Merseyrail prosecution

[gray1404]

https://www.legislation.gov.uk/uksi/2018/366/pdfs/uksiem_20180366_en.pdf look what I found on the explanatory notes section of the legislation written by a civil servant in the department for transport & he still works there… note point 7.1. I can’t wait for court next week.

Was there are follow up phone call with the woman at Merseyrail? What did she want?

 

[some bloke]

Indeed, don't add things that distract attention away from your mountain of information supporting the only point that matters.

I agree that raising the Department's note would distract from the key argument - especially as courts don't have the luxury of lots of spare time. Maybe warning them in advance will help magistrates and/or clerk to be aware that they need a bit of time to look at the key argument (if the case gets that far).

I'd say Sarah is better not to raise the note anyway, even as a backup. Merseyrail are correct that regulation 11(4) doesn't bar a section 5(1) prosecution. A note by the Department of Transport can't change that.

........

(possibly off-topic: If the Department was aiming to explain the regulation rather than a general principle, that would be more in line with the note's stated purpose.)

 

[John Palmer]

If Merseyrail is unable to prove that the OP neither offered to pay her fare nor supplied her name and address when requested then I am in no doubt that she should be acquitted of an offence under Section 5(1) RoRA. But I share @island's concern (post#115) that the OP runs a risk of being convicted by the magistrates and facing the expense of an appeal to the Crown Court or by way of case stated in order to have any such conviction overturned.

The OP should not underestimate the disadvantages she must overcome. First, she presumably has no experience of presenting the legal arguments at the heart of her case and must do so in courtroom surroundings with which she is unfamiliar. Second, the Merseyrail prosecutor will, by contrast, be entirely at home in court and will be performing the advocacy task to which he/she is accustomed. Third, there is the danger of 'judicial inertia': if Merseyrail has made a practice of prosecuting ticket-less travel under S.5(1) successfully then magistrates may be pre-disposed to believe that non-production of a ticket is all that is required to prove such an offence, even if that is bad law. Getting people to change their established perceptions is more difficult than persuading them to accept a proposition they have not previously considered. Since the focus of the case is on a legal argument the OP would benefit from professional representation presenting it, but if that's not feasible she would do well to enlist the aid of the criminal barrister who is a family friend, if only as a McKenzie adviser.

The OP could still challenge the lawfulness of the summons on the basis that it was issued under the Single Justice Procedure and that Merseyrail has no statutory authority to employ that procedure for issue of a summons alleging a RoRA offence. Any such challenge should be raised with the Court at the start of the hearing. If it fails, it may be available as an additional ground for appeal.

If the case proceeds to trial then I agree that the OP needs to concentrate on its essentials to the exclusion of everything else. First she needs to establish that she offered to pay her fare and gave her name and address when challenged at Moorfields station. The prosecution may readily concede that she did one or both of these, but if not then she will need to give evidence to that effect. Whilst it is up to the prosecution to show that she did none of the things required of her by S.5(1), it's best for the court to be left in no doubt that she offered payment of her fare and supplied her name and address.

That opens the way to the more difficult task of convincing the court that Merseyrail's interpretation of S.5(1) is wrong and that the OP's is right. She could begin by explaining that Section 5 RoRA operates as a complete legal code containing three related components. Subsection (1) gives railway companies the statutory framework for investigating whether a ticketing offence has taken place by requiring a passenger to make one of three possible responses to a request to show that his fare is paid. Subsection (2) goes on to supply a power to detain where the passenger won't co-operate with such investigation. It is Subsection (3) alone (with which the OP has not been charged) that creates the substantive offence for ticket-less travel, and such offence requires proof of an intention to avoid payment of the fare. Merseyrail's interpretation of Subsection (1) as creating a separate offence of failure to produce a ticket cannot be correct because it would bypass the need to prove an intention to avoid payment and thus render the Subsection (3) offence redundant. There is no reason to suppose that Parliament intended to create such a redundancy by duplication of offences, and Subsection (1) is instead intended to supply a sanction for non-co-operation with a ticket investigation. Explaining the background in this way helps by providing a rationale for the interpretation of Subsection (1) that the OP is urging the court to adopt: that the subsection prescribes three distinct ways in which the passenger may respond to a request for production of his ticket: either produce such ticket, or pay the fare, or supply his name and address. Only if the passenger fails to respond in all three of these ways is an offence under Subsection (1) committed, but if instead he responds in any one of the three ways prescribed then there is no 'default' and he cannot be convicted of a Subsection (1) offence. Having established that she offered payment of her fare and gave her name and address the OP can say that she actually responded in two of the three ways prescribed and must consequently be acquitted.

Usual disclaimer that this is no more than the views of a random contributor to an internet forum, but that's the way I would go about presenting an explanation of how Section 5 should be construed. Whatever the way the OP does so I wish her well at trial.

 

[Watershed]

I concur wholeheartedly with @John Palmer's post.

The only thing which I would add is that there is another argument which could be made, in reference to this:

Second, the Merseyrail prosecutor will, by contrast, be entirely at home in court and will be performing the advocacy task to which he/she is accustomed.

Section 14 of the Legal Services Act 2007 makes it an offence to undertake reserved legal activities without being entitled to do so. 'Reserved legal activities' is defined in section 12 as including the exercise of a right of audience (i.e. representing a party at Court); section 13 sets out that someone is entitled to undertake reserved activities if they are an authorised person, or an exempt person.

Someone is an "authorised person" if they are authorised by an approved regulator in relation to that activity. The relevant approved regulators for licensing the exercise of a right of audience are the Chartered Institute of Legal Executives (CILEx), the Law Society (for solicitors) and the Bar Standards Board (for barristers). There are also bodies which license trademark, patent and costs lawyers, but these are obviously not relevant to this case.

Having searched the registers of CILEx, the Law Society and the Bar Standards Board, I can find no evidence of any person named Michelle McLachlan being a qualified legal executive, solicitor or barrister. Accordingly it would seem that Ms McLachlan is not an authorised person under the Legal Services Act.

Alternatively, section 19 of the Act sets out that the definiton of an "exempt person" is found in Schedule 3. Paragraph 1 of Schedule 3 sets out the list of exempt persons for the exercise of a right of audience, and effectively the only category which Ms McLachlan could fall into, unless acting under the instructions and supervision of an authorised person (i.e. with a solicitor etc. also in the Courtroom), would be if she "has a right of audience granted by that court in relation to those proceedings".

In other words - Ms McLachlan by default has no right of audience to represent Merseyrail at the hearing. To do so, she must request the Court's permission to appear on behalf of Merseyrail. So whilst she may be accustomed to undertaking advocacy, every time she does so, it is solely with the permission of the Court.

It would therefore be open to the OP to raise this issue at the beginning of the hearing (if Ms McLachlan doesn't do so) and object to permission being given - with the reasoning that Ms McLachlan has demonstrated she is unfit to exercise rights of audience at Court, as she has wilfully misinterpreted section 5(1) of RoRA, and insists on proceeding despite overwhelming evidence to the contrary; and that an authorised person would be sufficiently qualified as not to make such a basic error of reading comprehension.

This may seem a novel argument but it is one which has been raised in relation to TV Licensing, who appear to employ much the same tactics as the railway when it comes to prosecutions, including the use of lay "Court presenters" rather than qualified representatives.

If the OP were successful in this challenge to Ms McLachlan's rights of audience, the matter would of course have to be rescheduled for a later hearing with proper legal representation, giving Merseyrail an opportunity to take another long, hard look at whether this unfounded prosecution is really wise to continue. This argument could be the first of several procedural arguments which the OP could make, in addition to those outlined above (in relation to the lawfulness of bringing a RoRA prosecution under the SJP).

 

[some bloke]

Sarah, are you keen to go to court? If yes, is it to prove a point to the wider public? If that's an aim, perhaps you can achieve it anyway - even if Merseyrail drop the case citing some other reason - by presenting the argument on name and address separately from the other issues.

Has Sarah done enough to avoid court by sending arguments and evidence to Merseyrail and the court, showing that the hearing would be a waste of time?

There's also the possibility of talking to the prosecutor in the court building before the hearing is due.

Merseyrail's interpretation...cannot be correct because it would ...render the Subsection (3) offence redundant.

Perhaps not entirely redundant, as s.5(3) has a higher maximum fine and the possibility of prison for a subsequent offence?

The OP could still challenge the lawfulness of the summons on the basis that it was issued under the Single Justice Procedure and that Merseyrail has no statutory authority to employ that procedure for issue of a summons alleging a RoRA offence.

Does section 16B (3) of the Magistrates' Court Act 1980 not oblige magistrates to issue a summons using the original charge, where the requirements of the SJPN are not met?
https://www.legislation.gov.uk/ukpga/1980/43/section/16B
It would seem a sensible provision to include, given the potential for mistakes when the new procedure was introduced - although something I can't understand would be the legal status of the accused person's statement in response to a purported SJPN which was not valid. Could there be a risk that Sarah's clear statement with the plea, responding to the "SJPN", will be ignored? Maybe she sent the same thing again after the summons.

she has wilfully misinterpreted section 5(1) of RoRA, and insists on proceeding despite overwhelming evidence to the contrary

"Wilfully" is a strong claim needing strong evidence.

Is it clear that Sarah has sent overwhelming evidence on 5(1) to Merseyrail? The Police Law book extract and a clear argument were sent with the notice of plea to the court, whereas Ms McLachlan's phone call was after the material sent to the mayor, which was less clear and didn't include the extract. From the screenshots, is it obvious in that statement with the plea, which text is from the book and which is comment?

Perhaps Sarah could make clearer to the court in advance that this is a matter which makes the hearing pointless, in case someone at the court thinks either that it raises a possible breach of the Criminal Procedure Rules by the company, or that it's something the clerk/legal advisor may wish to know about before the hearing is due.

 

[Watershed]

"Wilfully" is a strong claim needing strong evidence.

Is it clear that Sarah has sent overwhelming evidence on 5(1) to Merseyrail? The Police Law book extract and a clear argument were sent with the notice of plea to the court, whereas Ms McLachlan's phone call was after the material sent to the mayor, which was less clear and didn't include the extract. From the screenshots, is it obvious in that statement with the plea, which text is from the book and which is comment?

I think the email correspondence which we have had sight of is more than sufficient to put to rest any suggestion of ignorance on Merseyrail's part. They have had it pointed out to them multiple times that the plain reading of the legislation, as well as a purposive one, simply does not give rise to an offence in the circumstances. If the OP did not send a copy of their evidence and notice of plea to Merseyrail at the same time as they sent it to the Court, I would have expected the Court to share it with Merseyrail. At the very latest, the intervention of the Mayor should have prompted a thorough review of the case.

I simply do not think that, given everything the OP has told them, Merseyrail can credibly claim that they thought OP's conduct constituted an offence under section 5(1). Effectively, by proceeding in this manner, the OP is opening the door to a potential claim for malicious prosecution once the matter has been concluded in their favour. But that is something which we can discuss further after the hearing.

 

[some bloke]

I think the email correspondence which we have had sight of is more than sufficient to put to rest any suggestion of ignorance on Merseyrail's part.

The point is about whether to use the concept of "wilful". Something like what @John Palmer has mentioned - "judicial inertia" - can operate in other contexts too: people get stuck on an idea and continue to look at words that way. Sometimes people get emotional and can't think straight. Or maybe the right people didn't get the messages, or read the right parts. A combination of these sorts of things isn't necessarily implausible just because the information has been sent from outside repeatedly. And we don't know whether wilfulness, if there was any, was on the part of that employee rather than someone else who provided advice or instruction.

There's no need to allege wilfulness where the person who is to judge it thinks there's overwhelming evidence for wilfulness; where they don't, it may very well not add anything - and can backfire.

If the OP did not send a copy of their evidence and notice of plea to Merseyrail at the same time as they sent it to the Court, I would have expected the Court to share it with Merseyrail.

Unless the magistrate or whoever dealt with the paperwork realised that the purported SJPN was invalid and expected a replacement statement with plea in response to the summons? Was the statement clear enough on what was the book's text and what was comment? It's probably better to send URLs so people can easily check the accuracy.

At the very latest, the intervention of the Mayor should have prompted a thorough review of the case.

In the communication to the mayor which we saw, the key point in the text was among other points about a number of issues, some beyond the criminal case. I thought it could have been much more prominent, and that someone at Merseyrail might be distracted by countering less solid points.

 

[John Palmer]

Perhaps not entirely redundant, as s.5(3) has a higher maximum fine and the possibility of prison for a subsequent offence?

It's a counter-argument the Merseyrail prosecutor may choose to put forward. But it's one you would expect to see supported by some explanation of:

1. why the legislature saw fit to create a separate offence for which intent was not an essential ingredient;
   
2. how it was to be reconciled with the absence of facilities at every station for the purchase of tickets, since it would mean that boarding a train at any station without such facilities sufficed to establish a state of affairs in which the passenger doing so would be unable to produce a ticket and was thus guilty of an offence under S.5(1); and
   
3. why such an offence was bundled up with two possible alternatives (either produce a ticket or pay your fare or supply your name and address).

This is why I think it is helpful to give context to Subsection (1) by locating it within the code created by the section as a whole that covers both investigation of possible ticketing offences and their prosecution when the necessary 'intent' ingredient can be demonstrated.

Does section 16B (3) of the Magistrates' Court Act 1980 not oblige magistrates to issue a summons using the original charge, where the requirements of the SJPN are not met?
https://www.legislation.gov.uk/ukpga/1980/43/section/16B

The difficulty I see for Merseyrail is that in the absence of authority to use the SJP to prosecute a RoRA offence it is in no position to satisfy the court that it has met the requirements of S16A(1)(c) – how can it serve a valid written charge and SJPN if the charge in question is one it has no authority to bring against the accused by means of the Single Justice Procedure in the first place? Not being empowered to meet the Procedure's requirements because the charge is outwith Merseyrail's authority to employ it may have the consequence that any attempt to do so is completely ineffective and thus leaves the court without a lawful proceeding in which it can follow the course laid down in Section 16B(3) - in such a case it is arguable that the charge and SJPN are nullities, and all the court can say is that there is no proceeding in progress to which the 'accused' is required to respond.

If Ms McLachlan is the advocate who appears on Merseyrail's behalf then the legal competence she has so far displayed leads me to think that the OP might do well to leave her in place! I have in mind the possibility that she is serving an exclusively clerical role, and that another, possibly more skilful, prosecutor may present Merseyrail's case in court.

In any event this case suggests that things are far from as they should be in Merseyrail's prosecutions department. They are pursuing a prosecution on a basis that appears to be completely untenable in law, and they are doing so by means of a procedure they are not authorised to use. At best that indicates a lack of adequate supervision of their employees' work activities. Worse, it might become apparent that Merseyrail have made a practice of prosecuting failure to produce a ticket under S.5(1) RoRA regardless of whether the hapless passengers concerned had met that subsection's requirements, or that the company is making indiscriminate use of the Single Justice Procedure for prosecution both of byelaw and RoRA offences. If so, these are grounds for enquiry into whether it is fit to be entrusted with prosecutorial powers and what injustice may have been suffered by others affected by their improper exercise.

 

[some bloke]

The OP should not underestimate the disadvantages she must overcome. First, she presumably has no experience of presenting the legal arguments at the heart of her case and must do so in courtroom surroundings with which she is unfamiliar. Second, the Merseyrail prosecutor will, by contrast, be entirely at home in court and will be performing the advocacy task to which he/she is accustomed. Third, there is the danger of 'judicial inertia'

Agreed.

The OP could still challenge the lawfulness of the summons on the basis that it was issued under the Single Justice Procedure and that Merseyrail has no statutory authority to employ that procedure for issue of a summons alleging a RoRA offence.

The summons was issued by the court because the case wasn't suitable to be heard by a single justice - perhaps more likely because of the not-guilty plea than because of the lack of a "relevant prosecutor", which may not have been noticed. The stated reason/s for the summons, and the events which produced it, may not matter. The reason I referred to section 1(1) of the Magistrates' Courts Act 1980 is that in this kind of situation the charge being sent to the court, irrespective of whether the single justice procedure notice is valid, seems to meet the requirement of "information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence". (Of course in this case the purported "charge" was for an "offence" which doesn't exist.)

If the notice was invalid then two things are perhaps unclear: the legal status of, and what happened to, Sarah's clearer statement of her case when responding to it.

 

[Royston Vasey]

Another lesson, even when in the right, to pay the penalty fare offered, and then appeal it if justified.

 

[John Palmer]

The summons was issued by the court because the case wasn't suitable to be heard by a single justice - perhaps more likely because of the not-guilty plea than because of the lack of a "relevant prosecutor", which may not have been noticed. The stated reason/s for the summons, and the events which produced it, may not matter. The reason I referred to section 1(1) of the Magistrates' Courts Act 1980 is that in this kind of situation the charge being sent to the court, irrespective of whether the single justice procedure notice is valid, seems to meet the requirement of "information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence". (Of course in this case the purported "charge" was for an "offence" which doesn't exist.)

If the notice was invalid then two things are perhaps unclear: the legal status of, and what happened to, Sarah's clearer statement of her case when responding to it.

Sorry, but I can't see where you previously made reference to Section 1(1) Magistrates Court Act 1980. That subsection lays down the 'old-style' procedure where (1) a person lays an information before a justice who (2) then decides whether, on the strength of that information, to issue a summons requiring a person to attend to court to answer the allegation of a criminal offence. That 'two stage' procedure has been supplemented by the Single Justice Procedure introduced by Section 29 Criminal Justice Act 2003 involving a 'single stage' in the institution of proceedings by a 'relevant prosecutor' alone, no magistrate being initially involved.

No doubt the summons to attend court for trial was issued because of the filing of a 'not guilty' plea. But that was nothing more than a procedural step taken in the course of proceedings assumed to have been lawfully commenced already, rather than the origination of such proceedings via the Section 1 MCA route, which is what is being referred to by the words "information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence." If it transpires that the the prosecutor had no authority to charge the OP under the Single Justice Procedure then arguably the entire proceeding is rendered void from the outset by that want of authority, in which case I see no basis on which Merseyrail can proceed further against the OP other than by starting afresh by the laying of an information under Section 1 MCA 1980 – the 'old style' procedure. If, as I think, the present proceedings should be treated as a nullity, then any documents filed in connection with them, including the OP's statement of case, have no status of current legal significance.

I'm entirely open to persuasion that charging an offence by means of the SJP in a case where the prosecutor concerned has no authority to do so gives rise to some form of legal proceeding capable of being pursued further – but I would like to be persuaded by arguments founded on demonstrated legal principle or authority.

 

[Watershed]

Another lesson, even when in the right, to pay the penalty fare offered, and then appeal it if justified.

There is no need to pay a Penalty Fare to avail of the protections offered by the Regulations. In fact the only thing that matters is that you raise an appeal!

Unfortunately in this case, Merseyrail are undertaking a prosecution which is technically not covered by the statutory bar which arises when a Penalty Fare is appealed, and so the fact that the OP appealed does not necessarily assist them.

The prosecution's is only not covered by the bar because the drafters of the Penalty Fare legislation clearly realised the incompatibility of issuing someone with a Penalty Fare (which requires them to give their name and address at a minimum), and charging them an offence which is negated by providing your name and address.

 

[some bloke]

If, as I think, the present proceedings should be treated as a nullity, then any documents filed in connection with them, including the OP's statement of case, have no status of current legal significance.

Yes. And the same would seem to apply even if the summons is legitimate, because there is nothing in 16B or 16D saying what should happen to those documents.

And we are agreed that the position isn't certain about the summons.

So we are perhaps agreed that since this might otherwise take up valuable court time, Sarah might be wise to email the court by early tomorrow morning, something like this:

"I have been informed that Merseyrail are not a "relevant prosecutor" for Regulation of Railways Act 1889 prosecutions using the Single Justice Procedure under the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016. The SJP Notice seems therefore to have been invalid (unless a subsequent Order has changed Merseyrail's status in that regard).

I would therefore be grateful for clarification of:

1. Whether the summons issued following that apparently invalid SJPN is valid;

2. The legal status of, and what has happened to:

a) the statement I made with my notice of plea in response to what appears to have been an invalid Single Justice Procedure Notice, and

b) any other documents to which this apparent error by Merseyrail may be relevant."


However, there may be a risk of distracting from the key point that lawful conviction is not possible, which is what if I were in Sarah's position I might be putting to the court staff persistently by email, phone and perhaps in person before the hearing date, perhaps along with this.

 

[John Palmer]

"I have been informed that Merseyrail are not a "relevant prosecutor" for Regulation of Railways Act 1889 prosecutions using the Single Justice Procedure under the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016. The SJP Notice seems therefore to have been invalid (unless a subsequent Order has changed Merseyrail's status in that regard)."

I would be inclined to raise the matter with the court in rather different terms, along the following lines:

"Case Reference XXXX

In these proceedings Merseyrail endeavours to prosecute me for an offence under Section 5(1) Regulation of Railways Act 1889. It seeks to do so under the provisions of the Single Justice Procedure introduced by Section 29 Criminal Justice Act 2003. For the purposes of that procedure it appears that Merseyrail purports to act as a relevant prosecutor authorised to bring such a charge against me by virtue of Articles 2 and 6 of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 on the basis that it is the operator of a railway asset within the scope of Article 6(1)(a) of that Order. Article 6(1) of the Order provides that such an operator is to be treated as a relevant prosecutor within the scope of Article 2 for the limited purpose of prosecuting a railway offence. “Railway offence” means one of the limited range of offences defined in Article 6(2) of the Order. An offence under Section 5(1) Regulation of Railways Act 1889 is not one of the railway offences so defined. For this reason I contend that Merseyrail had no authority to commence proceedings against me for such an offence by means of the Single Justice Procedure and that as a consequence no lawful proceeding against me for such an offence is currently in progress.

I propose to raise my above contentions by way preliminary issue at the hearing of this matter listed for Tuesday 17th May. I am copying this comunication to Merseyrail's prosecution department so that all parties are aware of the course I propose to take and may prepare accordingly."

The choice is entirely up to the OP. She may choose to pursue as a preliminary issue the apparent want of Merseyrail authority to resort to the SJP for this offence, or she may choose instead to waive this procedural error that may nullify the proceedings in their entirety and rely exclusively upon her substantive defence to the Section 5(1) RoRA charge. If she elects to take the latter course it may well entail acceptance on her part that she will not subsequently be able to pursue the 'invalid prosecution for want of authority' issue – a 'now or never' choice for her to make.

In her shoes I would be inclined to raise the issue now because, even if it is rejected by the court, it remains available as an issue that may be revived subsequently, and is relevant to the wider issue of whether Merseyrail is conducting itself as a prosecutor with due propriety.

 

[some bloke]

In her shoes I would be inclined to raise the issue now because, even if it is rejected by the court, it remains available as an issue that may be revived subsequently, and is relevant to the wider issue of whether Merseyrail is conducting itself as a prosecutor with due propriety.

Yes, that makes sense. Perhaps the court would adjourn as a result.

As the incident was on 9 November, the company has run out of time to apply for a new summons.

But is it best to send it without mentioning the key point that conviction cannot be lawful because there is no such offence? Especially if you say this:

"...so that all parties are aware of the course I propose to take and may prepare accordingly."

It might well be taken as indicating that there is no other massive flaw in Merseyrail's case which means the hearing is pointless/the flaw would need court time, when in fact there is.

Also, if this issue is to be raised by someone who isn't experienced at presenting in court and is unfamiliar with the law, is it really a good idea at this stage to recommend that she make a contention and say that she will be taking this approach in court? How would she cope with questions?

What I was aiming at in suggesting a tentative/inquiring message was something which raises the issues formally, but doesn't commit Sarah to defending a position. She may need to preserve credibility for the other issues. Would the court not make allowances for her if she is presenting her own case, and raised an issue which she truthfully said she did not fully understand but concerned her?


.......................


I couldn't defend the position myself, because whatever the defects of the provisions in respect of statements and other documents, it seems that the only option specified for magistrates by s.16B(3) of the 1980 Act in instances where SJPNs are defective is to issue a summons using the original charge.

It is not necessarily clear why this failure, of the prosecutor trying to issue an SJPN when they aren't a "relevant prosecutor" for SJPNs and the 1889 Act, is qualitatively different from other defects which likewise mean there was no valid SJPN to begin with. The scope of 16B(3) depends on the scope of the relevant text in 16A(1) and 16B(1), neither of which make clear how badly, or in what ways, the paperwork has to be defective before a summons cannot, or may not, be issued.

I referred to 1(1) because it is not clear to me how its scope is relevantly limited either: if a magistrate receives a charge through the "wrong" route, can they not still issue a summons? If the old route via 1(1) has wide scope, then perhaps that is the basis for wide scope in the newer provisions.

In a case where the summons was issued on a false basis that the SJPN was valid after a not-guilty plea was received, it is perhaps not clear why a magistrate is barred from taking what might be viewed as a practical approach. The view might be that that is what would have happened anyway - except for the problem about the "defendant's" statement and other documents. Perhaps even then, such problems would be thought adequately dealt with by way of various means, such as a new summons prompting new documents, or perhaps in the present case by asking the defendant whether she still agrees with the statement.

 

[John Palmer]

As the incident was on 9 November, the company has run out of time to apply for a new summons.

Cue comment from Windsor Davies' character in 'It Ain't Half Hot Mum'

But is it best to send it without mentioning the key point that conviction cannot be lawful because there is no such offence?

It might well be taken as indicating that there is no other massive flaw in Merseyrail's case which means the hearing is pointless/the flaw would need court time, when in fact there is.

If the 'want of authority' point is good then the case ends at that juncture and other flaws in it become irrelevant.

Also, if this issue is to be raised by someone who isn't experienced at presenting in court and is unfamiliar with the law, is it really a good idea at this stage to recommend that she make a contention and say that she will be taking this approach in court? How would she cope with questions?

What I was aiming at in suggesting a tentative/inquiring message was something which raises the issues formally, but doesn't commit Sarah to defending a position. She may need to preserve credibility for the other issues. Would the court not make allowances for her if she is presenting her own case, and raised an issue which she truthfully said she did not fully understand but concerned her?

A tentative enquiry about the legitimacy of Merseyrail's recourse to the SJP risks being brushed aside. Unfortunately I think it is a point that needs to be put to the court assertively if it is to have any impact. Part of the purpose of the form of words I used was to try to convey to the court the legal basis on which the objection is raised, so reducing the difficulty for a layman in explaining it. The legal adviser to the justices ought to ensure that legal arguments properly raised by an unrepresented defendant are put to the bench in comprehensible terms, if necessary by assisting the defendant in putting them forward and/or by providing the magistrates with appropriate advice.

I couldn't defend the position myself, because whatever the defects of the provisions in respect of statements and other documents, it seems that the only option specified for magistrates by s.16B(3) of the 1980 Act in instances where SJPNs are defective is to issue a summons using the original charge.

So be it - but not where doing so would have the effect of depriving the defendant of a limitation defence.

It is not necessarily clear why this failure, of the prosecutor trying to issue an SJPN when they aren't a "relevant prosecutor" for SJPNs and the 1889 Act, is qualitatively different from other defects which likewise mean there was no valid SJPN to begin with. The scope of 16B(3) depends on the scope of the relevant text in 16A(1) and 16B(1), neither of which make clear how badly, or in what ways, the paperwork has to be defective before a summons cannot, or may not, be issued.

The qualitative difference arises from the fact that the defect was the absence of authority to start the proceedings in the way chosen: the SJP. Other defects might well be open to cure by direction from the justices, but if there was a serious flaw in the way the proceedings were started then arguably that was a fatal taint upon everything done subsequently.

I referred to 1(1) because it is not clear to me how its scope is relevantly limited either: if a magistrate receives a charge through the "wrong" route, can they not still issue a summons? If the old route via 1(1) has wide scope, then perhaps that is the basis for wide scope in the newer provisions.

Not a case of receiving a charge through the 'wrong' route. The proper course was for Merseyrail to commence a RoRA prosecution by laying an information on the strength of which the justices might then have issued a summons. If Merseyrail had no authority to charge via the SJP then the argument is that the attempt to charge was ineffective and consequently no charge exists.

In a case where the summons was issued on a false basis that the SJPN was valid after a not-guilty plea was received, it is perhaps not clear why a magistrate is barred from taking what might be viewed as a practical approach. The view might be that that is what would have happened anyway - except for the problem about the "defendant's" statement and other documents. Perhaps even then, such problems would be thought adequately dealt with by way of various means, such as a new summons prompting new documents, or perhaps in the present case by asking the defendant whether she still agrees with the statement.

Magistrates' latitude for taking a practical approach is constrained by the rules to which they are subject. If there is a fatal flaw in the way in which the proceedings were commenced then the only way in which a prosecution can be revived may be by issue of a fresh summons, provided time remains for doing so. In that case the defendant can also start afresh with the same defence or a different one.

 

[some bloke]

As the incident was on 9 November, the company has run out of time to apply for a new summons.

Perhaps there is some way that a charge could be considered as in time.

 

[Hodgs0]

Well court was a hoot. I argued that their interpretation of law was incorrect. That no offence could be established as committed under section 5(1) & that they couldn’t as clearly set under section 11 supported by the explanatory note both criminally prosecute & pursue penalty Fare. Anyway their rep in courts was outsourced to Sefton council & the mags just looked at her & said msg hodgson has put fwd an eloquent argument are you really planning on proceeding to trial. She just shrugged & said I’m just representative of them & my instruction is to proceed, I’m not an expert in railways laws. So they all had a big conference about what needed to happen & said it needed to go to a full 4 hour trial because of the legal argument I had presented & it could only be heard by a circuit district judge whose legally qualified & that merseyrail have to produce their head of enforcement to come and explain how the prosecution is legal. The magistrate was making them explain everything to me, he was very supportive. So trial is set for august in Liverpool now. Anyway I said well at this point I might well instruct a legal representative so she took a note of that. It was astounding to be honest.

 

[WesternLancer]

Well court was a hoot. I argued that their interpretation of law was incorrect. That no offence could be established as committed under section 5(1) & that they couldn’t as clearly set under section 11 supported by the explanatory note both criminally prosecute & pursue penalty Fare. Anyway their rep in courts was outsourced to Sefton council & the mags just looked at her & said msg hodgson has put fwd an eloquent argument are you really planning on proceeding to trial. She just shrugged & said I’m just representative of them & my instruction is to proceed, I’m not an expert in railways laws. So they all had a big conference about what needed to happen & said it needed to go to a full 4 hour trial because of the legal argument I had presented & it could only be heard by a circuit district judge whose legally qualified & that merseyrail have to produce their head of enforcement to come and explain how the prosecution is legal. The magistrate was making them explain everything to me, he was very supportive. So trial is set for august in Liverpool now. Anyway I said well at this point I might well instruct a legal representative so she took a note of that. It was astounding to be honest.

Interesting to read your update.

As a lay person it seems odd that Merseyrail - who would mainly be dealing in magistrates court with travel related issues presumably - outsource their legal work to a council legal dept without specialists in railway law to deal with the cases in the court (maybe this is not uncommon tho, with most cases not requiring such specialist knowledge?)

 

[Vespa]

And Michelle McLachlan didn't bother to turn up to explain why, instead sending somebody from a council legal department without specialist railway knowledge

Sounds like a bunch of clowns running the circus.

 

[Hodgs0]

Was there are follow up phone call with the woman at Merseyrail? What did she want?

To vaguely threaten me that they would pursue the prosecution if I pleaded not guilty - I’d already entered my plea & had no intention of changing it

And Michelle McLachlan didn't bother to turn up to explain why, instead sending somebody from a council legal department without specialist railway knowledge

Sounds like a bunch of clowns running the circus.

She’s got to come to the trial though

Interesting to read your update.

As a lay person it seems odd that Merseyrail - who would mainly be dealing in magistrates court with travel related issues presumably - outsource their legal work to a council legal dept without specialists in railway law to deal with the cases in the court (maybe this is not uncommon tho, with most cases not requiring such specialist knowledge?)

They apparently can’t resource it anymore… they might want to stop dragging law abiding citizens into court for an offence that’s not an offence to start with

 

[Vespa]

Hope you can claim costs and punitive damages from Merseyrail for putting you through this.

 

[BJames]

Well court was a hoot. I argued that their interpretation of law was incorrect. That no offence could be established as committed under section 5(1) & that they couldn’t as clearly set under section 11 supported by the explanatory note both criminally prosecute & pursue penalty Fare. Anyway their rep in courts was outsourced to Sefton council & the mags just looked at her & said msg hodgson has put fwd an eloquent argument are you really planning on proceeding to trial. She just shrugged & said I’m just representative of them & my instruction is to proceed, I’m not an expert in railways laws. So they all had a big conference about what needed to happen & said it needed to go to a full 4 hour trial because of the legal argument I had presented & it could only be heard by a circuit district judge whose legally qualified & that merseyrail have to produce their head of enforcement to come and explain how the prosecution is legal. The magistrate was making them explain everything to me, he was very supportive. So trial is set for august in Liverpool now. Anyway I said well at this point I might well instruct a legal representative so she took a note of that. It was astounding to be honest.

Thanks for this update - this has been fascinating to read. Merseyrail really is all over the place - sending someone who has no clue what they're doing here is just the icing on the cake. I look forward to how they intend to explain how the prosecution is legal - right now they look like complete fools.

 

[AlterEgo]

Has the press been notified? I’m sure some local journo would love to come along to report on the case.

 

[Gonzoiku]

Edit - already answered

 

[dakta]

I am not a fares or legal expert but have followed with interest and am glad you've not caved in.

 

[Hodgs0]

Has the press been notified? I’m sure some local journo would love to come along to report on the case.

Yeah I think I will contact a Jorno at the echo nearer the time - he hates them & always runs articles in them

I am not a fares or legal expert but have followed with interest and am glad you've not caved in.

Thanks for this update - this has been fascinating to read. Merseyrail really is all over the place - sending someone who has no clue what they're doing here is just the icing on the cake. I look forward to how they intend to explain how the prosecution is legal - right now they look like complete fools.

‍♀️ It’s utterly ludicrous

Hope you can claim costs and punitive damages from Merseyrail for putting you through this.

Indeed I can & with my daily rate & that if my solicitor now it could be costly

 

[John Palmer]

Many thanks for the update. I assume you chose not to pursue the point about Merseyrail having no authority to charge a RoRA offence by means of the Single Justice Procedure – which is fine, as it was entirely your right to make that tactical choice.

A telephone call in which they made a threat of continuing the prosecution if you pleaded not guilty when they already knew that you had entered a 'not guilty' plea appears to come perilously close to bringing improper pressure upon you to change your plea to guilty – what other purpose can they have had in calling you? Did you or they make a recording of the conversation?

Why will Ms McLachlan be obliged to come to the trial in August? Is she Head of Enforcement for Merseyrail?

I understood that final hearing of your case was listed for hearing on 17th May. You had already filed documents setting out the basis of your defence, so Merseyrail cannot say they had no notice of the form it would take. Yet it appears from your account that they merely instructed an agent who admitted she wasn't competent to deal with the issues raised by that defence. If you were in a position to recover costs for Tuesday's hearing such conduct might well warrant a wasted costs order against Merseyrail. In the unfortunate event that you ultimately lose, Merseyrail would no doubt be seeking their costs from you, including costs in connection with Tuesday's hearing. There appears to be a strong case for asserting that any costs you are ordered to pay should exclude Merseyrail's costs of the Tuesday hearing since they were plainly unprepared for that hearing and so wasted everybody's time.

I still think you would do well to be professionally represented at the August trial, given that a legally qualified district judge will be allocated to hear it. However, you will need to take account of the extra expense to which that will put you, and the likelihood that you will not recover your legal costs in full following an acquittal, because any such award of costs will be at legal aid rates rather than private client rates. If you choose to be professionally represented your lawyer should give you clear and complete advice about whether you can recover costs and if so how much. That advice should include advice that you apply for legal aid to defend the case, if only to obtain a determination that you are ineligible for legal aid. You may find this hard to believe, but you need to be found to be ineligible for legal aid in order to establish a right to recover costs following an acquittal.

Well done! You seem to have made some headway on Tuesday, even though Merseyrail's conduct largely made it a waste of everybody's time.

 

[some bloke]

Very well done! Please note, though, that on one of the two points, Merseyrail is completely right. If you drop that, you can use the time in court (or space in communications to the press etc) better.

I argued that their interpretation of law was incorrect. That no offence could be established as committed under section 5(1)

Yes, there is no such offence: you can't be lawfully convicted as you gave your name and address.

they couldn’t as clearly set under section 11 supported by the explanatory note both criminally prosecute & pursue penalty Fare.

That isn't right! They could prosecute (if the offence actually existed).

Merseyrail are right that the bar in regulation 11 is irrelevant to s.5(1). That's because 11(4) shows the bar is only about offences under s.5(3)(a) or (b) or the byelaws. Similarly, a company can lawfully start a prosecution for fraud despite a penalty fare appeal decision, because the Fraud Act, like s.5(1), isn't mentioned in the regulations.

In one of your emails you conflated "section 5(1)" and "regulation 5(1)" - the coincidence of the numbering may have added to the confusion. Regulation 11(1) is talking about regulation 5(1), rather than section 5(1) of an act of parliament.

https://www.legislation.gov.uk/uksi/2018/366/made

The explanatory note can't help, because it can't override the law. It has a one-sentence attempt to summarise a variety of provisions in regulation 11, but it's so short that it can't possibly cover all those properly. It misleads by failing to say that the bar only applies to the listed legislation.

Magistrates and judges can stop a prosecution if there's "abuse of process", but that's something different. The arguments would have to be assessed in court. The law can't simply bar the starting of prosecutions where there's abuse of process, because the appropriate place to decide whether the abuse has occurred is at a later stage, in court.

 

[Hodgs0]

Very well done! Please note, though, that on one of the two points, Merseyrail is completely right. If you drop that, you can use the time in court (or space in communications to the press etc) better.


Yes, there is no such offence: you can't be lawfully convicted as you gave your name and address.


That isn't right! They could prosecute (if the offence actually existed).

Merseyrail are right that the bar in regulation 11 is irrelevant to s.5(1). That's because 11(4) shows the bar is only about offences under s.5(3)(a) or (b) or the byelaws. Similarly, a company can lawfully start a prosecution for fraud despite a penalty fare appeal decision, because the Fraud Act, like s.5(1), isn't mentioned in the regulations.

In one of your emails you conflated "section 5(1)" and "regulation 5(1)" - the coincidence of the numbering may have added to the confusion. Regulation 11(1) is talking about regulation 5(1), rather than section 5(1) of an act of parliament.

https://www.legislation.gov.uk/uksi/2018/366/made

The explanatory note can't help, because it can't override the law. It has a one-sentence attempt to summarise a variety of provisions in regulation 11, but it's so short that it can't possibly cover all those properly. It misleads by failing to say that the bar only applies to the listed legislation.

Magistrates and judges can stop a prosecution if there's "abuse of process", but that's something different. The arguments would have to be assessed in court. The law can't simply bar the starting of prosecutions where there's abuse of process, because the appropriate place to decide whether the abuse has occurred is at a later stage, in court.

Yes I explained the only way to prosecute following issue of PF was to follow the process set out under section 11 of cancelling the fare & proceed using section 5(3) but they have not done that & cannot establish there was intent to avoid payment. I gave examples of when this might apply e.g. false details had been provided or they’d established I was a serial offender - non of which apply. I then used that to take them to section 7 of the penalty fare regs around officers “generally” giving impression & just clarified that due to their custom & practice that was why I was in dispute over paying the PF but that this was a matter for civil court as per section 12 of the PF regulations 2018.

Many thanks for the update. I assume you chose not to pursue the point about Merseyrail having no authority to charge a RoRA offence by means of the Single Justice Procedure – which is fine, as it was entirely your right to make that tactical choice.

A telephone call in which they made a threat of continuing the prosecution if you pleaded not guilty when they already knew that you had entered a 'not guilty' plea appears to come perilously close to bringing improper pressure upon you to change your plea to guilty – what other purpose can they have had in calling you? Did you or they make a recording of the conversation?

Why will Ms McLachlan be obliged to come to the trial in August? Is she Head of Enforcement for Merseyrail?

I understood that final hearing of your case was listed for hearing on 17th May. You had already filed documents setting out the basis of your defence, so Merseyrail cannot say they had no notice of the form it would take. Yet it appears from your account that they merely instructed an agent who admitted she wasn't competent to deal with the issues raised by that defence. If you were in a position to recover costs for Tuesday's hearing such conduct might well warrant a wasted costs order against Merseyrail. In the unfortunate event that you ultimately lose, Merseyrail would no doubt be seeking their costs from you, including costs in connection with Tuesday's hearing. There appears to be a strong case for asserting that any costs you are ordered to pay should exclude Merseyrail's costs of the Tuesday hearing since they were plainly unprepared for that hearing and so wasted everybody's time.

I still think you would do well to be professionally represented at the August trial, given that a legally qualified district judge will be allocated to hear it. However, you will need to take account of the extra expense to which that will put you, and the likelihood that you will not recover your legal costs in full following an acquittal, because any such award of costs will be at legal aid rates rather than private client rates. If you choose to be professionally represented your lawyer should give you clear and complete advice about whether you can recover costs and if so how much. That advice should include advice that you apply for legal aid to defend the case, if only to obtain a determination that you are ineligible for legal aid. You may find this hard to believe, but you need to be found to be ineligible for legal aid in order to establish a right to recover costs following an acquittal.

Well done! You seem to have made some headway on Tuesday, even though Merseyrail's conduct largely made it a waste of everybody's time.

The hearing on Tuesday had been put in due to my plea. The mags court wrongly told me it was trial but it turned out it was a case management hearing due to the legal nature of my argument. When I put fwd my argument & the Sefton council lady said she had no power to change course that was when the mag said he couldn’t hear it & it would have to go before a district judge & he wanted Michelle McLauglan there to account for their policy & provide a counter as to how this wasn’t an unlawful prosecution. I’ve made contact with a solicitor. I will instruct for this trial as if they go through with it I want a professional to cross examine her. At this point I’ll take my chances & hope I can recoup some costs as it is principle now. This is unlawful & they are abusing the law.