Railway Byelaw 18

[MrMild]

This is an interesting thread - I've always wondered about these strict liability offences:

If say, you have a valid ticket when you start you journey but then you lose it, it seems you have committed a criminal offence. This is harsh but fair enough, some might say, its every passengers' own responsibility to look after their ticket.

But then what about if you got mugged whilst on the train and your ticket was stolen? Again, technically, you have committed an offence.

Or (for all the law students on the board) what about if you gave your ticket to an inspector and, whilst this first inspector is holding your ticket, a second inspector demands to see your ticket. Has the strict liabilty offence been committed?

This third scenario may seem improbable, but what about if your ticket gets stuck in an automated barrier and an inspector then comes along and demands to see your ticket?

I suspect that the answer is that although in all these cases technically the strict liability offence has been committed, we have to rely upon the common sense of the train companies not to prosecute people who have had their ticket stolen etc.

 

[island]

Or the common sense of the magistrates not to convict!

 

[First class]

Or the common sense of the magistrates not to convict!

A magistrate can't NOT convict though, if the case has been presented properly and evidence is in order. The most they can do is order an absolute discharge, which is still a conviction and criminal record albeit without fine/custodial/community punishment. A judge is to decide whether somebody is guilty or not guilty of an offence they have been accused of. A judge may comment at the end that there are more important things in life and be unhappy the case got to his court, but he can't throw out the case because he doesn't think it is worthwhile. It would make a mockery of the judicial system.

Discharge – this is when the court decides that given the character of the offender and the nature of the crime, punishment would not be appropriate. There are two types of discharge:
Absolute discharge - no further action is taken, since either the offence was very minor, or the court considers that the experience has been enough of a deterrent. The offender will receive a criminal record.
Conditional discharge - the offender is released and the offence registered on their criminal record. No further action is taken unless they commit a further offence within a time decided by the court (no more than three years).

 

[Fare-Cop]

A magistrate can't NOT convict though, if the case has been presented properly and evidence is in order. The most they can do is order an absolute discharge, which is still a conviction and criminal record albeit without fine/custodial/community punishment. A judge is to decide whether somebody is guilty or not guilty of an offence they have been accused of. A judge may comment at the end that there are more important things in life and be unhappy the case got to his court, but he can't throw out the case because he doesn't think it is worthwhile. It would make a mockery of the judicial system.

I've just read through the whole of this thread with interest and I think most people now seem to have grasped the facts regarding 'strict liability' however, the thing that gets confused most of all in all of this is the fact that there is no criminal record for conviction for any breach of National Railway Byelaw 18.

The case will be heard in a criminal Court by Magistrates, but this is what is known as a 'non-recordable offence'. There is a record of a conviction, but it does not make it to PNC.

I think the comment someone made about updating the Byelaws was interesting. The last review took place and was confirmed by the Secretary of State in 2005, when they were toughened-up in many ways, so these are relatively modern legislation in the scheme of things.

The Regulation of Railways Act (1889) under which fare evasion matters are charged has clearly stood the test of time and a great many challenges, the most noteable one being the Appeal Court judgement by Lord Widgery, Justice Park and Justice Cumming-Bruce in the case of Corbyn (1978). For these charges to succed the travellers' intention must be proven by the prosecution, or admitted by the defendant.

 

[transmanche]

Just an observation as well - if FCC issue a 1000 summonses a month, it would say that there's a significant number of railway travellers who are trying it on! It would also suggest that ticket barriers aren't the answer to everything!

Although (without wishing to take it off topic and starting a barriers argument again) it could be the exact opposite.

A passenger boarding without purchasing a ticket would previously have been given a penalty fare. If (because barriers are now installed) passengers are buying tickets to the next station just to get past the barrier, this might show intent to defraud - for which prosecution is the appropriate response.

Just a thought...

 

[First class]

I've just read through the whole of this thread with interest and I think most people now seem to have grasped the facts regarding 'strict liability' however, the thing that gets confused most of all in all of this is the fact that there is no criminal record for conviction for any breach of National Railway Byelaw 18.

The case will be heard in a criminal Court by Magistrates, but this is what is known as a 'non-recordable offence'. There is a record of a conviction, but it does not make it to PNC.

I think the comment someone made about updating the Byelaws was interesting. The last review took place and was confirmed by the Secretary of State in 2005, when they were toughened-up in many ways, so these are relatively modern legislation in the scheme of things.

The Regulation of Railways Act (1889) under which fare evasion matters are charged has clearly stood the test of time and a great many challenges, the most noteable one being the Appeal Court judgement by Lord Widgery, Justice Park and Justice Cumming-Bruce in the case of Corbyn (1978). For these charges to succed the travellers' intention must be proven by the prosecution, or admitted by the defendant.

A criminal record is created, administered by BTP on the TOCs behalf.

It usually will not appear on a normal disclosure, but it will, almost certainly, be on an Enhanced Disclosure.

I can't find any other TOCs, so Merseyrail Electrics will have to do:

Q:Will I get a criminal record?
A: If found guilty of a Byelaw offence, it may appear on an enhanced CRB CHECK but if you are found guilty of a Railway regulation act 1889 section 5 offence, then this would show up on any CRB CHECK. If you pay the administrative penalty, this will enable us to withdraw your case from court, and consequently you will have no CRB RECORD.

http://www.merseyrail.org/about-us/prosecutions.html

As for Corbyn -v- Saunders:

The defendant appealed a conviction for fare evasion, saying that it had been his intention to pay at the end of his journey. Held. The section references to "dishonestly" and the specific intention "to avoid payment" were not two separate elements in the mens rea of the offence. Woolf LJ said: "It is clear from the first clause of section 5(3)(a) that the traveller is not to travel on the railway without paying the fare for the intended journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, ie, payment of the proper fare before he begins his journey."
Regulation of Railways Act 1889 5(3)

 

[Fare-Cop]

The key element in the Corbyn judgement was the Judges determination that it was not necessary to import the adjective 'permanently' into defining whether or not Corbyn intended to avoid the fare due.

I will paraphrase the judgement, but if anyone is unsure of the meaning, I can reproduce the whole thing if required.

What the Judges decided was that it was sufficient to show that:

If a traveller knows that a fare is due and boards a train at a station where it is possible to pay the fare and get a ticket, but does not do so and travels with the intention of only paying the fare due when asked to do so, then that traveller may be considered to be intending to avoid payment of the fare unless challenged and that is contrary to S.5.3.a of the Regulation of Railways Act (1889)

On the subject of criminal records, LM is correct in how it is administered, but in fact only a tiny proportion of the fare evasion, and/or breach of Byelaw convictions made nationally ever reach PNC and then usually only show up if an enhanced check is made.

The vast majority of prosecutions for these offences are private prosecutions conducted by TOCs in-house staff, or their prosecuting agents and only get added to the system if added later by BTP, who take no part in the actual prosecution process themselves

 

[sheff1]

What the Judges decided was that it was sufficient to show that:

If a traveller knows that a fare is due and boards a train at a station where it is possible to pay the fare and get a ticket, but does not do so and travels with the intention of only paying the fare due when asked to do so, then that traveller may be considered to be intending to avoid payment of the fare unless challenged and that is contrary to S.5.3.a of the Regulation of Railways Act (1889)

The text above suggests (to me at least) that anyone boarding, say, a Hull Train at Kings Cross without a ticket, and then paying the fare only when asked to do so, is committing an offence.

Of course, as this is exactly what Hull Trains encourage their passengers to do, no attempt to prosecute would ever be made. But it still seems perverse that an offence is seemingly being committed (unless the full judgement contains further detail to state otherwise).

 

[island]

I imagine that if the TOC has a specific policy saying you are allowed to buy on board, that defeats things. FHT would like you to buy on board because they won't have to pay away 9% commission to the selling TOC.

 

[yorkie]

I imagine that if the TOC has a specific policy saying you are allowed to buy on board, that defeats things. FHT would like you to buy on board because they won't have to pay away 9% commission to the selling TOC.

Indeed.

Many TOCs allow Anytime fares to be bought on board, some TOCs (eg HT/GC) allow the full range to be bought on board.

This is best seen at King's Cross, where the departure boards say for FCC trains that you must have a ticket before boarding, GC/HT say tickets available on board and EC is silent (because they only sell Anytime).

 

[Greenback]

ATW seem happy to sell all tickets on board, even though they have posters all over the place stating you must have a ticket before you board if there are facilities at the station to buy one.

 

[sheff1]

I imagine that if the TOC has a specific policy saying you are allowed to buy on board, that defeats things.

This, though, is my point. You would think such a policy 'defeats things' but the judgement posted above suggests that, in law, you would be committing an offence.

 

[Greenback]

This, though, is my point. You would think such a policy 'defeats things' but the judgement posted above suggests that, in law, you would be committing an offence.

Indeed. I always buy tickets from the ticket office when it is open, even though I see people buying on board the train every morning, having walked past the ticket counter in the station.

If these people are committing an offence, then nothing will happen to them in this neck of the woods, but elsewhere in the country that might not be the case.

 

[34D]

I will paraphrase the judgement, but if anyone is unsure of the meaning, I can reproduce the whole thing if required.

I'd quite like to read it. Doesn't appear to be on BAILII.

 

[island]

This, though, is my point. You would think such a policy 'defeats things' but the judgement posted above suggests that, in law, you would be committing an offence.

...for which the TOC would be estopped from prosecuting you.

 

[Fare-Cop]

i cannot find an on-line link to this at the moment, but have copied the second half of my printed copy.

The brief background to this case being that Corbyn travelled on 46 occasions and on each journey failed to previously pay the fare due, but gave his proper name and address and on each journey intended to pay the fare if the railway company asked him to do so.

The Magistrate hearing the case was Metropolitan Stipendiary Magistrate P W Goldstone sitting at Marylebone.

The Magistrate was not satisfied that Piers Corbyn intended to ‘permanently’ avoid payment of the fare, but the Magistrate was of the opinion that he could have previously paid the fare and because he set out on each journey intending not to pay before travelling and not to pay at any time before reaching the end of his journey and not until the rail company asked him to pay the fare due, then he was guilty of the offences charged and convicted on each charge.

Piers Corbyn appealed conviction and this was heard as indicated below.

The conclusion being as follows:

Corbyn v Saunders
(QBD) Queens Bench Division
20 December 1977

Lord Widgery C J., Cumming-Bruce L.J and Park J.

Representation for the defendant by H.N Spooner
and Anthony Scrivener Q.C. and Anthony Porten for the prosecutor,

Lord Widgery commented Cumming-Bruce will give the first judgement.

(Fare-Cop): I do not propose copying out here every comment of each judge because they say the same thing using different words, but the important extract being the latter part of part 402., which confirmed that:

‘There is no issue upon the fact alleged in each information that on each occasionhe travelled on the railway to the railway station at the destination alleged without having previously paid his fare. The Magistrate convicted him, holding that intent to avoid payment was proved. The defendant submits that that intent was not proved.

The facts as to his intent are that found in the case are (a) prior to commencement of each journey he intended, having only paid an insufficient amount for the journey he took, to defer payment of the balance of fare by giving his name and address on the form I have described at the conclusion of the journey taken; and (b) he commenced each journey intending not to pay the proper fare at any time before reaching or at the time of leaving the railway property, but only on request at a later date.

It is therefore, perfectly plain that throughout the period that he was travelling on the railway he did not intend to pay the prescribed fare until after he had ceased to travel, and that his intention was only to pay if the railway authorities requested payment.

*403 It was contended on his behalf that, in order to prove an offence under Section 5(3)(a), the prosecution had to prove an intention never to pay the proper fare, i.e., an intent permanently to avoid payment. There is no reason for importing into the section the adverb “permanently.” It is clear on the facts that he did not intend to pay the proper fare unless and until the railway authorities tracked him down and requested payment. That is quite enough to constitute an intent to avoid payment. It is perfectly plain that he had no intention of paying unless London Transport pursued him for the money. His intention was not an unqualified intention to make the prescribed payment, but an intention not to pay unless later requested to pay. That is an intention to avoid payment.

That is enough to dispose of this appeal, but the same result is reached by another route. It is clear from the first clause of section 5 (3) (a) that the traveller is not to travel on the railway without paying the fare for the journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, i.e., payment of the proper farebefore he begins his journey.

Likewise, if he buys a ticket which is the prescribed fare to a destination, but when he travels he intends to travel beyond that destination without previously paying for the additional distance, he travels that additional distance with intent to avoid the required payment therefor. In that case, if he fails to tender the outstanding balance of the fare, at the latest when passing a ticket collector on the station, the requisite intent to avoid payment is proved.

Cumming-Bruce L.J

Park J. (said) I agree

Lord Widgery C.J (said) I also agree.

(c) Incorporated Council of Law Reporting for England & Wales [1978] 1 W.L.R. 400

 

[DaveNewcastle]

Purely for clarification, I should comment that the present discussion has strayed from the Thread title and is no longer discussing a Bylelaw 18 Offence but a S.5 RORA Offence.

Corbyn offers Prosecutors a useful precedent and the evidential circumstances will explain the behaviour of RPIs at gatelines or on-board Inspectors where passengers are apparently suprised by the action of the staff who are gathering evidence for a Prosecution instead of accepting the payment that is being offered (ticketless travel having already been detected).

Corbyn is probably the most frequently cited authority in S.5 Prosecutions, but there are others which may be more applicable in specific circumstances. I'm aware of Bremme vs Dubery (1963) which also received Judgement on Appeal after a Conviction in the Magistrates Court; the passenger was travelling with a ticket which was not valid for travel on the journey being undertaken.

 

[exile]

If the interpretation being put on "AND with intent to avoid payment thereof" is that boarding the train without a ticket also automatically means "with intent" - that means the "intent" clause is superfluous as it could be omitted without altering the meaning of the clause. The judgement applies to someone who refused to pay their fare when requested by on-train staff, not sure it can be applied to someone who pays on request, unless there is some other evidence eg the behaviour or attitude of the passenger.

 

[DaveNewcastle]

If the interpretation being put on "AND with intent to avoid payment thereof" is that boarding the train without a ticket also automatically means "with intent" . . . . . .

I'm not quite sure that we're using the language in the same way, but I think I have to disagree with the suggestion that the Intent to avoid can be conflated with simply boarding a train without being able to present a valid ticket when requested. One is an intention (the law likes to refer to this as the mens rea) and the other is an action (the actus reus) and that distinction is fundamental in UK law (though not in the Strict Liability matters which the first posts in this thread referred to. There has been a horridly confusing switch of subject in this thread! Anyone confusing the two should be forgiven!).

To be detected and then successfully Prosecuted of a S5.3 Offence, then a passenger must evidentially have declined an opportunity to pay for their travel. That is where the cases in law which have been referred to assist the TOCs in detecting evasion and preparing adequate evidence to pursue a prosecution.
But conversely, there are several regular circumstances in which one may board a train without being in posession of a valid Ticket which would not evidentially support an "intent to avoid payment". (Some have already been discussed on here - e.g. Grand Central's Policy, the Authority to Travel given by an authorised person, the lack of ticket issuing facilities at the origin, and others).

So, 'no' I cannot agree that a passenger boarding a train without a valid ticket is automatically captured by S.5 of the RoRA.

 

[Fare-Cop]

You're right of course Dave. This thread moved from strict liability to fare evasion and clearly may be confusing some, I'm sorry if that is the case..

Yes of course there are examples of 'pay on train' services and this is deemed to be permission to board, which negates any chance of prosecution under Byelaw 18 and RRA 5.3.a. The distinction between mens rea and actus reus is well understood.

On the subject of the judgement referred to, we may agree, we may agree to differ, but I guess the opinion that matters is that of Magistrates hearing any case and any further challenge to subsequent convictions.

The fact is that in every case of my experience, the Court have found this section from the Corbyn judgement most significant.

There is no reason for importing into the section the adverb “permanently.” It is clear on the facts that he did not intend to pay the proper fare unless and until the railway authorities tracked him down and requested payment.

That is quite enough to constitute an intent to avoid payment. It is perfectly plain that he had no intention of paying unless London Transport pursued him for the money. His intention was not an unqualified intention to make the prescribed payment, but an intention not to pay unless later requested to pay. That is an intention to avoid payment.

That is enough to dispose of this appeal, but the same result is reached by another route. It is clear from the first clause of section 5 (3) (a) that the traveller is not to travel on the railway without paying the fare for the journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, i.e., payment of the proper fare before he begins his journey.

Whatever you and I might think isn't the point because we are not making that call. Many hundreds of travellers have been convicted under this legislation for travelling without having previously paid in the 33 years since that judgement.

It seems that the Courts frequently determine that failing to act on an opportunity to pay before boarding may be interpreted as declining that opportunity.

Maybe it's time it was challenged again, perhaps the Appeal Court might come up with a different ruling now. I just get the feeling that if it were likely it might have succeeded by now.

 

[DaveNewcastle]

On the subject of the judgement referred to, we may agree, we may agree to differ,

agreeing to differ is fine, but I suspect we are equally impressed by the robust tenacity of the Judgement in Corbyn.

I guess the opinion that matters is that of Magistrates hearing any case and any further challenge to subsequent convictions.

The fact is that in every case of my experience, the Court have found this section from the Corbyn judgement most significant.

Agreed.

Maybe it's time it was challenged again, perhaps the Appeal Court might come up with a different ruling now. I just get the feeling that if it were likely it might have succeeded by now.

There are some 'holes' available to anyone scrutinising the Act, which merit Amandment, and of course its authors and the Judgements ensuing have not anticipated future electronic ticketing systems which, of themselves, may require further Amendments.

 

[Fare-Cop]

agreeing to differ is fine, but I suspect we are equally impressed by the robust tenacity of the Judgement in Corbyn.Agreed.There are some 'holes' available to anyone scrutinising the Act, which merit Amandment, and of course its authors and the Judgements ensuing have not anticipated future electronic ticketing systems which, of themselves, may require further Amendments.

Yes, I agree, the same can be said for the other Appeal Cases concerning the same legislations which crop up as references from time to time:

Bremme (1964), Browning (1946), Armstrong (1922) etc.

Until any amendment is made, the judgements will continue to be made using the existing interpretations.