Received 'WARNING in lieu of PROSECTUTION' letter from South West Trains

[AJNC]

Hello,

I'd appreciate your advice! I have received the above letter from South West Trains, dated 14 June, today (20th June).

It is a threatening letter stating that it is a criminal matter and is being considered for prosecution via the Magistrates Courts. It says that, if found guilty in court, I may be fined £1,000 for the 'offense', a victim surcharge payment of £15.00 and a contribution towards the costs of bringing the prosecution to court in the region of £400. It says that I will have a criminal conviction - a record that may impede any future job applications. (I've been made redundant twice in the past 24 months, therefore, for me, this letter is particularly threatening).

I am supposed to make a payment of £80 to settle the matter out of court within 14 days of the date on the letter (so within the next 8 days!). I don't have £80 to pay a fine. I'm far too overdrawn as I had been out of work for a number of months up until very recently.

I do, however, know that I wasn't intentionally evading fares. I am a fare-paying, law-obiding citizen. On this occasion, I was quite near the beginning of a return journey and it transpired that the money on my Oyster card had run out. I approached the member of staff to ask wat the error code meant. It was at an open gate, I could have just walked through, but I wanted to know if something was wrong with my card.

Because of the way that I was treated by the revenue officers at Waterloo station, the following day, I sent a complaint email to the South West Trains Customer Relations team (and I never received a reply).

The email that I sent is below. It explains everything that happened on the day (sorry that it's so long). Again, I would very much appreciate your advice as I don't have the funds available to seek legal advice. Thank you.

Email:

16/05/2013

To: [email protected]
Cc: [email protected]

Sir/Madam,

On 15th May, I travelled from Norbiton Station to Waterloo on one of your trains. My entire journey was Norbiton to Leicester Square/Charing Cross return.

I tapped my Oyster card in at Norbiton Station and got on the train. When I got to Waterloo I went to one of the gates, which was open, and tapped my Oyster Card as I was going through. I noticed that the screen displayed 'seek assistance 36'. I tapped it again and it said the same thing. I went to one of your employees with a yellow tabard and asked him what 36 meant and he said that I had run out of money on my card and that I should go and see one of the revenue officers. I headed over to the group of men he pointed to and got my debit card out, ready to top up my card.

What I then experienced was a barrage of rude insinuations from two of your staff. They took my Oyster card from me and told me that they could keep it if they wanted to. They said that I was lucky because they weren't going to take me to court, they were just going to fine me. I said to them that it wasn't reasobable to fine me and that I had approached them to top up my Oyster card before continuing my journey, when I could have gone through the open barrier to the machine. I am a genuine, fare paying customer. I was then told that I was a 'criminal'. The officer said that I didn't have a valid ticket to travel, I was breaking the law and that I was being fined £20, but that I could write to the company and contest it within 21 days. I said OK, that I would pay the fine and I was now running late so could we get on with it. I wanted to take a picture of the staff member's name badge so that I could reference it when I contested the fine. He got very angry with me and for some time refused to even let me see his badge so that I could write it down. At this point another man, referred to as 'the manager' joked that he would have a picture taken with me and I thought that the situation had lightened up, but no... the revenue officer, whose name I eventually got to write down [xxx] told me that I was going to be taken to Court. He asked me for my personal details, he was annoyed that I wouldn't give him my date of birth. My name and contact details is enough. Why would a train company need my date of birth? He then made a phone call (he still had my Oyster Card). I asked him how long it would be and he said at least 5 minutes. I asked one of the other staff members if he could help and could I hurry this along and just pay the fine. He said that he couldn't talk to me.

When [xxx] got off of the phone he said that he was going to write a statement and that I would have to sign it for the 'court'. I told him that I wasn't going to sign anything that he had written a) because it was his statement and he wasn't writing down what had happened b) he used poor English/phrasing and c) because his handwiting was illegible. He wouldn't let me write my own statement. I again asked 'the manager' if he would listen to me and if I could write down what happened and he said that I wasn't allowed to speak to him in case it went to court. I eventually got [xxx] to write a more accurate statement and signed it. During this entire time, another of your staff, [xxx], stared at me and wrote down notes in a book.

I was finally given back my Oyster Card and told that I could go through the barrier.

I have so many problems with this whole episode. It lasted 15-20 minutes, it was unnecessary and unprofessional all for a £3 deficit on my Oyster card that I wanted to top up. I felt that these three men were trying to exert some kind of power over me and were intentionally delaying me because they knew that I was in a rush and they, very clearly, had nothing else to do.

I'm very annoyed and I expect to receive an apology and an explanation of why your staff would escalate this as they did and why I was threatened with a fine, then a court case. Is this in their training?

I am a paying customer and use piblic transport regularly. Always paying for my travel. It is not acceptable for me to to be intimidated by three of your male staff members.

Regards,

 

[yorkie]

Can you send me a copy of your Oyster journey history?

You need to urgently seek legal advice if you want to fight this.

 

[Urban Gateline]

I must commend your honesty for not just walking out of the open gate, many people who have no ticket (or no money on their Oyster card) would have jumped at the chance to slip out of an open gate, I'm not a lawyer but this goes in your defence as you did at least try to seek assistance.

From local knowledge, some relevant facts are that Norbiton station has 3 TVM's on the london-bound side and 1 TVM on the Kingston-bound side that can top up an Oyster card (2 out of 4 take cash payment).

The Oyster validators are on the barriers inside the ticket office building and by the side gates to the platform. If you had tried to tap in your Oyster at Norbiton you would have seen the same "Seek Assistance 36" message as you did when trying to tap out at Waterloo, at which point you should have used the TVM's to top up your Oyster and then try to touch in again before boarding the train.

The Oyster history that Yorkie asks for may or may not be helpful in your case, sometimes a journey "expires" due to time limits which can result in a "36" at the other end of the Journey for example. However if the history displays a failed tap in due to insufficient funds at Norbiton then it certainly won't help your case.

If I were you I'd borrow that £80 off someone and pay the out of court settlement as it's cheap compared to actually going to court and at minimum being prosecuted under the Railway Byelaws for not being able to produce a valid ticket when requested (Which is what an Oyster card with no funds is) Also asking if you could top up to the RPI's isn't helpful as that would be adding credit for future use, it doesn't pay for the journey you made in retrospect!

One other thing I wanted to add was that you did yourself no favours by what I sense as being rude and patronising yourself to the RPI. You should not have told them to "hurry up", they are doing their job and it takes time, it is possible that if you had passed the "attitude test" that some employees use then you may have just been issued with a £20 Penalty fare rather than being reported for prosecution.

 

[AJNC]

I don't know what any of the 'TLA's are!

The issue was not that I wasn't willing to pay for my journey. If I had noticed that the card wasn't topped up enough before I got on the train I would have used the machine to pay before I got on. I noticed the error message at Waterloo, but not at Norbiton. The guy acknowledged that he could see I had tapped the Oyster in at Norbiton and he said it would have said the same code.

There is something that I recalled a few days later. I didn't bring it up at Waterloo or in the email because I didn't think of it, but on this day, I went through the barrier entrance, not the open entrance (there are two ways in to Norbiton station) and when I tapped my Oyster card at the barrier, it didn't open, but the train guy was standing there and he just opened it for me, I said thank you and went on my way. I didn't occur to me because that sort of thing often happens with Oyster cards. Shouldn't he have told me to top up my card instead of just over-riding it and letting me through?

I do want to contest it, but there is no option to do this- it is pay the fine or go to court. I have a problem with this, especially as my complaint email was completely ignored.

What makes the situation worse is that if I had been wearing jeans and a jacket, the men at Waterloo would have probably just told me to go through and top up my card, at worst they would have let me pay their fine and not stalled me for as long as they did. It was very evident to me that they were doing it to annoy me and stall me there as I was dressed up, wearing a short dress and in a hurry. They were older men, playing a game. It was pretty disgusting.

A

Ps. With regard to the Oyster Card, I hadn't registered this one before the 15th May and it doesn't show you a history before the date you register.

 

[bb21]

I don't know what any of the 'TLA's are!

TVM are ticket vending machines.

 

[AJNC]

TVM are ticket vending machines.

Ahhh... thanks!

 

[Urban Gateline]

I don't know what any of the 'TLA's are!

The issue was not that I wasn't willing to pay for my journey. If I had noticed that the card wasn't topped up enough before I got on the train I would have used the machine to pay before I got on. I noticed the error message at Waterloo, but not at Norbiton. The guy acknowledged that he could see I had tapped the Oyster in at Norbiton and he said it would have said the same code.

There is something that I recalled a few days later. I didn't bring it up at Waterloo or in the email because I didn't think of it, but on this day, I went through the barrier entrance, not the open entrance (there are two ways in to Norbiton station) and when I tapped my Oyster card at the barrier, it didn't open, but the train guy was standing there and he just opened it for me, I said thank you and went on my way. I didn't occur to me because that sort of thing often happens with Oyster cards. Shouldn't he have told me to top up my card instead of just over-riding it and letting me through?

I do want to contest it, but there is no option to do this- it is pay the fine or go to court. I have a problem with this, especially as my complaint email was completely ignored.

What makes the situation worse is that if I had been wearing jeans and a jacket, the men at Waterloo would have probably just told me to go through and top up my card, at worst they would have let me pay their fine and not stalled me for as long as they did. It was very evident to me that they were doing it to annoy me and stall me there as I was dressed up, wearing a short dress and in a hurry. They were older men, playing a game. It was pretty disgusting.

A

Hmm interesting with what you say regarding the person letting you through manually at Norbiton station. What time did you travel? As Norbiton is only manned between 07:30-09:30 on the London bound side as far as I know, whilst the other side is manned in the evening peak between 16:30-19:30 only. If the barriers are in use then the side exit gates are closed. Unfortunately there are sometimes STM agency staff covering shifts at Norbiton and these have little to no training regarding Oyster, so it could be that one of these mistakenly thought they were helping you by letting you through the barrier (But does that constitute giving someone the authority to travel?)

The problem I see is that you can no longer contest the matter without going to Court, if it was a Penalty fare then you could appeal. Does it say on the letter whether SWT are looking to prosecute under the Regulation of Railways act 1889 section 5.3a or under Railway Byelaw 18.1?

The former is intent to avoid the fare and is harder for SWT to prove in this case and carries a hefty fine plus criminal record, the latter has no defence as all that is needed is proof that you had no valid ticket at the time but it is not a recordable offence, just a fine.

 

[AJNC]

You are very knowledgeable and thank you for your quick responses.

I'm not sure of the exact time, but it was definitely the evening, as I was meeting somebody for dinner.

Here's the section of the letter that should answer that:

'... currently being considered for prosecution via the Magistrates Courts under the Railway Byelaws. Made under section 219 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005...'

Should there not be a letter or notice in between this letter and the 15th May, giving me a chance to respond/ explain the situation? Does the fact that I can evidence having sent an email the day afterwards that was not replied to help at all?

Will they be able to see on my Oyster history that I tapped the Oyster card at Norbiton and that somebody manually opened the gate?

I'm even more annoyed now. I hate South West Trains as it is. Now I get harrassed by their staff and letters sent to me threatening me with court action. I've spent thousands of pounds on public transport. The actual fare dodgers don't get caught and if they did they wouldn't stand there and agree to pay a fine from some perverts, they also wouldn't give out their real name and adress.

South West Trains is an overpriced, late and dirty DISservice, but what other option is there? We're all heavily penalised for using a car... grrrr.

 

[bb21]

'... currently being considered for prosecution via the Magistrates Courts under the Railway Byelaws. Made under section 219 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005...'

Should there not be a letter or notice in between this letter and the 15th May, giving me a chance to respond/ explain the situation? Does the fact that I can evidence having sent an email the day afterwards that was not replied to help at all?

That sounds to me like a letter asking you for your version of the events, unless I'm very much mistaken.

 

[Urban Gateline]

'... currently being considered for prosecution via the Magistrates Courts under the Railway Byelaws. Made under section 219 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005...'

Should there not be a letter or notice in between this letter and the 15th May, giving me a chance to respond/ explain the situation? Does the fact that I can evidence having sent an email the day afterwards that was not replied to help at all?

Will they be able to see on my Oyster history that I tapped the Oyster card at Norbiton and that somebody manually opened the gate?

I'm even more annoyed now. I hate South West Trains as it is. Now I get harrassed by their staff and letters sent to me threatening me with court action. I've spent thousands of pounds on public transport. The actual fare dodgers don't get caught and if they did they wouldn't stand there and agree to pay a fine from some perverts, they also wouldn't give out their real name and adress.

South West Trains is an overpriced, late and dirty DISservice, but what other option is there? We're all heavily penalised for using a car... grrrr.

It looks to me that the Byelaw offence is being used for prosecution, which somewhat makes your options clearer as you can either pay the £80 (which I'd strongly advise) or go to court and you'll automatically be found guilty of the offence anyway as you have no defence to it.

With regards to "What can they see?" Well the Oyster record will show a failed touch in at Norbiton due to insufficient funds. They will have written down your Oyster card number so the history can easily be referred to, to prove you had not enough money on the Oyster card and a failed tap in when questioned at Waterloo. At least this is what a MoVie reader shows, so I assume the history on TFL systems is just as detailed. Nobody will see evidence of you manually being let through though unless the unlikely chance of CCTV being checked happens, which it wouldn't for a straight forward Byelaw prosecution.

I actually share similar frustrations to you regarding hardcore fare evaders always getting away with it and the softer targets being penalised, it's far from fair as those that use force such as pushing through or jumping barriers never get stopped, so it's no incentive for them to stop doing it. I am one of the yellow Hi-vis staff you refered to earlier and unfortunately SWT does not give us enough powers to stop the hardcore fare evaders as much as we'd like to.

Unfortunately the attitude and appearance of staff has little relation to the offence so there is not much point mentioning it, also what you term "harassment" may simply be the inspector doing their job, the process is made to be a bit intimidating to put people off repeat offences!

Also you should chase up your complaint to SWT, normally it takes up to 20 working days, so if that has passed then give the customer service centre a ring or send a follow-up e-mail to chase your complaint.

 

[AJNC]

It is very clear that I either pay £80 within the 14 days and in doing so accept full liability, or the matter will 'proceed forthwith and without delay to a resolution in the Magistrates Court'.

They also state that: 'any further correspondance from South West Trains in answer to further points raised, will result in additional costs'

 

[bb21]

It is very clear that I either pay £80 within the 14 days and in doing so accept full liability, or the matter will 'proceed forthwith and without delay to a resolution in the Magistrates Court'.

'They also state that: 'any further correspondance from South West Trains in answer to further points raised, wil result in additional costs'

In that case, I can only speculate that they probably thought they had sufficient evidence. They don't have to give you a chance to explain your version of the events, however they normally do.

What I also suspect is that your letter of complaint probably hadn't helped, especially if they were considering a Byelaw prosecution, as you have pretty much admitted everything in there.

If you intend to fight this, I think you will need to seek professional legal advice.

 

[yorkie]

I am willing to provide some advice, but I am unable to do so if I can't see the journey history.

If your card isn't registered online, then you would need to obtain a printout and scan it in (or type it all up).

If you successfully touched in and you had a reasonable amount of money on your Oyster card, then you might have a case, but without that information I don't have anything to go on.

 

[bb21]

If your card isn't registered online, then you would need to obtain a printout and scan it in (or type it all up).

In addition to what yorkie said, a till-printed mini-statement will only give you details of the last eight journeys. If your journey in question was before that, you might want to ring up the Oyster helpine who can pull up details for the last 56 days.

 

[Urban Gateline]

In that case, I can only speculate that they probably thought they had sufficient evidence. They don't have to give you a chance to explain your version of the events, however they normally do.

What I also suspect is that your letter of complaint probably hadn't helped, especially if they were considering a Byelaw prosecution, as you have pretty much admitted everything in there.

If you intend to fight this, I think you will need to seek professional legal advice.

Indeed, but wouldn't you agree it would be foolish to seek what could be costly legal advice when the OP has no defence to a Byelaw prosecution anyway?

I can see Yorkie's reluctance to give advice as it's true that most of what I have said is speculatively based on the Original Poster not having enough funds on the Oyster card before boarding and not having "touched in" sucessfully at Norbiton station.

 

[bb21]

Indeed, but wouldn't you agree it would be foolish to seek what could be costly legal advice when the OP has no defence to a Byelaw prosecution anyway?

Yes, anything beyond the initial free consultation could potentially be money wasted.

On the other hand, the solicitor may see something during the initial consultation that would allow him to turn the case in the OP's favour. All speculation of course.

Without knowing what happened exactly via a statement, particularly how much money the OP had at the beginning of the journey, it is impossible to say whether the OP would have a case. (Yes, we might all have a picture in our head as to what might have happened, however again that is just speculation.)

 

[island]

If you want to get out of this without a court case then you need to pay up. If you then want to address alleged rudeness and inappropriate behaviour by staff, you can, but it's not a defence to a criminal accusation that someone was rude to you, and bringing it up only confuses matters.

 

[AJNC]

Unfortunately the attitude and appearance of staff has little relation to the offence so there is not much point mentioning it, also what you term "harassment" may simply be the inspector doing their job, the process is made to be a bit intimidating to put people off repeat offences!

Also you should chase up your complaint to SWT, normally it takes up to 20 working days, so if that has passed then give the customer service centre a ring or send a follow-up e-mail to chase your complaint.

This is the reason that I did not bring it up in my email. I used the word intimidated because I was being intimdated and it was unprofessional (and it was just plain weird). If you were to see cctv footage of that evening, you will see that I am a young woman, who approached one of the men in a friendly manner. Then I am stuck there for 15 mins or more with three to five (at various points - one of the guys was just a friend of one of the staff members) older men standing nearby, looking me up and down, whispering to eachother about me and laughing and writing things down about me. What is impossible to prove or explain is that this is 'harrassment', but it IS, because none of this was acceptable behaviour, nor is it in their job description!

The on the spot fine, being jobsworthy and quoting rules/ laws, etc is the kind of thing you'd expect... like a traffic warden. I get it. Not the guys I had to deal with, though.

I wasn't being ignorant, either. I had been let through the barrier, which is why I didn't think that there was a problem. Why would I? I don't work for a train company!

All of this aside, there are only two occasions that I can think of where a missing/ invalid card has come up at a station. One where I'd forgotten to tap my card in and the guy said not to worry. The other where my friend had lost his ticket mid-journey. The guy just let him through. These are normal people acknowledging that somebody is being honest and usually pay a fare. There are normal people out there!!

 

[yorkie]

I am still unable to assist, as I have nothing to base any assistance on, other than a lot of additional information that isn't of much use, but not the crucial information.

I will, however, just point out that you were (rightly or wrongly - I don't know!) charged a higher than normal fare of £20, which is issued to people who are considered to be making an honest mistake. It is issued "on the spot" but not payable "on the spot" (though you may initially be required to pay the cash fare towards this), which can be appealed.

It sounds like you (again, rightly or wrongly I don't know) chose not to accept the issuing of this fare. Therefore, the Train Company has the option to prosecute you instead. As it happens, they are offering you an out of court settlement (of £80).

If you choose not to accept the settlement, then the Train Company will probably proceed with a prosecution. If you let that happen, it is vital that you are properly represented in Court. If you are found guilty, you would then be fined and have a criminal record, as mentioned in the letter.

You may find this helpful: RailUK Fares & Ticketing Guide - Section 10 - Disputes

 

[MichaelAMW]

Based on what the OP has said, she appears to have initially been offered a penalty fare, the charge for making an honest mistake, which is what she appears to have done by not noticing her insufficient PAYG balance. However, when she nonetheless stood her ground and asked for some accountability on their part, for example with asking for their name, they decided to abuse their pathetic sense of power and bully her. Absolutely vile and disgusting behaviour which makes me angry.

This does not, I appreciate, add anything to help the OP resolve her problem as it now stands - others have given the advice to pay up and move on - but perhaps it will help her a little to know that it's not just she who is sickened by this kind of inapproprate behaviour.

BTW, it is possible that she had enough PAYG balance to touch in at Norbiton but not for a journey as far as Waterloo.

 

[bb21]

In that case, I believe that the balance would go negative but the gates would have opened, if in working order

 

[MichaelAMW]

In that case, I believe that the balance would go negative but the gates would have opened, if in working order

Yes, e.g. if there was enough for a quick trip to Kingston.

 

[AJNC]

This does not, I appreciate, add anything to help the OP resolve her problem as it now stands - others have given the advice to pay up and move on - but perhaps it will help her a little to know that it's not just she who is sickened by this kind of inapproprate behaviour.

It strangely does. Thanks!

It's very frustrating and also stressful. £80 may be nothing to some people, but it's increases my debt by a lot for me.

I may have to pay, but in paying it says that I am saying that I am fully liable and won't contest anything else. If I complained again I'd be unlikely to get a response to that either, I suppose.

 

[Urban Gateline]

In that case, I believe that the balance would go negative but the gates would have opened, if in working order

Precisely, getting a code 36 at Waterloo meant either of 2 things.

1) Not enough money on the card and there never was enough before the journey began

2) An incomplete journey charge due to exceeding the time limit on that Journey which brought the Oyster card into a negative balance before the OP arrived at Waterloo barriers.

I agree with MichaelAMW that if the behaviour of the RPI's is as described then it is unacceptable, however we only have the OP's word for this as the aforementioned staff members are not here to defend themselves. Also it doesn't help the OP's case as I think we all acknowledge? It is the basis of the complaint, which is a separate matter.

 

[cuccir]

I suspect that you need to do two things:

1. Go vent here. Name and shame the company.

2. Accept that it's possible that you missed at your first station that you were short on funds on the Oyster Card. Pay the £80 and chalk it up to experience.

 

[Urban Gateline]

The possibility that someone manually let the OP through the Barriers at Norbiton consituting an "authorised person" giving authority to the OP to travel is interesting. If it is true I am not sure how it would implicate the case, probably not by much as they were still unable to produce a valid ticket when requested...but does such a permission override this?

 

[furlong]

The possibility that someone manually let the OP through the Barriers at Norbiton consituting an "authorised person" giving authority to the OP to travel is interesting. If it is true I am not sure how it would implicate the case, probably not by much as they were still unable to produce a valid ticket when requested...but does such a permission override this?

If a gate fails to open and displays a reason code indicating there is no valid season ticket and there are insufficient pre-pay funds to allow travel, then an authorised person opens the gate and allows the person through into a compulsory ticket area, by those actions has an authorised person given permission to travel without a valid ticket such that the person is not in immediate breach of the byelaw on passing through the gate as would otherwise likely be the case?

 

[Top Cat]

For a journey that is wholly within the London Fares Zone area (I.e. one that you can use an Oyster card for) then the fare is set by Tfl, not South West Trains so it is no use blaming South West Trains if you feel the cost of your journey is excessive!!
You should also remember that it is your responsibility to check that you have a valid ticket before starting your journey, as set out in the National Conditions of Carriage.

 

[Deerfold]

For a journey that is wholly within the London Fares Zone area (I.e. one that you can use an Oyster card for) then the fare is set by Tfl, not South West Trains so it is no use blaming South West Trains if you feel the cost of your journey is excessive!!
You should also remember that it is your responsibility to check that you have a valid ticket before starting your journey, as set out in the National Conditions of Carriage.

I thought ATOC set NR fares within the Oyster area.

 

[34D]

looking me up and down, whispering to eachother about me and laughing and writing things down about me. What is impossible to prove or explain is that this is 'harrassment', but it IS, because none of this was acceptable behaviour, nor is it in their job description

I think it is more likely that they were perving.... however it _is_ in their job description to note down a description of people who are being considered for prosecution, for if there is any subsequent dispute over identity. Whether things like 'blonde hair, big boobs, short skirt' are appropriate or relevant is another matter, of course.