Thameslink Notice of intention to prosecute

[dakta]

"But the OP can argue that he did have a valid ticket"

He can argue anything, the effectiveness may vary - with that in mind was the OP's ultimately valid?

You can argue the ethics and niceties of it and you may not be morally wrong but where strict liability is concerned it's going to boil down to was the ticket valid, not did the OP think it was valid, or did something lead them to believe it was.

 

[furlong]

This is going around in circles now. It was either valid or it wasn't - a matter of fact for the court to decide if not agreed between the two parties. If it was not valid, in court the passenger could still try to stop the prosecution by arguing that to proceed would be an "abuse of process". Courts have quite wide discretion here but the threshold to be met before using it is high and the power is used sparingly to the minimum extent necessary to right the perceived injustice.

 

[Deafdoggie]

Just to play devil's advocate here & look at it from the prosecution perspective.
It's possible the defendant could plead not guilty and try their luck before a magistrate. It's possible a magistrate may take the view asking for a refund on an oyster is not asking for it to be cancelled. It's also possible a reasonable person may think a refund could be rounded to the nearest £10 and thus leave a small balance on the oyster.
Certainly a reasonable person would check an Oyster, and it being accepted both for a bus journey and again at a rail ticket barrier is reasonable proof that it's valid.
So, as the prosecution,I'd be worried there's a possibility the defendant could be found not guilty. I'd therefore be desperate to stop it getting to court and willing to offer a low out of court settlement.
Obviously it's only a small chance of a not guilty verdict, but it's still a chance and you really want to avoid that.
Therefore, I feel, they will settle out of court as it's a big gamble for them not too.

 

[maniacmartin]

I find island's arguments very compelling, however I'd like to draw attention to the Oyster Conditions of Use on National Rail services, which state:

3.4 Yellow card readers
When you touch your Oyster card flat on the yellow card reader:
a green light, accompanied by one beep (more than two beeps for 5-10 and 11-15 Oyster
photocards) means that it has been accepted for travel

Therefore, I believe an argument can be made, that the beep and green light are confirmation that the OP had a 'valid ticket' at the time of boarding the train. I wouldn't necessarily expect such an argument to succeed.

I also have got a season ticket refunded by TfL customer services by phone in the past, and I remember them telling me that my card has been permanently disabled and that I should dispose of it. Based on those words, I would not expect the card to just start working for half an hour if it wasn't uswed for 6 months, so I feel like morally TfL share a lot of the blame here.

 

[XAM2175]

Therefore, I believe an argument can be made, that the beep and green light are confirmation that the OP had a 'valid ticket' at the time of boarding the train. I wouldn't necessarily expect such an argument to succeed.

I would be inclined to favour this argument, albeit with some hesitation.

The technical architecture of the Oyster system, as with almost all MIFARE-style contactless automatic fare collection systems, is such that the data on the actual card is treated as the authoritative record. It has to be, since there wasn't (and really still isn't) a means by which validators could 100% reliably query from and write to a central database in the tiny span of time allowed. This design introduces the weakness seen with card-not-present actions, like top-ups and cancellations - the update has to propagate through the system, and then wait on the system until the card is presented and updated.

Now, given what MikeWh put it in post 38 regarding the six months a record sits on the FUL list, we know that the OP wouldn't have had this problem had they attempted to use the card within six months of requesting cancellation: the card would have been cancelled and rejected by the first validator to which the OP touched it. However, since the card had dropped off the FUL list and thus wasn't cancelled at either of the OP's touch-ins, I do see grounds that favour the argument that the card was validly accepted for travel based on Condition 3.4.

I do, nonetheless, see an open question regarding the appearance of intent on behalf of the OP. It would be easy for TfL to argue that their call handler explained that they would be cancelling the card, in which case it could perhaps be read that the OP was negligent in keeping the card - because, after all, if they had destroyed it then and there they wouldn't have been able to get themselves into this situation.

 

[Western Sunset]

Is an Oyster card still technically "owned" by TfL until it's cancelled/destroyed?

 

[30907]

Therefore, I believe an argument can be made, that the beep and green light are confirmation that the OP had a 'valid ticket' at the time of boarding the train.

Certainly, that they had good reason to believe at the time that their ticket was valid, even though subsequent enquiry proves otherwise.
I know we have gone round in circles, but I now join those who say the OP has, on balance, a defence.

 

[AlterEgo]

Certainly, that they had good reason to believe at the time that their ticket was valid, even though subsequent enquiry proves otherwise.
I know we have gone round in circles, but I now join those who say the OP has, on balance, a defence.

But the OP doesn't have to have good reason to believe he held a valid ticket, he just "has to hold a valid ticket".

I'm on the fence as to whether this one would succeed in a court, and think everyone would be better off if TfL just dropped the action and wrote it off as "one of those".

 

[swt_passenger]

But the OP doesn't have to have good reason to believe he held a valid ticket, he just "has to hold a valid ticket".

I'm on the fence as to whether this one would succeed in a court, and think everyone would be better off if TfL just dropped the action and wrote it off as "one of those".

TfL aren’t taking the action though, it’s “Thameslink“ that were mentioned by the OP. I sometimes get the impression some of the TOCs are reluctant to accept the possibility of TfL “system difficulties” (for want of a better description).

Presumably @MikeWh might know how TfL might have treated an incident like this?

 

[AlterEgo]

TfL aren’t taking the action though, it’s “Thameslink“ that were mentioned by the OP. I sometimes get the impression some of the TOCs are reluctant to accept the possibility of TfL “system difficulties” (for want of a better description).

Presumably @MikeWh might know how TfL might have treated an incident like this?

Yes, sorry, Thameslink!

 

[MikeWh]

Presumably @MikeWh might know how TfL might have treated an incident like this?

Not sure. They are less likely to kick up a fuss if you don't have enough money on the card when exiting, but in the case of a now cancelled card it's not clear. I don't think this is a scenario that was thought about to be honest. However, they are very much aware that it has now happened, so maybe they'll look to change procedures.

 

[Fawkes Cat]

Not sure. They are less likely to kick up a fuss if you don't have enough money on the card when exiting, but in the case of a now cancelled card it's not clear. I don't think this is a scenario that was thought about to be honest. However, they are very much aware that it has now happened, so maybe they'll look to change procedures.

This. It seems to me that in ordinary times, this just wouldn't happen: in practice why would anyone want the money back on an Oyster card, and then wait six months to try and use the card? But Covid has not been ordinary times.

I can't work out in my head whether this is still a unique event, or whether there will be a small but noticeable wave of people in trouble because their Oyster <chooses words carefully> appeared valid on entry to the system but wasn't valid when they left some minutes later.

 

[FOH]

This. It seems to me that in ordinary times, this just wouldn't happen: in practice why would anyone want the money back on an Oyster card, and then wait six months to try and use the card? But Covid has not been ordinary times.

I can't work out in my head whether this is still a unique event, or whether there will be a small but noticeable wave of people in trouble because their Oyster <chooses words carefully> appeared valid on entry to the system but wasn't valid when they left some minutes later.

Funny, this thread made me realise the exact same thing happened to me. I cancelled my annual due to Covid by phone. Left the oyster card where it was in my wallet. A year later, completely on auto pilot touched in and went through. Only then did I realise and wonder what had happened. The only thing I could think of was there was still top up on it. Fortunately my journey is significantly shorter than 30 mins and I got out the other end. I realised something was ary when the barrier said "Exit" with no balance/deduction shown. Having read this I could've been in trouble completely by accident.

 

[SteveM70]

But the OP doesn't have to have good reason to believe he held a valid ticket, he just "has to hold a valid ticket".

I'm on the fence as to whether this one would succeed in a court, and think everyone would be better off if TfL just dropped the action and wrote it off as "one of those".

If the OP genuinely believed he had previously only refunded the balance on his card, and wasn’t told / didn’t remember it had been cancelled too, at the point of presenting the card and getting a beep and a green light, how could they ever think they didnt have a valid ticket?

 

[Fawkes Cat]

If the OP genuinely believed he had previously only refunded the balance on his card, and wasn’t told / didn’t remember it had been cancelled too, at the point of presenting the card and getting a beep and a green light, how could they ever think they didnt have a valid ticket?

But for byelaw purposes, what they might or might not think doesn't matter. So this point continues to be irrelevant, however often it's asked.

 

[SteveM70]

But for byelaw purposes, what they might or might not think doesn't matter. So this point continues to be irrelevant, however often it's asked.

Maybe I’m spectacularly thick, but OP presents a card, gets a green light and a beep, which is what happens when a ticket is valid, and proceeds. For the OP to do anything else is utterly irrational isn’t it?

 

[island]

But for byelaw purposes, what they might or might not think doesn't matter. So this point continues to be irrelevant, however often it's asked.

Quite. The thread continues to go round and round in circles but the fact remains that the OP chose to cancel their Oyster card and then later chose to use it for travel, and is now facing the consequences of this.

Maybe I’m spectacularly thick, but OP presents a card, gets a green light and a beep, which is what happens when a ticket is valid, and proceeds. For the OP to do anything else is utterly irrational isn’t it?

We are discussing what is legal. What is rational may or may not be legal and vice-versa.

 

[bakerstreet]

Maybe I’m spectacularly thick, but OP presents a card, gets a green light and a beep, which is what happens when a ticket is valid, and proceeds. For the OP to do anything else is utterly irrational isn’t it?

As quoted up thread - the conditions of travel state

3.4 Yellow card readers

When you touch your Oyster card flat on the yellow card reader:a green light, accompanied by one beep (more than two beeps for 5-10 and 11-15 Oyster photocards) means that it has been accepted for travel

if the actual situation is, as some are suggesting, more complex than this simple procedure and that - legally - the accepted position might be that one must also carry out some additional check to identify the Oyster card status, then I do think it’s important for this to be properly advised to all passengers.

 

[Fawkes Cat]

Maybe I’m spectacularly thick, but OP presents a card, gets a green light and a beep, which is what happens when a ticket is valid, and proceeds. For the OP to do anything else is utterly irrational isn’t it?

Broadly, yes - and to use the Oyster in these circumstances remains in breach of the byelaw, because the byelaw isn't interested in why you did something, but in what you did.

But where the'broadly' comes in is that the OP had asked for the refund. So they had taken steps to make their Oyster invalid - or at least unusable because of a lack of credit on it.

So although lack of intent is no defence to a byelaw prosecution, any attempt to argue mitigation in front of the magistrates would be limited by the fact that the defendant could have known (and the prosecution would argue that the defendant should or would have known) that the Oyster wouldn't work.

My 'would or should' line of argument could perhaps support a RORA prosecution, but realistically I think we are all agreed that a RORA offence hasn't happened because of the lack of intent. And if seems to me that the railway would also take that view (edit) and if they prosecute at all will do so under the byelaws (/edit). So we can forget about RORA, but to be helpful start looking for byelaw defences.

 

[Deafdoggie]

But for byelaw purposes, what they might or might not think doesn't matter. So this point continues to be irrelevant, however often it's asked.

Whilst strict liability doesn't need proof of intent, it does need an offence. If the OP got a green light and a beep when touching in, I think it's fair to say the card was valid and thus a valid ticket was held.

 

[Fawkes Cat]

Whilst strict liability doesn't need proof of intent, it does need an offence. If the OP got a green light and a beep when touching in, I think it's fair to say the card was valid and thus a valid ticket was held.

No. It means that the green light and beep were wrong. And since a byelaw prosecution is based on what was the fact rather than what was said, it still makes no difference.

 

[AlterEgo]

If the OP genuinely believed he had previously only refunded the balance on his card, and wasn’t told / didn’t remember it had been cancelled too, at the point of presenting the card and getting a beep and a green light, how could they ever think they didnt have a valid ticket?

This is not legally relevant, the offence is a strict liability one.

Whilst strict liability doesn't need proof of intent, it does need an offence. If the OP got a green light and a beep when touching in, I think it's fair to say the card was valid and thus a valid ticket was held.

But that wasn’t the case when he was stopped.

 

[Watershed]

But that wasn’t the case when he was stopped.

The validity of the Oyster card when stopped is not relevant. The potential offence in question is boarding a train without a valid ticket - 18(1). OP unquestionably complied with 18(2), handing over their ticket for verification of validity.

 

[Moonpie]

I am 100% certain that I touched in, yes. I was on the bus about 40 minutes before, and that’s when I checked the balance, so I am positive the card was working then. I cannot guarantee the touch in and Finsbury Park was registered, but it did beep. I’m aware of that as I’ve had unregistered touch ins there before.

From what I have read the OP isn't 100% that the tapin was successful. If there are multiple barriers with other passengers using them, there could be beeps from other people coming and going.

 

[John Palmer]

The only ground on which GTR have indicated an intention to prosecute is 'failure to hand over a ticket for inspection and verification of validity when asked to do so by an authorised person'. Since the OP produced the Oyster card to railway staff on his own initiative, the only question apparently relevant to the case is whether that Oyster card, though cancelled by the time it was produced, was a ticket. Exactly the issue identified by island at post #22 in this thread.

Beyond this, I note that at post #8 the OP states that the Oyster card in question was “inactive from March 2020 through to around May 2021, and was fine after that” (my emphasis). This is inconsistent with the notion that the card was cancelled in January 2021 but such cancellation did not become apparent until October. It would be helpful to clarify the way in which the card was found to be fine, and whether it is the same card as that for which a refund of credit was sought in January.

 

[spag23]

The only ground on which GTR have indicated an intention to prosecute is 'failure to hand over a ticket for inspection and verification of validity when asked to do so by an authorised person'. Since the OP produced the Oyster card to railway staff on his own initiative, the only question apparently relevant to the case is whether that Oyster card, though cancelled by the time it was produced, was a ticket. Exactly the issue identified by island at post #22 in this thread.

Beyond this, I note that at post #8 the OP states that the Oyster card in question was “inactive from March 2020 through to around May 2021, and was fine after that” (my emphasis). This is inconsistent with the notion that the card was cancelled in January 2021 but such cancellation did not become apparent until October. It would be helpful to clarify the way in which the card was found to be fine, and whether it is the same card as that for which a refund of credit was sought in January.

Well spotted, John. And hopefully an opportunity for us to break out of a circular exchange! I'm surprised the OP didn't come back to expand on this point.

 

[jumble]

Broadly, yes - and to use the Oyster in these circumstances remains in breach of the byelaw, because the byelaw isn't interested in why you did something, but in what you did.

But where the'broadly' comes in is that the OP had asked for the refund. So they had taken steps to make their Oyster invalid - or at least unusable because of a lack of credit on it.

So although lack of intent is no defence to a byelaw prosecution, any attempt to argue mitigation in front of the magistrates would be limited by the fact that the defendant could have known (and the prosecution would argue that the defendant should or would have known) that the Oyster wouldn't work.

My 'would or should' line of argument could perhaps support a RORA prosecution, but realistically I think we are all agreed that a RORA offence hasn't happened because of the lack of intent. And if seems to me that the railway would also take that view (edit) and if they prosecute at all will do so under the byelaws (/edit). So we can forget about RORA, but to be helpful start looking for byelaw defences.

I am not sure the prosecution can reasonably say the defendant should have known anything.
This is because it is perfectly legitimate for families to share Oyster cards.
I could easily see one of my offspring picking up one or more of the many PAYG cards that we have lying about, tapping one onto a bus and seeing that it has £20.00 or what ever credit and not giving it a second thought.
I think he would have no reason to know or think anything different about its validity.
What a magistrate would conclude is anyone's guess

 

[skyhigh]

I am not sure the prosecution can reasonably say the defendant should have known anything.
This is because it is perfectly legitimate for families to share Oyster cards.
I could easily see one of my offspring picking up one or more of the many PAYG cards that we have lying about, tapping one onto a bus and seeing that it has £20.00 or what ever credit and not giving it a second thought.
I think he would have no reason to know or think anything different about its validity.
What a magistrate would conclude is anyone's guess

Completely irrelevant though if the OP only had access to one Oyster and themselves asked TfL for a refund of the credit on it.

 

[MikeWh]

I've heard from the OP. He has been let off!

He asked for the thread to be unlocked so he can update properly, but he may not have been around since this was done. In my opinion this is a sensible outcome given the conflicting signals saying that he was good to travel.

 

[Horizon22]

I've heard from the OP. He has been let off!

He asked for the thread to be unlocked so he can update properly, but he may not have been around since this was done. In my opinion this is a sensible outcome given the conflicting signals saying that he was good to travel.

That's good to hear, especially as you have the below:

No. It means that the green light and beep were wrong. And since a byelaw prosecution is based on what was the fact rather than what was said, it still makes no difference.

Which may well be true, but how anyone about their daily lives would know that it was "wrong" when that is the agreed way of paying a fare in London is beyond me. That is effectively a wrong-side system error (and I take on board why it happened from the posts above, but it is what it is) This was very much a weird edge-case, so its good that TfL/GTR/OP have come to an understanding.