So how do you differentiate between ‘accidentally’ expired, and intentionally didn’t renew it, assuming it wouldn’t usually be checked?
You probably can't, and that is irrespective of whether this is dealt with by Penalty Fare or by TIL.
It certainly doesn't help that the likes of Trainline leave your railcard discount in place from previous bookings, it should be something you manually have to select each and every time.
But this is where a proper, robust, system applies. First time you get a PF you get the benefit of the doubt. Second time you get less of a benefit of the doubt- maybe you lose the prompt payment discount. Third time in x time- prosecution.
Good luck getting the CPS to go after that, afterall private prosecutions by the rail companies will be outlawed.
There is no reason why the CPS wouldn't prosecute. They set our their policy
here:
Fare Evasion is the principal form of dishonesty to affect public transport. The fact that it is widespread is a relevant public interest factor.
Prosecutors should consider using the provisions of the
Fraud Act 2006 (See
CPS Fraud Act 2006 Legal Guidance), where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority. Where tickets have been altered or defaced, prosecutors should consider a charge under the
Forgery and Counterfeiting Act 1981 (See
CPS Forgery and Counterfeiting Legal Guidance).
Where fare evasion is opportunistic and there is no significant element of planning, then it will not normally be necessary in the public interest to charge fraud or forgery. In these circumstances, subject to the usual public interest considerations, a charge under
section 5 of the Regulation of Railways Act or
section 103 of the Railway Clauses Consolidation Act may be appropriate.
Which actually pretty much follows what I have been saying: the low level/first offence stuff should be dealt with by PF in a fair and transparent way, and the persistent offenders should have the book thrown at them by professional prosecutors.
What you won't have is examples of chequebook justice like
this, where a TOC decides not to prosecute wilful and deliberate fare evasion on a grand scale because it suited them better to get a cheque instead. Which is, to be quite honest, my other main issue with the current system: if you're poor and can't afford the administrative charge you get a criminal record, as TIL and the TOCs understandably won't agree an instalment plan. But if you're rich and could have easily afforded to pay your fare in the first place then you get let off and you get to keep your name out of the public record.
Clearly the TOCs are primarily interested in recovering the unpaid fare. Fair enough, but they should be using the civil justice system for debt recovery, not using the criminal justice system to extort fees from people.
The occasional penalty fare won't cover the lost revenue for the times they get away with it
But a £150 TIL administrative charge won't either.
The key is for the railway to minimise the time that someone can avoid detection for. Doughnutting, as an example, is now so prevalent in the south east because enforcement is primarily by way of ticket barrier, with on-train checks being as rare as hen's teeth. Similarly the Trainline refund trick is now so prevalent because so few people are actually getting their tickets scanned during their journey.
.