Railway Byelaw 18

[ralphchadkirk]

Well, my question was that in conducting an interview under caution, are TOCs not required to offer the opportunity to get legal representation to the interviewee? Could the interviewee refuse to comment until he's consulted a solicitor as to his rights?

You can always no-comment until your solicitor arrives however I believe adverse inferences can now be drawn from no-comments.

 

[kg94sat]

Ralph

When responding to "Notice of Intention to Prosecute", usually one gives their version of events and also mention if there is a possibility of settling. So if one writes such a letter under the headline "Without Prejudice" it would not be considered as evidence no matter what is contained in the letter, as it is a communication of negotiation.

It is a well known legal principle that you can communicate to settle without the fear that communication itself can be used as a evidence in prosecution.

But not mentioning "Without Prejudice" and a grovelling apology as prescribed in some of the posts is a straight admission of guilt.

To be on the safe side, assuming that TOC would anyway proceed to prosecute, it is better to include the phrase "Without Prejudice" in a reply to "Notice of Intention to Prosecute"

 

[ralphchadkirk]

So if one writes such a letter under the headline "Without Prejudice" it would not be considered as evidence no matter what is contained in the letter, as it is a communication of negotiation.

Sorry, but that's rubbish. It makes it difficult to produce the letter in court as long as it is part of a genuine attempt to avoid litigation, however it can be referred to in Court if the Court allows it. There are also many exceptions to the rule; the "unambiguous impropriety" exception, which is based on the undesirability of very clear wrongdoing being covered up or the misrepresentation, fraud, or undue influence exception.

In any case, all my research relates to civil litigation. I am unsure if the same rules of evidence apply to criminal prosecutions.

 

[kg94sat]

Ralph

A simple google search reveals the following website:

http://www.alway-associates.co.uk/legal-update/article.asp?id=55

I am not the one to argue with Court of Appeal rulings. Look for Walker Vs Wilshire in the first link.

I see that you are as quick in calling someone's genuine comment "rubbish" as free in recommending "grovelling apology" for "Notice of Intention to Prosecute"

 

[ralphchadkirk]

And all of that relates to civil law. Not a criminal prosecution. I also note the age of the article (2004) and the fact it fails to mention any of the well known exceptions available on many legal dictionary sites.


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[AlterEgo]

And all of that relates to civil law. Not a criminal prosecution. I also note the age of the article (2004) and the fact it fails to mention any of the well known exceptions available on many legal dictionary sites.


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I am not a legal expert, but I find it difficult to believe that when you are being accused of a criminal offence, you can send correspondence admitting the offence outright and stating your wish to avoid prosecution, and have it witheld from a court because you wrote two words on the top of the letter.

 

[kg94sat]

AlterEgo

When the TOC send a "Notice of Intention to Prosecute", they are trying to establish if there is reason for prosecution. If the TOC had such strong evidence, they should commence prosecution by asking the court to issue summons and not send "Notice of Intention to Prosecute".

Many times you find RPIs filling in Travel Irregularity Reports which they do in their small notepad, they then tell the commuter that their office will write back to the commuter. They do not make the commuter sign on these reports by stating that whatever they sign could be used as evidence against them in the court.

Hence, I strongly believe that they send "Notice of Intention to Prosecute" to fish for further information. And in this fishing expedition, if there is a grovelling apology that would be proof of the act and enough evidence for them to prosecute.

Otherwise burden on them to establish even the act was committed is huge. They have to establish this act was committed beyond any reasonable doubt. A strict liability offence comes into play only when the act itself is established beyond reasonable doubt.

Why give them the advantage with a "grovelling apology"? I believe even in criminal matters any communication towards settlement can not be used as evidence if one of the party explicitly states so

 

[ralphchadkirk]

So if I go out and batter a pensioner for her pension money and then write a nice letter marked without prejudice saying sorry I hit you with an iron bar for your cash, can I pay you back a pound a week, you're saying that would be Inadmissable as evidence in court?

 

[kg94sat]

Ralph

To extend your argument, if someone confesses to murdering a person in a church confession, should that person be let go.

Come on.. there is a degree of judgement to be applied and context to be considered

In the context of Railway Byelaw Prosecution my comments are completely valid.

for a minute, let us assume my comments are not valid, even then what is the harm in including the phrase? The fact that you argue so much against it only goes on to prove that TOCs are definitely in the back foot when someone replies back to such a letter with the phrase "Without Prejudice" included

 

[Greenback]

I am sorry kg94sat, but having read all of your posts, both in this and another thread, it is my conclusion that your contentions are misconceived, and based upon a fundamental misunderstanding of the law, and of legal procedures.

I am sure that you are acting with the best of intentions, but in pursuing your line of argument I fear that you are in danger of giving people who come here seeking advice false hopes.

 

[34D]

I am sorry kg94sat, but having read all of your posts, both in this and another thread, it is my conclusion that your contentions are misconceived, and based upon a fundamental misunderstanding of the law, and of legal procedures.

I am sure that you are acting with the best of intentions, but in pursuing your line of argument I fear that you are in danger of giving people who come here seeking advice false hopes.

Indeed, there is a big difference between the county court (where any normal business to consumer dispute would be heard) and the magistrates/crown (where a railway prosecution happens).

When I read business law, I was always suggested to mark such documents as "without prejudice save as to costs" which means they can be produced at the end of a matter to resist/partially resist a costs order.

However, something that KG94 may be knowledgeable about is the possibility of the passenger 'getting in first' by commencing a county court claim for breech of contract.

 

[DaveNewcastle]

. . . . my question was that in conducting an interview under caution, are TOCs not required to offer the opportunity to get legal representation to the interviewee?
. . . .

I'm sorry, I had misunderstood your question. I guess others have answered already, but for the record I would advise any passenger in that situation to give their name and address when asked; and in the vast majority of circumstances I would also advise giving honest answers to any questions asked. Many passengers appear to become defensive or agressive when questioned, and in so doing, tend to incriminate themselves or create grounds for suspicion or even another offence.
There is nothing wrong in remaining silent (whether a solicitor is requested or not) but there will only be a handful of instances where such a policy would be helpful - those would depend on the circumstances (I might include allegations of Fraud, the suspicion that a high value season is improper etc.). Those passengers who respond by incriminating themselves further (eg "but I've been doing this every day without challenge") would be wise to remain quiet, but the presence of a Solicitor is unlikely to be of much benfit - the Passenger will have the opportunity to take legal advice when making a written statement after the incident.

Hence, I strongly believe that they send "Notice of Intention to Prosecute" to fish for further information. And in this fishing expedition, if there is a grovelling apology that would be proof of the act and enough evidence for them to prosecute.

Are we not now going in circles with this? We have already accepted that the subject of this thread is the Strict Liability Offences. In such matters, the admission of Guilt or otherwise has been dealt with in earlier posts (if it is a Strict Liability Byelaw Offence then the TOC will already be aware of the key details). The response to an invitation to provide further information in a written Statement is just that, further information which may well be an adequate explanation for the apparent Ticketless Travel and would lead to the Claim being withdrawn.

It would be in response to a later Summons that the passenger will be invited to state their intention to plea Guilty or Not guilty, as well as the vital Mitigation.

Its true that TOCs' Prosecutions Team might use a Statement to determine which Offence to pursue and they would be follish not to. You may call that 'fishing' or you may call that 'being informed'. Equally, the passenger might use the Statement to introduce facts which reduce the prospect of a Prosecution succeeding.

 

[First class]

If I'm quite honest, I would personally always advise a "no-comment" interview if you stay to be interviewed, regardless of guilt. You should provide your correct name & address, first time of asking. I would then advise that an interview should be declined and you walk away.

If you've given your correct name & address details to the Inspector, then you have complied with the law, (RoRA 1889) and are under no obligation to stay to be interviewed. This can be further clarified by asking "am I under arrest?".

When being interviewed, you should be advised that you are not under arrest and are free to leave at any time.

The pressure of the situation can lead to unexpected statements, lies etc and can spiral way out of hand.

In the legal circles, information is power, usually whoever has the most will win.

 

[Old Timer]

AlterEgo

When the TOC send a "Notice of Intention to Prosecute", they are trying to establish if there is reason for prosecution. If the TOC had such strong evidence, they should commence prosecution by asking the court to issue summons and not send "Notice of Intention to Prosecute".

Many times you find RPIs filling in Travel Irregularity Reports which they do in their small notepad, they then tell the commuter that their office will write back to the commuter. They do not make the commuter sign on these reports by stating that whatever they sign could be used as evidence against them in the court.

Hence, I strongly believe that they send "Notice of Intention to Prosecute" to fish for further information. And in this fishing expedition, if there is a grovelling apology that would be proof of the act and enough evidence for them to prosecute.

Otherwise burden on them to establish even the act was committed is huge. They have to establish this act was committed beyond any reasonable doubt. A strict liability offence comes into play only when the act itself is established beyond reasonable doubt.

Why give them the advantage with a "grovelling apology"? I believe even in criminal matters any communication towards settlement can not be used as evidence if one of the party explicitly states so

The premise of your argument is incorrect.

An intended prosecution under the Regulation of Railways Act will proceed as a normal Criminal Prosecution. "Without Prejudice" has no legal meaning in these circumstances.

An Offence under the Railway Byelaws/Conditions of Carriage is a "strict Liability" offence for which there is no defence. The only necessaity is for the Prosecution to prove that this has occurred. A written statement under oath is regarded as sufficient evidence. As there is no defence against a SL offence then it is irrelevant as to whether a letter ir marked "Without Prejudice" or not.

For the record the term is used to "protect" one or both parties for correspondence exchanged during negotiations - normally in respect of damages or other claims.

Material facts or matters used in defence in open Court cannot be excluded by use of "Without Prejudice".

For the record the Civil Procedure Rules defines the phrase ‘without prejudice’ as:

‘Negotiations with a view to a settlement are usually conducted “without prejudice” which means that the circumstances in which the content of those negotiations may be revealed to the court are very restricted’.

A TOC may offer to settle a matter out of Court in which case the "negotiations" to settle, not the material facts, may be judged "without prejudice". Any communication marked "without prejudice" is NOT admissible in Court by either party. A communication marked "without prejudice save as to Costs" is admissible by the claimant.

Remember however that the TOC is under no obligation whatsoever to enter into negotiations when a Criminal Offence has been committed as in the case of a section 18 offence. That they do so is entirely to the benefit of the person accused.

 

[Barn]

A TOC may offer to settle a matter out of Court in which case the "negotiations" to settle, not the material facts, may be judged "without prejudice". Any communication marked "without prejudice" is NOT admissible in Court by either party. A communication marked "without prejudice save as to Costs" is admissible by the claimant.

That last bit isn't right, OT. The "WP save as to costs" formula does not give the claimant the ability to admit the document. It refers to the fact that the communication cannot be admitted as evidence of liability, but can be admitted after liability has been established to help the court decide what costs order to make.

 

[Old Timer]

That last bit isn't right, OT. The "WP save as to costs" formula does not give the claimant the ability to admit the document. It refers to the fact that the communication cannot be admitted as evidence of liability, but can be admitted after liability has been established to help the court decide what costs order to make.

Thanks for adding that clarification. It was what I had meant but your wording is better !

 

[kg94sat]

Dave

Are we not now going in circles with this? We have already accepted that the subject of this thread is the Strict Liability Offences. In such matters, the admission of Guilt or otherwise has been dealt with in earlier posts (if it is a Strict Liability Byelaw Offence then the TOC will already be aware of the key details). The response to an invitation to provide further information in a written Statement is just that, further information which may well be an adequate explanation for the apparent Ticketless Travel and would lead to the Claim being withdrawn.

We are not going around in circle. The basic question is here, if a RPI writes a "Travel Irregularity Report" and while taking the information for that report he does not mention that the information could be used as evidence in court, then

a) Would that "Travel Irregularity Report" alone could be used as evidence in court to establish that an act was comitted for prosecution under Strict Liability

b) If the report can not be used as evidence if challenged under PACE regulations, please check the CPS link on "Admissibility of Confessions" and "Unreliable confessions",
then what is the evidence that TOC can rely on to establish that the act was committed

That is where I believe "Notice of Intention to Prosecute" comes into play. A grovelling apology here and admission of guilt hands the TOC the evidence they need to prosecute.

I am willing to take back what I have said if the conclusive answer to question a) above is that such evidence can be permitted even if challenged under the PACE guidelines.

But the CPS link suggests that is not the case

 

[DaveNewcastle]

No.
Firstly, a TIR is not a Witness Statement.
But if I read your question as if to refer to a Witness Statement (referred to by the Police and by Revenue staff in the rail indstry as an MG11), then yes, it MAY be used as the sole item of evidence in Court.
However, I think it unlikely.

I would expect to see further Statements from the staff involved in obtaining the Statement, perhaps 2 or 3 would be required in addition to the Passenger's Statement, all dependant on the circumstances and version of events provided (eg from the officer who detected the irregularity, such as a Gateline Inspector, from the officer at the boarding station such as a Ticket Office Clerk and perhaps a Revenue Witness present at the Gateline. In some cases, a Statement from the guard could be necessary).

With such a bundle of sworn Statements, an uncontested prosecution should have a reasonable prospect of success.
If it was to be contested, then some of these Statements may be replaced by oral evidence and perhaps the Defendant would have their own Witnesses.

A grovelling apology here and admission of guilt hands the TOC the evidence they need to prosecute.

Well if we're not going round in circles, then we're getting stuck in a rut. The matter of Evidence of Guilt in a Strict Liability matter has been dealt with in several posts. I shall not repeat it.

I have discussed Judgements of Claim Dismissed (effectively Not Guilty) in strict liability matters previously, but they are highly exceptional, and it is unlikely that a Prosecutor would advance a Claim without confidence that the Evidence was adequate. If the Evidence is inadquate and the Defendant's representative proposed contesting the Claim, I would expect the Prosecution to withdraw the Claim without wasting further time (unless there were exceptional circumstances).

All I can add is that a professional relationship tends to become established between Criminal Defence Lawyers and their local CPS team, which does allow for a lot of frank and pragmatic discussion to take place which in turn reduces the number of unproductive cases taken to the Courts. As I've already discussed in this thread, the lack of Law Firms with specialist Railway Ticketing experience has led to the lack of such constructive discussion with professional colleagues before a Prosecution, and so a High Street Solicitor may be on unfamiliar ground calling a Railway Prosecutor for the first time - perhaps this had led to more cases being advanced for Prosecution than might occur if the CPS were appointed to process Prosecutions, but I doubt it has been significant. The greater hazard is that the Defence Solicitor simply assumes that Railway legislation is more similar to other Crimial or Traffic cases than is helpful to assume.

 

[34D]

Out of interest, is anyone aware of a specialist solicitor competant in railway matters?

 

[ralphchadkirk]

Yes, I'm aware of a few railway specialist solicitors.


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[Ferret]

Just to add to what Dave wrote, all a TIR is is a statement of fact. What happens generally is a TIR is submitted, the company write to the person concerned, then if/when that person responds, the company will either decide to take it to Court, settle out of Court or drop the matter.

If the TOC Prosecution department elect to take it to Court, the member of staff who submitted the TIR will then be asked to do a witness statement (MG11), which will rewrite the facts as laid out in the TIR and sign it to say that it is an accurate statement. This will then be submitted as evidence in the Court on the day of the hearing.

t

 

[First class]

Out of interest, is anyone aware of a specialist solicitor competant in railway matters?

I'm currently working on my ILEX Level 6 and eventually hope to end up "specialising" in Railway Law towards the end of my career. Whether that is for the prosecution or defence I'm not too sure!

Solicitors on the high street rarely grasp the law surrounding the railways. You go to see a specialist and the fees are silly. If I do end up going for the defence side, I'd like to take on this niche market at reasonable high street rates. TOCs like FCC sent out over 1000 summonses a month alone. There's some serious money to be had without charging high fees.

 

[Ferret]

LM, I wish you luck there - you'd have to be very good or very lucky to enjoy much success on the defence side, certainly in terms of getting clients off! Maybe you could become skilled in the arts of mitigation to secure lenient punishments - I don't know!

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!

 

[DaveNewcastle]

Out of interest, is anyone aware of a specialist solicitor competant in railway matters?

Yes. If the need arises and if the Client can afford a specialist's rates.


For information, the OP contacted me by PM yesterday and pursued the line of questionning in several messages. Whilst I will respect their privacy, I can add that no significant new insights were achieved.

There's some serious money to be had without charging high fees.

Perhaps, but when doing the sums (aka your business plan!) remember that the majority of Clients are likely to be Guilty. The reputation of a specialist who doesn't achieve high rates of success can be short lived. Sorry to be pessimistic about your proposal, I will actually welcome practitioners with Railway specialisation enthusiastically and echo Ferret's good wishes.

 

[michael769]

Perhaps, but when doing the sums (aka your business plan!) remember that the majority of Clients are likely to be Guilty. The reputation of a specialist who doesn't achieve high rates of success can be short lived.

Success is not always measured in terms of not guilty verdicts. A good expert solicitor can in many instances help to significantly reduce the sentence below that which is typically handed down in uncontested or LIP cases, and for many clients minded to plead guilty such a reduction would be considered a positive result.

Even without a reduced sentence the simple act of hand holding an accused through what is a very difficult and stressful experience can be attractive to many clients.

 

[First class]

LM, I wish you luck there - you'd have to be very good or very lucky to enjoy much success on the defence side, certainly in terms of getting clients off! Maybe you could become skilled in the arts of mitigation to secure lenient punishments - I don't know!

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!

You should see Merseyrail Electric's figures!! Feet on seats, fare evasion, even escalator misuse! TOCs would soon have to pack it all in if even half of the accused turned up at court for a hearing! If you don't turn up, it's a rubber stamp guilty job by the court.

You have to remember that the ones that ultimately are served summonses are the ones who can't or won't pay the administrative penalty which every TOC tends to offer for first-time offences. If aprox 1000 are still going to court, I do wonder what the actual number of offences being identified by RPIs is. (Let's say an RPI can easily do 5 PACE jobs a day, works 5 days a week, so 25 jobs a week, over a month that is 100 MG11s for 1 inspector. Let's say there are at least 20 inspectors, 2000 MG11s minimum a month).

A good percentage (50% ish) of those will have paid around £100 to avoid court, all money goes straight to the TOC!

If it gets to court, I find the key to defence lies not in what your client has done, but what the prosecuting authority HASN'T done.

 

[DaveNewcastle]

Agreed. I really do not wish to pour water on LM__'s proposals, merely to help to keep it in some perspective. (As you probably know, I have assisted a few such passengers myself and the 'handholding' has indeed been very comforting, as much as the achievement of a negotiated OOC settlement. However, a significant proportion of those have apparently been detected not on their first ticketless journey).

 

[Ferret]

You should see Merseyrail Electric's figures!! Feet on seats, fare evasion, even escalator misuse! TOCs would soon have to pack it all in if even half of the accused turned up at court for a hearing! If you don't turn up, it's a rubber stamp guilty job by the court.

You have to remember that the ones that ultimately are served summonses are the ones who can't or won't pay the administrative penalty which every TOC tends to offer for first-time offences. If aprox 1000 are still going to court, I do wonder what the actual number of offences being identified by RPIs is. (Let's say an RPI can easily do 5 PACE jobs a day, works 5 days a week, so 25 jobs a week, over a month that is 100 MG11s for 1 inspector. Let's say there are at least 20 inspectors, 2000 MG11s minimum a month).

A good percentage (50% ish) of those will have paid around £100 to avoid court, all money goes straight to the TOC!

If it gets to court, I find the key to defence lies not in what your client has done, but what the prosecuting authority HASN'T done.

It's not just RPIs doing straight MG11s either - I'm not an RPI nor am I PACE trained but I do the odd TIR now and then. Many of my colleagues do likewise, though I only ever do them for ticketing matters. I know your figures probably aren't 100% accurate but I suspect they are a pretty good guess as to just how many byelaw offences are being reported each month. Me being me, I'd go for the prosecution side if I was qualified and had a chance though - money for old rope!

I've no doubt that you'd get some success on the defence side with TOC omissions - let's face it - we're all human and we make mistakes. I think for the vast majority of cases though, you'll be left with the sole option of advising a client to settle out of Court as DaveNewcastle often does here.

Moving the discussion on, I'd quite like to see the Byelaws more widely published. How many of our customers know that they exist? But they are there for a good reason, whatever some may think of the strict liability thing.

 

[First class]

It's not just RPIs doing straight MG11s either - I'm not an RPI nor am I PACE trained but I do the odd TIR now and then. Many of my colleagues do likewise, though I only ever do them for ticketing matters. I know your figures probably aren't 100% accurate but I suspect they are a pretty good guess as to just how many byelaw offences are being reported each month. Me being me, I'd go for the prosecution side if I was qualified and had a chance though - money for old rope!

I've no doubt that you'd get some success on the defence side with TOC omissions - let's face it - we're all human and we make mistakes. I think for the vast majority of cases though, you'll be left with the sole option of advising a client to settle out of Court as DaveNewcastle often does here.

Moving the discussion on, I'd quite like to see the Byelaws more widely published. How many of our customers know that they exist? But they are there for a good reason, whatever some may think of the strict liability thing.

It should say on the back of the tickets really, alongside the NRCoC statement. A copy should be available at all stations, and not just from Customer Service offices.

I think the NRCoC document itself should make explicit references to the Byelaws.

In reality, how much of the Byelaws are actually enforced? Other than Merseyrail, no other TOC particularly bothers with them except for revenue protection, (and possibly parking).

There was talk a while back following a Parliamentary Inquiry led by Louise Ellman about revising the Byelaws & RoRA 1889 and other bus/tram/transport legislation to bring them more "up to date" and relevant.

Anyone got any suggestions for new/revised byelaws or which should be removed?

 

[Ferret]

I think there's a byelaw relating to queueing in an orderly manner. Bet nobody has been prosecuted for that one in a while!

To be honest, I'm happy with the main ones to do with ticketing, it's just that I think awareness should be raised of what the byelaws say and what the consequences of breaking them are. It really isn't unreasonable to expect passengers to hold a valid ticket for their journey, and for it to be enforceable by a simple byelaw as far as I'm concerned.