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).