a court summons.


Yes I will upload tonight. Just busy in work today but really appreciate advice & support. Thanks.

Original notice

Their responses

Details of my original appeal

Original notice

Their responses

Details of my original appeal

Here are all the documents and correspondence I have received

 

[Watershed]

Original notice

Their responses

Details of my original appeal








Here are all the documents and correspondence I have received

Hi,

Thanks for posting those images. You may wish to edit and re-upload some of the images as they contain your name.

You are still in the right from what I can see, but for slightly different reasons than what was previously suggested.

Merseyrail are prosecuting you under section 5(1) of the Regulation of Railways Act 1889 (RoRA). Unfortunately, this is not an offence which appealing a Penalty Fare protects you against being prosecuted for - that protection only covers sections 5(3)(a) and (b) of RoRA, or an offence under the Railway Byelaws.

Therefore, let's take a look at the wording of section 5(1) of RoRA:

5 Penalty for avoiding payment of fare.
(1) Every passenger by a railway shall, on request by an officer or servant of a railway company, either produce, and if so requested deliver up, a ticket showing that his fare is paid, or pay his fare from the place whence he started, or give the officer or servant his name and address; and in case of default shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

In their summons, Merseyrail wrongly summarise the offence as being established by your failure to produce, and if so requested deliver up, a ticket showing that your fare was paid.

However, note the wording of the offence - it states "every passenger by a railway shall, on request ... either produce ... a ticket ... or ... pay his fare ... or give .... his name and address." It is the passenger's choice which of those three things they do, to avoid committing an offence under section 5(1). Failure to produce a ticket is not, on its own, is an offence under that section. For an offence to exist under section 5(1), they must prove that all of the following are established:

• Failure to produce, and if so requested deliver up, a ticket showing that [your] fare is paid
• Failure to pay [your] fare from the place whence [you] started
• Failure to give the officer or servant [your] name and address

You offered to pay your fare and you self-evidently gave your name and address (otherwise - how would they be writing to you now?!). Therefore you met two of the three options - and you only need to meet one to discharge your duty under section 5(1).

So they are essentially prosecuting you for an offence which, by their own evidence, you have not committed. This really is an astounding level of incompetence - though sadly it is not the first time I have heard of such an error occurring.

In the circumstances, a plea of 'not guilty' is clearly substantiated. However, that doesn't necessarily mean this is the end of the story. If they realise their mistake at some point (possibly even during the hearing), they can request to substitute in an alternative offence - for example, Byelaw 18 of the Railway Byelaws as suggested upthread.

In case they try and to do this, it is important that you are still ready to fight back against that, using the defence of them being barred from prosecuting due to your Penalty Fare appeal. Therefore, if they don't drop the matter, you want to have a defence under these grounds ready in case you need it.

In my view, it is still advisable to write to Merseyrail and ask them to discontinue the proceedings. In that letter, you probably want to write something which explains both:

• Why you have self-evidently not committed any offence under section 5(1) of RoRA, and
• Why they are barred from prosecuting you for any alternative offence under section 5(3) or the Byelaws

Feel free to post a draft letter here for feedback.

Do keep us updated as to how things go.

 

[Hodgs0]

Thanks - I’m ok with my name btw I blocked out address will do

Suggested Response - sorry over multiple screen shots

 

[Watershed]

Thanks - I’m ok with my name btw I blocked out address will do

Suggested Response - sorry over multiple screen shots

That's a pretty good response. Just to note that it's "fare", not "fair"

I would slightly reword your second paragraph to:

I firmly believe that your prosecution is unfounded, as explained below.

Also in the section where you mention the queues, you might want to slightly reword that to:

I clearly offered to pay my fare upon arrival at Moorfields; the only reason why I boarded without a ticket was because of the long queues at Blundellsands - of which I have photographic evidence. It has become established custom and practice at Moorfields for passengers to pay their fare upon arrival, which I am able to clearly evidence through financial transactions and witness statements, including your own staff.

When your member of staff at Moorfields refused to take payment of my fare, I provided my name and address; this is clearly evidenced by the fact that you issued the Penalty Fare in my name and address and brought the prosecution against me in my name and address. Your member of staff's statement omits several relevant details in this respect.

Accordingly, as per your own evidence, I complied with two of the three requirements under section 5(1); passengers need only comply with one of the requirements to meet their obligations under the law. Therefore, no offence is made out under section 5(1) and there is no basis for a prosecution.

You also haven't shown us the end of your letter, but you definitely want to include something to the effect that:

As explained above, I believe I have strong evidence to show that this prosecution is unfounded, and that prosecution of any alternative offence would be unlawful. Therefore I would invite you to withdraw your prosecution at the earliest opportunity. Otherwise I intend to plead 'not guilty' and proceed to trial.

 

[island]

"Furthermore" is all one word.

 

[AlterEgo]

It will be interesting to see Merseyrail's reply. This is not the first time 5(1) of the RoRA has been misinterpreted by a TOC.

 

[Hodgs0]

That's a pretty good response. Just to note that it's "fare", not "fair"

I would slightly reword your second paragraph to:


Also in the section where you mention the queues, you might want to slightly reword that to:


You also haven't shown us the end of your letter, but you definitely want to include something to the effect that:

Well they not having it so far!