Merseyrail prosecution

[some bloke]

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)

It's lawful to prosecute using s.5(1) regardless of a penalty fare. Merseyrail's basic problem is not related to the PF regulations - it's simply that there is no way you can be guilty of the offence.

 

[island]

It's lawful to prosecute using s.5(1) regardless of a penalty fare. The problem is not related to the PF regulations - it's simply that Merseyrail claims there is an offence which in fact doesn't exist.

It's not lawful for Miseryrail to prosecute under s 5(1) via a single justice procedure, though.

 

[Hodgs0]

It's lawful to prosecute using s.5(1) regardless of a penalty fare. Merseyrail's basic problem is not related to the PF regulations - it's simply that there is no way you can be guilty of the offence.

It's lawful to prosecute using s.5(1) regardless of a penalty fare. Merseyrail's basic problem is not related to the PF regulations - it's simply that there is no way you can be guilty of the offence.

They can’t prosecute using 5(1) once they’ve successfully issued a PF I.e. correct name & address given. They cannot both issue a PF & prosecute under 5(1).

 

[some bloke]

It's not lawful for Miseryrail to prosecute under s 5(1) via a single justice procedure, though.

It doesn't meet the requirements for a valid notice served to a purported defendant, but that's not the same as doing something that is statute barred.

They can’t prosecute using 5(1) once they’ve successfully issued a PF I.e. correct name & address given. They cannot both issue a PF & prosecute under 5(1).

That isn't in the regulations.

 

[Hodgs0]

It's lawful to prosecute using s.5(1) regardless of a penalty fare. Merseyrail's basic problem is not related to the PF regulations - it's simply that there is no way you can be guilty of the offence.

It’s not lawful to prosecute under that section & issue a pf. It’s one or the other. They can’t in law do both.

 

[Bletchleyite]

It’s not lawful to prosecute under that section & issue a pf. It’s one or the other. They can’t in law do both.

Though not because of statute-barring, rather because issuing a PF satisfies 5(1) by collecting the address? And thus if a PF has been issued, an offence under 5(1) has not been committed, and the PF provides evidence of that?

 

[some bloke]

Though not because of statute-barring, rather because issuing a PF satisfies 5(1) by collecting the address? And thus if a PF has been issued, an offence under 5(1) has not been committed, and the PF provides evidence of that?

The company has to establish the failures to pay and give name and address, and yes the record of the penalty fare is highly relevant.

 

[Hodgs0]

Though not because of statute-barring, rather because issuing a PF satisfies 5(1) by collecting the address? And thus if a PF has been issued, an offence under 5(1) has not been committed, and the PF provides evidence of that?

Exactly - it’s covered in section 11. It’s just not very well written. But the two are incompatible.

 

[pedr]

The argument that s 5(1) is barred is much weaker than the alternative arguments: that the SJP is not available for a s 5(1) charge and that, in this case, you are not guilty of the s 5(1) charge because the prosecutor has misunderstood the components of the offence. Since the other arguments are strong, particularly the factual argument that you have not committed the s 5(1) offence, a focus on the argument about s 5(1) and penalty fares is probably not worth pursuing. I can see how it might be arguable, but it isn't very convincing as it relies on going beyond the actual wording of the PF regulations. The issuing of a PF is, of course, very strong evidence that no s 5 (1) offence has been committed on a correct interpretation of the offence, but that is not the same as arguing that there is an absolute bar on charging the 5 (1) offence after issuing a penalty fare.

 

[some bloke]

It’s not lawful to prosecute under that section & issue a pf. It’s one or the other. They can’t in law do both.

Exactly - it’s covered in section 11. It’s just not very well written. But the two are incompatible.

Sarah, why are you saying it's not lawful to prosecute under that section? Are you basing that on regulation 11(1)? It mentions regulation 5(1) rather than section 5(1).

 

[Vespa]

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.

Now this I would love to see, it sounds to me she is used to the public rolling over and paying up to make the problem go away, she may even go as far as to making up some regulations to fit the evidence or lack of, (not the first time a big organisation try to blind the public with waffle) her unprofessionalism is looking to be exposed in court and by extension Merseyrail, the Liverpool Echo would like stories like this and it can be replicated across social media.

They may try to buy you off or settle before the actual hearing once they realise the potential fallout.

 

[some bloke]

It's not lawful for Miseryrail to prosecute under s 5(1) via a single justice procedure, though.

It doesn't meet the requirements for a valid notice served to a purported defendant, but that's not the same as doing something that is statute barred.

I guess we can sensibly say Merseyrail are barred from serving a single justice procedure notice for s.5(1).

But in that situation a properly formulated charge is not itself unlawful, and under the Magistrates' Courts Act, where a case reaches magistrates for the single justice procedure but the requirements aren't met, or the case is unsuitable, they are obliged to issue a summons using that original charge. Unless there's a convincing argument that there are exceptions, magistrates have no other option but to send the case for a full court hearing, which means that prosecution which began with a failed attempt to use SJP ends up not being barred or unlawful. That's in contrast to the regulation 11 bar which means that under relevant circumstances, s.5(3)(a) or (b) and relevant byelaw offences are barred from prosecution absolutely.

 

[gray1404]

I just want to make one simple comment at this point. Why on earth is Merseyrail digging their heels in so much over this case?

I honestly think that even the likes of Cross Country would have withdrawn the prosecution by now.

 

[joke2711]

I just want to make one simple comment at this point. Why on earth is Merseyrail digging their heels in so much over this case?

I honestly think that even the likes of Cross Country would have withdrawn the prosecution by now.

Maybe it is because they have done this so many times before and once the OP wins her case and the press report it .. there will be a lot of people knocking on Merseyrails door!

 

[some bloke]

I then used that to take them to section 7 of the penalty fare regs around officers “generally”

It would be regulation 6 rather than 7 and there's another interpretation - please see this paragraph:

I'm not sure it's convincing to interpret PF regulation 7 in the way you do. In fact Regulation 6 rather than 7 would be relevant to you if it applied, because you were a train passenger. The sub-paragraphs of each have the same text; the fuller extract reads (my emphasis):
"the operator of the train or the station, or a person acting or purporting to act on behalf of the operator, indicated that the passenger was, or persons generally were, permitted to travel by or be present on the train without having a travel ticket."
https://www.legislation.gov.uk/uksi/2018/366/made
"Persons generally" seems contrasted with "the passenger" rather than meant to imply "on trains generally". It seems to be about passengers in general - ie collectively - where there was a communication about one specific train. It doesn't seem to be about communications in general (or implied communications from the company's general practice) about trains.

 

[Hodgs0]

It’s loose

Maybe it is because they have done this so many times before and once the OP wins her case and the press report it .. there will be a lot of people knocking on Merseyrails door!

It’s preposterous & not in the public interest whatsoever

 

[some bloke]

The hearing on Tuesday had been put in due to my plea.

That's consistent with the magistrate who received the paperwork having failed to notice that Merseyrail had no authority to "serve" a single justice procedure notice with a charge alleging a s.5(1) offence. Your solicitor might think you could politely put that point!

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.

Maybe overall it's worth paying a specialist fare evasion solicitor, although the issue above isn't fundamentally about railway matters.

 

[John Palmer]

It's abundantly clear from the image of the penalty fare in post #24 that the OP gave her name and address at the time it was issued. Regardless of whether there's any argument about whether she also offered to pay her fare, that is clear documentary evidence that she cannot have been in default of her obligations under Section 5(1) RoRA. Really that's the only legal significance of Merseyrail's resort to the Penalty Fare Regulations, and nothing in those regulations barred the company from procuring the issue of a summons alleging a Section 5(1) RoRA offence by laying an information in accordance with Section 1 Magistrates Courts Act 1980. That was the only lawful means available to it to institute a Section 5(1) prosecution. The mischief in its issue of proceedings by means of the Single Justice Procedure lies in the fact that by doing so it bypasses the check made by the magistrates court when an information is laid as to whether such information discloses a possible offence. As it happens, the court probably would not have had grounds in this case prompting it to challenge the basis of a prosecution for a Section 5(1) offence if such an information had been laid. Nevertheless, the fact that Merseyrail used the SJP here suggests that it may be doing so indiscriminately for both byelaw and non-byelaw offences, thereby bypassing the protection for the citizen afforded by the limitations on its authority to invoke the SJP. I would be very interested to hear whether Merseyrail has been making a widespread practice of using the SJP to commence prosecutions for non-byelaw offences; it's something that deserves further investigation.

I get the strong impression from Ms McLachlan's email (post#30) that she was motivated by an improper belief that a Section 5(1) RoRA prosecution was an appropriate way way to deal with an appeal by a passenger having the temerity to challenge the issue of a penalty fare – or perhaps because said passenger had objected to the perceived Merseyrail practice of encouraging a belief that fares could be paid at end of journey then stinging its customers with penalty fares. Hence the penultimate paragraph levelling the accusation that “there has been a loss of revenue, you have been sent multiple letters with increased administration costs each time and there is a substantial cost involved in referring the matter to court.” I imagine Merseyrail regards the claim for £150 costs and possibly “Further costs” at the foot of its charge sheet as a legitimate way to get back those “increased administration costs.” That begs the question of how frequently Merseyrail has had recourse to Section 5(1) prosecutions to recover the extra expense associated with contested penalty fares. If such a practice has been widespread and the OP's case is not an outlier or aberration then that's a cause for concern.

I wouldn't be surprised to find Merseyrail back-pedalling in an attempt to extricate itself from the reputational disaster area in which it has placed itself. A withdrawal of the charge, an apology and suitable financial amends might be acceptable if this is a 'one off' case, but if the company has made a practice of instituting improper Section 5(1) prosecutions then that needs to be discovered and stopped.

 

[gray1404]

Maybe it is because they have done this so many times before and once the OP wins her case and the press report it .. there will be a lot of people knocking on Merseyrails door!

This is what baffles me they could have withdrawn the charger in any points including this week in court but they chose not to.

 

[some bloke]

There's another aspect: the failure of the court in issuing a summons where the facts alleged don't add up to the offence.

"When determining an application for a summons a magistrate must ascertain whether the allegation is of an offence known to law, and if so whether the essential ingredients of the offence are prima facie present (R (DPP) v Sunderland MC [2014] EWHC 613 (Admin) ("Sunderland"))."
https://www.bailii.org/ew/cases/EWHC/Admin/2019/1709.html

Maybe court staff can easily list from a database:
- purported SJPNs received by the court alleging an offence under s.5(1) of the Regulation of Railways Act 1889,
and
- which of those resulted in a summons from the court,
with outcomes.

 

[Jason12]

Maybe court staff can easily list from a database:

Maybe they can. But why would they?

 

[joke2711]

It’s loose


It’s preposterous & not in the public interest whatsoever

I believe now it is very much in the Public Interest but not necessary from Merseyrails position.

This is what baffles me they could have withdrawn the charger in any points including this week in court but they chose not to.

Maybe Merseyrail are clinging on to the slim chance that they will win in court to be vindicated. We all believe they wont and having got themselves in a tangle with the OP and with the OP determined to correctly prove them wrong and bring this to the public eye, by backing down they would have lost and opened a can of worms for themselves .. so they are rolling the dice and hoping that they hit a double six.

 

[some bloke]

Maybe court staff can easily list from a database:
- purported SJPNs received by the court alleging an offence under s.5(1) of the Regulation of Railways Act 1889,
and
- which of those resulted in a summons from the court,
with outcomes.

Maybe they can. But why would they?

This might be one starting point for obtaining information:

Supply to the public, including reporters, of information about cases

Criminal Procedure Rules 2020
https://www.legislation.gov.uk/uksi/2020/759/article/5.8/made

 

[Vespa]

I just want to make one simple comment at this point. Why on earth is Merseyrail digging their heels in so much over this case?

I honestly think that even the likes of Cross Country would have withdrawn the prosecution by now.

Foolish misplaced pride and ego.

 

[John Palmer]

There's another aspect: the failure of the court in issuing a summons where the facts alleged don't add up to the offence.

"When determining an application for a summons a magistrate must ascertain whether the allegation is of an offence known to law, and if so whether the essential ingredients of the offence are prima facie present (R (DPP) v Sunderland MC [2014] EWHC 613 (Admin) ("Sunderland"))."
https://www.bailii.org/ew/cases/EWHC/Admin/2019/1709.html

For me, a mangled reference – this should work correctly: https://www.bailii.org/ew/cases/EWHC/Admin/2019/1709.html.

The Sunderland case referred to in that judgment is helpful in fleshing out the extent of a magistrate's duty to scrutinise an information and to establish whether it is vexatious.

A prosecution must be supported initially by a statement of facts. In this case, the relevant part of that statement is as follows:

“At Moorfields station,when asked by an officer or servant of the railway company, you failed either to produce, and if so requested deliver up, a ticket showing your fare was paid.”

The problem with this is it alleges a failure to follow only one of the three ways specified in Section 5(1) RoRA in which a passenger can respond to such a request. The alternatives of paying the fare or giving name and address are not mentioned, and that results in a statement of facts that is misleading by omission.

You might hope that a conscientious (and knowledgeable!) justices' clerk scrutinising such a statement of facts would say “Well, what about the two other ways the accused might have responded to a Section 5(1) request? There's no mention of those, and since Merseyrail seem to be in possession of the accused's name and address I'm not satisfied that the essential ingredients of this offence can be proved – I'm not going to approve issue of a summons until Merseyrail have satisfied me that it may be able to do so.” That would provide a degree of protection from vexatious prosecution, but

1. it requires an alert justice's clerk to spot such abuse; and
2. it is easily evaded (initially at least) by a prosecutor who wrongfully uses the SJP to begin the prosecution.

So, when a justice's clerk first receives details of a prosecution begun by SJP it is highly desirable that he satisfies himself that the prosecutor has authority to make use of that procedure. That would be a first step towards ensuring that the SJP is not abused, as it has been here.

Edited to add that the following passage from the Sunderland judgment appears highly apposite:

"When considering whether to issue a summons, the magistrate should at the very least ascertain (a) whether the allegation is of an offence known to law and if so whether the essential ingredients of the offence are prima facie present, (b) if the offence alleged is not out of time (c) that the court has jurisdiction (d) whether the informant has the necessary authority to prosecute R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR 933"

 

[Jason12]

Foolish misplaced pride and ego.

It's in the very nature of a contested trial that one or other side appears to be "digging its heels in". Whereas there is nothing to gain by Merseyrail withdrawing the prosecution at this stage. They can come to the trial itself and simply offer no evidence. That would end the prosecution. There will be no mention of whether the Penalty Fare was correctly issued. There will be no mention of whether the SJP was lawful. Nothing to see here, no headlines in the Echo.

The CPS frequently come to the day of the trial and offer no evidence after playing fast and loose with rules and procedures and on the verge of being hung out to dry in court. Even in very serious cases of rape and murder. They don't suffer any admonishment from the court or reputational damage. They may rue "the one that got away", but will quickly move along to the next one.

 

[John Palmer]

It's in the very nature of a contested trial that one or other side appears to be "digging its heels in". Whereas there is nothing to gain by Merseyrail withdrawing the prosecution at this stage. They can come to the trial itself and simply offer no evidence. That would end the prosecution. There will be no mention of whether the Penalty Fare was correctly issued. There will be no mention of whether the SJP was lawful. Nothing to see here, no headlines in the Echo.

The CPS frequently come to the day of the trial and offer no evidence after playing fast and loose with rules and procedures and on the verge of being hung out to dry in court. Even in very serious cases of rape and murder. They don't suffer any admonishment from the court or reputational damage. They may rue "the one that got away", but will quickly move along to the next one.

Unfortunately this may be all too true, and the possibility of an order 'Prosecution to pay Defendant's costs, such costs to be assessed on an indemnity basis' may hold no terrors for Merseyrail either, such are the limitations on an acquitted defendant's right to recover costs. A great deal may turn on the Metro Mayor's willingness to press for full disclosure in response to the questions the OP has invited him to put to Merseyrail - this is where sympathetic coverage from the Echo might assist.

 

[gray1404]

Foolish misplaced pride and ego.

I think this sums up the whole culture of the organisation that is Merseyrail.

When I have pointed out severe failings of their bylaw enforcement officers, including where I witnessed one of them swearing at a customer with his body camera on, their customer service department has always responded along the lines of: "the head of enforcement sees no reason why our colleague acted inappropriately.

I had one such email from their head of enforcement when I complained about their enforcement officers demanding to know the reason for my travel during the lockdown. They had no legal authority to ask this and I was threatened with removal from the train if I did not give them that information. So they started out their response by saying they do not see what their colleague did wrong but then concluded by giving me assurance as there are lessons to be learnt from the incident and they will ensure it does not happen again. Very inconsistent.

But what I'm saying is it is endemic of the culture of the organisation which is shown by the way Sarah has been treated here and the stubbornness pride and ego to admit they are wrong.

I am not looking forward to seeing this case in court as I do feel sorry for the defendant. However I will be attending court to see what Michelle has to say for herself on the day. Will be interesting what she has to say for herself if people like the press outside the court choose to take photos or ask her any questions on her departure.

 

[Jason12]

They had no legal authority to ask this and I was threatened with removal from the train if I did not give them that information.

You have omitted the relevant parts of the interaction you complained about. Did you give a reason for your travel and if not were you removed from the train?

By the way, I don't think anyone needs a specific "legal authority" to ask someone else a question.

 

[gray1404]

You have omitted the relevant parts of the interaction you complained about. Did you give a reason for your travel and if not were you removed from the train?

By the way, I don't think anyone needs a specific "legal authority" to ask someone else a question.

I have messaged you directly about this so is not to detract from this thread.