RailUK Fares & Ticketing Guide - Section 8 - Legal

Discussion in 'RailUK Fares & Ticketing Guide' started by DaveNewcastle, 15 Sep 2012.

Thread Status:
Not open for further replies.
  1. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.6 Offences used in Current Practice

    8.6.1 Background to Fare and Ticketing Offences

    The right of a ticket holding person to be conveyed between the two stations printed on their ticket is a Contractual right and conforms with Contract Law. There is a popular misconception that it is not, that it is a retail supply or consumer service.
    As a Contract, it takes the form of an offer which is accepted with obligations by both parties - the Railway Operators will convey the Passenger, and the Passenger will make the due payment; the Ticket is not merely a receipt but a summary of some of the Terms of the Contract whose acceptance implies acceptance of all of the Terms. This distinguishes the Railway Contract from a mere retail 'invitation to treat' and there are many cases and Judgements to support this practice dating from 1867 to recent times which underpin this model of a Contract.

    It is a regrettable fact of life that the Railways experience a vast degree of Fare Evasion on a continuous basis. As a consequence, there are commercial, moral and statutory pressures on Railway Operators to put in place measures to control that haemorrhage of potential revenue and to sustain those measures with innovative strategies ; measures which are proportionate, do not expose its staff to risk, which can differentiate the Fare Evader from the passenger making the innocent mistake and which curb continuing evasion. There is frequent criticism of Railway Operators, both for being excessively 'heavy-handed' in their enforcement and, equally, in being far too lax in failing to detect much of the fare evasion which takes place every day.

    In practice, the evidence available can make it hard to differentiate between the regular and deliberate Fare Evader and the confused or mistaken passenger who has every wish to pay for their travel. However, staff working on the railways have a number of techniques and clues, learned from experience, which they can use to make that distinction and will routinely exercise some discretion in applying the rules. It will nearly always be easier to differentiate the Criminal from the mistaken at the point of discovery, by a consideration of their actions and words, than by attempting to differentiate them after the event, by studying the Evidence passed to a Prosecutor.

    Similarly, when evaluating a first-time suspect for possible irregularity, it will generally be preferable to reach a negotiated settlement rather than proceed to hear the matter in Court [1], this is even more likely to be the preferred route in the case of a simple Byelaw offence where no intention to defraud the Railways is suspected.


    8.6.2 Summary of Most Common Fare and Ticketing Offences

    Travelling with the intention of avoiding paying the Fare Due.
    This may include: attempting to leaving a station on arrival at a destination without buying a ticket; travelling with another person's Season Ticket; buying a Child ticket while an adult; naming a station which is closer than the actual start of the journey when leaving a train without a ticket; etc.

    This will be captured by the RoRA Section 5 Offence. See Section 8.2.1
    It is central to this claim that the passenger was wilfully avoiding payment, even if that was only for a brief moment while an opportunity was available, not a long-term intention to avoid payment. The 'intention' to avoid payment will be determined by reference to their actions and their words, and not to their thoughts (see above).

    Failure to produce a valid ticket.
    This may include: travelling on the wrong train with an Advance ticket; travelling with a Railcard-discounted ticket without the necessary Railcard; being unable to produce both parts of a two-part ticket.

    These errors are captured by Railway Byelaw 18 (in a non-Compulsory Ticket Area) or Byelaw 17 (in a Compulsory Ticket Area). See Section 8.2.2
    This is a 'strict liability' matter and there is no implication that the passenger had intended to avoid the proper fare.

    Travel in the wrong 'class'.
    Passengers holding a ticket for travel in Standard Class but travelling in First Class are captured by Railway Byelaw 19. Alternatively, it would also be possible for the Company to claim a breach of RoRA S.5, as such a passenger would not have paid the correct fare for their journey.
    An Inspector would have the choice of treating this either as a 'strict liability' Byelaw Offence, where the passenger 'remains' in first class after being questioned and there is no implication that the passenger had intended to avoid the proper fare, or, as an Offence under the RoRA where it is believed that the passenger had intended to avoid the payment of the proper fare due.

    (There are exceptional circumstances in which 'First Class' accomodation is 'de-classified' from which it becomes possible for a passenger to sit in that 'de-classified' First Class area while holding a Standard Class ticket with impunity).

    Altering tickets.
    Railway Byelaw 20 refers :
    Once again, 'intent' is evidenced by a person's actions or words, not by their thoughts.

    Where the offence is serious, such as suspicion of habitual or repeated alterations, a Prosecution for Fraud might be considered.

    Forgery (of tickets).
    The forgery of false tickets or passes, or the use of false tickets or passes will be treated as a Fraud with Criminal intent. Where the bulk manufacture or distribution of false documents is suspected, it is most likely that the Police would be informed and the potential for an investigation into Serious Organised Crime may follow.

    Failure to pay within the time allowed.
    If a passenger is given an Unpaid Fares Notice and fails to pay within the time allowed then this may either be pursued as a civil debt or the original fare could be pursued as one of the Byelaw Offences above.

    Failure to give name and address.
    This is a requirement created by Railway Byelaw 23 See Section 8.2.2 :
    It is also a requirement under Section 5 of the RoRA, where there is an interesting variation:-
    Here, Section 5.1 of the Act creates a Criminal Offence when a passenger (a) fails to produce a valid ticket, OR (b) fails to pay the fare, OR (c) fails to provide their name and address. But Section 5.2 permits a passenger to be Detained when a passenger (a) fails to produce a valid ticket, OR (b) fails to pay the fare, AND (c) refuses to give their name and address.

    Providing false Name and Address
    Providing a false name and/or false address, after not having already paid the fare is an Offence which is captured under Section 5.3 of the RoRA.
    People with more than one address, or who have recently moved, may find themselves suspected of giving a false address after an initial check on the address given has failed when an Inspector attempts to confirm it by phone with their Company's checking agency. This is a common occurrence, and anyone in this position should not be concerned, they will not have misreported their identity and the accuracy of the address given will become apparent on further investigation. It would be wise to explain the dual addresses or their new address as soon as possible, preferrably at the time of the initial interview, to avoid risking suspicion. It will not be a surprise that people change addresses legitimately, though it might take longer to have the matter confirmed.
    Similarly, visitors to the UK should be quite open and honest about their address, both a home address abroad and a temporary address in the UK - it will be for the Railway Company to decide how to correspond with a passenger once thay have all the facts.


    8.6.3 Summary of Other Common Offences on the Railways (Beyond Fares and Ticketing)

    Trespass (on Railway Property)
    Trespass on Railway property includes all areas away from stations and even areas on stations when passengers are instructed not to enter.
    Trespass may be dealt with under Section 55 of the British Transport Commission Act or Railway Byelaw 13.
    These create an absolute Offence if a person enters a restricted part of Railway land or property.

    Damage (to Railway Property).
    Criminal Damage will normally be dealt with under Criminal Damage Act 1971 [England & Wales] or Criminal Law (Consolidation) Act 1995 [Scotland], these offences do not necessitate permanent damage. Other Law might include the Malicious Damage Act, Public Order Act [England & Wales] or Police, Public Order & Criminal Justice Act 2006 [Scotland]. There are a few specific forms of damage which are captured by the Railway Byelaws.

    Theft
    Theft of Railway property
    Most incidences of theft will be dealt with by the Theft Act 1968. However, other action may be applied where appropriate, For instance, a person stealing overhead power cable was charged with Endangering railway passengers (Offences Against the Person Act 1861).

    Theft of passenger's property
    This may be a private matter between two persons or a Criminal matter and theft on the Railways is no different from theft elsewhere, unless the property has been specifically trusted to a Railway Company for carriage as luggage or parcels (this is uncommon in current times although there is ample Case Law to assist).

    Smoking
    Smoking in public places in England is prohibited under the Smoke-free Premises and Enforcement Regulations 2006.
    This extends to all Railway trains and stations in England and Wales and to all trains and some stations in Scotland.
    In addition, it is captured across the UK by Railway Byelaw 3:
    Sale of and/or possession of Alcohol
    The Sale of Alcohol on trains is not regulated by the Licensing Acts of England & Wales nor of Scotland, though the sale of alcohol on Railway premises such as stations is regulated by those Acts.
    Railway Byelaw 4 prohibits a person who is unfit as a result of intoxication from entering or remaining on railway property, and prohibits, when notice is given, any person from entering a train who is in possession of alcohol.
    Railway Companies are at liberty to introduce their own restrictions on the consumption of alcohol in specified locations or on specified trains and at specified times.

    Failure to comply with the instructions of a Railway Officer.
    Various Railway Byelaws, most specifically Byelaw 12 will require a person to comply with an instruction in the interests of safety and failure to do so will be deemed an Offence.

    Photography
    Photographers may be permitted onto most publicly accessible railway property (i.e. stations and bridges) but will always be subject to permission which may be withdrawn at any time (refused at the risk of committing a Trespass), subject to all concerns for safety including proximity to running lines, obstacles or obstructions (e.g. tripods), and a prohibition on the use of 'flash' photography. There are also areas where photography is absolutely prohibited and for the avoidance of doubt it would be wise to checking with specialist photography websites (incl. the Photography Advice section of RailForums.uk).

    Behaviour and Public Order
    Offensive or intimidating behaviour can give rise to an Offence under Section 4 or 5 of the Public Order Act. In some cases, this can even be prosecuted if the person witnessing the behaviour was watching remotely on CCTV equipment. Disorderly and offensive behaviour can also be prosecuted as an offence under Railway Byelaw 6 : "Unacceptable Behaviour", and which also includes dropping litter, spitting, soiling and writing on Railway property.

    Other
    Specific behaviours such as the Misuse of Level Crossings, bringing dangerous substances onto the Railways, unsafe working practices, endangering the lives of others or general Disorder may be prosecuted under a number of Offences. Some of these may be dealt with by a Civil Penalty Notice.

    -----------
    [1] Simple railway ticketing offences will be heard in the Magistrates Court [England & Wales] or the Sheriff or Justice of the Peace [Scotland]. The Magistrates Court in England & Wales may be formed of 3 lay Magistrates assisted by their legal Clerk or a by District Judge sitting alone.
     
    Last edited: 9 Jun 2013
  2. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.1 History

    In 2012, the UK Government swept away hundreds of Railway Acts in their Red Tape Challenge [1]. What remained are the Laws which had been used in practice to regulate the Railways and rail travel on the national network and some local metro operations. Interestingly, these Laws which do still remain on the statute books and which apply to ticketing and fares are over 100 years old and will have stood the test of time during the period of 'grouping' in 1923, nationalisation as British Rail in 1948, and then the return to private or quasi-private ownership since 1996.

    These Acts regularly applied to ticketing are the Railways Clauses Consolidation Act 1845 and more usually, the Regulation of Railways Act 1889. These create Criminal Offences which can be investigated and Prosecuted by Railway Companies and do not require the involvement of the Police or the Crown Prosecution Service (CPS) [England & Wales] or Crown Office and Procurator Fiscal Service (COPFS) [Scotland].

    Additionally, Offences may be investigated and Prosecuted under the Fraud Act or Theft Act, and in recent times, under the Public Order Act and Serious Organised Crime Act, or where appropriate, other commercial, Criminal or Civil legislation. Railway land, including stations, remain private property and so all the rights of property owners apply to Railway premises, including the refusal of entry and claims of Trespass.

    Since the 1800’s, the Railways have been empowered to create and enforce their own Railway Byelaws [2], and unlike the Railway Acts above, these have been routinely revised and updated, the most recent revision applicable to the national railway network is the 2005 Railway Byelaws. Other Byelaws apply to the local transport networks in London, Glasgow, Tyne & Wear and elsewhere.

    It is impressive that these Victorian Laws have stood up against the test of time and still successfully regulate rail travel, despite all the changes in technology, custom and practice since then such as the closure of ticket offices, unstaffed stations and 'Driver Only Operated' (DOO) trains, the introduction of payment cards and remote authorisation or declined payments, new connecting modes of transport, ticket agents, internet transactions and automated vending machines, smart cards and a range of new ticket ‘products’.

    -----------------
    1. The Law Commission (England & Wales) and The Scottish Law Commission proposed the repeal of many old Laws, including about three hundred old Railways Acts under the Statute Law Repeals proposals - most of these Acts refer to abortive Railway schemes that are over 100 years old. Some were applicable only within the Republic of Ireland.

    2. Railway Byelaws become delegated legislation, first enabled by The Railway Clauses Consolidation Act 1845 S.108 & 109 which enabled the Railway Companies to "make Byelaws regulating the use and working of, and travel on, their railways, the maintenance of order on their railways and railway premises, including stations and approaches to stations, and the conduct of all persons" etc. It also authorised penalties, without the requirement for a conviction, where a Byelaw is contravened: "any Person offending against any such Byelaw shall forfeit for every such Offence any Sum not exceeding Five Pounds, to be imposed by the Company in such Byelaws as a Penalty for any such Offence"
     
    Last edited: 24 Mar 2013
  3. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.2 Current Framework - Railway Specific Legislation.

    8.2.1 Legislation
    The vast majority of Offences on the Railways are committed under specialist statutes which apply to the UK Railways.
    The most commonly used Railway Act, the Regulation of Railways Act 1889 (RoRA) creates Criminal Offences, as does the much less commonly used Railways Clauses Consolidation Act 1845 (RCCA). When Offences under these Acts are successfully prosecuted, they result in Criminal penalties (Fines or imprisonment, costs and Victim Surcharge) and a Criminal Record which appears on the Police National Computer (PNC) and then in a search with the Disclosure and Barring Service (DBS, formerly known as a "CRB Check") (See Section 8.7.3.4). More serious offences such as Fraud or Theft will normally be prosecuted in the same way, by the Railway Prosecutions’ Departments and again, these will result in Criminal penalties if successful. In common with Criminal matters brought by the state, a person convicted under these Acts has the right of Appeal.

    In terms of Fares and Ticketing, the important clauses are:
    RoRA Section 5
    and, RCCA Section 103
    When considering 'intent' in RoRA Section 5, it might be worth remembering that intention is evidenced by a person's actions, "on their words and behaviour, rather than on their thoughts" [Moulton LJ]; there is no expectation that we should be able to look into the mind of a person to establish 'intent'. Lord Denning echoed those words in Oscar Chess v Williams [1957] 1 WLR 370. Similarly, the Criminal Justice Act 1967 directs Courts to consider 'intent' by inference from all of the evidence available, and not to make assumptions about the person's intentions from the probable consequences of their actions. It is the observed actions of a passenger, and statements made by them, which may demonstrate 'intent to avoid payment' if they have not previously paid their fare.
    For this claim to succeed, there would be no need for the Railway Company to show that the passenger had a long-term intention to avoid payment, only that they failed to take an opportunity - that is likely to be a missed opportunity while passing a ticket office or not speaking to a Guard who was selling tickets on-board.
    The authority for "intent" is found in E v Allen (Christopher) [1985] AC 1029 where an offence of dishonesty under S.3(1) of the Theft Act was found and upheld by the House of Lords.

    We can also see from RoRA Section 5 that a limited power of arrest is granted to Railway staff to include the detention of anybody who does not provide their name and address and also has no valid ticket or does not pay their fare. It would be usual for British Transport Police (BTP) to be asked to make the arrest.


    8.2.2 Byelaws
    The Railway Byelaws may be pursued in a similar manner, though do have 3 significant differences from the other Acts we’ve mentioned:
    a) they create Offences which do not result in a Criminal record (and would not normally appear from a CRB check of the PNC if successfully prosecuted); and,
    b) they include a number of Offences which detect a ‘strict liability’ following a person's actions or failure to act, their intention is not relevant (grounds for a defence are extremely limited to any technicalities or circumstances which persuade Magistrates to abandon the Claim or to offer a Discharge to the Accused); and,
    c) they apply to everyone (members of the public and railway personnel, unless specifically excluded) and may be enforced by anyone (members of the public and railway personnel) who has been affected by a breach (though any member of the public who seeks to enforce a breach of a Byelaw may expose themselves to considerable hazard).​

    In terms of Fares and Ticketing, the most important Byelaw is:
    Railway Byelaw 18
    Railway Byelaw 17 refers to 'Compulsory Ticket Areas' and is almost identical to the above.


    8.2.3 Case Law
    It is notable that the most often cited authorities (precedents in Case Law) are also from some time in the past; these are
    • Corbyn vs Saunders (1977) [1978] 1 WLR 400; and
    • Bremme vs Dubery (1964) 1 WLR 119.
    Corbyn defined the conditions which satisfy an "intent to avoid payment" where he passed an open ticket Office. It was determined that there was no need to suggest that he had a permanent intention to avoid payment, just that there had been an opportunity to pay and that he did not take that opportunity; "when passing the ticket collector at his final destination, the requisite intention to avoid payment is proved". This test is used daily in detecting intended Fare Evasion on Railway stations and the circumstances adopted by Revenue Protection staff mirror the situation described in Corbyn and their questioning generally aims to establish whether or not the passenger's actions which were taken as evidence of the "intent" in Corbyn can be applied to the passenger.
    In Bremme, the passenger travelled without a ticket and when offering to buy one at the end of the journey, he named a station nearer the destination which carried a cheaper fare than did the station where he had actually boarded the train. The Judgement clarifies that a passenger can conceive intent under RoRA S.5 even after alighting from the train at their destination; "He formed the intention to avoid paying the full fare before he reached the barrier" and "a person is still travelling on a railway for the purposes of the Act . . . after he has alighted from his train and before he passes the ticket barrier".

    Other cases may be cited in other specific circumstances, including:
    • Langdon vs Howells (1879) 4 QBD 337 when the passenger presented a ticket which had been issued to another person and was 'not transferable';
    • London & North Western Railway Co. vs Hinchcliffe [1903] 2 KB 32 where the passenger traveled using two tickets, one of which was offered at a reduced price for only part of his journey, and another for the remainer, both costing less than the fare for the journey actually taken; held that the fare due was that for the full journey travelled;
    • Gillingham vs Walker (1881) 45 JP 470 where the passenger did not travel as specified in terms of place, date, class and time as on the ticket paid for. Cited in Prosecuting passengers travelling first class with tickets for standard class;
    • Reynolds vs Beasley [1919] 1 KB 215 where the passenger's ticket had been bought from (and was valid for travel on) another operator's services;
    • Browning vs Floyd (1946) KB 597 where a passenger had a return ticket but presented his wife's unused outward portion of her return ticket, intending to use his own on a future occasion. Was deemed not to have paid their own fare; as in RoRA S.5 and wife guilty of aiding and abetting her husband to travel with intent to avoid payment and of transferring a partly used ticket;
    • Murphy vs Verati (1967) 1 WLR 641 where two passengers travelled together without tickets and on arrival one stated that they had travelled from a nearer station then charged with intent to defraud on behalf of another person. Clarified that the offence still applies having arrived at the destination;
    • Covington vs Wright (1963) 2 QB 469 where a bus passenger left the bus having underpaid the correct fare and by refusing to pay the balance was deemed to show "intent to avoid" paying the fare;
    • R. vs Armstrong (1922) 2 KB 555 where the Evidence against a person was of repeated and regular actions, the Prosecution was able to rely on evidence of a single occurrence. Accused of murder by repeated small doses of poison and cited in Prosecuting multiple unpaid fares where a passenger makes repeated systematic use of a method of evasion;
    • Butler vs M.S.& L.R. Co. (1888) 21 QBD 207 where a passenger who had bought a ticket found that they had mislaid it and was removed by the Company;
    Judgements relating to Byelaw offences:
    • R. vs Frere (1855) 4 E&B 598 when the passenger travelled a shorter distance using a ticket which was cheaper only to a further destination - convicted but overturned on Appeal - was found not to be captured by the Byelaws nor by the RCC Act;
    • Saunders vs South Eastern Railway Co. (1880) 5 QBD 456 when the passenger refused to show their season ticket when changing at Waterloo; the Byelaw penalty was found to be unreasonably variable and imprecise, but that expulsion for failing to show a ticket was reasonable;
    • Burns vs First Capital Connect [2012] EWHC 1305 when the passenger handed over an 'Oyster' card with insufficient funds was charged with the Byelaw offence of "not handing over his ticket . . . when asked to do so"; convicted and appealed; held that the Magistrates were wrong in law to have convicted;
    Some litigants have attempted to challenge the application of Railway Byelaws:
    • Boddington vs British Transport Police [1998] UKHL 13 where Boddington was fined following a Byelaw contravention, appealled, then lost his Appeal but the Judgement clarified the rightful application of a private law Byelaw in creating a Criminal Offence. [judgement in Boddington v BTP];
    • Crown Prosecution Service v Inegbu (2008) EWHC 3242 where Inegbu was challenged about their ticket, became abusive and was charged under Railway Byelaws, then appealled arguing that the Transport Act 2005 did not preserve the mechanism by which the Byelaws could be proved to a Court, the appeal was rejected.
    On occasion, Railway Companies have pursued a civil debt for the unpaid ticket:
    • Great Northern Railway Co. v Nisbet (1864) The passenger travelled from London to Newcastle using a ticket restricted to Morpeth only, which was cheaper; the Company claimed breach of contract and damages in the value of a full ticket to Newcastle for passenger and luggage; Jury confirmed the claim;
    • See also: Stewart v London and North Western Railway for civil claims for passengers travel and Rumsey v North Eastern Railway Company (1863) for luggage.
    Where a Fraud is suspected, then judgements from the more general Fraud Act [England & Wales] or from fraud in Common Law [Scotland] would be cited as precedents, similarly, repeated abuse of a ticket might be considered under the Theft Act [England & Wales] or the Common Law [Scotland].


    8.2.4 Penalty Fares
    Some operators will also operate a Penalty Fares scheme, as authorised by the Railways (Penalty Fares) Regulations 1994 and the Greater Greater London Authority Act 1999 (as amended) in S.17. These allow operators to charge a Penalty Fare as an alternative to Prosecuting a passenger who is without a valid ticket. See Section 10.4, S 10.5 & S 10.6 for full details.

    Section 7.3 of the Penalty Fare Rules :
    These are generally issued to passengers without a ticket or whose ticket is not technically valid and carries a fixed value or twice the value of the fare that should have been paid. For this purpose, a Smart Card such as London's Oyster, which had not been correctly updated for the journey being made, can be considered as 'not technically valid'.

    Passengers on Transport for London (TfL) Rail services, or who are present in a Compulsory Ticket Area on a TfL Rail station, even if they are travelling on National Rail, may be charged an £80 Penalty fare and that different rules apply to these London schemes

    Contrary to popular belief, a Penalty Fare is not a Fine nor is the issuing of a Penalty Fare an accusation that the passenger has committed a wrong, though if a passenger refuses to pay the charge, then they would expose themselves to the risk of prosecution.


    8.2.5 Penalties.
    A successful Prosecution under the RoRA allows Courts to give a maximum sentence of imprisonment for 3 months for travel without having paid their fare 'with intent' or for travel without having paid their fare and supplying a false name and address.

    When a ticket irregularity goes all the way to Court (i.e. the parties are unable or unwilling to negotiate a settlement) then the Fines imposed by Courts can be as much as £1000 for a Railway Byelaw Offence and £500 or £1000 (depending on which Offence) for a RoRA Offence (with reductions for first offenders and early pleas of Guilt). In addition, the Prosecution will claim the Costs of the Railway Company and the original Fare, and the Court will impose a "Victim Surcharge".
    These costs, with some typical amounts claimed, are discussed below, in Section 8.7.3 [Prosecutions]


    8.2.6 Policing and Other Powers
    Policing on the Railways is undertaken by the British Transport Police (BTP) who have jurisdiction on all Railway premises and elsewhere. However, powers of detection, investigation, interview and detention are available to any authorised Railway Official, though in practice, employers will be unwilling for their staff to put themselves in danger (or to delay operations) by attempting an arrest. The detection of ticketing and Byelaw Offences are frequently undertaken by Inspectors employed either directly by the commercial Train Operating Companies or by independent contractors and the follow-up investigation will be by dedicated Revenue Protection & Prosecutions staff. The BTP would normally be notified of serious incidents of damage, fraud, violence or trespass, and it would be the BTP or civil Police would will detain a suspect for further questioning.
    A civil Police Officer of England, Wales or Scotland would be empowered by the Railway Regulations to detain or arrest an suspected offender, although there is a preference within many local police forces to confine their intervention on the railways to major incidents rather than ticketing matters.

    Other powers available to the Railways in pursuit of Offenders is the claim of Trespass on railway property, interfering with equipment, failing to use equipment in the correct manner (incl. doors and barriers), Fraud and Public Order Offences. These and other Offences are discussed in Section 8.3 [Other Procedures and relevant Legislation].


    8.2.7 Process
    The procedures for detecting and prosecuting Offences will be familiar to Criminal investigators acting for the state. Evidence will be gathered under controlled conditions, Statements will be taken under caution, names and addresses will be checked on national databases, pre-printed Statement forms will be dated and signed and evidence will be presented to the Magistrates [England & Wales] or the Sheriff or Justice of the Peace [Scotland] under oath. The caution will be familiar to those versed in PACE (Police and Criminal Evidence Act [England & Wales]) and in Scotland will include the Rights of Solicitor Access; the Railway’s "Witness Statement" forms are similar to those used by the Police and are known as an "MG11".

    Frequently, not all of the procedures outlined above will have been adhered to in full; such omissions do not necessarily invalidate the investigation, nor do they assure a passenger of any arguable grounds for refuting a Prosecution. It is rare for a passenger to escape prosecution solely on the grounds of a technical inadequacy on the part of the Railways.

    The procedures adopted when a Railway Company begins to investigate a Prosecution are discussed in detail below, in Section 8.7 [Prosecuting Procedures]
     
    Last edited: 31 Jul 2013
  4. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.3 Current Framework - Other Procedures and relevant Legislation

    The unusual arrangement described above, of 19th Century Acts applied to modern rail travel, of Byelaws and Criminal Offences prosecuted by Private Companies created under a hasty privatisation in 1996, and other factors such as liabilities under Contract Law and Tort, has created unintended complexity and some anomalies in the legal framework:


    8.3.1 Contract Law
    The greatest part of passenger rail travel in the UK falls under the general category of Contract Law.
    Contract Law has its own body of Judgements which help to clarify the requirements for publicising Conditions and ensuring that parties to a Contract have some reference to those Conditions. A claim of a breach of Contract would be pursued as a Civil matter, not a Criminal Offence. There is a vast cannon of Case Law to amplify almost every conceivable variation on a Contract and which extends far beyond the scope of this document.

    As discussed above, most disputes are focussed in the very narrow field of travel without a valid ticket, and although these fall clearly within the scope of a breach of Contract, they are nearly always captured by the Criminal Offences referred to above (either under one of the Railway Acts or under the Railway Byelaws), and consequently, they are generally pursued and prosecuted in England and Wales as Criminal matters and not as a breach of Contract. However, there are instances where a Railway Company simply sues a passenger for the value of an unpaid fare or for some other loss.


    8.3.2 Torts
    In common with most business transactions, an increasing degree of detail in the Terms and Conditions in Contracts over the years has seen more matters of dispute being argued under Contract Law. However, those Conditions do not remove a person's or a Company's exposure to liability under the Common Law Torts.
    The most significant Tort as a basis for a claim against the Railways will probably be that of Negligence, both in terms of personal safety and of property, where the potential for a claim of damages might be a significant sum.
    In the event of an injury arising on the Railways, it may be possible to set aside the need to demonstrate the cause of the injury under the res ipsa loquitur principle, where the complexity of Railway operation may be beyond the normal person's comprehension. Claims of negligence have succeeded (See Cooke and Herrington) even where the injured persons had trespassed onto Railway property before sustaining injuries from its operational equipment and where there were defects in the railway's fences (but not in Titchener where no defect was found).
    Other Torts in claims against the Railways might be Misrepresentation and even false imprisonment.
    It has been established that a claimant against the Railways can have a choice of framing their claim in terms of Contract Law or Tort, by Lord Esher MR in Kelly v Metropolitan Railway [1895] 1 QB 944.

    Torts which could be the basis of a claim by a Railway Company against a member of the public or a passenger would be Nuisance, Fraud or Trespass.


    8.3.3 Liability for Luggage
    A Railway Company may refuse to carry an item of luggage (or an animal) even if it has been carried on the earlier legs of a longer journey. Items may be refused if they obstruct doorways or corridors, may cause damage or inconvenience, may delay a train or is unsuitably packaged. A charge may be made for carrying golf clubs, surfboards, skis, large musical instruments and other large items.

    Railway Companies are not liable for any item which a passenger leaves on a train (after the passenger has disembarked) or on Railway premises.
    Luggage which is not the passenger's property and has not been trusted to the passenger's care has no right to be conveyed.


    8.3.4 Youth Prosecutions
    Age of Liability
    The age at which a young person may become liable for a crime is 10 years in England and Wales and N.Ireland, and in Scotland it is 12. [There are proposals to raise these limits to being them closer to European averages]. However, a person under 18 years will be Investigated and Prosecuted under a Youth Justice System . Investigation requires the parent, guardian or responsible adult to be informed, and which permits the youth to provide a Statement but not to be interviewed without the adult. The Prosecution will be undertaken by a specialist Youth Offender Prosecutor in a Youth Court where certain protections will be in place and Statements of the youth's background will be provided. Sentencing options will be limited (see Powers of Criminal Courts (Sentencing) Act 2000) to: Fines, Detention and Training orders, Youth Community Orders, Reparation and Referral Orders, Reprimands and Conditional Cautions, though in Railway ticketing matters, it is unlikely that a Youth would be Prosecuted. The age at the time of Conviction is normally the age which triggers the above Sentencing procedure, not the age at time of giving the Offence; a Youth aged 18 or over at the time of trial will be heard in the appropriate adult Court.

    Liability of adult
    Where a Youth or Child is suspected of an offence which does not involve an adult, then no adult (such as a parent or guardian) will be liable.
    Where an Offence involves a Youth (as defined above) and also an adult, it may be heard in an adult Court.

    Discharge
    A Prosecution of a Youth for a minor Railway ticketing Offence which is brought to the Magistrates Court as for an adult would be likely either to be abandoned or to result in a Discharge (See Section 8.7.3.3 below).

    Child travel
    A passenger whose age entitles them to discounted tickets (the Child Fare, See Section 6.4.1) may, if relevant circumstances apply, be suspected of having committed an Offence. As above, such as person should normally be investigated under Youth Justice principles. A passenger entitled to free travel (under 5 years) would not be suspected of Committing an Offence, but as a 'gratuitous passenger' they are still under Contract to be conveyed, from which rights and responsibilities on the parties follow; a responsible adult will have the same responsibilities for the Child on the Railways as elsewhere.


    8.3.5 Gratuitous Passengers
    (Children, travel with Permission, Staff travel)

    Passengers in these categories who are being permitted to travel, but who neither have a ticket nor are required to hold a ticket, are 'gratuitous passengers'. These might include children under the age at which a ticket is required, staff or other people with passes, permissions or rights to travel, even a child whose parent should have bought a ticket for them but has not done so (See Austin vs Great Western Railway 1867). 'Gratuitous Passengers' will not, normally, have any Contractual rights to be conveyed and will not be bound by the National Rail Conditions of Carriage. However they must be carried by a duty of care in tort and must observe the Railway Byelaws (which apply to all persons on Railway property).

    This category does not include passengers who have not been able to buy a ticket before boarding and where the Railway Company arranges for passengers to pay later (either on-board or at their destination). In that case, the passenger is subject to a Contract, evidenced by their own actions and by the Railway Company's arrangements for them, and the payment will be made at a later time.


    8.3.6 Penalty Fares
    Penalty Fares are not penal but are simply surcharges which may be imposed in certain circumstances where a valid ticket is not held and provide those Companies which use the arrangement, with an alternative to enforcing Railway Byelaw 17 or 18.
    See Sections 10.4, 10.5 & 10.6 for full details and 8.2.4 (above) for the legislation.


    8.3.7 Inter-Company detection of Offences and Prosecutions
    A Railway Company (one of the TOCs) will be empowered to detect, investigate, claim and prosecute a person for a breach of Regulations or Laws where the breach involves one or more other Operators. This right arises from two principles: the relevant Statutes create Criminal Offences which therefore can be pursued either by the State or, by authority of the Statute, by Railway Officers; the Byelaws create Offences which may be pursued by any person. In practice, matters of suspected railway passenger ticketing offences or conduct and behaviour on Railway Property, will be Investigated and Prosecuted by the Railway Company affected by the matter, but there is no legal reason why one Company's Officers could not investigate a matter affecting other Companies, and this will happen quite naturally where the matter affects more than one Operator (e.g. use of a season ticket applicable on several Companies' trains) or by agreement (e.g. where two Companies serve the same route). Agreements between operators whose trains serve the same area are common, and staff employed by one Company will regularly interview passengers travelling on another Company's services where an Offence is suspected (e.g. a fare is thought not to have been paid).
    However, there may be little benefit to an Operator in bringing a Prosecution against a passenger which only affects another Company's services unless such an agreement is in place.


    8.3.8 Delegated Contracts
    (Distinct from Delegated Legislation e.g. the power to create and enforce Byelaws).

    Railway privatisation in 1996 created the power for a Railway Company to enter into a Contract with an intended passenger and to provide Evidence of that contract by issuing a ticket, even though the body which will be obliged to honour the Contract will be another Railway Operating Company. The mechanism under which the Railway Companies enter into such Contracts and then delegate the obligations to other Companies is enshrined in the Terms of their Franchise Agreement with the Department of Transport and the "Ticketing & Settlement Agreement" to which all the Operating Companies and Rail Settlement Plan Ltd. (RSP) are Contracted. Rail Settlement Plan Ltd. is a wholly owned subsidiary Company of the Association of Train Operating Companies (ATOC) and its responsibilities include the inter-company retailing of tickets, the management of revenue from those sales, the management of fares databases and third party suppliers of ticket retailing systems. It is under this mechanism that personnel from one Company can enforce a breach of Conditions in a Contract with another.


    8.3.9 Debt Collection Agencies
    Unpaid fares may be passed to railway-specific debt Collection Agencies. The most used Agencies are:
    IPFAS (Independent Penalty Fare Appeals Service), IAS (Independent Appeals Service), IRCAS (Independent Revenue Collection and Support) and RPSS (Revenue Protection Support Services).

    These agencies manage the collection of Unpaid Fares Notices and Penalty Fares and a Passenger's Appeals against these fares. Where an Appeal is made, it should be accepted that on receipt of that initial Appeal that no administrative charges will be applied (by the appeal body or any debt collection agency on behalf of the train operator) if that Appeal is received within the required period; these charges may be applied subsequently, once the appeal is resolved if the decision is in favour of the Railway Company. (This is the system currently used by IAS but not IPFAS. The latter only processes 'Penalty Fare' appeals).
    [RPSS (Revenue Protection Support Services) and IPFAS (Independent Penalty Fares Appeals Service, are both trading names of "Southeastern Railways")]

    These agencies effectively just act as debt collectors, and will operate in the same manner as any other civil debt collectors such as those acting for a retailer, commercial institution or supplier of utilities. Any appeal made to them should be confined to matters of fact which challenge the collection of that debt. A dispute with the Railway Operating Company may be more effectively made directly to the Company.


    8.3.10 Consumer Legislation
    (Unfair terms in Consumer Contracts)
    The Contract for the sale of Railway Tickets is subject the regulatory and statutory provisions of the Railways Acts and each TOC's franchise Conditions, including the Ticket & Settlement Agreement, consequently, the sale of rail tickets for passenger travel on the rail network of Great Britain provided by the TOCs is not captured by those Consumer Regulations.

    The Unfair Terms in Consumer Contracts Regulations 1999 :
    Best Practice would require Railway policymakers to take account of The Consumer Protection from Unfair Trading Regulations 2008; specifically Sections 3 (Prohibition of unfair commercial practices), 4 (Prohibition of the promotion of unfair commercial practices), 5 (Misleading actions) and 6 (Misleading Omissions). Many promotions, special offers and ancillary supplies and services could be captured by the UTCCR, even if tickets for rail travel are not.

    The advertising and promotion of Railway Tickets, special offers, travel and other services are all subject to the scrutiny and direction of the Advertising Standards Authority (ASA).


    8.3.11 Accessibility of information
    While the general Law applicable to rail travel and behaviour on Railway property is openly available, Copyright materials and industry documents may apply to the interpretation of ticket validity in some circumstances. The Railway industry is, in 2012, embarking on a programme of transparency and accessibility in its next round of ticketing conditions and it is aiming to eliminate the exceptional circumstances which conceal any conditions. Fares data are subject to Copyright and may not be copied or distributed without permission; fares data is publicly available at a retail cost, published by The Stationery Office (TSO).


    8.3.12 Double Liability
    The creation of Byelaws also creates the potential for a passenger to incur double liability, first in the form of the Terms and Conditions of the contract to be conveyed, and secondly in the form of a simultaneous Byelaw Offence. The Byelaws create a statutory framework for dealing with a Civil matter. This would only arise in practice in exceptional circumstances.

    However, in serious cases of breach of a Byelaw, the Railway officers may require a passenger to leave a train or Railway premises where failure to do so may amount to a Trespass. This may simultaneously allow them to treat the Contract for travel as discharged. Subsequently, the Railway operator would be at liberty to consider a claim for any unpaid fare and/or for any damages incurred. Similarly, a passenger found to be travelling without a ticket will be liable for the consequences of Trespass as well as the offence arising from their ticketless travel.


    8.3.13 Obsolescent Law
    The 19th Century legislation created a number of precedents which, at the time, will have assisted the Railway Companies in enforcing the Laws in a manner that was appropriate at the time; a time when passengers carried a lot of luggage and parcels, when there were numerous staff working on platforms and on trains, and when ticket selling was a simple personal and manual transaction over the counter at a Booking Office.

    As discussed above, two of those Acts are still current statute and are used regularly: the RoRA 1889 and RCCA 1845 and some of the Judgements based on these Acts a hundred years ago are still cited as authorities today. However, there are also Judgements rising from those Acts which, due to changed circumstances and practices, would be in conflict with current practice or the Conditions of Carriage; there will have been no repeal of their Judgements, leaving scope for some uncertainty or errors of interpretation in a few situations.
     
    Last edited: 5 May 2013
  5. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.4 TOCs obligations and responsibilities to passengers

    While the framework of Laws and penalties described above may appear daunting at first sight and give the impression of a system which can catch the unwary and innocent traveller, a passenger on the Railways does enjoy a wide range of benefits which would not apply to travel by other modes.


    8.4.1 The right to be conveyed to the destination on a ticket
    The passenger having paid for a ticket to a particular destination will usually incur an obligation by the Railway Companies to ensure that a passenger reaches that destination, even if that requires some special arrangements such as taxi travel.
    This right only applies to the Person who contracted with the Railways (it is not transferable), and only between the stations named on the ticket and any route restrictions specified on the ticket. It is not a guarantee that a train at a particular time will fulfil that obligation, nor that a seat will be available, nor that the stated class of accommodation will be available. In extreme circumstances, where services are not running as advertised at nighttime, and alternative transport such as by taxi or bus is not realistic, then the Railway Operator is likely to arrange overnight accommodation at their expense, and then onward travel the next day.


    8.4.2 Luggage
    Within limits of size, weight or available capacity, luggage may be carried by a ticket-holding passenger even if the item is not the property of the passenger; however luggage which is not the passenger's property and has not been trusted to the passenger's care has no right to be conveyed. (Passengers will remain liable for exercising due care for the safety of their luggage over the full extent of their journey and the availability of capacity for passenger's luggage cannot be assured over the entire extent of a journey. Dangerous items may be excluded.).


    8.4.3 Compensation.
    There are a range of compensatory schemes to refund all or part of a ticket’s cost in the event of delays or even, in the event of severe cancellations. These schemes will vary between Railway Companies and will normally be stipulated in their Passenger's Charter; details may change from time to time.
    See Section 9.7 [Compensation: Delay Repay Schemes] and Section 9.8 [Compensation: Passenger's Charter Schemes]


    8.4.4 Safety.
    The Railways have an obligation to convey the passenger safely.
    The Railways have duties of care towards their passengers including the duty not to injure the passenger through negligence. This duty applies specifically towards the young and the vulnerable. This duty applies both as an implied term of the Contract and in Tort, so a passenger injured on the railways may form a claim under a breach of Contract or under a claim of negligence in their duty of care.

    Where a passenger has not paid their fare but after having been accepted for travel by a Ticket Inspector or Guard (perhaps after having given their name and address) and has not been ejected as a Trespasser, then the Railway still has this obligation; only if the non-paying passenger has not been accepted for travel will the Companies be able to refuse any more responsibility than they have towards a trespasser.
    Consequently, a non-paying passenger who has not made themselves known to the Railway in some way, will not be considered has having been accepted and will not benefit from any duty of care.
    The Companies operate schemes of comprehensive insurance which will assist in the event of any personal injury sustained in the course of travel on the Railways or during the proper and normal use of railway property.
     
    Last edited: 3 May 2013
  6. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.5 Passengers' obligations and responsibilities on the Railways

    8.5.1 Tickets
    The Passenger has an obligation to pay the due fare for their journey and to have, and to present on demand, a valid ticket for the journey being taken. Note that Tickets remain the property of the Railway Company and may be inspected or withdrawn at any time; the Companies are not obliged to consider a ticket as valid if it has become defaced or illegible. Specifically, it must be noted that no Railway Operator is under any obligation to accept as valid for travel a ticket which has been marked, damaged to illegibility, or lost while presenting a receipt, or previously used for the travel being undertaken.
    Tickets are not transferable as the Contract is between the buyer (as a sole individual) and the Railways (as a collection of Operators) not even if transferred between a husband and wife or parent and child (though it is perfectly permissible for one person to buy a ticket for another person).


    8.5.2 To comply with Instructions
    These instructions will include notices which may be given in print, on Signs, by specific oral direction or by general announcements. This may include joining a queue, even if by doing so the passenger misses their intended train.
    To provide their Name and Address to any officer of the Railways whom requests it and whom has reason to suspect that a breach of a Railway Byelaws may have occurred.


    8.5.3 To observe the Regulations, Byelaws and Conditions and to excersise due care
    The Railway Byelaws in their entirety must be observed, and are largely self-evidentially clear to understand.
    These impose conditions on passenger's behaviour while on Railway property, in addition to the statutes which apply elsewhere such as Public Order.
    A breach of any Regulation, Condition or Byelaw will entitle a Railway Company to treat the Contract as voided and cease to convey the passenger and even to treat the passenger as a Trespasser. These remedies may be in addition to a claim for any Claim for a payment of a Fare or a Claim for Damages.
    In addition, passengers have Common Law duties to use reasonable care and keep control of their luggage, animals and any other property, and not to cause a nuisance, although many of the Regulations, Byelaws and Conditions attempt to bring those Common Law duties within the Contract to travel.


    8.5.4 To comply with other Regulations and Legislation
    These exist to prevent Passengers (or other persons) committing any of acts described as Offences on the Railways (and which might not be specifically notified to passengers) and equally to protect passengers and the operation of the Railways from disruption:
    These would include Trespass, Use of Crossings, smoking, nuisance, offensive behaviour, security of luggage, unauthorised trading on Railway property, the movement and carriage of livestock, etc.
     
    Last edited: 3 May 2013
  7. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    Section 8 - Legal

    Contents
    • 8.1 History
    • 8.2 Current Framework - Railway Specific Legislation
      • 8.2.1 Legislation
      • 8.2.2 Byelaws
      • 8.2.3 Case Law
      • 8.2.4 Penalty Fares
      • 8.2.5 Penalties
      • 8.2.6 Policing and other powers
      • 8.2.7 Process
    • 8.3 Current Framework - Other Procedures and Relevant Legislation
      • 8.3.1 Contract Law
      • 8.3.2 Torts
      • 8.3.3 Liability for Luggage
      • 8.3.4 Youth Prosecutions
      • 8.3.5 Gratuitous Passengers
      • 8.3.6 Penalty Fares
      • 8.3.7 Inter-Company detection of Offences and Prosecutions
      • 8.3.8 Delegated Contracts
      • 8.3.9 Debt Collection Agencies
      • 8.3.10 Consumer Legislation
      • 8.3.11 Accessibility of information
      • 8.3.12 Double Liability
      • 8.3.13 Obsolescent Law
    • 8.4 TOCs obligations and responsibilities to passengers
      • 8.4.1 The right to be conveyed to the destination on a ticket
      • 8.4.2 Luggage
      • 8.4.3 Compensation
      • 8.4.4 Safety
    • 8.5 Passengers' obligations and responsibilities on the Railways
      • 8.5.1 Tickets
      • 8.5.2 To comply with Instructions
      • 8.5.3 To observe the Regulations, Byelaws and any Conditions
      • 8.5.4 To comply with other Regulations and Legislation
    • 8.6 Offences used in Current Practice
      • 8.6.1 Background to Fare and Ticketing Offences
      • 8.6.2 Summary of most common Fare and Ticketing Offences (no ticket, altered or false ticket, not giving name and address, etc.)
      • 8.6.3 Summary of other common Offences on the Railways - Beyond Fares and Ticketing (trespass, damage, theft, behaviour etc.)
    • 8.7 Prosecution Procedures
      • 8.7.1 Detecting and Investigating Railway Offences
        • 8.7.1.1 Detection
        • 8.7.1.2 Investigation
        • 8.7.1.3 Out of Court Settlements
      • 8.7.2 Legal assistance following an Investigation, a Claim or an Intention to Prosecute.
      • 8.7.3 Prosecution
        • 8.7.3.1 Plea by Post
        • 8.7.3.2 Plea in person
        • 8.7.3.3 Proceedings in Court
        • 8.7.3.4 Guilty (Fines, CRB checks, Appeals)
        • 8.7.3.5 Not Guilty
        • 8.7.3.6 Discharge
    • 8.8 Rail Industry Regulation
      • 8.8.1 History
      • 8.8.2 Other Responsible Bodies
      • 8.8.3 Current Regulation
      • 8.8.4 Freedom of Information
     
    Last edited: 3 May 2013
  8. yorkie

    yorkie Administrator Staff Member Administrator

    Messages:
    34,929
    Joined:
    6 Jun 2005
    Location:
    Yorkshire
  9. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.7 Prosecuting Procedures

    8.7.1 Detecting and Investigating Railway Offences

    A passenger who finds themselves under investigation for a ticketing offence is likely to find the matter distressing and perplexing, moreso due to the length of time the process can take. It's often tempting to look for some flaw in the Company's procedures to challenge the procedure, although such challenges are rarely going to succeed, and if they do, are likely to cost a significant amount in professional fees; the Railway legislation and Byelaws have withstood many challenges.
    On the other hand, these procedures are very common within the Railway Companies' revenue enforcement teams, and the process is well established and tested.
    8.7.1.1 Detection

    Most Railway fares or ticket irregularities will be detected during an on-board inspection or at a station exit. Staff will normally be alerted to any apparent irregularity and will be able to respond in a number of ways, depending on the options immediately available to them and whether they consider that the person may have been deliberately evading a fare or not. If not, the first response may simply be to offer the correct ticket on payment of the correct fare to make good the error.
    Where there is reason to suspect that the person my have been attempting to avoid payment, then a Notice may be issued (requesting payment), a Statement may be taken (concerning the facts and with the person's name and address), the ticket may be withdrawn as Evidence or the person may be detained until another Officer can deal with them.

    In most of these scenarios, the subsequent procedure will be that the Statements by the passenger and the Staff will be passed to the Revenue Protection team for Investigation (differing Companies use different department names).

    8.7.1.2 Investigation

    Once the documentation has been passed to handed to an Investigator, they will, at a later date, write to the passenger inviting them to provide any further information in the form of a Statement. This may take several weeks; some Companies will have such high volumes of work that it may take up to 6 months. All of these Statements (and any other evidence such as confiscated tickets) will be considered and that consideration may result in a decision that the Company will start a Prosecution for whichever of the Offences they suspect had been committed.
    Some Operators will include the suspected Offence in their letter inviting a Statement and some will not, reserving the right to decide which Offence to pursue only after reading the passenger's Statement.
    It would be normal for an Investigator to take into consideration whether the suspected passenger had been previously detected travelling under similar circumstances and whether they had any unspent Convictions for any similar matter.

    When the Investigation is complete, and if the result is that the Company wishes to pursue a Prosecution, then the accused passenger will be sent copies of the Evidence which will also be presented to the Court (this will normally include a copy of their own Statement taken at the time of the incident); the same letter will also give the accused passenger the opportunity to inform the Court of how they intend to plead ('Guilty' or 'Not Guilty').

    8.7.1.3 Out of Court Settlement

    It is not uncommon for passengers being investigated for a minor ticketing Offence to reach an "out of Court settlement" with the Railway Operator before the Hearing, particularly if they have no previous record of a Railway ticketing irregularity. Such a settlement is entirely at the discretion of the Operator's Prosecutor and is not an automatic right. Some Prosecutors may not be eager to to accept an offer of a settlement, and their policy and practice will vary between the Railway Companies and are likely to vary over time. A passenger who appears to be too eager to 'buy their way out' of an impending prosecution may raise more suspicions about their history than provide support for their claims of innocence. Sometimes a passenger who really has done nothing wrong, and who is likely to find that the investigation is eventually abandoned, can put themselves in a position of deeper suspicion by offering an unnecessary settlement.
    While Out-of-Court Settlements are usually negotiated by post or phone, they are sometimes agreed at the last minute, even right up to the day of a Court hearing.
    When a Prosecutor does accept an out of Court settlement, the amount would still be expected to cover the administrative costs already incurred in investigating the incident, plus the fare due; figures between £100 and £300 are common, with amounts as low as £20 for very minor 'accidents' and as high as £800 when papers had already been sent to the Court. (Legal costs may be due in addition, if a Solicitor has been instructed).​
    8.7.2 Legal Assistance following an Investigation, a Claim or an Intention to Prosecute

    There are very few Law Firms with the Specialist knowledge to handle detailed Railway arguments, and they charge dearly for their services - perhaps a few thousand pounds to assist someone aggrieved at a Summons for a ticketing irregularity. However, in the vast majority of cases, little or no specialist Railway knowledge or experience is required. A local Law firm specialising in Criminal Law Defence will be able to assist a person accused of one of the ticketing irregularities referred to above and even if they are unable to persuade the Court of their client's innocence, they may be able to present some personal factors which will mitigate against the level of fine determined by the Court.
    The Railway Company will also claim their administrative Costs against the passenger and this may still be levied against the Accused despite any mitigation.

    Many local Law firms will offer an initial interview without charge to people confused by the threat of a prosecution.
    Free advice is available from the Citizens Advice Bureau in England and Wales and from Citizens Advice Scotland in Scotland however this is only likely to assist in helping an Accused person to focus on their priorities.
    It is always wise to seek advice as soon as possible after an incident has been identified; the costs and the consequences can increase as time passes. There is also the risk from delaying taking advice, that something may be said which either incriminates the passenger or makes a defence more difficult.

    Always keep an up to date record of the costs that are being incurred and which are going to be incurred in the future as the matter progresses - it is a regrettable fact that many defendants are surprised at the level of their costs.


    8.7.3 Prosecutions

    Where a Prosecution is begun by a Railway Company for a simple ticket offence, the matter will be heard in a local Court [1] .
    Very serious matters such as persistent Fraud or Criminal Damage may be transferred to a higher Court: the Crown Court [England & Wales] or High Court [Scotland].

    When a person is Summonsed to Court, the paperwork should include the evidence which will be presented by the Prosecution, usually in the form of Witness Statements. For a relatively minor matter, the Summons will include the opportunity to make a plea (Guilty or Not Guilty) to the Court by post, including a written statement of their personal circumstances which might affect any order for payment following a Guilty verdict.
    8.7.3.1 Plea by Post

    Sending a Plea by post allows the Court to deal with the matter in their absence using the written Witness Statements.
    A Guilty plea by post will be read out at the Hearing and will generally be dealt with swiftly. The Prosecution will not provide Witnesses. The penalty imposed (see below) will be advised in a letter from the Court.
    A Not Guilty plea without a personal appearance is unlikely to succeed and the Prosecution who are sure to be present to read out their own Statements and are most probably going to have their version of events taken as adequate demonstration that the Offence was committed as described.

    8.7.3.2 Plea in Person

    An accused person may be represented by their appointed legal advisor or they may appear in person and speak for themselves.
    The hearing of a straightforward ticketing matter will probably only take a few minutes but is likely to be scheduled along with a number of similar cases, all being prosecuted by the same Company at the same time, so there may be some wait until any particular case is heard. If the accused admits to the Offence immediately, then no Witnesses will speak. If the accused has denies the offence, then the Prosecution may wish to provide Witnesses who are not present, in which case, the matter will be adjourned until another date.

    8.7.3.3 Proceedings in Court

    Before the Hearing, each party should have disclosed their evidence to each other, and this way it becomes clear what Evidence is going to be presented in Court. The Court will ask the accused to identify themselves; The Prosecution will read out the details of the offence; and the accused person will be asked how they plea (Guilty or Not Guilty).
    The accused may already have indicated how they will plea and if they had explained that they will plea Guilty, then the Prosecution will not provide any Witnesses.
    If Guilty, then the Court proceeds to determine the penalty (see Guilty, below).

    If Not Guilty, then the Evidence will be presented, usually by the Prosecutor who will read out the Legal basis for believing that the Offence has been committed and a summary of the statements which provide the Evidence; it is their task to prove that the law applies to the accused person's situation and that the Evidence demonstrates that the Offence was committed by the accused. Only if there is a suitably complex challenge or if there is a particularly serious matter, then the Officer who took the statements might be required to attend to give their Evidence orally and then to be cross-examined. If the accused has already explained that they intend to plea Not Guilty, then they may also state that they wish to cross-examine on the Witnesses (such as a Ticket Inspector). Otherwise, it would not normally necessary for the Witnesses to appear but if they do then this will, of course, increase the costs of the hearing. The accused and /or their representative will have the opportunity to respond with any additional Evidence that may help the Court reach a Decision.
    If the accused has a previous conviction for an Offence which is "clearly relevant to the issue" [Lord Lane CJ] then that fact is likely to be introduced.

    The Court's Decision is normally either that the Accused is Guilty or Not Guilty of the Offence although there may be reasons why the Claim is Dismissed or the Accused person is given a Discharge.

    8.7.3.4 Guilty

    Where the Court reaches a Guilty Decision (which can almost be assured in a strict liability matter such as a Byelaw Offence) then the accused and/or their representative will have the opportunity to make a statement of any mitigating circumstances which they would like the Court to consider before determining the sentence (i.e. the level of fine).
    Fines imposed by Courts are typically around £100-£300 but may, in theory, be as much as £1000 for a Railway Byelaw Offence and £500 or £1000 (depending on which Offence) for a RoRA Offence. These are reduced for first offenders and when the accused had made an early plea of Guilt. In addition the Court will charge the Costs of the Railway Company's Prosecution (in a simple matter of ticket-less travel of perhaps £75 to £200), plus the original Fare, and a "Victim Surcharge" of 10% of the Fine with a minimum of £15 (a lower tariff applies to persons under 18). If the accused has difficulty in paying these costs then they should make that very clear immediately so that an appropriate payment scheme can be put in place (to avoid the risk of failing to pay as directed by the Court).

    A person found Guilty of an Offence (other than a breach of a Byelaw) will have their details entered on the Police National Computer (PNC) and will therefore appear on a check with the Disclosure and Barring Service (DBS - formerly known as Criminal Records Bureau - CRB), this is generally referred to as a "C.R.B. Check". An Offence of fare evasion (under Section 5 of the RoRA) in the PNC will be treated as a crime of dishonesty.
    A person found Guilty of a Byelaw Offence will not have the fact recorded on the PNC (unless the Court makes an administrative error).
    Persons found Guilty of either category of Offence will have the fact revealed during a National Security Vetting or Developed Vetting (DV) search, which is the level of background checking applied to persons working with Official Secrets in Government and with certain sensitive information in the armed forces, MoD and defence contractors. A Railway ticketing Offence will not appear on a Baseline Personnel Security Standard (BPSS) as applicable to staff in some Government Departments nor would it appear on a Counter Terrorist Check (CTC).

    The Court will allow 21 days for the Prosecuted person to lodge an Appeal. This would be submitted in writing, to the Court Office with the payment of a Fee and a copy will be sent to the Prosecution. A successful Appeal will provide substantial grounds to, either, demonstrate than an error in Law occurred in the earlier hearing (in the procedure, the Decision or the Sentence), or, it will introduce new Evidence that had not been available to the earlier hearing and which has a significant bearing on the Judgement. This right of Appeal is available to lost in the Court.
    An Appeal should only be considered in the light of legal advice, and with a realistic assessment of the costs that will be at stake.

    8.7.3.5 Not Guilty

    Where the Court reaches a Not Guilty Decision, the accused or their representative will have the opportunity to ask the Court to charge their costs against the Company Prosecuting them. The matter will then be closed.

    8.7.3.6 Discharge

    As in other Criminal matters, the Court is entitled to consider that "the character of the offender and the nature of the Offence" does not justify any punishment and will provide the Accused person with a Discharge [in England & Wales this may be either Absolute or Conditional, and in Scotland it may be Absolute]. Following this decision, the Accused will have an entry made in the PNC if such an entry would have followed from a Guilty verdict (see Guilty, above), although a Discharge in the PNC becomes a 'spent' conviction more quickly than does a Guilty Decision.​
    --------------
    [1]In England & Wales, the vast majority of railway ticketing offences will be heard as a Criminal offence in the Magistrates Court and will be a private prosecution, not requiring any involvement of the Police or Crown Prosecution Service. The Magistrates Court may be formed of 3 lay Magistrates assisted by their legal Clerk or a by District Judge sitting alone. A Railway Company would also have the option to pursue a simple Claim for a civil debt.

    In Scotland, private prosecutions are very unusual and require permission before they can be brought before a Sheriff Court or Justice of the Peace which would depend on the severity of the matter. Such a prosecution for a Criminal offence would require an investigation by the Police and would be passed to the Crown Office and Procurator Fiscal Service (COPFS) for Criminal prosecution. A Railway Company would also have the option to pursue a simple Claim for a civil debt.
    Railway Operators based in England investigating journeys which took place entirely within Scotland would be bound by Scots Law.
     
    Last edited: 6 May 2013
  10. DaveNewcastle

    DaveNewcastle Established Member Fares Advisor

    Messages:
    7,291
    Joined:
    21 Dec 2007
    Location:
    Newcastle (unless I'm out)
    8.8 Rail Industry Regulation

    8.8.1 History

    During the period of nationalised Railways, consumer relations had been undertaken by a Central Transport Consultative Committee and eleven Area Transport Users Consultative Committees.

    In preparation for the privatisation of British Rail, a Railway Regulator was created in 1993 in the form of the Office of the Rail Regulation anticipating the fragmentation of the industry the following year into train operators and an infrastructure maintenance Company (Railtrack plc). To regulate the system of franchising which would arise from the 1996 privatisation, the Office of Passenger Rail Franchising (UK) (OPRAF) was also created in 1993.

    The subsequent privatisation of the UK Railways in 1996 saw British Rail split into about 100 Companies. This created a web of interrelated commercial operations undertaken largely by established transport Companies taking over the passenger and freight train operations, with specialist Companies charged with maintaining and timetabling most of the infrastructure, and finance Companies owning some of the rolling stock. An operator's Association (ATOC) would manage the passenger Companies' inter-relations and other sub-sections of the operation and governance, with a subsidiary (RSP) to manage ticket retailing and revenues, while the UK Government's Department for Transport would still the determine strategic framework within which they would operate. To oversee their inter-relations, and to promote development, the Regulator, (OPRAF) was appointed responsibility for managing the operating Companies' franchises.
    The OPRAF was disbanded in 2001 and replaced by the Strategic Rail Authority (SRA). The SRA had additional responsibilities for developing the industry and protecting the interests of users, for fares, standards, complaints, the centralised passenger enquiry service and to manage the powers of the Competition Act 1998 as applicable to the Railways. The SRA was not independent of government and the Transport Minister had authority to direct the it. The SRA was disbanded in 2005.

    Subsequently, from 2006, the Office of the Rail Regulation (ORR) was established to oversee the access to the infrastructure network by operating companies and was empowered to Investigate and report on industry safety and economic competition, compliance and relations, while Passenger Focus would consider general matters of passenger affairs (in matters of travel exclusively within London, London Travel Watch will consider the matter), and the UK government's Department for Transport would retain control over franchising.

    8.8.2 Other Responsible Bodies

    Meanwhile, the UK Government's Department for Transport (DfT) still investigates serious accidents (through its Rail Accident Investigations Branch - RAIB), the overall performance of the industry and government's intervention by way of subsidies, rolling stock investment and major infrastructure decisions. The House of Commons Transport Committee publishes its own reviews from time to time which include regular reports on strategic rail policy and practice.

    Other bodies with non-statutory remits represent other interests such as the Rail Freight Group and public and quasi-autonomous Companies undertake specific operations on the railways, devise development plans, manage land and property and will liase with local or regional authorities and with local transport operators.
    We could add the roles of the relevant Trade Unions, the role of the Health and Safety Executive and the dedicated Investigators of the British Transport Police to broaden the broaden the territory of bodies with influence.

    As a consequence of this complex web of interrelations created in after privatisation, any duties and acts of Regulation are going to be hard to analyse and implement.

    It would be rare for legal relations between those entities to reach a challenge in Law, however, legal relations clearly do exist between them and remedies for failings will be available. In most cases, relations would be of a commercial nature and disputes will take the form of financial charges or penalties, all enforceable in the Courts. Where questions of institutionalised failings, want of or error of jurisdiction, procedural impropriety, failure of 'legitimate expectation' or non compliance with other Statute are raised, then these may be heard in the High Court or through Judicial Review.

    8.8.3 Current position

    In terms of passenger travel, very few of the above complexities will arise and the matter will normally be resolvable through private dispute between the passenger and a Train Operating Company (TOC) or the Passenger's interest Groups: Passenger Focus or London Travel Watch. In complex matters, the ORR or the passenger TOC's trade association, ATOC, may be able to assist in clarifying an issue; however, ATOC is not a party to the passenger's contract and their decision will not be automatically binding.
    Passenger Focus publishes occasional briefings and statistics, including annual surveys of 'Passenger Satisfaction'.

    It is often claimed that the effectiveness of Regulation is inconsistent and is more effective in managing the inter-relation between government and the various companies & agencies than it is in respect of routine passenger or freight users, leaving uncertainty, ineffectiveness and lack of transparency in Regulation. A review by the Department of Transport in 2012 found that the current Regulatory system was adequate.

    8.8.4 Freedom of Information

    The DfT and ORR may be subject to Judicial Review and must comply with Freedom of Information Requests.
    ATOC and the private Train Operating Companies are not subject to Freedom of Information Requests.
     
    Last edited: 3 May 2013
Thread Status:
Not open for further replies.

Share This Page