Received a Single Justice Procedure Notice - Not sure what the next best course of action is?

[Walldawg]

Just scanning through the thread, I think you’re wrongly using “guard“ here to describe the platform staff at Victoria. As far as I can work out from your posts so far, the guard on the first train appears to have been quite helpful to you. The Victoria staff would seem to me to have been revenue protection inspectors.

You would be correct, my apologies for the incorrect terms.

The man on the train was helpful, the men at the station not so much. I think your terminology is certainly more correct than mine.

 

[swt_passenger]

You would be correct, my apologies for the incorrect terms.

The man on the train was helpful, the men at the station not so much. I think your terminology is certainly more correct than mine.

Yes, you don’t really want to tar them all with the same brush, and don’t need to accidentally confuse the recipient of your letters.

 

[some bloke]

For a show 'n' tell.



https://www.legislation.gov.uk/uksi/2018/366/regulation/11/made

 

[Watershed]

You can email the person named, perhaps something like this:



The above is one approach - I'd suggest waiting for others' comments as well.

I think that is a possibly a little bit tame given that the evidence shows that Southeastern are barred from bringing this prosecution. It apologises, something around which the OP must be careful (so that they do not admit to anything inadvertently).

It also puts the onus on Southeastern to decide whether they think their prosecution is allowed - rather a trite point, I'd have thought, since they have already brought it!

I might write something more like this:

Dear XXX

Single Justice Procedure Notice xxxx

I am receipt of the above SJPN relating to a journey which I made on 11 February 2022.

As per your Statement of Facts on the SJPN, you issued me with a Penalty Fare upon arrival at London Victoria. I raised an appeal against this Penalty Fare on 24 February 2022, and on 8 March 2022 the appeal was decided (please find attached a screenshot of the Penalty Services website).

As per your Statement of Facts, you sent several further letters demanding payment of the Penalty Fare, and therefore it is clear you had not cancelled the Penalty Fare before Penalty Services made their decision on 8 March 2022.

Accordingly, under regulation 11(3) of the Penalty Fares Regulations 2018, you are barred from prosecuting me in relation to this incident.

I am alarmed to see that you have decided to bring a prosecution in breach of this bar. I would therefore be grateful if you could confirm as soon as possible that you are withdrawing the proceedings.

If I do not receive your unequivocal confirmation thereof by Friday 24 June, I intend to plead 'not guilty' as well as making an application for the proceedings to be stayed for being an abuse of process.

Yours sincerely,

XXX

Now obviously the OP may not wish to go with an approach that confrontational, but ultimately SE have brought a prosecution where they're not allowed to, and so unless the OP intends to settle a prosecution that shouldn't have been brought, I don't see that a less confrontational approach is necessarily going to deliver results.

 

[Walldawg]

Thank you all for writing all of this out.

So in regards to SE breaching this regulation. Are you absolutely certain they have done this? Is this something they could fabricate?

I just would like to know if I'm going in with this sort of wording, I would like to be 100% confident.

You guys have given me some hope which I'm thankful for.

 

[furlong]

('making' -> 'make')
Watershed's approach would be mine also. I'd also end with a simple short one-sentence summary reminding them that the correct fare was paid in full prior to travel and they have not been deprived of any revenue. (I.e. with the implication that they are arguing over a technicality which is not what these laws were meant for, and a further subtext that I am responding to one technicality with another.)

So in regards to SE breaching this regulation. Are you absolutely certain they have done this? Is this something they could fabricate?

This is not the first time this sort of thing has been reported on this forum - it seems entirely plausible. Some train companies seem to "cherry pick" the parts that they like and ignore the parts they would prefer didn't exist, expecting that most people will trust them and not notice. If someone does notice, it can be attributed to a one-off mistake, and none of the bodies that should be regulating their behaviour seems to be interested in taking action against them. Look at the recent threads concerning Merseyrail for another example.

 

[Walldawg]

I appreciate that you guys are filling me with confidence.

I know I'll be dreading the response and will continue to lose sleep but if you are all sure this is the correct approach then I'll go forward with it.

A lot of trust to put in internet strangers but you guys have done so much for me so far and I truly thank you for that.

 

[Watershed]

Thank you all for writing all of this out.

So in regards to SE breaching this regulation. Are you absolutely certain they have done this? Is this something they could fabricate?

I just would like to know if I'm going in with this sort of wording, I would like to be 100% confident.

You guys have given me some hope which I'm thankful for.

The law is the law - the same as they have a 6 month time limit for bringing a prosecution, and must do so in the correct manner, they cannot bring one if you have appealed a Penalty Fare.

This isn't some loophole or technicality - it is a deliberate provision included in the Regulations so that, if a passenger is engaging with the process by appealing their Penalty Fare, it becomes a strictly civil matter and the TOC can't prosecute anymore.

Watershed's approach would be mine also. I'd also end with a simple short one-sentence summary reminding them that the correct fare was paid in full prior to travel and they have not been deprived of any revenue.

The reason I left that bit out was that it could muddy the waters and dilute the central argument that SE are barred from bringing this prosecution.

After all, SE could respond "it doesn't matter whether you had paid your fare, you didn't have a ticket, which is what matters for Byelaw 18".

On the other hand, though the OP mentioned having paid for their ticket in the PF appeal, the prosecutor may not have read that appeal and thus may be unaware of this.

It's a finely balanced one.

I appreciate that you guys are filling me with confidence.

I know I'll be dreading the response and will continue to lose sleep but if you are all sure this is the correct approach then I'll go forward with it.

A lot of trust to put in internet strangers but you guys have done so much for me so far and I truly thank you for that.

No worries. It's quite understandable that this is nerve wracking and you might prefer to speak to a criminal defence solicitor before sending off your response - an initial consultation would usually be free or cost only a small amount.

 

[some bloke]

Is it more fundamental than abuse of process? Can there be abuse of process where there were never any lawful proceedings in the first place?

Relatedly, is it more accurate to refer to a "purported SJPN" "which is in fact not valid"?

 

[Watershed]

Is it more fundamental than abuse of process? Can there be abuse of process where there were never any lawful proceedings in the first place?

Relatedly, is it more accurate to refer to a "purported SJPN" "which is in fact not valid"?

Perhaps. But referring to "purported SJPN" seems unnecessarily legalistic. I don't think it really makes a material difference whether the proceedings are inherently void, an abuse of process etc. - if SE refuse to withdraw, the Court is still going to want to at least hold an initial hearing to determine the OP's application/claims.

 

[some bloke]

Is there a reason not to inform the court staff that the company has no power to bring such proceedings, and so is set to waste public resources on a pointless exercise?

 

[Watershed]

Is there a reason not to inform the court staff that the company has no power to bring such proceedings, and so is set to waste public resources on a pointless exercise?

Court clerks are unlikely to halt a prosecution on the "mere" say-so of the defendant. They will almost always want to pass it by a judge.

One of the (numerous) problems with TOCs being allowed to issue SJPNs (i.e. rubber stamp their own summonses) is that they gain an unwarranted degree of credibility and authority - a power which they can and do abuse.

 

[furlong]

Is it more fundamental than abuse of process?

Yes I think - If it reached a hearing the mechanisms available could be worked through in sequence but it might well be better to use broader terminology at this stage - the summons itself might first be challenged. (Once you mention 'abuse of process' it's better not to delay submitting the legal reasoning.)

 

[some bloke]

As far as I can see, the position is this:

There shouldn't be any need for a hearing to stop the "case". On receiving a "response" to the "SJPN" which says the "defendant" does not agree to the single justice/guilty plea procedure, the magistrate should not issue a summons without establishing that the "informant has the necessary authority to prosecute".

"When considering whether to issue a summons, the magistrate should at the very least ascertain ...(d) whether the informant has the necessary authority to prosecute: R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR 933."

The Director of Public Prosecutions, R (On the Application Of) v Sunderland Magistrates' Court [2014] EWHC 613 (Admin) (31 January 2014)
https://www.bailii.org/ew/cases/EWHC/Admin/2014/613.html

So you can tell the company that you will inform the court, or have informed the court, that since it has no authority to prosecute, the criteria for a valid summons are not met.

One aim of informing the court early about the impossibility of the prosecution is to prepare the mind of the clerk in advance, so that it's more likely the magistrate/clerk will take the correct approach and not take the "case" any further. Also, if you inform the company that you've told the court, and show that you understand the process, the company may take what you say more seriously.

Whatever approach is taken in writing to the company, it may be wise to bear in mind that more than one communication may be needed to persuade them that they have made a basic legal mistake. Acknowledging that you failed to respond to earlier letters, and saying you didn't see them, might help them understand you're taking a fair and reasonable approach.

It also puts the onus on Southeastern to decide whether they think their prosecution is allowed - rather a trite point, I'd have thought, since they have already brought it!

It isn't trite to ask for their considered view when you are giving them information to consider. We can't know how individuals will react to a more polite or more confrontational approach; perhaps it may be easier and quicker to try the polite then confrontational approach than the other way round. However, I think your draft is very good (if @Walldawg wants to take that approach) - perhaps it could end something like:

"You do not have authority to bring a prosecution in this case, and so a magistrate cannot lawfully issue a summons. [or "Please explain how you could have authority to bring..."]

I would be grateful if you could confirm as soon as possible that you are discontinuing the attempt at prosecution. If you do not confirm this unequivocally by Friday 24 June, I will inform the court of the fact that you are barred, so that the magistrate can see that there is no basis to issue a summons. [or alternatively, tell them you have already told the court]"

An alternative to just telling them they are wrong is perhaps to take the show'n'tell approach with an image of the regulation and highlighted text, and the link, and the quotation from the 2014 judgment. If the company staff think "this person is explaining things in a way that a magistrate and clerk will easily understand", so much the better.

 

[John Palmer]

The OP is being prosecuted for a byelaw offence. This falls within the scope of a railway operator's authority to invoke the Single Justice Procedure, and the reality of the situation is that a criminal proceeding against the OP is in progress, regardless of whether it is an abuse of process.

There is reason to think that this case does come within Regulation 11(3) of the Railways (Penalty Fares) Regulations 2018 and that the charging of the OP with a byelaw offence was prohibited by that Regulation. Once facts leading to that conclusion are established (notably that the penalty fare imposed in this case has not been cancelled) then the railway operator concerned ought voluntarily to withdraw the charge. Only if the operator declines to do so should it become necessary make an application to the Court for dismissal of the case on the ground that charging the OP with such a byelaw offence was prohibited by Regulation 11(3).

An advantage of treating the prosecution currently in progress as a valid proceeding for an offence consisting of breach of a byelaw made under Section 219 of the Transport Act 2000 is that it brings the OP's case within Regulation 11(1) of the 2018 Regulations. This would provide the OP with a statutory defence against any subsequent civil debt recovery action for the penalty fare. The fact that the proceeding is treated as valid does not preclude a successful defence on the ground that the offence charged was one prohibited by Regulation 11(3).

Is the OP 'a person falling within paragraph (1)(a)', as referred to in Regulation 11(3) of the Railways (Penalty Fares) Regulations 2018? Should the reference to sub-paragraph '(a)' be treated as an error and Regulation 11(3) be read on the basis that the '(a)' is omitted?

Regrettably Regulation 11(3) only obliges a railway operator to give notice of a penalty fare's cancellation to the relevant appeal panel before commencement of a prosecution and omits any corresponding obligation to inform its recipient of such cancellation, so leaving that recipient in the dark as to its status.

 

[philthetube]

I wonder if the op has refunded any previous tickets for this journey, if yes this would interest SE and could have led to the cancelling of a pf.

 

[WesternLancer]

I appreciate that you guys are filling me with confidence.

I know I'll be dreading the response and will continue to lose sleep but if you are all sure this is the correct approach then I'll go forward with it.

A lot of trust to put in internet strangers but you guys have done so much for me so far and I truly thank you for that.

Seems like a consensus to challenge the legitimacy of the SJPN route given the context of the Penalty Fare regs - this seems a worthwhile idea to me - of course if the response from SE Trains rejects that there will then be next steps / other options where no doubt help and advice will be forthcoming. I don't think you have anything much to loose by following that course of action.

I assume the actual Penalty Fare sum would need to be paid since you did travel for part of the journey without having the ticket printed off - which is an offence and thus the penalty fare issued legitimately and thus still owed.

 

[some bloke]

@Walldawg, how are you getting on? Does the text of the regulations make sense? If you want evidence that those are the right regulations, you can see that Penalty Services link to them: https://www.penaltyservices.co.uk/documents/. If you say what you're sure of and what you're not, people on here may be able to help.

I've called Transport Focus, partly to see if they might confirm the position to you about the regulations. They wouldn't normally get involved in a prosecution or an initial complaint, but I said this seems to raise an issue about the company's behaviour. They said you can send the correspondence to [email protected] and they will see if they can help. If you want to phone first: https://www.transportfocus.org.uk/contact/ . I'm not saying they will help, but it may be worth a go in case they can confirm that the regulations apply or are useful in any other way.

While theoretically Southeastern could have told the appeal panel in time that the penalty fare was cancelled, that seems unlikely: it would mean Penalty Services wrongly issued a decision. Also, Southeastern said in the "Statement of Facts" that the penalty fare remains unpaid. And it doesn't seem likely that they sent all the reminders before the decision of 8 March. You can say to Southeastern something like that they are barred from prosecuting, "unless you informed the appeal panel that the penalty fare was cancelled, before the appeal decision of 8 March".

If someone gets an SJP notice and chooses a court hearing rather than the single-justice route, the court then issues a summons to a hearing. Although the Magistrates' Courts Act 1980 says magistrates "must" do this, and must where the SJP requirements weren't met, higher courts have said that issuing a summons is a "judicial act" which shouldn't happen if there are compelling reasons not to. And if the magistrate understands that the prosecution is barred, issuing a summons would clearly be a waste of time. So hopefully even if SE refuse to accept the position, the "case" would end much earlier than a court hearing.

 

[Walldawg]

I wonder if the op has refunded any previous tickets for this journey, if yes this would interest SE and could have led to the cancelling of a pf.

I'm not quite sure I follow but in regards to refunded tickets. I have had tickets refunded before for small journeys at the value of approx. £3-5. that I didn't end up taking.

With the journey being discussed here, I had the full journey ticket printed as intended.

@Walldawg, how are you getting on? Does the text of the regulations make sense? If you want evidence that those are the right regulations, you can see that Penalty Services link to them: https://www.penaltyservices.co.uk/documents/. If you say what you're sure of and what you're not, people on here may be able to help.

I've called Transport Focus, partly to see if they might confirm the position to you about the regulations. They wouldn't normally get involved in a prosecution or an initial complaint, but I said this seems to raise an issue about the company's behaviour. They said you can send the correspondence to [email protected] and they will see if they can help. If you want to phone first: https://www.transportfocus.org.uk/contact/ . I'm not saying they will help, but it may be worth a go in case they can confirm that the regulations apply or are useful in any other way.

While theoretically Southeastern could have told the appeal panel in time that the penalty fare was cancelled, that seems unlikely: it would mean Penalty Services wrongly issued a decision. Also, Southeastern said in the "Statement of Facts" that the penalty fare remains unpaid. And it doesn't seem likely that they sent all the reminders before the decision of 8 March. You can say to Southeastern something like that they are barred from prosecuting, "unless you informed the appeal panel that the penalty fare was cancelled, before the appeal decision of 8 March".

If someone gets an SJP notice and chooses a court hearing rather than the single-justice route, the court then issues a summons to a hearing. Although the Magistrates' Courts Act 1980 says magistrates "must" do this, and must where the SJP requirements weren't met, higher courts have said that issuing a summons is a "judicial act" which shouldn't happen if there are compelling reasons not to. And if the magistrate understands that the prosecution is barred, issuing a summons would clearly be a waste of time. So hopefully even if SE refuse to accept the position, the "case" would end much earlier than a court hearing.

I'm doing okay and I do appreciate you checking in on me.

What you are all doing is wonderful work and I'm so thankful for this help. My current issue is right now that a lot of this information is mentally a little too much to really conjugate. I'm a Uni graduate but even this is a lot for me!

My honest thoughts are I want to go with what you guys have suggested, sending the letter to SouthEastern etc. My worry is if it backfires on me, I wouldn't know what to do next.

In addition to this, I still would like to pay the fines as I believe I should be. Although mentally I was severely unable to do any of it at the time, the reality is I didn't have my ticket printed.

I'm sorry if I'm being a bit of wet wipe! Things are tough at the moment.

After all of this, I would love to get some of you some drinks or at least a donation to a charity in your names. As said before, thank you.

 

[WesternLancer]

My honest thoughts are I want to go with what you guys have suggested, sending the letter to SouthEastern etc. My worry is if it backfires on me, I wouldn't know what to do next.

In addition to this, I still would like to pay the fines as I believe I should be. Although mentally I was severely unable to do any of it at the time, the reality is I didn't have my ticket printed.

Whilst you are right to be cautions, I think given the tone of the suggested letter to SE Trains about them not being able to prosecute due to the Penalty Fare is not aggressive or antagonistic, if they said 'no'. the thing to do next is then to write seeking to get out of court settlement (or alternatively try to argue it at court but my hunch is that you may well need legal help to do that successfully - which may cost more than is at stake anyway).

Whilst I can't guarantee that would work (them agreeing out of court settlement), I think with SE Trains there is a good to high chance it will.

And it seems to me that you have little to loose since if you don't do this they will prosecute (as they have already started to do as it were) so the outcome would be no worse (the prosecution is the worst case scenario outcome as it were).

If you want to offer to pay them the penalty fare then you could do that if you wished, I would think, by stating that at the end of the draft.

My hunch is the sooner you start engaging with SE Trains over this, the sooner it will turn the corner to being less stressful for you - fingers crossed.

But maybe sleep on it and decide what action to take tomorrow.

 

[Walldawg]

Whilst you are right to be cautions, I think given the tone of the suggested letter to SE Trains about them not being able to prosecute due to the Penalty Fare is not aggressive or antagonistic, if they said 'no'. the thing to do next is then to write seeking to get out of court settlement (or alternatively try to argue it at court but my hunch is that you may well need legal help to do that successfully - which may cost more than is at stake anyway).

Whilst I can't guarantee that would work (them agreeing out of court settlement), I think with SE Trains there is a good to high chance it will.

And it seems to me that you have little to loose since if you don't do this they will prosecute (as they have already started to do as it were) so the outcome would be no worse (the prosecution is the worst case scenario outcome as it were).

If you want to offer to pay them the penalty fare then you could do that if you wished, I would think, by stating that at the end of the draft.

My hunch is the sooner you start engaging with SE Trains over this, the sooner it will turn the corner to being less stressful for you - fingers crossed.

But maybe sleep on it and decide what action to take tomorrow.

Thank you.

I would like it to be known that I'm happy to pay the costs incurred through this process, I would also prefer the idea of settling outside of court too.

I have just been on the phone with the Transport Focus team and a lady has taken my information down in good detail to be given to their team. They will contact me within 5 days but it was mentioned most likely sooner.

You've definitely given me the confidence to send the letter to them, I think the smart decision is to get the second opinion from the Transport Focus team and take it from there.

As always, I appreciate the time and energy everyone has been putting in here.

 

[WesternLancer]

Thank you.

I would like it to be known that I'm happy to pay the costs incurred through this process, I would also prefer the idea of settling outside of court too.

I have just been on the phone with the Transport Focus team and a lady has taken my information down in good detail to be given to their team. They will contact me within 5 days but it was mentioned most likely sooner.

You've definitely given me the confidence to send the letter to them, I think the smart decision is to get the second opinion from the Transport Focus team and take it from there.

As always, I appreciate the time and energy everyone has been putting in here.

Yes, worth waiting to hear from Passenger Focus, but only if you have enough time before any SJPN deadlines etc - since if any risk of time running out you could still send that response to SE Trains and act on Passenger Focus advice in due course, depending on what that advice is.

 

[Walldawg]

I have 21 days from 14th June, do you believe this is enough time?

 

[WesternLancer]

I have 21 days from 14th June, do you believe this is enough time?

well, only if they really do get back to you in 5 or 6 days I guess.

 

[Walldawg]

Small update, the TrainFocus team have contacted me via email and have asked for all details related to the case. I have provided it all.

Fingers crossed. Hopefully they too, have some good advice.

Hello all,

I am still awaiting my call from Train Focus which they are taking a little longer that I'd have liked.

I am preparing a letter to send tomorrow, I have added a couple parts that have been mentioned on this post earlier.

Please can anyone give it a read over just to confirm that it is correct please?

Dear xxx

I am receipt of the above SJPN relating to a journey which I made on 11 February 2022.

As per your Statement of Facts on the SJPN, you issued me with a Penalty Fare upon arrival at London Victoria. I raised an appeal against this Penalty Fare on 24 February 2022, and on 8 March 2022 the appeal was decided (please find attached a screenshot of the Penalty Services website).

As per your Statement of Facts, you sent several further letters demanding payment of the Penalty Fare, and therefore it is clear you had not cancelled the Penalty Fare before Penalty Services made their decision on 8 March 2022.

Accordingly, under regulation 11(3) of the Penalty Fares Regulations 2018, you are barred from prosecuting me in relation to this incident.

I am alarmed to see that you have decided to bring a prosecution in breach of this bar. I would therefore be grateful if you could confirm as soon as possible that you are withdrawing the proceedings.

If I do not receive your unequivocal confirmation thereof by Monday 4 July, I intend to plead 'not guilty' as well as making an application for the proceedings to be stayed for being an abuse of process.

I would like to add that the correct fare was paid in full prior to travel and that South Eastern have not been deprived of any revenue.

In regards to the penalty fare, I would be willing to pay the initial penalty fare which I had received on the day of my journey.

I will also be sending a copy to inform the courts of my letter here.

Yours sincerely,

Hopefully this goes well!