Unlawful Use of SJPN by Train Companies for Section 5(1) RoRA Prosecutions

[KirkstallOne]

This is what Northern submitted as part of their skeleton argument on the 19th July:

85. Drawing matters together, there appear to be up to three categories of erroneous prosecutions, the third of which is debatable, resulting in either pleas of ‘Guilty’ or convictions, which have been brought by NTL since its incorporation on 1st March 2020, namely:

(i) Prosecutions under s.5(1) or s.5(3) of the RRA using the SJP.
(ii) Prosecutions under s.5(1) of the RRA where the passenger had offered to pay or had given their name and address and therefore had a complete defence.
(iii) Arguably, prosecutions under s.5(3)(a) or (b) of the RRA, or Byelaw 18 of a passenger who had unsuccessfully appealed a penalty fare without notification of cancellation etc. being given by NTL as required under Regulation 11.

86. NTL is in the process of identifying all of the cases which fall within each category. Some may come within more than one category in respect of the same incident of fare evasion and where they do so, they will be cross referenced.

87. As aforesaid, the size and scope of this task and the resources which will be required to complete it properly are considerable and will require high level co-operation between NTL and HMC&TS.

88. Not including Arriva Rail North cases which were ongoing on 1st March 2020 upon its franchise being transferred to NTL, our current provisional estimates are as follows:

(i) There were 29,164 prosecutions brought under s.5(1) of the RRA using the SJP.
(ii) There were 16 prosecutions brought under s.5(3) of the RRA using the SJP:
(iii) There were 226 prosecutions which were brought under s.5(1) of the RRA (not via SJP) where the passenger had offered to pay or had given their name and address and therefore had a complete defence.
(iv) There were no prosecutions brought under s.5(3)(a) or (b) of the RRA, of a passenger who had unsuccessfully appealed a penalty fare without notification of cancellation being given by NTL as may be required under Regulation 11.
(v) There were 240 prosecutions which were brought under Byelaw 18 of a passenger who had unsuccessfully appealed a penalty fare without notification of cancellation being given by NTL as may be required under Regulation 11.

 

[Gonzoiku]

This is what Northern submitted as part of their skeleton argument on the 19th July:

Thanks for digging this out, KirkstallOne, especially the numbered bullet points at the end. Do I smell a smoking gun?

GZ

 

[some bloke]

Thank you. So:

- There was at that time a provisional estimate of 226 cases, only from Northern since 1 March 2020, of obviously wrongful prosecutions through a full hearing under s.5(1) "resulting in either pleas of ‘Guilty’ or convictions".

- We might wonder why they don't give any estimate at all how many of the estimated 29,164 under s.5(1) through SJP "resulting in either pleas of ‘Guilty’ or convictions" had a complete defence (ie cannot have been guilty). As has been said, how were they contacted for SJP if they didn't give their address?

The fact that they mention "resulting in either pleas of ‘Guilty’ or convictions" seems to mean they have not provided estimates of numbers of cases withdrawn/settled after the wrongful use of SJP and/or the wrong description of s.5(1).

The extract from the Northern submission mostly reads as sober except for the phrase, in line with other tendentious language from train companies, "in respect of the same incident of fare evasion" - hardly appropriate where they are talking about categories where some people were innocent.

 

[KirkstallOne]

We might wonder why they don't give any estimate at all how many of the estimated 29,164 under s.5(1) through SJP "resulting in either pleas of ‘Guilty’ or convictions" had a complete defence (ie cannot have been guilty). As has been said, how were they contacted for SJP if they didn't give their address?

We know all 6 test cases fall into this category, so I think we can safely say, the majority of them.

 

[some bloke]

We know all 6 test cases fall into this category, so I think we can safely say, the majority of them.

The fact that none of the 6 can have been guilty seems something the public (including those who may have been affected or think they may have been) deserve to know.

The fact that the Chief Magistrate was dealing with cases where the basic criteria for the offence were not fulfilled makes it more surprising that he said nothing about the issue in his ruling, and that he provided the same kind of misleading description of the purported offence.

(He did describe another issue he wasn't going to deal with - the question of whether the government had the power in the first place to restrict the offences for which train companies were "relevant prosecutors" in the 2016 Order.)

Yes, it would seem unlikely that many people
a) "failed to give" details at first, then gave them, and then were prosecuted by Northern for the initial failure,
or
b) "failed to give" and then had their details uncovered by investigation after the "incident"
- especially in the context of the basic misunderstanding by the train company of what the offence is.

 

[soil]

This is what Northern submitted as part of their skeleton argument on the 19th July:

how many were convicted/pled guilty though?

 

[KirkstallOne]

how many were convicted/pled guilty though?

I don’t think it is made clear whether these figure are convictions or includes cases that were withdrawn, settled or found not guilty, but we know from the figures here:

Section 5(1) RoRA Prosecution

*** Update *** Just had the court case. I went because I had not had any confirmation that Northern had withdrawn the case, and I spoke to the court on Tuesday and they said as far as they knew it was going ahead. Also I wanted to flag up all the irregularities if I got a chance. Before I got...

www.railforums.co.uk

That in 2023 there were ~9500 s5(1) prosecutions under the SJp resulting in 8000 convictions.

 

[pedr]

The issue with the overlap between the 29,000 and those who had a factual defence as well as a procedural one, though, is that it’s for the defendant to argue that they are not guilty of the crime charged because their conduct didn’t fall within the prohibited acts. Resolving those cases on the procedural basis is easy - in the view of the Chief Magistrate, at any rate. The issue that paperwork for SJP or a summons might not fully describe the elements of the crime alleged is, in theory, one for the defence to raise at trial since we have an adversarial system and courts are entitled to accept the uncontested arguments raised by one side. People who pled guilty to 5 (1) charges told the courts that they didn’t give their name and address because pleading guilty means accepting that they committed the offence.

This shows how unsuitable our procedures are for protecting defendants’ rights when charged with crimes considered low-level and unimportant by the court system. I think the main point to argue here is that the version of the offence quoted on the formal paperwork was incomplete and therefore misleading but this is a much bigger challenge to the entire set of processes for minor crimes in England and Wales than the error over using the SJP for RoRA cases. Everyone accused of fare evasion crimes should in an ideal system have had the opportunity to obtain free legal advice, but this isn’t currently available (and legal aid for minor criminal cases has been significantly limited for many years - even before the cuts in the 2000s, legal aid was far from being available in all magistrates court cases). So people were in a position where they had no realistic means of identifying that they were receiving incomplete information.

 

[some bloke]

People who pled guilty to 5 (1) charges told the courts that they didn’t give their name and address because pleading guilty means accepting that they committed the offence.

That might be the case if the magistrates had a correct understanding of what the offence was. But it seems they didn't, and they convicted on the wrong basis of what was in the sentencing guidelines, the handbook and the electronic system. They compared the material in front of them for each specific case against a misunderstanding that the offence was merely failure to produce a ticket or similar.

 

[furlong]

(He did describe another issue he wasn't going to deal with - the question of whether the government had the power in the first place to restrict the offences for which train companies were "relevant prosecutors" in the 2016 Order.)

With the current approach to judicial review, quite apart from the expense, I suspect the moment to deal with that has long passed, and, even if the courts were asked and prepared to consider the matter, you couldn't rule out a decision that, as the intention not to allow RORA offences through SJP was absolutely explicit, the only alternative that would have avoided that was not to include railway prosecutors on the list at all, thereby putting all the SJP byelaw convictions at risk too! Let sleeping dogs lie.

 

[Tetchytyke]

This is what Northern submitted as part of their skeleton argument on the 19th July:

This is interesting:

i) There were 29,164 prosecutions brought under s.5(1) of the RRA using the SJP.(iii) There were 226 prosecutions which were brought under s.5(1) of the RRA (not via SJP) where the passenger had offered to pay or had given their name and address and therefore had a complete defence

Are Northern seriously trying to claim that 28,900 people didn’t give their name and address and had to be hunted down?

 

[Watershed]

This is interesting:



Are Northern seriously trying to claim that 28,900 people didn’t give their name and address and had to be hunted down?

The only way I can see this being the case is if 28,900 people initially refused to give their name and address but later relented. Seems very unlikely to me though, as most people are willing to pay or cooperate once "caught" (or indeed once they encounter their first opportunity to pay).

 

[35B]

This is interesting:



Are Northern seriously trying to claim that 28,900 people didn’t give their name and address and had to be hunted down?

No. They’re saying 29,164 prosecutions were brought under s.5(1) using SJP, and a separate 226 who were prosecuted under s.5(1) outside of SJP who had a complete defence.

I suspect they are fighting shy from the consequences of admitting having brought many prosecutions (my starting guess is 29,390) for which there was a complete defence.

 

[AlterEgo]

The only way I can see this being the case is if 28,900 people initially refused to give their name and address but later relented. Seems very unlikely to me though, as most people are willing to pay or cooperate once "caught" (or indeed once they encounter their first opportunity to pay).

Yes, it is extremely suspicious and ought to be challenged. It looks like an outright lie.

They are weaselling that about 1% of the people stopped and suspected of fare evasion give their name and address. It's nonsense.

No. They’re saying 29,164 prosecutions were brought under s.5(1) using SJP, and a separate 226 who were prosecuted under s.5(1) outside of SJP who had a complete defence.

I suspect they are fighting shy from the consequences of admitting having brought many prosecutions (my starting guess is 29,390) for which there was a complete defence.

It is quite deliberate obfuscation.

 

[Tetchytyke]

No. They’re saying 29,164 prosecutions were brought under s.5(1) using SJP, and a separate 226 who were prosecuted under s.5(1) outside of SJP who had a complete defence.

I suspect they are fighting shy from the consequences of admitting having brought many prosecutions (my starting guess is 29,390) for which there was a complete defence.

Ah yes, so they are, my mistake.

And also yes, my guesstimate would also be that c.99% of people who were prosecuted under s.5(1) had, in fact, provided their name and address.

 

[jumble]

This is interesting:



Are Northern seriously trying to claim that 28,900 people didn’t give their name and address and had to be hunted down?

I suspect not
They are what we call in our trade "telling enough of the truth to mislead the unwary"

 

[Bertie the bus]

Are Northern seriously trying to claim that 28,900 people didn’t give their name and address and had to be hunted down?

Clearly not. It is difficult to understand how anybody who has read that post can come to that conclusion.

 

[35B]

It is quite deliberate obfuscation.

It is also that.

 

[Gonzoiku]

It is also that.

Did they outsource the response to Carlisle Security?

GZ

 

[KirkstallOne]

Interesting statement from Greater Anglia (from the suffolk live).

A Greater Anglia spokesperson said: “Following the hearing at Westminster Magistrates’ Court we are now working to ensure all those who are entitled to compensation as a result of this procedural error are quickly and fully reimbursed.

“Like many in the industry, we acted in good faith following the introduction of the single justice procedure in 2016, but we apologise for using this process incorrectly.”

 

[Hadders]

Interesting statement from Greater Anglia (from the suffolk live).

It's almost as though they're trying to say this was just a procedural error, these people were guilty of evading their fares and they've got off on a technicality....

So far, it's only the use of SJPN to deal with s5.1 prosecutions that's been dealt with. In a way this is a procedural error, the train companies should never have used SJPN but the court system is not blameless either.

What still hasn't been dealt with is:

1. The vast, vast majority of people prosecuted under s5.1 had a defence because they gave their name and address which is a defence to the charge. This is the case whether or not SJPN was used to deal with the case.

2. People prosecuted having appealed a Penalty Fare. Such prosecutions are statute barred. The Chief Magistrate would not give a ruling on this point as it is outside his authority, but indicated in his judgement that such prosecutions should not be allowed. Such cases should be dealt with through the civil courts as it is a debt rather than a criminal issue.

These two outstanding issues are arguably a bigger issue. This really needs some proper exposure in the media.

 

[some bloke]

The biggest news organisations seem, at least on the whole, to have misinformed the public that (alleged)

"fare evasion"

is what up to 75,000 people were convicted for, through the wrong procedure.

In reality it was precisely the absence of the element of "evasion"/dishonesty from huge numbers of the allegations, which were in fact of

"failure to produce a ticket"

or similar, which made it easy for the companies to obtain convictions using the low-scrutiny route (along with, it seems, the magistrates/legal advisers believing misleading descriptions of the offence in material supposed to help them get things right).

This misinformation from news organisations may have adverse effects on how innocent individuals, or people who in fact only unknowingly breached a byelaw, are perceived by acquaintances, work colleagues and others

- especially if the person talks about the matter, as they will be reimbursed but not officially found not guilty of "evasion".

Regardless of how the s.5(1) issue can or can't be resolved by the courts, perhaps the DfT, MoJ and/or HMCTS might consider the various positions affected individuals may be in, and make clear:

- what was alleged in s.5(1) cases,

- what the definitions of the offence are in the Sentencing Guidelines, Magistrates' Handbook and the electronic system,

and

- what the Act says the offence actually is.

 

[talldave]

Silly question perhaps, but does Railforums ever issue press releases? If so, now would be the perfect time to welcome the CM's move, but further highlight the overlooked aspects & injustices.

 

[some bloke]

Silly question perhaps, but does Railforums ever issue press releases? If so, now would be the perfect time to welcome the CM's move, but further highlight the overlooked aspects & injustices.

I was thinking something similar. As the forum has been aware of the s.5(1) problem since at least as far back as 2019 (@Bonaroo then @JimmyC cases), and seems to have discussed the wrong use of SJP for RoRA cases long before the Senior District Judge ('Chief Magistrate") said the issue had been "known", a statement could mention the forum's experience in these matters.

 

[KirkstallOne]

The biggest news organisations seem, at least on the whole, to have misinformed the public

I think the CM has a big part to play in this. He had the facts, he had the submissions, but he has chosen to make somewhat unhelpful statements that contribute to the confusion and issue a ruling that sidesteps key issues.

It is not surprising that the biggest media organisations have felt they cannot go further than what the CM has ruled. They know what the allegations are and agree that it stinks. Chris Choi in particular said he has read a lot of this thread.

I think Greater Anglia’s apology in court needs to be properly considered:

Greater Anglia recognises that a series of significant errors have occurred.

It wishes to apologise unreservedly to the court and the individuals involved. It takes the position extremely seriously.

No company apologises unreservedly, and admits a series of significant errors, if all that has happened is a good faith procedural irregularity.

Also for the record, this is the word for word statement I gave on the steps of the court to both the BBC and ITV before I would agree to be interviewed:

It is 15 months since Northern prosecuted me for a crime I didn’t commit. I am glad that today’s ruling, and the submissions by Northern to the court, finally recognise that this and many other prosecutions were not just unlawful, but that the defendants had a complete defence. This was a gross breach of their duties to the court which Northern and Greater Anglia have now apologised for. I would like to thank the office of my MP Rachel Reeves, Tristan Kirk of the Evening Standard, and the experts of the Rail UK forums, whose help and interest was vital to achieving this result.

However, this was a ruling on the legal facts. There are many unanswered questions still - for the judiciary; for His Majesty’s Courts and Tribunal Service; and for all train companies involved, Northern, Merseyrail, Greater Anglia and others. This was a miscarriage of justice in which private companies abused the criminal courts on an industrial scale. I want to know how and why this happened. I ask the new government to show their concern for the justice system is more than a soundbite by taking all necessary steps to provide those answers.

 

[furlong]

Well I think the starting point might be to pull together a set of agreed facts about the matter into a single post on a new thread, with every fact backed up by a reference to the external source of the information. So, for example, create a comprehensive list of the various categories of people affected to varying degrees, and what we know so far about the numbers in each category and where that information came from and what needs to happen etc. Most of that information is already on the forum but scattered around.

We could then go further and list the problems with the current system both from the passenger's perspective and from the train company's perspective and outline some of the more serious suggestions that have been made to resolve them, with their pros and cons. But that's very much getting deep into inquiry territory - rather a lot of work, and the government ought to be paying someone to do this. The forum could attempt to seed some of this work though.

The key debates of civil versus criminal, dishonest intent versus strict liability, the public interest test and the regulation or restriction of private prosecutions all on the one hand (see what happens when the Post Office inquiry concludes), and on the other hand the seeming inability of the industry to deter the rampant amount of deliberate fare evasion ordinary passengers witness on a daily basis on their travels.

 

[some bloke]

I think the CM has a big part to play in this.

Agreed.

One effect of that error is that it could mislead journalists and the public, some of whom may be directly concerned - they have been wrongly convicted and now the CM is in effect again misleading them that they were guilty. It was clear that the existence of this judgment would be widely reported.

The fact that the Chief Magistrate was dealing with cases where the basic criteria for the offence were not fulfilled makes it more surprising that he said nothing about the issue in his ruling, and that he provided the same kind of misleading description of the purported offence.

 

[KirkstallOne]

The fact that the Chief Magistrate was dealing with cases where the basic criteria for the offence were not fulfilled makes it more surprising that he said nothing about the issue in his ruling, and that he provided the same kind of misleading description of the purported offence

Yep the more I think about it the more this doesn’t sit well. We can see from Sarah Cook’s interviews how incredibly stressful she has found this. These were real cases, with real defendants, it wasn’t an academic exercise. She and the others deserve better than to be left with the impression that they got off on a technicality.

Another thing not reported is that Sarah Cook phoned Westminster Magistrates court on the 18th July, they day before the previous hearing, and was told if she didn’t turn up she could well be found guilty.

 

[island]

Another thing not reported is that Sarah Cook phoned Westminster Magistrates court on the 18th July, they day before the previous hearing, and was told if she didn’t turn up she could well be found guilty.

I am not sure I would read a great deal into that; it sounds like a generic answer that would be given by a court office to a perceived generic question.

 

[KirkstallOne]

I am not sure I would read a great deal into that; it sounds like a generic answer that would be given by a court office to a perceived generic question.

It just illustrates how some of these defendants have been put through the ringer as a direct result of Northern’s incompetence.