First Capital Connect prosecuting

Stonk

I am helping someone with a situation, but it has reached the limit of my expertise. Professional legal advice is not available for many days and she would really like some guidance to stop it preying on her mind over Christmas!

She was caught by a First Capital Connect (FCC) Revenue Protection Inspector (RPI) on a train with a ticket that wasn't valid. The reason for the invalidity was that the ticket was the return portion of an off-peak day return ticket purchased with a railcard, and there is a period in the evening when the return cannot be used. She had clearly made an effort to buy the correct ticket, but had fallen foul of the rules about precisely when it could be used (on the train 40 minutes earlier, it would have been valid). She immediately admitted her mistake when it was pointed out. In my experience from seeing RPIs at work, the usual solution is to ask the passenger to pay the fare difference, or issue a Penalty Fare.

FCC's RPI declined to take a payment from her (she explicitly offered). He said that he believed her mistake was genuine, that he would not take a payment, but would take her details, and then she would just have to respond to a letter from FCC who would decide whether to fine her or take no action. At no time was any other possible action mentioned.

Two months later, she received a notice of intention to prosecute from FCC. She has since written and telephoned them to try and convey what the RPI said, but as far as she can tell they have ignored everything.

She has now received a magistrates' court summons for the offence under section 18(2) of the railway Bye-Laws.

(Q1) Am I right to think that it is out of proportion and abnormal for an offence of this type to be prosecuted?

(Q2) The "Statement of Facts" provided to the Court by the prosecution is factually untrue, in a demonstrable and material way. It states, as a matter of fact, "she did not have the means to pay". This is directly contradicted by their RPI's witness statement, in which he asks if she had means to pay, and she replied "yes". To me, this shows a misunderstaning by the prosecutor of the most basic facts of the case, and casts into doubt whether the case should have been prosecuted. What are the implications of this error? If she points this out to FCC, can they just edit it and proceed anyway (thereby changing "facts")?

(Q3) There are other regulations under which the charge could have been brought (Regulation of the Railways section 5(3)(a)). Those regulations specifically state that there has to be an "intent" to avoid paying (so this case would fail, because there is clearly no intent). The Bye-Law is essentially the same as the other law, but without any mention of intent. Do the prosecution still need to prove intent?

(Q4) FCC have also omitted to provide her with their complete evidence. They sent "page 1 of 3" and "page 2 of 3" of their RPI's witness statement, but no "page 3 of 3". Implications? Should she ask them for the missing page?

Thanks! I'll keep you posted.

Livingthedream

I'd recommend you ask for help over at CAG (Trains,Tube & Buses) Forum, there are people in the industry (Revenue and Prosecutions) that use that forum and will be able to give you the best advice. But to help with your questions

Q1. Yes, [STRIKE]Penalty fare[/STRIKE] excess would have been the way forward unless the RPI suspected that person has done this before or the person was know ie On record had received Penalty Fare Notices before.
Q2. Big Error! in the person's favor I would think, but would advise showing this to a solicitor, who knows Railway Law.
Q3. No, Byelaw Offences are Strict liability and no intent needs to be proven.
Q4. Yes, If you do decide to plead No guilty in the Magistrates court your solicitor will need all the evidence against you.

Stonk

Livingthedream wrote: »

I'd recommend you ask for help over at CAG (Trains,Tube & Buses) Forum, there are people in the industry (Revenue and Prosecutions) that use that forum and will be able to give you the best advice. But to help with your questions

Q1. Yes, Penalty fare would have been the way forward unless the RPI suspected that person has done this before or the person was know ie On record had received Penalty Fare Notices before.
Q2. Big Error! in the person's favor I would think, but would advise showing this to a solicitor, who knows Railway Law.
Q3. No, Byelaw Offences are Strict liability and no intent needs to be proven.
Q4. Yes, If you do decide to plead No guilty in the Magistrates court your solicitor will need all the evidence against you.

Thank you.

Re Q1 - she was not known previously to them or anyone for anything of this kind before.

Q3 - what about the general principle of mens rea in criminal law, that "guilty mind" is necessary for a conviction? Although this is a bye-law, the result upon conviction will be a criminal record. For a simple mistake. And for which most people would walk away with at worst a Penalty Fare.

Livingthedream

Stonk wrote: »

Thank you.

Re Q1 - she was not known previously to them or anyone for anything of this kind before.

Q3 - what about the general principle of mens rea in criminal law, that "guilty mind" is necessary for a conviction? Although this is a bye-law, the result upon conviction will be a criminal record. For a simple mistake. And for which most people would walk away with at worst a Penalty Fare.

Q1. That's why a [STRIKE]Penalty Fare[/STRIKE] excess should have been issued, but for some reason the RPI determined that the person was trying to evade paying the correct fare.
Q3. Byelw 18 is a strict liability offence, that means 'has the person got a valid ticket for that train at that time?'. If the answers 'No' then your guilty unfortunately, but it's not a recordable offence on the PNC.

Stonk

Livingthedream wrote: »

Q1. That's why a Penalty Fare should have been issued, but for some reason the RPI determined that the person was trying to evade paying the correct fare.

That is pretty much the direct opposite of what the RPI said at the time! He said he believed she had made an innocent mistake, and was not going to charge here a fine. He made it sound as though he was taking her details for record only. That part of the conversation is not recorded in the evidence (10 minutes of conversation is transcripted into 1 double-spaced page, so there's clearly a lot missing). Can we argue about the inconsistency of what the RPI said, and/or the inconsistency of application of the rules? She has been misled by the RPI, and one might conclude it was done with devious intent.

Livingthedream wrote: »

Q3. Byelw 18 is a strict liability offence, that means 'has the person got a valid ticket for that train at that time?'. If the answers 'No' then your guilty unfortunately, but it's not a recordable offence on the PNC.

Would it appear on a CRB check, or be part of what people call a "criminal record"? That's actually what she's most worried about.

Livingthedream

Stonk wrote: »

That is pretty much the direct opposite of what the RPI said at the time! He said he believed she had made an innocent mistake, and was not going to charge here a fine. He made it sound as though he was taking her details for record only.

In a most cases that's what a Penalty fare is there for, a kind of a punishment for innocent mistakes, a warning to the person to be more careful the next time they travel but more importantly to keep the whole incident out of court. Not relevant for your case as it should have been an excess fare.

10 minutes of conversation is transcripted into 1 double-spaced page, so there's clearly a lot missing

Unfortunately it is her word against the RPI's unless it on the missing page 3?

She has been misled by the RPI, and one might conclude it was done with devious intent.

As to your claim of 'devious intent' ianal and would advise you seek ones council before taking that line of defence.

Stonk wrote: »

Would it appear on a CRB check, or be part of what people call a "criminal record"? That's actually what she's most worried about.

If I remember correctly; basic and standard CRB No, enhanced CRB Yes and most employers only required basic or standard, enhanced if working with kids or vulnerable adults.

Would advise again to get this reposted on the CAG forum or give this poster Stigy a PM he's very good with railway law. (better than me )

Stonk

Livingthedream wrote: »

Would advise again to get this reposted on the CAG forum or give this poster Stigy a PM he's very good with railway law. (better than me )

Thanks once again. I've now posted on CAG (almost verbatim), and I'll be sure to update here in a few days.

Livingthedream

I've seen you post on CAG and also noted the court date of the 6th Jan 2012 the only advice I can now offer is try every means possible ie email or telephone to contact FCC between Xmas and New Year or the couple of days before the date to see if anything can be sorted out.

If not then go to the court early and try and see the Prosecution solicitor 'if it's still possible to keep this case out of the court by way of recompense' it might work, he will have lots of railway cases that day and it might lighten his load. But get there early ie if her case is 15:00 then get there for 09:00 to see him.

One last point if you do decide to fight the case in court, get a solicitor don't do it yourself, prosecution solicitors employed by the railways are good at their job.

Altarf

Livingthedream wrote: »

Yes, Penalty fare would have been the way forward

Incorrect. A penalty fare cannot be issued in these circumstances, the only ticket the RPI could have issued would have been an excess fare.

Stonk

Altarf wrote: »

Incorrect. A penalty fare cannot be issued in these circumstances, the only ticket the RPI could have issued would have been an excess fare.

To me, the distinction between an "Excess Fare" and a "Penalty Fare" is - in this case - irrelevant (since neither were offered). Wherever I've said "Penalty Fare", please consider it to mean whichever of the two is appropriate in the context, and don't let it distract from the substance of the points I am making.

Livingthedream

Altarf wrote: »

Incorrect. A penalty fare cannot be issued in these circumstances, the only ticket the RPI could have issued would have been an excess fare.

Whoops! forgot about rule 7.6 then again perhaps the RPI wasn't able to issue an excess. Anyway I digress, the point for the OP is that RPI should have handled it differently, the only problem being it's his word against her's.