Used expired railcard unknowingly - possible prosecution

[AdamWW]

The problem with that is if a payment bounces, and you don't notice, your Railcard becomes no longer valid. The first you may know of it is when it's inspected.

£1000 is a maximum fine and would never likely be given for a one off byelaw prosecution.

But if - as in this case - someone used their expired railcard multiple times they could easily be asked for this sort of amount in nominally evaded revenue (arguing that what they already spent on tickets doesn't count because they were invalid - but can't be refunded, and that they should therefore be charged the cost of new ones at the anytime rate because off peak tickets are a priviledge not available to those not following the rules).

Even though if they'd paid £30 for a new railcard the railway would have been happy with that.

And even though the railway had multiple opportunities to see that the railcard was expired but failed to do so.

 

[ianBR]

Actually, the right to object extends to almost all processing of personal data, whether you choose to call it a "service message" or not.

There are three different things...

1) Marketing messages (which must be opted-in, and you must give customers the right to opt-out each time you send one)

2) Services messages (these are allowed regardless of consent.... there are strict rules defined by the ICO on what constitutes a service message and you need to avoid any marketing in the email. However a simple message that says something like "warning your railcard will expire on X. You must ensure you have a valid railcard before purchasing any discounted tickets after that date." would be fine.

3) Right to be forgotten (i.e. you no longer want to use the service at all - in the case of trainline would delete your account and you would lose access to the app in any event)


Trainline has lawyers who will understand this stuff - they should be able to come up with something that is compliant and that gives customers adequate warning. And on the app front they need to employ better product managers if they can't see that having to use 5 key clicks to see your railcard in their app is problematic!

 

[Watershed]

Actually, the right to object extends to almost all processing of personal data, whether you choose to call it a "service message" or not.

I'm not convinced that the right to object is particularly relevant here.

As mentioned, there are plenty of other annual subscription providers (insurance, broadband, energy etc.) that don't struggle to justify their renewal reminders from a GDPR perspective, so this is a complete red herring.

 

[30907]

But from my response at the gate immediately showing them, not trying to hide it, instantly offering to pay for the ticket again and to renew my railcard doesn’t that point toward how unintentional this mistake was?

I'm afraid it is also the sort of behaviour of someone chancing it

But for something so trivial as a railcard, that is still working absolutely fine

Pedantically, a railcard doesn't "work" in the sense of discounting the fare (except on Oyster) - you have to do that yourself when you pay for travel. I agree that if it is hidden in an app, there ought to be a flag-up when it expires though.

Meanwhile, until you get some correspondence from SWR, neither you nor we know what sum they might suggest in an Administrative Settlement. It might or might not be the theoretical maximum, and how you reply to their letter may influence that.
Do please ask for advice at that moment.

 

[some bloke]

2) Services messages (these are allowed regardless of consent...a simple message that says something like "warning your railcard will expire on X. You must ensure you have a valid railcard before purchasing any discounted tickets after that date." would be fine.

...Trainline has lawyers who will understand this stuff - they should be able to come up with something that is compliant and that gives customers adequate warning. And on the app front they need to employ better product managers if they can't see that having to use 5 key clicks to see your railcard in their app is problematic!

One thing you can do is write to Trainline about the problem - which can be more persuasive if you cite any similar cases from this forum.

If Trainline say they think it is worth looking at or are tackling it, you may be able to use those communications to negotiate with the company.

The company will/should be aware that if it goes to court, you might present the communications in arguments for mitigation.

You could also tell the company about any other cases, again with the implication that this is evidence you could put before a court.

You can contrast the Trainline system with the Railcard app which does remind people.

A court can decide on a conditional or absolute discharge rather than a fine, though those would seem harder to argue for where someone's applied the discount wrongly multiple times.

If mitigation could mean a court awarding lower compensation and/or lower costs to the company, that might increase motivation for the company to reduce a settlement amount.

Also, if it is clear there is a relevant problem with the app, that may help the company see it's (even) less likely that you did this on purpose, which could mean they don't talk about an offence involving intent to avoid a fare but only an automatic byelaw offence which doesn't imply intent - and/or change how they communicate with you.

 

[WesternLancer]

Not sure how much of this is helping the OP ref the problem they are in and need to respond to soon - IIRC there was a whole thread not so long ago on Railcard reminders etc and the problems for people travelling with Railcards they had not realised had expired - so maybe some of this should be posted over there....

 

[island]

There are three different things...

1) Marketing messages (which must be opted-in, and you must give customers the right to opt-out each time you send one)

2) Services messages (these are allowed regardless of consent.... there are strict rules defined by the ICO on what constitutes a service message and you need to avoid any marketing in the email. However a simple message that says something like "warning your railcard will expire on X. You must ensure you have a valid railcard before purchasing any discounted tickets after that date." would be fine.

3) Right to be forgotten (i.e. you no longer want to use the service at all - in the case of trainline would delete your account and you would lose access to the app in any event)


Trainline has lawyers who will understand this stuff - they should be able to come up with something that is compliant and that gives customers adequate warning. And on the app front they need to employ better product managers if they can't see that having to use 5 key clicks to see your railcard in their app is problematic!

This was the pre-2018 situation, but it has all changed considerably since then.

I'm not convinced that the right to object is particularly relevant here.

As mentioned, there are plenty of other annual subscription providers (insurance, broadband, energy etc.) that don't struggle to justify their renewal reminders from a GDPR perspective, so this is a complete red herring.

I am afraid you're not correct.

The right to object to processing of personal data is entirely relevant here, and the providers you mention are also required to respect the exercise of that right, should a customer choose to exercise it in the prescribed way.

We are drifting off topic however so I will not go further into this point. I would be happy to do so if you opened a thread in the general discussion forum.

 

[some bloke]

Whatever the situation about the lawfulness of data uses, if the Trainline app can be shown to be inadequate, that may be relevant to a settlement amount and other decisions by the company (and in theory at least by a court).

need to respond to soon

As @JackB was only stopped two days ago there may well be time to think about strategy, get free legal advice, and perhaps research the app problem and contact Trainline.

 

[Doubleplus]

Service messages are permitted under GDPR regardless of whether someone has opted out of marketing emails. I would think there is a pretty strong case to argue that advising someone a service is expiring is a service message.

That appears to be their view too. From the reminder email:

”This is a service message designed to keep you informed of important information associated with your Railcard. Copyright © 2020. ATOC Ltd. Registered in England & Wales No 3069033.”

 

[Western Sunset]

That appears to be their view too. From the reminder email:

”This is a service message designed to keep you informed of important information associated with your Railcard. Copyright © 2020. ATOC Ltd. Registered in England & Wales No 3069033.”

So is it all down to the will of those selling the Railcard whether they want to remind the customer or not? Surely there needs to be a fully consistent approach here. GDPR, as mentioned by some, appears to be a red herring to hide behind - sorry for the mixed metaphor.

 

[alholmes]

Service messages are permitted under GDPR regardless of whether someone has opted out of marketing emails. I would think there is a pretty strong case to argue that advising someone a service is expiring is a service message.

It actually states at the foot of the email “This is a service message designed to keep you informed of important information associated with your Railcard.”

Edit: Just noticed I’m repeating what @Doubleplus stated above.

== Doublepost prevention - post automatically merged: 9 Mar 2023 ==

So is issuing reminders an unintended consequence of GDPR? I can understand ticking the box to not receive email junk, promotions, etc, but not to get a helpful reminder which might save one getting a criminal record seems rather counter-productive.

I’ve checked communication preferences on railcard.co.uk. There are two optional preferences. First is for marketing emails from National Rail and carefully selected partners. Second is from TOCs. I’ve not opted into either, but still received the service email regarding railcard renewal.

Maybe the renewal emails have only just been reintroduced, post-Covid. If so, a good thing which should be applauded. But need to get Trainline to do similar, as I suspect they sell loads of railcards.

 

[fandroid]

I completely agree. They’ve made it incredibly easy to make this mistake and incredibly hard to spot it before damage occurs. I still can’t quite believe that no railway staff asked for my railcard or found out earlier either. I know that it’s still my onus to know this, but it feels unreasonable that I should by heart remember the expiry date of my digital railcard or remember to check it regularly with a penalty so high if I forget.

I’m a very forgetful person, it affects many aspects of my life, but to forget the end date of a railcard with no reminder and be charged with potentially £1200 fine plus admin fees, AND court charges seems absurd.

I truly have no idea what to do now, but I can’t see how this shows any justification. It’s not teaching me a lesson (other than never use trains incase I forget again), or even doing what’s financially just. It’s a financial trap they’ve made all too easy to make, and profit so much from - and all down to byelaws from nearly 150 years


I normally travel to southampton airport parkway, as this is closer to my partners place. Perhaps because it’s a smaller station ticket checks are not as often? I travel on very off-peak times too normally after 9pm, maybe there are less staff I’m not sure.

I just can’t believe that, even unintentionally, I was able to slip through cracks I wasn’t aware of for so long. Now concluding with a very heavy and very sudden intent for prosecution and an extremely disproportionate fine.

It really does blow my mind how they could argue though that anyone would run this risk of criminal conviction and fines, well above a thousand pounds, over the cost of a £30 railcard that they had previously paid for.

For someone travelling with a railcard years out of date, or someone travelling without a railcard they claim to own, then this would make much more sense. But as a forgetful person with no warnings or reminders, this feels far to easy to target people with no unlawful intent.

I'm absolutely amazed that the OP wasn't asked for their railcard at some point during that period. I travel on SWR a lot on that line and have my ticket checked quite often. I have a Senior Railcard and am rarely asked for that, but I've noticed that it seems that just about every young person with a railcard is asked to show it. In a perverse way it's been the OP's bad luck not to have been challenged before they were.

 

[Cowley]

I think we’re starting to drift a little here. It seems like @JackB has received some helpful advice and probably for now it’s going to be best to put a hold on this thread.

@JackB - If you’d like to update us at some point, use the report function below and we’ll reopen it.

Thanks everyone.