regulation of out of court settlements/compromise agreements

[34D]

Does anyone else think that we are at the point where we need an effective regulator to oversee issues around out-of-court settlements?

We have FCC ignoring its penalty fares regime and issuing prosecution threats to which it then settles out of mags court, we have 'Northern Rail filling out MG11s even when there weren't sufficient facilities at the starting station, and we have EMT giving sanctions to passengers with perfectly valid tickets.

For any other service industry behaving in this way, the response from any rights-savvy person would be "see you in (the civil) court" yet the TOCs have an almost unique situation where they can dangle the carrot of "a criminal record" in front of someone over what is after all a simple money claim/civil dispute.

So is it time to:

-put an effective regulator in place?
-ban TOCs from taking out-of-court settlements
-centralise all revenue protection and appeal functions, potentially into a publically owned organisation with more police input?
-restrict TOCs to making civil court claims only?
-something else

 

[eastdyke]

IMO
- something else

The ORR should require DfT to stop faffing about with their Penalty Fare consultations (outcome still pending AFAIK) which started in 2009?.

I am aware of a response made by London TravelWatch as long ago as January 2010.

A PF scheme should be fast tracked onto the whole network and set initially at £80 - with reduction to £40 for prompt payment. Same as operates across TfL and which includes London Overground. There may be reasons why just a small number of remote routes could be omitted.

Yes I know that there are issues with respect to ticketing at more remote locations and in 'difficult' urban areas, they simply need to be solved.

Should be introduced on a planned basis starting from London outwards.

 

[Wolfie]

IMO
- something else

The ORR should require DfT to stop faffing about with their Penalty Fare consultations (outcome still pending AFAIK) which started in 2009?.

I am aware of a response made by London TravelWatch as long ago as January 2010.

A PF scheme should be fast tracked onto the whole network and set initially at £80 - with reduction to £40 for prompt payment. Same as operates across TfL and which includes London Overground. There may be reasons why just a small number of remote routes could be omitted.

Yes I know that there are issues with respect to ticketing at more remote locations and in 'difficult' urban areas, they simply need to be solved.

Should be introduced on a planned basis starting from London outwards.

Until or unless "they are solved" and a whole lot more checks and balances are put in place I must oppose this. A system which blantantly is being used to penalise the innocent is unacceptable.

Indeed the current system arguably breaches the European Convention of Human Rights (right to a fair trial). Before anyone asks, yes I am aware that other EU countries have similar systems but are they being applied in the same way? I doubt it!

 

[scrapy]

Indeed the current system arguably breaches the European Convention of Human Rights (right to a fair trial). Before anyone asks, yes I am aware that other EU countries have similar systems but are they being applied in the same way? I doubt it!

How does this contrevene human rights? A penalty fare is a charge not a fine. There is an appeals process. If a passenger still doesn't agree with the outcome of an appeal they can still refuse to pay. They will then more than likely have their case heard in a court. This most likely will be a magistrates court or possibly a county court, they will have their opportunity to put their case to the court. Only once a fair trial (assuming our judicial system is fair) has taken place can they take any action.

 

[island]

Indeed the current system arguably breaches the European Convention of Human Rights (right to a fair trial). Before anyone asks, yes I am aware that other EU countries have similar systems but are they being applied in the same way? I doubt it!

Not in the slightest. Everyone issued with a penalty fare or investigated with a ticketing offence has a right to a fair trial before the Magistrates' Court.

 

[yorkie]

-put an effective regulator in place?

Yes

-ban TOCs from taking out-of-court settlements

No

-centralise all revenue protection and appeal functions, potentially into a publically owned organisation with more police input?

Possibly

-restrict TOCs to making civil court claims only?

Definitely

-something else

Possibly, depends what. You will get unworkable suggestions such as...

A PF scheme should be fast tracked onto the whole network and set initially at £80 - with reduction to £40 for prompt payment.

People will see this as a fine, not as a charge made for an innocent mistake.

Yes I know that there are issues with respect to ticketing at more remote locations and in 'difficult' urban areas, they simply need to be solved.

You make it sound so easy! How would you solve it, except a huge expense and/or by closing many stations?

A penalty fare is a charge not a fine.

At present, yes. But some people seem to want to use them as fines.

There is an appeals process.

Run by incompetent companies who are not familiar with the Penalty Fare rules!

If a passenger still doesn't agree with the outcome of an appeal they can still refuse to pay. They will then more than likely have their case heard in a court.

But not many people are prepared to let it go that far.

This most likely will be a magistrates court or possibly a county court, they will have their opportunity to put their case to the court. Only once a fair trial (assuming our judicial system is fair) has taken place can they take any action.

Our judicial system isn't fair IMO (but that's another topic ) but no way should people be dragged though criminal courts when TOCs fail to adhere to their own rules!

 

[Wolfie]

Yes

No

Possibly

Definitely

Possibly, depends what. You will get unworkable suggestions such as...


People will see this as a fine, not as a charge made for an innocent mistake.

You make it sound so easy! How would you solve it, except a huge expense and/or by closing many stations?


At present, yes. But some people seem to want to use them as fines.

Run by incompetent companies who are not familiar with the Penalty Fare rules!

But not many people are prepared to let it go that far.

Our judicial system isn't fair IMO (but that's another topic ) but no way should people be dragged though criminal courts when TOCs fail to adhere to their own rules!

Answered far more eloquently than I could! I will say though that an appeals process staffed by semi-trained incompetents working for a company owned by a TOC breaches any perception of fairness know to mankind! Oh, and if TOCs break their won rules, due to either poor staff training or deliberate action, where is the punishment for them? Perhaps they should have to pay DafT a fee for every incorrectly issued PF?

 

[eastdyke]

...

Possibly, depends what. You will get unworkable suggestions such as...

People will see this as a fine, not as a charge made for an innocent mistake.

You make it sound so easy! How would you solve it, except a huge expense and/or by closing many stations?

...

Of course it's an unworkable suggestion as of now.
But as of now we have disparate arrangements applied in a disparate manner by disparate TOC's. Is this going to obtain forever?

Reading the many threads here it is abundantly clear that passengers can and do find themselves in the position of having made innocent mistakes for all sorts of reasons. Most say that they had no idea that this could be their situation as a result of these innocent mistakes.

Passengers see it as a fine because it came as a nasty surprise. It would be no surprise if the rules were universally understood.

The industry needs to revisit the rules that have let this arise.
Intending passengers should be in no doubt as to what the rules are before any travel with one set of rules covering the whole network for all passengers travelling with all TOC's. With relief only by exception (on a few exceptional routes).

All this should not be seen as a nice add-on to any franchise. It should be part of the proper development of the railway.

And yes to provide the means is not cheap, but then neither is the railway.
Investment in arrangements for passengers to have made a valid payment for their journey should be seen to be just as important as investment in infrastructure and rolling stock. There are a (very) few stations that should be closed. On a holistic basis, each and every closure should at least be matched by an economic opening somewhere on the network.

I definitely agree that penalty fares should be a Civil Matter. Only by having clear and consistently enforced rules for travel can Revenue Protection then be focused on fraud rather than civil malaise.

With evermore passengers wanting/needing to travel there needs to be a plan. Just because something is difficult or expensive does not mean that there should be no plan. Without a plan where will the railway be in 25 years?

Cheers!

 

[Greenback]

While I would welcome more consistency between TOC's in their application and enforcement of Penalty Fares, I think we have to recognise that there is no 'one size fits all' solution, as the nature of fare evasion differs between routes.The nature of revenue protection is going to be different in Par or Gowerton compared to Reading.

 

[Stigy]

Indeed the current system arguably breaches the European Convention of Human Rights (right to a fair trial). Before anyone asks, yes I am aware that other EU countries have similar systems but are they being applied in the same way? I doubt it!

If anything, the settlement process only serves to help people out. The TOC has to act in the public interest, as the CPS would do in their cases and everybody has to adhere to. This basically means that we shouldn't criminilise people unecessarily and every effort should be made to find an alternative to criminal prosecution where possible. This could be involving young people, or first time offenders etc. The settlement can be seen as the TOC being prepared to offer a 'way out' to first time offenders, so as not to trouble the court and criminalise people they don't have to. Bear in mind that in a settlement, they'll only be getting the costs and compensation that they'd receive in court, so won't be making a profit....Much the same as any PF system in place etc, they don't stand to make money, unless their settlements are extortionate of course, in which case, it needs to be looked at. That's when a regulator should be sought in my opinion.

Other agencies do this, even more blatantly. The DVLA and TV Licencing to name a couple.

 

[Clip]

IMO
A PF scheme should be fast tracked onto the whole network and set initially at £80 - with reduction to £40 for prompt payment. Same as operates across TfL and which includes London Overground. There may be reasons why just a small number of remote routes could be omitted.

Brilliant - So I could go all the way to Edinburgh from London for £40 now because I would pay my penalty fare promptly.


Great idea :roll:

 

[EM2]

...they can dangle the carrot of "a criminal record" in front of someone over what is after all a simple money claim/civil dispute.

Why is it a civil dispute, when the cases are brought under the auspices of Acts of Parliament? Does that not mean they are criminal cases?

 

[Stigy]

Why is it a civil dispute, when the cases are brought under the auspices of Acts of Parliament? Does that not mean they are criminal cases?

It is a Criminal case once the unpaid PF is cancelled if there ever was one issued, in which case it'll be prosecuted under Railway Byelaws usually, in the Magistrates' Court. The PF itself is a civil remedy, and if the TOC wanted to prosecute the unpaid PF, it would have to go to the County Court, therefore that's why they cancel them and prosecute not the Penalty fare amount, but the initial fare avoided. If there's a settlement involved and the defendant doesn't acknowledge it, or if a settlement is refused by the TOC, they can and usually still do go to the Mags Court, which again is criminal. Once the settlement is paid, it's settled in a manner where no court action is needed.

Byelaw offences are all Criminal ones, as are other railway offences under the Regulation of Railways Act 1889 and the British Transport Commissions Act 1949 (ie; Trespass on the Railway - Lineside).

 

[DaveNewcastle]

I am very sympathetic to any suggestion that it would be helpful to address any void in regulation with an effective regulator.
As that is the form in which the question is presented to us, then my answer must be in the affirmative.

It may be by coincidence that we are asking this question this week, as LJ Levison is about to publish his own report into the ethics of our media and the regulation thereof, that also being a question of sector-specific regulation, but, by contrast, that applies to a sector which is already inhabited by a Regulator, a centuries-long history of regulation, an equally long history of legal Decisions following challenges, statutory reform and endless vigourous attempts by the industry to exploit opportunities to avoid the impact of its regulation.
Do we expect LJ Levison to vindicate the Press Complaints Commission (or whatever variation might conceivably be proposed) as adequate?

I do understand the reasons for creating statutory Regulators. They are all reactive to real problems.
And real problems merit quick responses. It's expedient to fill that void of regulation by creating a new Regulator.

However, the creation of (or modification of) a Regulator creates a complex relationship with the Law which often undermines their potential -
1. they must have effective access to the Judiciary;
2. they must be subject to the Judiciary;
3. they (potentially) have the means to clarify questions of regulation (which is, of course, automatically definitive when clarified by the Judiciary); and
4. they are expected to be independant of the Judiciary (they probably also benefit from their own specific subset of Legislation exemplified by Byelaws which are available to many bodies with a confined jurisdiction such as area Commissions, Railways and Local Authorities). Consequently, they have to have a defined interface with the Judiciary, (such as the RAIB's declared aim not to ascribe blame).

There is a simple, effective, and proven solution to these 4 (and other) problems created by that complexity:
Abandon the concept of a Regulator, and surrender all of its procedures and authorities to the Judiciary, the cannon of Law and the mechanisms of developing Law through detailled argument, evidence, testing and Decision.

So, it follows from my argument that my response to the question "Does anyone else think that we are at the point where we need an effective regulator to oversee issues around out-of-court settlements?" MUST BE in the negative.
I would be very content if the TOCs, their passengers, their industry partners and their QUANGOs were simply subject to Contract Law. The long established, tested, revised and widely acknowledged canon of Law governing transactions which citizens enter into with a daily frequency and with continuing obligations.
Following any breach, there's well established Law to govern any subsequent ad hoc Contracts which provide remedies for the injured party.

I'd like to propose that we abandon this industry-specific regulation over passenger and freight-carrier business; I'm content that specific Legislation and Regulation dedicated to the Railways remains in many other areas, these include the infrastructure, trespass, damage, Policing, energy, environmental impact, T&C planning, Rights of Way and others; (in contrast, I'd resist the dedicated legislation that the Railways currently enjoy in other areas such as Licensing).

Please, let's not create another regulatory body which in turn must be regulated.
We would benefit by subjecting all transactions to the single and unified framework of a living and developing established regulatory mechanism: UK Law.

 

[eastdyke]

Brilliant - So I could go all the way to Edinburgh from London for £40 now because I would pay my penalty fare promptly.


Great idea :roll:

Thank you.

That is not quite what I envisaged, apologies for not being more clear.

I am suggesting an £80 (£40 for prompt settlement) 'penalty' in addition to the fare for the journey in progress (or already taken).

That would represent a change to both the TfL and other TOC schemes currently in place.

But that is not the main thrust of my proposal. I just wish to see a plan for rules with a scheme governing unpaid travel over the whole network (with a possible very few exceptions).

Implementation will require investment, both in existing and novel technologies, but the network will need to grasp this nettle. Sooner rather than later.

And I am not unhappy with UK law.

 

[wintonian]

So what we want is a kind of ombudsman?

(I have only quickly scan read, so if if I have missed something important that's why)

 

[34D]

Arguably what we want is the practice of offering settlements in exchange for dropping the charges in the mags court to be dropped.

From most of the posts on here, the proposed settlements are in the £100-£200 range which for many people is equivalent to the amount of salary they would loose by taking a day off work to attend.

In my personal view, I would like all proposed criminal prosecutions channelled through the police, with the most that a TOC could do being to issue and receive payment of a PF.

 

[Deerfold]

In my personal view, I would like all proposed criminal prosecutions channelled through the police, with the most that a TOC could do being to issue and receive payment of a PF.

Why the Police? Do you think they'd welcome the added workload?

Could they investigate easily or would you expect them to take everything a TOC passed to them?

Or would this mean that very few prosecutions would ever happen as fare-dodging (alleged or actual) would come quite some way down the list of many police forces.

 

[jon0844]

Until or unless "they are solved" and a whole lot more checks and balances are put in place I must oppose this. A system which blantantly is being used to penalise the innocent is unacceptable.

If the industry can make a lot of money from the increased PFs, why can't the Government state that every TOC (and make it written into all future franchises) must offer some form of method to buy tickets at ALL stations - even the hardly used ones... or an updated permit to travel system.. or some other way to allow someone to verify when and where they boarded.

You might even introduce other systems to further aid passengers, like allowing them to send a text to a shortcode that returns a message confirming the time/date and a verifiable code, or an app that lets you do the same from your smartphone. Or, if all else fails, use the help point to get a reference (a help point should also be available at EVERY station in this day and age).

In return for installing this equipment, which would have a high one off cost and a fee for maintenance, they will be entitled to impose a tougher penalty fare on passengers. It will also be a lot fairer, as many people must have hassle when they couldn't get a ticket at all and have to prove where they came from etc - than those people who try things on like upgrading themselves to first class, going beyond their station, doughnutting etc.

It is rather silly that there are many people who can't get a ticket before travel, may not have any real opportunity during travel and must then be delayed at the destination to buy a ticket - or be put into a situation where they might even struggle at the end to get a ticket, but if they walk out can be nabbed by revenue staff.

 

[island]

There is no need to regulate the out of court settlements, as they are already regulated by the passenger's opportunity to decline a settlement and defend the ensuing prosecution at the Magistrates' Court.

I wonder what effect it would have if, like France and Belgium, a lower or no penalty were applied to people who specifically sought out the guard on boarding without a ticket. (Ignore DOO for the moment.)

 

[Ferret]

Jon talks sense when he says that TOCs should be forced to provide adequate facilities to buy tickets. I cannot understand this desire, now being driven further by McNumpty to make it hard for people to pay their fares. It defies all logic.

 

[Greenback]

I agree with Ferret. Although the internet has meant more people buy their tickets before travel without visiting the station at all, the key to reducing ticketless travel is surely to maximise the facilities to buy tickets before getting on the train? This means more TVM's, better staffed ticket offices, and more publicity about the penalties that may apply if you board without buying a ticket first.

 

[Ferret]

Greenback, it's a big part of reducing ticketless travel for sure! As is providing an adequate deterrent to those who want to take a chance on not paying. I'm all for TOCs wanting to catch the fare evaders (something I play an active role in of course!), but let's at least do it properly and collect revenue from those who want to pay as well!

 

[Stigy]

In my personal view, I would like all proposed criminal prosecutions channelled through the police, with the most that a TOC could do being to issue and receive payment of a PF.

That would never work, for two main reasons.


1) The Police and the CPS like to issue cautions like sweeties...Even to repeat ofenders on occassion.

2) The case file that a Police officer has compared to the single MG11 of a rail employee, equates to about 3-hours work per report for a copper, whereas the average rail employee could knock theirs out in about 30-minutes tops.

So what'll it be? Police on the network EVEN LESS, or fare evaders getting off scot free?