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Thameslink Notice of intention to prosecute

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furlong

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However from the 'abuse of process' perspective perhaps we might have (1) Did the company, equally aware of the ticket's invalidity, misrepresent the ticket's validity to the passenger (due to a deliberate choice in its system design which was, we might assume, not explained to the passenger and not even documented by it anywhere in the public domain), such that the passenger was entitled to rely upon the company's false assertion of validity?; and (2) Had the company not done that, would the passenger not have travelled with that ticket such that there would have been no offence? Then (3) Would that amount to unfairness sufficient to demand a stay?
 
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Haywain

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However from the 'abuse of process' perspective perhaps we might have (1) Did the company, equally aware of the ticket's invalidity, misrepresent the ticket's validity to the passenger (due to a deliberate choice in its system design which was, we might assume, not explained to the passenger and not even documented by it anywhere in the public domain), such that the passenger was entitled to rely upon the company's false assertion of validity?; and (2) Had the company not done that, would the passenger not have travelled with that ticket such that there would have been no offence? Then (3) Would that amount to unfairness sufficient to demand a stay?
That might be countered by wondering why the passenger asked for the credit to be returned and still thought it could be used several months later.
 

Feathers44

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The sticky issue is that the company responsible for revenue collection in this instance, and thus liable for any misrepresentation, is different to the company providing carriage.

I assume that this is a familiar issue to those more used to reading about these sorts of situations. Are there (legal) agreements between TfL and the TOCs covering these sorts of things? (I expect the answer to be a No.)
 

island

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However from the 'abuse of process' perspective perhaps we might have (1) Did the company, equally aware of the ticket's invalidity, misrepresent the ticket's validity to the passenger (due to a deliberate choice in its system design which was, we might assume, not explained to the passenger and not even documented by it anywhere in the public domain), such that the passenger was entitled to rely upon the company's false assertion of validity?;
No. Thameslink did not "misrepresent" anything.
and (2) Had the company not done that, would the passenger not have travelled with that ticket such that there would have been no offence? Then (3) Would that amount to unfairness sufficient to demand a stay?
The answer to (1) being in the negative, the remaining questions do not arise.
 

furlong

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No. Thameslink did not "misrepresent" anything.

The answer to (1) being in the negative, the remaining questions do not arise.

I think that is (1) is at least arguable and potentially persuasive but it is (3) that could be more troublesome, for (expansion upon) the reason Haywain gave: In short, yes let's say the company incorrectly told you it was valid when it wasn't, but despite that you still ought to have remembered and were quite likely to have been instructed to destroy it at the time of the refund(*), and so even on balance of probabilities this might not reach the (high) threshold required here. (*) How the refund happened and the procedures, emails, instructions could be important here e.g. if there is a script or message that informs that it can no longer be used or, better, requests acknowledgement that that has been understood.
 
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John Palmer

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I don't understand the basis on which it is asserted that the ticket has to be treated as having been invalid for travel throughout the various legs of the journey made. If the process to identify the card as one that had been cancelled was triggered by the touch in at Ferme Park Road but was not completed until some time between that touch in and the failed touch out at Kings Cross then the precise instant at which cancellation was completed appears incapable of being determined. Since cancellation had apparently not been effected by the time of the second touch at Finsbury Park, is there not a case for saying that at that moment the card remained uncancelled and consequently a ticket that was valid for the purpose of travel? And if that is the case, what is the basis for saying, for the purposes of Bylaw 18(1), that it had ceased to be “a valid ticket entitling … travel” at the moment the OP entered the train there?

The OP evidently requested a refund of the credit on the card in January 2021. The following October the card issuer made an electronic representation that a sum of around £5.00 still stood to the card's credit. How, in these circumstances, is the card holder to know whether the card is valid for further travel up to that amount of credit or whether instead the representation as to the amount of credit is false and one on which he is not entitled to rely?

In view of the card issuer's representation I see no basis for presuming that the OP actually received in January 2021 the refund of the credit upon the card that had been requested.
 

island

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I don't understand the basis on which it is asserted that the ticket has to be treated as having been invalid for travel throughout the various legs of the journey made. If the process to identify the card as one that had been cancelled was triggered by the touch in at Ferme Park Road but was not completed until some time between that touch in and the failed touch out at Kings Cross then the precise instant at which cancellation was completed appears incapable of being determined. Since cancellation had apparently not been effected by the time of the second touch at Finsbury Park, is there not a case for saying that at that moment the card remained uncancelled and consequently a ticket that was valid for the purpose of travel? And if that is the case, what is the basis for saying, for the purposes of Bylaw 18(1), that it had ceased to be “a valid ticket entitling … travel” at the moment the OP entered the train there?

The OP evidently requested a refund of the credit on the card in January 2021. The following October the card issuer made an electronic representation that a sum of around £5.00 still stood to the card's credit. How, in these circumstances, is the card holder to know whether the card is valid for further travel up to that amount of credit or whether instead the representation as to the amount of credit is false and one on which he is not entitled to rely?
A card is either valid or it is not. The OP cancelled the card in January 2021, making it no longer valid for travel. I cannot conceive of a magistrate accepting an argument that the OP, having requested the card be cancelled, should still be able to use it merely because it was erroneously accepted by a machine; it was no more capable of being accepted for travel than a counterfeit ten pound note.

All this repetition about “representations” is of no relevance to the OP.

In view of the card issuer's representation I see no basis for presuming that the OP actually received in January 2021 the refund of the credit upon the card that had been requested.
I have seen nothing to suggest that TfL did not pay the amount of the stored value on the card to the OP’s order. If it transpires that no payment was made I reserve the right to amend my view.
 

Feathers44

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Remembering, of course, that as the card had not (presumably) been used since cancellation, the Oyster system had had no opportunity to update the stored value to reflect the refund paid.
 

bakerstreet

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Given some people have more than oyster one card (not sure if this is the OP’s position) i often hear those people try 2 or sometimes even 3 cards at a gateline until one is accepted.

Are they trying to travel without paying a fare?

Or are they merely trying to ascertain which of their cards is valid using the easiest method - ie by touching a card reader

If the card reader accepts an Oysyer card, and opens the gates, hadn’t it therefore been accepted for travel?

Even if that means the balance has gone negative?

I certainly did not know that refunding a card actually cancels it.

Given (as previously discussed in these forums) TfLs oysyer balance info online is often delayed/historical, not updated or unavailable, and that unlike ITSO cards there is no publicly available app that can read an Oyster ‘live’ I do have significant sympathy with the OP

Yes the OP refunded the card but I have forgotten about stopping my credit card from working abroad and only noticed when I’ve attempted to purchase something.
Am I trying to defraud le boulangerie?
Non
I just alter my banking app accordingly.

I wonder what balance the bus reader or gate reader displayed to the OP as they touched in?

I am not arguing with other’s legal perspectives. I simply don’t know.

Is a passenger even legally or byelaw bound to check their balance before travel on anything other than a touch in?
And if that touch in is then accepted….

But I think this is a harsh outcome for the OP.
 
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skyhigh

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But that's the point with an Oyster isn't it - its not supposed to work without money on it (emergency bus trip allowance aside). So if you touch it on barrier and it lets you through then I would argue that the "railway" has given you permission to travel with a valid ticket as the barrier has done the checking and given a positive affirmation that it is okay to travel.
Of course, it is possible to tap in at Finsbury Park without passing a closed barrier line, in which case that argument wouldn't stand.
If the card reader accepts an Oysyer card, and opens the gates, hadn’t it therefore been accepted for travel?
Same applies here. It's not necessarily the case a barrier was opened (and if I wanted to see which card had credit I'd use a ticket machine, rather than stand at the barriers tapping)
 

bakerstreet

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f I wanted to see which card had credit I'd use a ticket machine, rather than stand at the barriers tapping)

You would, but I’m guessing many people reading the forum have seen people test their cards at the reader.
Especially in the case where the first touch is a bus where a ticket machine is unavailable.

As I ask above, is a passenger even legally or byelaw bound to check their Oyster balance before travel on anything other than a touch in?
And if that touch in is then accepted….
 
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MotCO

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You would, but I’m guessing many people reading the forum have seen people test their cards at the reader.
Especially in the case where the first touch is a bus where a ticket machine is unavailable.

As I ask above, is a passenger even legally or byelaw bound to check their Oyster balance before travel on anything other than a touch in?
And if that touch in is then accepted….
And when the Oyster was accepted on a bus, why would the OP suspect that the card was no longer valid. If he had forgotten that the card had been cancelled, it would not be unreasonable to expect that, in that case, the bus would not accept it snd would alert him of that fact. Would the 'Man on the Clapham Omnibus' know that a card cancelled 9 months ago would only be really cancelled half an hour after he used it?
 

Haywain

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Would the 'Man on the Clapham Omnibus' know that a card cancelled 9 months ago would only be really cancelled half an hour after he used it?
Said man on bus would think that having asked for his money back it isn’t mysteriously still available on the Oyster card.
 

bakerstreet

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Said man on bus would think that having asked for his money back it isn’t mysteriously still available on the Oyster card.

Assuming everybody remembers everything they have done months ago.

The reader passed the card as valid. Other than touch an Oyster card on a reader before travel, what other check am I obliged to do before beginning a journey. ?

I’m assuming (although I have no way of confirming) that in the OPs case the reader display would show an amount credit if the reader went green
 

bakerstreet

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When the OP cancelled their card and got the refund, why didn't they just cut it up and bin it?
Perhaps there was still their deposit to refund (assuming it was under the previous system)

Perhaps they intended to use the card once they needed to travel again.
 

Fawkes Cat

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Assuming everybody remembers everything they have done months ago.
The thing is, this is an advice forum, which aims to help people through the world as it is, and not the world as we would like it to be.

And in the world as it is, I don't remember hearing of any court cases where 'I forgot' has been the piece of evidence that saved the defendant.
 

island

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Perhaps there was still their deposit to refund (assuming it was under the previous system)
The deposit is refunded with the rest of the balance these days; as there are no booking offices to recycle the cards they no longer take the physical card back.

The thing is, this is an advice forum, which aims to help people through the world as it is, and not the world as we would like it to be.

And in the world as it is, I don't remember hearing of any court cases where 'I forgot' has been the piece of evidence that saved the defendant.
Indeed. And as people seem to keep forgetting, the OP is accused of a strict liability offence, so what they did or did not forget, remember, intend to do, etc. etc. is irrelevant.
 

furlong

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Can we be sure that the tap in at Finsbury Park was successful?
It's an internet forum - we can't be sure of anything! But in terms of the narrative deduced, yes - it all fits with our technical understanding of the systems. As island says, it's hard to argue this wasn't an offence which would lead to attempting to argue instead that prosecution would be an affront to justice, and we are seeing some different views on that here - worth a punt if it reached that stage, perhaps. I suppose another way to look at this is, if it was TfL, do we think they would pursue it, or accept that they played too much of a contributory role?
 

[.n]

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When the OP cancelled their card and got the refund, why didn't they just cut it up and bin it?
But they didn't in their mind cancel the card - they asked for the money (credit) back [covid related reasons] - that's more can I have my spare money back as I'll not be using it again soon, rather than I'm giving the whole Oyster card up
 

Fawkes Cat

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But they didn't in their mind cancel the card - they asked for the money (credit) back [covid related reasons] - that's more can I have my spare money back as I'll not be using it again soon, rather than I'm giving the whole Oyster card up
The difficulty with this line of argument is that it is relying on the OP's subjective view of the status of their ticket (did they believe that it was valid?) but the byelaws are based on an objective view of the status of the ticket (was the ticket valid?) As a defence against a byelaw prosecution depends on having a ticket that was - objectively - valid, I don't see that considering what the OP believed actually moves us forward at all in trying to resolve this situation.
 

robbeech

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But they didn't in their mind cancel the card - they asked for the money (credit) back [covid related reasons] - that's more can I have my spare money back as I'll not be using it again soon, rather than I'm giving the whole Oyster card up
Exactly this.
The op states that they just wanted the funds from the card, not the card cancelling. So they are less likely to remember cancelling the card because they didn’t ask for this. IIRC they still didn’t KNOW (let alone remember) the card was cancelled when they set out on their journey.

Simply forgetting you asked for a refund (not a cancellation) is easy to do. And when you tap on a bus and a balance shows it is not likely to remind you that a) the card is cancelled because you didn’t ask for this, and it “clearly isn’t cancelled” (we now know how the system works but to a regular passenger this isn’t obvious) and b) the card is accepted and c) it shows a positive balance.


I think we may be jumping to conclusions as to what they are going to do. When provided with the story, backed up with history, evidence of taps etc it may be that they decide to allow the fare to be paid.

Someone intending to evade the fare would have tapped a contactless card on the reader at King’s Cross once their Oyster had been rejected or followed behind another passenger or had a ticket that would open the barriers. Not much use for a Byelaw offence though as people say.
 

bakerstreet

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The difficulty with this line of argument is that it is relying on the OP's subjective view of the status of their ticket (did they believe that it was valid?) but the byelaws are based on an objective view of the status of the ticket (was the ticket valid?) As a defence against a byelaw prosecution depends on having a ticket that was - objectively - valid, I don't see that considering what the OP believed actually moves us forward at all in trying to resolve this situation.
This is why I asked the following up thread and I don’t think anyone has been able to answer this:

Am I under any legal or bylaw obligation to do anything other than touch in an oyster at a gate or reader when starting my journey.

If the pad turns green and / or gates open then surely the card is passed.

This is how many discover they are low on credit because the Oyster reader/gate refuses entry.

In this case the oyster balance was refunded, the user forgot because it was months ago, but the actual card takes time to reflect this refund.

if I ran low on credit on my Oyster I would hope to be refused access

It would be useful to know in the OPs case if the green touch ins also showed a positive Oyster balance on the display.

If

- User touches oyster in
- light goes green
- display shows positive balance

Then what else is the user legally obliged to do
 

island

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A passenger joining a train is required to have with him a valid ticket entitling him to travel (railway byelaw 18 (1); exceptions that are not applicable here not quoted for brevity).

An Oyster card that has been cancelled is not a valid ticket entitling travel.

It is a strict liability offence, so it is simply irrelevant what the passenger knows/thinks/believed about the card, or what colour lights the passengers may or may not have appeared on any validators they may or may not have touched.

Perhaps the law should say something else, but at the moment, it doesn't.
 

MotCO

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An Oyster card that has been cancelled is not a valid ticket entitling travel.
But is having a refund on a ticket the same as cancelling it, and how does the OP know it has actually been cancelled? He was accepted on a bus, and most people would deduce that means it was a working ticket.

Yes, as it turns out, the OP did not have valid ticket, but this is hardly one of those 'slam dunk' cases we see so often. Yes, a penalty may be appropriate, but I would hope it was a modest notional sum, not the full standard £100
 

dakta

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"Yes, as it turns out, the OP did not have valid ticket, but this is hardly one of those 'slam dunk' cases we see so often."

Just lurking but isn't that island's point entirely, because it is strict liability it is (in a legal sense) slam dunk?
 

MotCO

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"Yes, as it turns out, the OP did not have valid ticket, but this is hardly one of those 'slam dunk' cases we see so often."

Just lurking but isn't that island's point entirely, because it is strict liability it is (in a legal sense) slam dunk?
But the OP can argue that he did have a valid ticket - it did after all work on the bus. I'm arguing that this is one of those really rare 'grey area' cases and should be treated more leniently than usual.
 

Fawkes Cat

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But the OP can argue that he did have a valid ticket - it did after all work on the bus. I'm arguing that this is one of those really rare 'grey area' cases and should be treated more leniently than usual.
There's a moral argument that it should be treated more leniently - that is, that the railway should show some discretion - but a moral argument isn't a legal argument, and realistically someone demanding discretion in their favour isn't going to get it. But someone who admits their error might receive a discretionary settlement.

Which is why my advice to the OP once all the facts were known was to accept responsibility and apologize for being in the wrong.
 
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