Potential Prosecution

[Fawkes Cat]

There are a few incorrect tickets but they aren’t worth too much, should I just alllow it rather than challenge it?

This will be a balancing act. Is the money for those tickets significant to you? What evidence do you have that the railway are incorrect? How keen are you to get this out of the way as opposed to getting the number exactly right?

Answer those questions, and that should give you what you need to know for whether to challenge the details.

 

[Haywain]

That’s perfect. They all look accurate to me. Do I need to add a comment for tickets they have labeled as short journeys to tell them the origin station or will this be fine?

There are a few incorrect tickets but they aren’t worth too much, should I just alllow it rather than challenge it?

You need to be aware that they are also asking you if they have missed anything. If they have you should point it out, which helps your case. However, I expect if you are able to explain the incorrect tickets they will accept that.

 

[Gashers]

How’s this?

Dear Euan,

Thank you for your email and for giving me the opportunity to settle this matter.

I have reviewed the spreadsheet, and the journeys look correct. There was one other that I have checked against my record where I have attached the ticket as a screenshot. I deeply regret my actions and fully accept responsibility for the fare avoidance that took place. I sincerely apologise for this and appreciate the chance to resolve it outside of court.

Please could you now confirm the total settlement amount and the process for making payment?

@Fawkes Cat @WesternLancer what do you think

 

[Fawkes Cat]

How’s this?

Dear Euan,

Thank you for your email and for giving me the opportunity to settle this matter.

I have reviewed the spreadsheet, and the journeys look correct. There was one other that I have checked against my record where I have attached the ticket as a screenshot. I deeply regret my actions and fully accept responsibility for the fare avoidance that took place. I sincerely apologise for this and appreciate the chance to resolve it outside of court.

Please could you now confirm the total settlement amount and the process for making payment?

@Fawkes Cat @WesternLancer what do you think

I think that's fine.

 

[WesternLancer]

How’s this?

Dear Euan,

Thank you for your email and for giving me the opportunity to settle this matter.

I have reviewed the spreadsheet, and the journeys look correct. There was one other that I have checked against my record where I have attached the ticket as a screenshot. I deeply regret my actions and fully accept responsibility for the fare avoidance that took place. I sincerely apologise for this and appreciate the chance to resolve it outside of court.

Please could you now confirm the total settlement amount and the process for making payment?

@Fawkes Cat @WesternLancer what do you think

Seems reasonable.

I suppose if you think there were genuinely some that were not in fact occasions were you had the wrong tickets you could just let it lie in the interests of just getting it all resolved, or you could list them but say ‘these were instances when….but I am unable to provide supporting evidence of that unfortunately’.

 

[Camsus]

If you were to provide the origin and/or destinations for the journeys, I imagine it would be viewed as you being "completely open and honest" as per the email you received from GTR. Also, I don't see an issue with highlighting any journeys you didn't avoid fares on, as long as you can provide a reasonable explanation and maybe some evidence.

There is apparently a section for comments on the spreadsheet, so that would indicate to me that GTR are inviting you to fill it in

 

[Gashers]

Good afternoon Jack,

Thanks for your email.

A settlement proposal will be prepared, consisting of the avoided fares plus GTR's investigation costs. This will be emailed over to you within the next 48 hours.

Kind Regards,
Euan

received today, couldn’t be happier with the outcome. it’s safe to say I’ve learnt my lesson and want to say thank you to all of you for helping me. will update when I receive the amount. should I reply to that at all?

 

[Fawkes Cat]

Good afternoon Jack,

Thanks for your email.

A settlement proposal will be prepared, consisting of the avoided fares plus GTR's investigation costs. This will be emailed over to you within the next 48 hours.

Kind Regards,
Euan

received today, couldn’t be happier with the outcome. it’s safe to say I’ve learnt my lesson and want to say thank you to all of you for helping me. will update when I receive the amount. should I reply to that at all?

I don't think there's any need for you to reply just now. Wait for the promised proposal within 48 hours.

 

[Gashers]

Received just now:



Good afternoon Jack,

I am pleased to inform you that a settlement proposal has been prepared for you to review.

Please see the attached spreadsheet.

Some information to assist you when reviewing the spreadsheet;

• Columns A to L show your ticket purchases for rail journeys between DATE X - DATE Y

• Columns N to Q (shaded grey) shows the correct ticket types and fares for your rail travel
• Railcard discounts cannot be applied to the fares used in fare evasion settlements
  
  
• Peak and Off-Peak fares have been used to calculate the settlement. GTR do not use Super Off-Peak or Advance fares for fare evasion settlements, so on the dates you purchased these types of tickets, Off-Peak fares have been applied instead

• The fares you paid have been deducted from the correct fares, leaving the outstanding rail fares

Without Prejudice
GTR's investigation of your rail travel, ticket purchases has established fares were avoided by you on X dates between DATE X to DATE Y. On the dates in question, you purchased tickets with a total value of £X, however, the correct fares for your travel would have been £X, which is £X more than was paid. GTR would require this sum to be paid as part of any settlement that is agreed between the two parties, along with investigation costs of £250.00. The total settlement I am proposing on behalf of GTR is £X.

Should you wish to proceed with the settlement, full payment is required within 14 days. Payment can be made online using a credit or debit card.

Please do not hesitate to contact me should you have any questions.

 

[John R]

Thanks for updating us. GTR is unusually lenient in deducting the fares you paid, and in using off peak fares where appropriate, so I think this is a reasonable settlement, as far as one can tell without knowing the specifics.

Are you going to accept?

 

[Gashers]

Yeah absolutely. Although it is expensive, it’s the best possible outcome and it’s taught me a lesson. Do I need to reply to that or can I just pay it online?

 

[Fawkes Cat]

Yeah absolutely. Although it is expensive, it’s the best possible outcome and it’s taught me a lesson. Do I need to reply to that or can I just pay it online?

Most likely making the payment will be enough - but it wouldn't do any harm to pay it and then reply to the email confirming that you have made payment. Also, just in case, hang on to a screenshot showing that you have paid, and all the emails and letters (including proof of payment if they send you an acknowledgement). Most likely nothing will go wrong with the process - but if something does, it's useful to be able to show that you did everything that you should have done.

 

[furlong]

You'll probably just grab the chance to settle and not want to quibble over minor details, but for reference if you used a solicitor they might challenge GTR to provide a valid legal basis for this approach (is this profiteering?) or else update the offer to use equivalent ticket types throughout:

GTR do not use Super Off-Peak or Advance fares for fare evasion settlements, so on the dates you purchased these types of tickets, Off-Peak fares have been applied instead

And worth noting that as they are dealing with this as a criminal matter, a court may feel entitled to disregard this:

Without Prejudice

If you do want to take that further, after settling, you could invite Transport Focus or the ORR to gets its lawyers to look into the legitimacy of GTR's stated policy here.

I don't believe GTR can arbitrarily decide not to use Super Off-Peak or Advance fares in a settlement, but rather it should consider each individual set of circumstances in context on its own merit and sometimes that might lead to it basing a settlement on one of those types of fares. Similarly, it ought to revisit whether it is wise to say "Without Prejudice" in letters like these where they have to delicately navigate around any potential impropriety (e.g. seeking an unjustifiably high settlement to avoid prosecution).

 

[John R]

On the other hand, the OP may just want to pay the amount requested, on the basis that this was a clear and blatant attempt at fraud, and they just want to get the matter put behind them, without any risk that GTR might choose to withdraw the offer and prosecute. That would be my choice.

 

[Gashers]

Yeah absolutely, rather get it done and dusted.

Where do I pay the settlement fee?

 

[Haywain]

You'll probably just grab the chance to settle and not want to quibble over minor details, but for reference if you used a solicitor they might challenge GTR to provide a valid legal basis for this approach (is this profiteering?) or else update the offer to use equivalent ticket types throughout:



And worth noting that as they are dealing with this as a criminal matter, a court may feel entitled to disregard this:


If you do want to take that further, after settling, you could invite Transport Focus or the ORR to gets its lawyers to look into the legitimacy of GTR's stated policy here.

I don't believe GTR can arbitrarily decide not to use Super Off-Peak or Advance fares in a settlement, but rather it should consider each individual set of circumstances in context on its own merit and sometimes that might lead to it basing a settlement on one of those types of fares. Similarly, it ought to revisit whether it is wise to say "Without Prejudice" in letters like these where they have to delicately navigate around any potential impropriety (e.g. seeking an unjustifiably high settlement to avoid prosecution).

Is this intended to be advice to someone who is trying to avoid being prosecuted for what is quite blatantly fraud? If so, it is, at best, misplaced.

 

[Gashers]

Have gone on to pay, put in the reference number and my surname and it has told me there is no settlement. I have called the number and left a voicemail.

 

[John R]

Have gone on to pay, put in the reference number and my surname and it has told me there is no settlement. I have called the number and left a voicemail.

I would also reply to the email thanking them for the settlement offer and saying that you tried to pay but were unable to - then at least the investigator on your case knows that there is a problem.

 

[Camsus]

You'll probably just grab the chance to settle and not want to quibble over minor details, but for reference if you used a solicitor they might challenge GTR to provide a valid legal basis for this approach (is this profiteering?) or else update the offer to use equivalent ticket types throughout:



And worth noting that as they are dealing with this as a criminal matter, a court may feel entitled to disregard this:


If you do want to take that further, after settling, you could invite Transport Focus or the ORR to gets its lawyers to look into the legitimacy of GTR's stated policy here.

I don't believe GTR can arbitrarily decide not to use Super Off-Peak or Advance fares in a settlement, but rather it should consider each individual set of circumstances in context on its own merit and sometimes that might lead to it basing a settlement on one of those types of fares. Similarly, it ought to revisit whether it is wise to say "Without Prejudice" in letters like these where they have to delicately navigate around any potential impropriety (e.g. seeking an unjustifiably high settlement to avoid prosecution).

GTR were not obligated to offer a settlement to the OP. The fact the fares they paid have been deducted, as well as using Off-Peak fares, is far more lenient than some other TOC's would be. In theory, every fare applied to the settlement could be a peak single.
I don't believe it would be realistic for someone in the OP's position to expect the rail company to apply super off-peak and advance fares

 

[Gashers]

All paid, expensive mistake but resolved with a lesson learnt, thank you all for helping.

 

[furlong]

I don't believe it would be realistic for someone in the OP's position to expect the rail company to apply super off-peak and advance fares

Two wrongs don't make a right! The train company must follow the law. Even the latest contract no longer requires passengers to pay higher fares retrospectively than would have been due if purchased immediately before travel. The train company cannot exploit the desire of a defendant to avoid a prosecution in order to enrich itself - all it can do is seek to put right its legitimate loss, without any punitive element. Punishment is reserved for the courts (or through use of a Penalty Fare). Writing "Without Prejudice" just makes the company's actions look dodgy and so invites external scrutiny: Might the company be exploiting the defendant's situation for its own unlawful gain while attempting to hide what it's doing from proper scrutiny? (If what the company was doing was entirely above board, there could be no potential prejudice.)

 

[AlterEgo]

Two wrongs don't make a right! The train company must follow the law. Even the latest contract no longer requires passengers to pay higher fares retrospectively than would have been due if purchased immediately before travel. The train company cannot exploit the desire of a defendant to avoid a prosecution in order to enrich itself - all it can do is seek to put right its legitimate loss, without any punitive element. Punishment is reserved for the courts (or through use of a Penalty Fare). Writing "Without Prejudice" just makes the company's actions look dodgy and so invites external scrutiny: Might the company be exploiting the defendant's situation for its own unlawful gain while attempting to hide what it's doing from proper scrutiny? (If what the company was doing was entirely above board, there could be no potential prejudice.)

Had the OP been stopped on each occasion they would be entitled only to pay the full and undiscounted Anytime fare, which they are being retrospectively charged.

 

[Fawkes Cat]

Two wrongs don't make a right! The train company must follow the law. Even the latest contract no longer requires passengers to pay higher fares retrospectively than would have been due if purchased immediately before travel. The train company cannot exploit the desire of a defendant to avoid a prosecution in order to enrich itself - all it can do is seek to put right its legitimate loss, without any punitive element. Punishment is reserved for the courts (or through use of a Penalty Fare). Writing "Without Prejudice" just makes the company's actions look dodgy and so invites external scrutiny: Might the company be exploiting the defendant's situation for its own unlawful gain while attempting to hide what it's doing from proper scrutiny? (If what the company was doing was entirely above board, there could be no potential prejudice.)

My italics. So that we can all go and check for ourselves, if there's statute, please reference it. Similarly if relying on case law.

Alternatively, let's consider the possibility that negotiating to avoid a prosecution is a simple buying and selling position: the railway is willing to sell off its right to prosecute, but only at a price that makes sense to the railway. If the passenger is willing to buy at that price, then everyone is happy - and there's no need for the law to be involved in regulating the free market. This is no different from selling something physical (a bag of apples perhaps) or a service (the right to stay overnight in a hotel: even corkage for bringing your own wine in a restaurant)

 

[TheJester]

My italics. So that we can all go and check for ourselves, if there's statute, please reference it. Similarly if relying on case law.

Alternatively, let's consider the possibility that negotiating to avoid a prosecution is a simple buying and selling position: the railway is willing to sell off its right to prosecute, but only at a price that makes sense to the railway. If the passenger is willing to buy at that price, then everyone is happy - and there's no need for the law to be involved in regulating the free market. This is no different from selling something physical (a bag of apples perhaps) or a service (the right to stay overnight in a hotel: even corkage for bringing your own wine in a restaurant)

Well it is utterly different. The restaurant won’t prosecute you if you don’t pay their corkage charge.
Very poor strawman on Furlong’s position.

 

[island]

Even if it were against the law for the railway to charge an amount that exceeds furlong's sensibilities in return for not prosecuting (which it is not), the passenger is not exactly going to go looking for the money back. And even if somehow a passenger did manage to obtain their money back through the courts, presumably after the 6 month expiry for a summary prosecution, the outcome would likely be that train companies stopped doing settlements and took everyone through the courts, at much higher cost to passengers, to say nothing of the personal impact of the criminal records. Be careful what you wish for.

 

[furlong]

Had the OP been stopped on each occasion they would be entitled only to pay the full and undiscounted Anytime fare, which they are being retrospectively charged.

Not even the Anytime fare any more. If you go back, for example, to the National Rail Conditions of Carriage 2006, that provided direct authority to charge "the highest priced single or (if requested by the passenger) return fare appropriate to the class of travel for the journey you are making". The current conditions provide no such authority: 9.2 merely asserts "we are permitted in law" to charge an anytime fare to a station the train calls at (and only when not imposing a penalty fare and when not reporting for prosecution) but it provides no legal basis for such an assertion. The railway today just seems to be relying on the basic underlying legal requirement to pay for any service used and I no longer see any "penalty clause" in the current framework that deems that the charge is greater if paid retrospectively.

 

[AlterEgo]

Not even the Anytime fare any more. If you go back, for example, to the National Rail Conditions of Carriage 2006, that provided direct authority to charge "the highest priced single or (if requested by the passenger) return fare appropriate to the class of travel for the journey you are making". The current conditions provide no such authority: 9.2 merely asserts "we are permitted in law" to charge an anytime fare to a station the train calls at (and only when not imposing a penalty fare and when not reporting for prosecution) but it provides no legal basis for such an assertion. The railway today just seems to be relying on the basic underlying legal requirement to pay for any service used and I no longer see any "penalty clause" in the current framework that deems that the charge is greater if paid retrospectively.

Is your position is that passengers being charged Anytime fares on board to rectify irregularities is somehow illegal or not in the passenger contract?

 

[furlong]

the outcome would likely be that train companies stopped doing settlements

The outcome should simply be that train companies settled for the amount they were entitled to receive - no more and no less. Purely to make good their actual loss in each case - no artificially-inflated sums (and I'd argue they can't even include enforcement overheads which should already be covered by the ticket prices).

Alternatively they could impose more Penalty Fares (from which they are allowed to profit) should they feel like taking the trouble to adhere to those regulations...

Is your position is that passengers being charged Anytime fares on board to rectify irregularities is somehow illegal or not in the passenger contract?

I think it's happening due to the "long memory" that many parts of the railway have. It used to be the case in the old Conditions of Carriage, but for unknown reasons, whether deliberate or accidental, those terms are gone now.
I think in a civil case, it's basically the lowest-priced walk-up fare for the journey now, and in a criminal case it's still the best judgement of whatever ticket(s) that particular passenger (or type of passenger) would have used had they not committed the offence.

I accept island's point that most people in this situation aren't going to quibble because of the power dynamics, but that's only more reason why the ORR ought to be looking into what's going on here and making sure everything is happening on a firm legal foundation, and if it finds there have been some inflated settlements, the train companies should have to put them right.

 

[Camsus]

Only my opinion, but I don't see why it could be expected that a rail company would retrospectively use advance fares in a settlement for fare evasion, as the very nature of these fares are that they are usually discounted (sometimes heavily) and are limited to a specific service.

For example, someone purchases an advance ticket with a railcard discount applied. They don't have the railcard and are caught. Multiple other similar tickets are identified by the rail company when they delve deeper. It's not realistic to think the company would simply charge the non-railcard discounted advance fare for the settlement, as the person lost their right to that when they intentionally applied a railcard discount to their ticket, knowing they didn't have.

 

[furlong]

The question to ask is: If the passenger had adhered to the law, what ticket would they actually have purchased? I think the starting point is like-for-like and a case has to be argued for anything else. They knew they didn't have the railcard? Then they lose the advantage of the railcard discount but all things being equal would have purchased the same ticket, just not discounted so the recoverable amount is merely the discount. The only options open to the train company if it thinks a penalty is deserved are to impose a Penalty Fare (in circumstances caught by the regulations) or to prosecute and invite the court to impose a penalty.