If I may do some amateur legal analysis, and recall the facts:
- The OP claimed (and presumably received) a refund of the balance of their Oyster card in January 2021.
- Rather than disposing of the card, they held onto it and eventually used it for two journeys in October 2021.
- The card was accepted at the first two touches as, for the reasons MikeWh mentions above, it was not immediately detected as hotlisted.
- At the third touch to exit Kings Cross, the systems having caught up, the card was disabled and exit refused.
- The OP then had an interaction with revenue protection staff and was reported for consideration of prosecution.
Byelaw 18 (1) of the current Railway Byelaws states, so far as material, that
"...no person shall enter any train for the purpose of travelling on the railway unless he has with him a valid ticket entitling him to travel"
It has not been suggested that any of the three exceptions in byelaw 18 (3) (no working ticketing facilities at starting station, notice at starting station or authorised person giving permission to travel without a ticket) apply, and I shall assume for the analysis that they do not.
The definition of "ticket" in byelaw 25 includes, at (vi):
"any type of smart card, pre-pay, or other form of electronic ticket"
Clearly, an Oyster card is a "ticket". Equally clearly, the Oyster card held and used by the OP was not "a valid ticket entitling him to travel"; as it had been cancelled.
As many here are aware, the offences under byelaw 18 are
strict liability, meaning that you can commit one without intending to do so. In this respect they are similar to, for example, driving at excess speed in a car. The mere fact that someone enters a train without having a valid ticket with them completes the offence. As such, it seems to me that the OP is guilty of a byelaw 18 (1) offence.
I don't think an offence under byelaw 18 (2) has been committed, as the OP seems to have handed over their ticket, nor do I think an offence under section 5 of the Regulation of Railways Act has been committed, because of the lack of intent to avoid a fare.
Based on the above conclusions, I recommend the OP be
considerably more conciliatory in the tone of their communications as a prosecution would almost certainly succeed – and cost a lot more than an out of court settlement.
I have not attempted to consider the morals of what might be "right" or "wrong" herein, only where things Stand legally.
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.
Byelaw 18 (3) does not provide for "the railway" to give permission to travel without a valid ticket. It provides a defence to the offence of joining a train without a valid ticket if an
authorised person gives the passenger permission to travel without a valid ticket, or a
notice permits
journeys to be started without a valid ticket.
A barrier/Oyster validator is not a
person, so will not come under the "authorised person" limb. I also would not say it is a
notice, but even if it could be classified as a notice, it could only be said to have permitted one journey to be started, not "journeys" in general; the byelaw clearly intends to refer to situations such as a booking office clerk attending to station duties or going on a break and sticking up a sign saying "pay on train".
So I'm afraid the fact the card operated the barrier/validator does not assist legally.