Notice of Intended Prosecution

BarryB

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Hello and thank you for your help.

On 23rd October 2019 I travelled from Canary Wharf underground to Stratford where I changed from the Jubilee Line to Greater Anglia overground to Chelmsford, my final destination.

As I didn't pass a ticket machine I didn't purchase a ticket to travel.

Upon arrival at Chelsmford station I approached a member of staff to purchase the ticket, as it was never my intention to travel without paying the fare.

I was told that, as I had no ticket I would have to pay a penalty fare. I was unhappy with this and I had a protracted but polite conversation with member of staff but eventually gave debit card details for the fare.

The penalty fare was to be £28.40 and £14.20 was charged to my card, the balance to be paid within 21 days.

I did not pay the balance and I made no appeal within this time.

I subsequently received from IRCAS a demand for £49.20 - £14.20 plus £35 admin fee.

I completed an online form to IRCAS as the £35 add-on seems ridiculous and punitive. An email exchange took place whereupon IRCAS maintain the Admin fees are fully justifiable.

I did not pay at this time.

I have subsequently received a "Notice of Intended Prosecution" and an amount owing of some £84.

I have already paid the fare. I would have paid the additional £14.20 penalty fare and offered IRCAS this in the email exchange. IRCAS refused to accept this.

I still will pay the £14.20 but grudgingly.

Will a prosecution follow?

What would the recommended course of action be?

Thanks for your thoughts.
 
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BarryB

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Sorry - I travelled on the Underground using my Oyster card and the penalty fare relates solely to the Stratford to Chelmsford train journey
 

furlong

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Lots of legal grey areas there and the analysis is complicated - you might need the help of a solicitor to unpick it all now in the most favourable way to yourself. As you've discovered, ignoring problems like this (neither paying the additional money due nor appealing) only makes them worse, and the train companies like to have their cake and eat it - we don't seem to hear of successful challenges to these practices, so even though people on here might give opinions on what they think is right, that doesn't mean that view will prevail.

Some key issues
1) Was the PF issued in accordance with the rules?
=> Would enforcement action succeed? (not that we hear of TOCs doing this much) The statutory appeal mechanism wasn't used. The original expected fare was paid.
=> Would the additional charges to recover the debt also be enforceable and on what grounds?
2) The original additional fare was paid. How do the separate conditions for LU interact with those for NR? One journey or two? Excess or 'anywhere to anywhere' facillities at Canary Wharf? Do PF posters at Stratford change any of that?
=> Is there scope (independently of the PF) for a successful prosecution under any of the available laws in these circumstances?
=> Does the decision to resolve the situation by issuing a PF have an impact on this? No appeal made but not paid either. What grounds to unwind that (normally unrevocable) decision?

How long (as precisely as you can remember) did you have to change trains at Stratford?

(It's very confusing - if they have attempted to cancel the PF in order to prosecute, then haven't they accepted it should not have been issued and so all the extra consequential charges they requested would fall away - but then the remaining fare due is nil so why bother with a prosecution, any grounds for which might amount merely to a technicality, as there's no money owed?)
 
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BarryB

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Hi Furlong. Thank you for your reply.
Post #3 - the cost for the solicitor to unpick this would be greater than the £84.20 being demanded.
Post #4 - seems to be lots more questions to which my inexperience has no answers.
Post #5 - I walked from the Jubilee line straight to the platform for the train to Chelmsford and embarked. No or minimal delay.
Post #6 - I don’t believe an attempt to cancel to PF has occurred yet. The latest letter (dated 3.01.2020) from IRCAS says that if i don’t pay within 14 days then legal action will begin
 

furlong

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A Penalty Fare is a civil matter. It can't lead to a prosecution. "legal action" for continuing not to pay a PF heads ultimately towards CCJs/bankruptcy.
But you opened by saying 'Notice of Intended Prosecution' - a criminal matter unrelated to a Penalty Fare.
For a given set of circumstances, there can only be one penalty.
Train companies are known to prefer to use the criminal law and to try to pick and choose and switch between the two routes (my 'cake and eat it' comment) even though some would suggest they shouldn't. That's where you'd need a solicitor to sort out whether or not challenges are possible and the likelihood of success or failure.

On the criminal side, one key fact might be whether or not the ticket machines at Canary Wharf were capable of selling you the ticket you needed. Stratford has a ticket office and machines so you could certainly have bought the ticket you needed there, so one key question may be whether, taking account of all the particular circumstances, you were obliged by either criminal and/or civil law to do so.
 
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BarryB

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Thank you for your replies, Furlong.

To simplify; can IRCAS commence legal proceedings in their own name?

It seems to me the latest letter is IRCAS in “debt collection” mode and is an attempt to scare someone into paying.
 

Puffing Devil

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You haven't appealed, you have part-paid the penalty fare, which means this is now a civil debt and your right to challenge the penalty fare has timed out.

However, the TOC can refund your part payment and take you to the Magistrate's Court. You did start your journey at Canary Wharf, though were not on a National Rail Service, you should have ensured that you had a ticket for your entire onward journey before boarding the mainline service at Stratford. There is no denying the availability of ticketing facilities at Stratford.

The parallel to this would be a Metrolink Service in Manchester - you cannot buy a ticket to rail destinations from a Metrolink Machine and are expected to buy a further ticket at Victoria to continue your journey, nor can you continue with a contactless trip.

You may be able to build a case about availability of tickets and not delaying your journey - my view is that it would be an expensive gamble. Others may think differently. Either way, do you want to risk going to court or do you want to pay to make this go away?

I would cut my losses and pay up. Court will cost a lot more, if only in time and effort.
 

Brissle Girl

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I suspect the question as to how long you had to change trains is a red herring. Surely on transferring from the tube to a national rail service you have an obligation to purchase a ticket where ticket purchasing facilities are available? Else anyone emerging at any of the main line termini from the tube could claim they only had a couple of minutes to spare and it wasn't enough time.
 

furlong

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What ticket were you using on your Oyster card? Pay as you go? A travelcard of some type? Did you touch out at Stratford?
 

some bloke

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I have subsequently received a "Notice of Intended Prosecution" and an amount owing of some £84.
Could you please say which legislation/offence(s) the notice refers to?

I'm not clear about your reasons for not paying the penalty fare. There might be a technical issue if staff didn't ask you to produce a valid ticket; and it might be reasonable to say the system should be different. But aside from those:

If the Penalty Fare notices say you must produce a valid ticket on demand, that would seem consistent with a general rule that you must normally have a valid ticket before boarding. I'm not clear why you would not owe the penalty fare, or why the company would not be entitled to prosecute.
 
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WesternLancer

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Hello and thank you for your help.

On 23rd October 2019 I travelled from Canary Wharf underground to Stratford where I changed from the Jubilee Line to Greater Anglia overground to Chelmsford, my final destination.

As I didn't pass a ticket machine I didn't purchase a ticket to travel.

Upon arrival at Chelsmford station I approached a member of staff to purchase the ticket, as it was never my intention to travel without paying the fare.

I was told that, as I had no ticket I would have to pay a penalty fare. I was unhappy with this and I had a protracted but polite conversation with member of staff but eventually gave debit card details for the fare.

The penalty fare was to be £28.40 and £14.20 was charged to my card, the balance to be paid within 21 days.

I did not pay the balance and I made no appeal within this time.

I subsequently received from IRCAS a demand for £49.20 - £14.20 plus £35 admin fee.

I completed an online form to IRCAS as the £35 add-on seems ridiculous and punitive. An email exchange took place whereupon IRCAS maintain the Admin fees are fully justifiable.

I did not pay at this time.

I have subsequently received a "Notice of Intended Prosecution" and an amount owing of some £84.

I have already paid the fare. I would have paid the additional £14.20 penalty fare and offered IRCAS this in the email exchange. IRCAS refused to accept this.

I still will pay the £14.20 but grudgingly.

Will a prosecution follow?

What would the recommended course of action be?

Thanks for your thoughts.
Barry - you have given your name and full postcode on your log in (assuming they are accurate) - you may want to change this to be more anonymous - or ask mods to do so. Other thread on here today gave fairly clear evidence that rail prosecuting / investigating bodies may sometimes read these threads, if that is an issue to you.
 

BarryB

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Barry - you have given your name and full postcode on your log in (assuming they are accurate) - you may want to change this to be more anonymous - or ask mods to do so. Other thread on here today gave fairly clear evidence that rail prosecuting / investigating bodies may sometimes read these threads, if that is an issue to you.

Thank you - but I am in dialogue with IRCAS anyway. I'm not hiding, nor am I concerned if I'm identified. I am attempting to establish if IRCAS will prosecute this as a civil matter and in their own name - or if any prosecution has to be by Greater Anglia

What ticket were you using on your Oyster card? Pay as you go? A travelcard of some type? Did you touch out at Stratford?
AIUI my Oyster is a pre-pay card for travel on qualifying routes. That what I used to travel from Canary Wharf to Stratford, where I tapped out. The journey in question (accepted by Greater Anglia due to the fare and penalty fare imposed) is from Stratford to Chelmsford only

Could you please say which legislation/offence(s) the notice refers to?

I'm not clear about your reasons for not paying the penalty fare. There might be a technical issue if staff didn't ask you to produce a valid ticket; and it might be reasonable to say the system should be different. But aside from those:

If the Penalty Fare notices say you must produce a valid ticket on demand, that would seem consistent with a general rule that you must normally have a valid ticket before boarding. I'm not clear why you would not owe the penalty fare, or why the company would not be entitled to prosecute.
I was asked at Chelmsford station for my debit card to pay the penalty fare. After some protracted conversation I gave my card to be charged. I presumed that to be the end of the matter. Then, I receive a "reminder" letter from IRCAS which has a sum payable of £49.20 - the original £14.20 plus an "administration" fee of £35.

This seems to me to be otherwise than in accordance with The Consumer Rights (Payment Surcharges) Regulations 2012 - especially Regulation 4 which is:

Excessive charges prohibited
4. A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

The Notice of Intended Prosecution fails to tell me what action may flow from non-payment - just that "we will begin legal action".

Now, if the "legal action" is a civil claim then IRCAS cannot take action in their own name for the (denied) debt. They would need a Deed of Assignment and the letter I've received would not comply with Pre Action Protocol as a sufficient Letter Before Claim or Letter Before Action.

If the "legal action" is to prosecute as a criminal matter then I'm less certain of the procedure, however I would have thought it unlikely that IRCAS could commence this, too, but this would be Greater Anglia. Could anyone confirm?

So, it seems to me that the latest letter, from IRCAS, stating "we will begin legal action" is misleading.

Could anyone please confirm the usual procedure?

I have, in any event, written to IRCAS, thus:

FOR THE ATTENTION OF Miss S Robinson - BY EMAIL ONLY.

Dear Miss Robinson

I acknowledge receipt of your letter dated 3rd January, titled Notice of Intended Prosecution.

The letter states that if the full sum outstanding has not been paid within 14 days then “we will begin legal action”.

1. Can you please advise if you would be commencing legal action in your own name?
2. Would the legal action be pursuant to Byelaws?
3. Or do you believe the legal action will lead to criminal prosecution?
4. Can you confirm if the Penalty Fare has now been cancelled in order to prosecute?
5. Can you advise if the (denied) debt has been subject to a Deed of Assignment?
6. If it your assertion that the debt is to be collected as a Civil matter, can you please supply a full breakdown of the sum you aver is owed. The principal debt was £14.20 which has risen by £70 to the current sum claimed.

The email correspondence below states the extra charges are “administration” charges. I submit that these administration charges are otherwise than in accordance with Consumer Rights regulations and are unlikely to be a genuine pre-estimate of loss, meaning they will be considered a penalty and therefore unrecoverable.

On 23rd October I paid the fare to travel in full, and as such no loss has been incurred by Greater Anglia. Anything thereafter is De Minimis.

I agree to communication by email.

Yours sincerely




Thank you for your continued thoughts
 
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island

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Because the Penalty Fare has neither been paid nor appealed, a criminal prosecution is in order – though your part-payment would need to first be refunded. It is almost entirely unknown for train companies to seek to recover unpaid fares via civil methods, so your researches and references are of little relevance.

Anyone, even you or I, can instigate a summary criminal prosecution in England and Wales. A prosecution under section 5 of the Regulation of Railways Act 1889 (avoiding payment of rail fare) would be likely to succeed. Notably, the fare for your journey is now the Penalty Fare of £28.40, not the amount that you might have been able to pay had you correctly done so prior to travel. There are even National Rail ticket machines inside the ticket barriers at Stratford for this purpose.

The additional amounts of £35 (twice) have been added to defray the considerable expense of detecting, pursuing, and prosecuting fare evaders. They were entirely avoidable by paying the balance of the Penalty Fare on the day or within 21 days, or appealing via the appeals process. The concept of a “genuine pre-estimate of loss” has no relevance here; it seems you have cut and pasted several unconnected paragraphs and concepts from this or another forum. They have actually incurred the costs dealing with you. You are not obliged to pay them, so unfair contract terms legislation does not come into play. Of course, not doing so may see you before magistrates...

I therefore recommend you come off your high horse and promptly pay whatever the demanded balance now is, before you end up with a criminal record.

Aside:
It may interest you to know that Regulation 4 of the Consumer Rights (Payment Surcharges) Regulations 2012 prohibits surcharging of specified payment methods beyond the actual cost of accepting that payment method, in other words charging a fee of (say) 5% to accept a business credit card payment when one’s merchant provider charges 2%. (Regulation 6A prohibits any surcharge at all for consumer card payments.) It does not prohibit the extra administration charges you have incurred by choosing to stick your head in the sand and not pay the rest of Penalty Fare. What is prohibited are excessive surcharges that depend on the method of payment used.
 

SteveM70

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Re the administration costs.....convert £70 to a number of working hours at average hourly rate and I’m sure you’d come to the conclusion that they’ll have already used up at least that much time dealing with your case
 

WesternLancer

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Thank you - but I am in dialogue with IRCAS anyway. I'm not hiding, nor am I concerned if I'm identified. I am attempting to establish if IRCAS will prosecute this as a civil matter and in their own name - or if any prosecution has to be by Greater Anglia
Thanks Barry - noted. You are clearly OK with it so no worries.
 

BarryB

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I therefore recommend you come off your high horse and promptly pay whatever the demanded balance now is, before you end up with a criminal record.
I'm not on a high horse or trying to be clever. I'm asking questions to try and understand a process I am unfamiliar with.

It is almost entirely unknown for train companies to seek to recover unpaid fares via civil methods, so your researches and references are of little relevance.
The letter is from IRCAS and not the train company.
I'm trying to establish the process - "Furlong" above states that a PF is a civil matter. I'm confused and still trying to get answers.

Anyone, even you or I, can instigate a summary criminal prosecution in England and Wales.
Whilst true, criminal actions are nearly always started by the state.

Re the administration costs.....convert £70 to a number of working hours at average hourly rate and I’m sure you’d come to the conclusion that they’ll have already used up at least that much time dealing with your case
I wholeheartedly disagree. IRCAS receive all my information from Greater Anglia, which costs IRCAS nothing. They send two templated letters at absolutely minimal cost to them and you agree this is worth £70....!

For all;

I have extensive experience in contract law and small claims courts. Civil matters.

In fact, I operate a forum or perhaps a group on Facebook dealing with parking charges issued by private parking companies, the information provided on the forum is from extensive experience and from representing motorists in Court as a Lay Representative. I personally have assisted in writing thousands of appeals, hundreds and hundreds of defences for Court Claims and have successfully sued parking operators.

My forum has a significant number of members and provides invaluable information for motorists who have nowhere else to turn. The forum tries to provide information for motorists to be able to make informed decisions.

I'm sorry to say I don't feel like the same is true of this forum.

I've asked multiple times if someone could outline for me the standard procedure. I'm positive my situation isn't unique and that IRCAS follow a standard pattern of action.

I still haven't had that.

All I want to do is understand what usually happens then establish what could happen. Then make a decision.

In any event - I have paid the £84.20 and will chalk it up to experience.

If any of you get a parking charge issued by a private company on private land (supermarket/hospital/station(!)/shopping centre other private land) look up "Private Parking Tickets - Help and Advice" on Facebook. I'll do my best to help.
 
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island

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I'm not on a high horse or trying to be clever. I'm asking questions to try and understand a process I am unfamiliar with.

The letter is from IRCAS and not the train company.
I'm trying to establish the process - "Furlong" above states that a PF is a civil matter. I'm confused and still trying to get answers.
A Penalty Fare is a civil resolution of a criminal matter, a way of handling minor fare evasion or ticketing mistakes without troubling the court. Think of it, if you will, as analogous to a fixed penalty notice issued by police for disorderly conduct, or minor driving infringements. You can pay the amount, or you can go to court. If you don’t pay within a certain time, the amount often increases. And if you keep ignoring it, it becomes a criminal matter.
Whilst true, criminal actions are nearly always started by the state.
Not at all. Hundreds if not thousands of private prosecutions are laid every day.
I wholeheartedly disagree. IRCAS receive all my information from Greater Anglia, which costs IRCAS nothing. They send two templated letters at absolutely minimal cost to them and you agree this is worth £70....!
I don’t have sight of cost allocations, but the staff who dealt with you at the station don’t work for free, for starters...

My forum has a significant number of members and provides invaluable information for motorists who have nowhere else to turn. The forum tries to provide information for motorists to be able to make informed decisions.

I'm sorry to say I don't feel like the same is true of this forum.
I’m sorry you feel that way. I do agree some of the comments on this and other threads can get very theoretical or cerebral, going off on tangents or discussing philosophies.

I've asked multiple times if someone could outline for me the standard procedure. I'm positive my situation isn't unique and that IRCAS follow a standard pattern of action.

I still haven't had that.

All I want to do is understand what usually happens then establish what could happen. Then make a decision.
What usually happens is that people pay their train fares before getting on the train, and that people issued penalty fares pay them immediately or within the allotted time, or appeal them before the time limit for an appeal expires. There is a defined three-stage appeal process, which we could and would have assisted you with if you were able to use it. As you aren’t, I explained that what could happen was a criminal prosecution tepid yourself, and advised you to settle promptly.

In any event - I have paid the £84.20 and will chalk it up to experience.
A wise choice.

If any of you get a parking charge issued by a private company on private land (supermarket/hospital/station(!)/shopping centre other private land) look up "Private Parking Tickets - Help and Advice" on Facebook. I'll do my best to help.
Thankfully, I don’t drive.
 

aye2beeviasea

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If I Google 'oyster chelmsford' then the first hit is to this page
https://www.greateranglia.co.uk/tickets-fares/daily-tickets/oyster

Pay as you go
If you are travelling from within the Oyster area to a station outside it (e.g. Chelmsford or Harlow Town), you cannot use your Oyster or contactless payment card to make a pay as you go journey. There are no Oyster readers at stations outside the Oyster area, so there is nowhere for you to touch out. Therefore the system cannot calculate the correct fare to charge you.

If you arrive at a station outside the Oyster area with only an Oyster or contactless payment card which has been touched in, then:
  • You will have paid the maximum entry charge from the station where you touched in. As there is nowhere to touch out, this charge will remain deducted from your card balance.
  • You will not have a valid ticket for the journey that you have made, so you will either have to purchase a ticket or be liable to pay a penalty fare.
If you wish to travel part of the way using Oyster or contactless pay as you go, you will have to leave the train at a station within the pay as you go area, touch out, then re-enter the station using a paper ticket from there to your onward destination.
I'm not an expert and I'm not saying that TOCs never put stuff on their websites that isn't accurate (!) but in your shoes I'd want to be very sure of myself before gambling on challenging what appears to be pretty clear instructions.

Edit: I see you've paid, I think that's probably the best choice.
 

WesternLancer

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If I Google 'oyster chelmsford' then the first hit is to this page
https://www.greateranglia.co.uk/tickets-fares/daily-tickets/oyster



I'm not an expert and I'm not saying that TOCs never put stuff on their websites that isn't accurate (!) but in your shoes I'd want to be very sure of myself before gambling on challenging what appears to be pretty clear instructions.

Edit: I see you've paid, I think that's probably the best choice.
I think in this case the OP touched out where they changed off TfL service and then got on GA - assume without a ticket - intending to pay at end of journey where they asked to do so. Don't think OP expected to pay via Oyster on the train unless I missed that point.
 

swt_passenger

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I think in this case the OP touched out where they changed off TfL service and then got on GA - assume without a ticket - intending to pay at end of journey where they asked to do so. Don't think OP expected to pay via Oyster on the train unless I missed that point.
If you go back to post#9 I think the lack of a purchase opportunity at Canary Wharf was being suggested as a possible straw to clutch at...
 

island

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If you go back to post#9 I think the lack of a purchase opportunity at Canary Wharf was being suggested as a possible straw to clutch at...
The OP has an Oyster card with a Travelcard loaded; touching this to a POM at Canary Wharf would produce a menu offering the opportunity to buy a paper ticket from the last Travelcard zone covered to Chelmsford.
 

swt_passenger

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The OP has an Oyster card with a Travelcard loaded; touching this to a POM at Canary Wharf would produce a menu offering the opportunity to buy a paper ticket from the last Travelcard zone covered to Chelmsford.
Oh, that sounds like a new feature?
 

30907

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I'm sorry to say I don't feel like the same is true of this forum.

I've asked multiple times if someone could outline for me the standard procedure. I'm positive my situation isn't unique and that IRCAS follow a standard pattern of action.
Likewise sorry that this is your perspective. I presume you have referred to
https://www.railforums.co.uk/threads/railuk-fares-ticketing-guide-section-10-disputes.71873/
This appears clear to me, but I am sure the section author would welcome suggestions for improvement.
 

jon0844

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I think the undoing here was the belief that the railway is in some way the same as a parking ticket given on private property, that for a long time could generally be ignored and would go away with no further action.

Of course, as I am sure the OP is only too aware, that is changing and companies ARE now taking action and ARE now winning in court. So perhaps sticking your head in the stand isn't good advice, and any websites suggesting this are doing a disservice to the general public.
 

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