Byelaw 18 - good advice?

[Fawkes Cat]

Can we, away from a thread where a particular traveller wants advice on their particular difficulty, consider what is good advice for us to give on byelaw 18?

@ForTheLoveOf thinks that the byelaw is unenforceable, and advises posters that it may be a good idea to challenge it. IANAL, but I would respectfully suggest that this is poor advice. It would be good if we could clarify this so that we give the best advice we can. I have a couple of reasons for this, which may overlap but (in my view) any one of them is sufficient

What the law says - and what it doesn't say

As far as I can tell, the railway bye-laws are made under Section 219 and Schedule 20, Transport Act 2000. S219 was repealed by Railways Act 2005 but I think a statutory instrument rolled the bye-laws forward. The important thing to note is that S219 stated what railway byelaws could cover, including (s219(1)(b))'travel on or by means of railway assets' and in particular (s219(2)(a) '
with respect to tickets issued for entry on railway assets or travel by railway and the evasion of payment of fares or other charges'.

Compare this to s235(c) Local Government Act 1972, which I think is the main act allowing local councils to make byelaws: '(3)Byelaws shall not be made under this section for any purpose as respects any area if provision for that purpose as respects that area is made by, or is or may be made under, any other enactment.'

So the purported restriction on byelaws not to go beyond higher legislation isn't a principle of law or something in the common law: it's something specifically legislated for, for particular powers to make byelaws. As far as I can tell, that restriction is not in the legislation for the railway byelaws, and it doesn't read across from the local government byelaw statute.

Is trying to overturn byelaw 18 practical advice?

Of course, my analysis of the law above could be wrong. If so, shouldn't the byelaw be challenged and a precedent set?

Well, maybe. But I still don't think this would be good advice. Let's take the highest fare evaded (£124) in the Somerset fares thread. If I have done my sums right, the total payment required by the magistrate was £534.

I haven't worked out if this was a byelaw or RORA prosecution, but let's assume it was byelaw. What would the defendant have to have done to walk away without a stain on their character (ignoring for the moment the idea of an out of court settlement and any mitigating factors)?

In the first instance, they could have tried convincing the prosecutor that byelaw 18 didn't work. While absence of evidence is not evidence of absence, at this point I note that no one has ever come back to us reporting success in this route.

So the next stage would be convincing the magistrate. The number of court reports we see suggests this doesn't, in practice, work.

So our hypothetical defendant will have to enter the appeal system. With maybe £534 at stake, how many people will decide that to appeal is a good use of their time and money? I would suggest that the number of people with that appetite will be vanishingly small. So how can it be good advice to suggest that people start in on a potentially expensive, time-consuming and stressful route that may not succeed?

From the point of view of other potential defendants, we also need a precedent. Our hypothetical defendant won't have helped others very much if he wins his case in front of the magistrates, or on appeal at the Crown Court - because neither of these set precedent. The appeal would have to proceed further - I think to the Court of Appeal. Again, this is cost, time and stress.

On my reading of the law, there is nothing procedurally wrong with byelaw 18. Even if there is, to suggest that an everyday traveller should challenge it is taking them down a difficult road instead of paying a limited penalty and learning their lesson. I would suggest we drop suggesting challenges to byelaw 18 when we are advising people here.

 

[cuccir]

FawkesCat you make a strong case but perhaps it would be useful to hear from ForTheLoveOf before we discuss much further, in order to get the other side of this argument.

 

[47513 Severn]

@DaveNewcastle are you still out there? It would be very interesting to hear your take on the matter.

Regardless of that, I would agree that it isn't the best advice to be giving such posters. Even if the legal challenge were viable it is very unlikely to be the best thing for them to do when looking at the bigger picture. The dangers of 'a little knowledge' are to be kept in mind as well, in this and other 'letter of the law' scenarios.

I don't see any harm in discussion of the issue in this thread though. Just keep it in plain English, please (sorry @ForTheLoveOf, but throwing in Latin phrases just makes you sound like a 'Freeman on the land' loon and I'm sure that's far from the impression you wish to create).

 

[furlong]

Obviously, as of today, the byelaw is in place and fully enforceable. We know of one previous legal challenge against the current byelaws as a whole that failed. The reasons why byelaw 18 may appear unsatisfactory have been discussed on numerous threads previously, with both sides of the arguments presented.

So I would agree that it doesn't make much sense to mention this on most threads in here.

(Taking your line of argument, one question you might consider is to what extent "evasion" requires intent, and to what extent intent is implicit in the form of byelaw 18. Also, cases cited where some previous railway byelaws were held to be ultra vires pre-date 1972.)

 

[Gareth Marston]

My take on it is that Bylaw 18 has existed for many years and a fair amount of folk have been prosecuted under it. Someone would surely have tried to challenge it already (and failed) so its still with us.

Ive found this http://www.grayhooperholt.co.uk/default.asp?id=31

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2. Railway Fare Evasion - The law

Railway Fare Evasion - The law

If your case is urgent, call our emergency number 07581 064214 NOW for a free, no obligation discussion and opinion or complete our online

Fare evasion covers a wide range of offences. Fare evasion prosecution may relate to relatively minor offences or to those which carry a maximum sentence of a term of imprisonment. Fare evasion offences vary from offences under the railway bylaws through to statutory offences committed under the Regulation of Railways Act 1889 or the Fraud Act 2006. (Bus fare evasion is usually dealt with under the Public Passenger Vehicles Act 1981.)

Common Railway Byelaw Offences : –

1) Entering a train for the purpose of travel without a valid ticket contrary to railway byelaw 18(1). This offence is committed by a passenger if he or she boards a train without a valid ticket at a station with ticket selling facilities. It is not generally recognised that such an action is in fact a criminal offence. Often a ticket seller on the train will be willing to sell a ticket or it will be possible to purchase a ticket at the destination. However, strictly speaking, it is an offence to fail to purchase a ticket at the station of embarkation. The defences to such a charge would be if the ticket office and the ticket machines were closed and inoperative or if a member of staff gave permission for boarding without a valid ticket or if there was a sign at the station of embarkation displaying the same information.

2) Another common byelaw offence is failing to show upon request by an authorised person a valid ticket. This contravenes railway byelaw 18(2). It is the converse of railway bylaw 18(1). If it was possible to purchase a ticket up to the point of challenge and no ticket has been purchased, the passenger has committed an offence under this byelaw. No offence has been committed if the passenger boarded the train at a station where there were no ticket selling facilities and where it is the agreed practise either to purchase a ticket from a ticket seller on the train or at the final destination.

3) Railway Byelaw19 makes it an offence to be seated ‘in any seat, berth or any part of a train where a notice indicates that it is reserved for a specified ticket holder or holders of tickets of a specific class.’ This is usually used in respect of travel in First Class accommodation with only a standard ticket. At first sight it may not appear to be an offence of fare evasion but since only part of the required ticket price has been paid, an attempt is being made to avoid paying the full fare.

Now why would a reputable law firm quote it as (implied) correct? Advice is given on circumstances where it does not apply-nothing about challenging it..... A firm that it would appear has taken time and trouble to outline Railway Fare Evasion and the Law advice for its customers or prospective customers?

 

[AlterEgo]

Now why would a reputable law firm quote it?

Because it is the law and one you can be taken to court for and one they can charge you a fee for when representing you. Why else would they quote it?

 

[Gareth Marston]

Because it is the law and one you can be taken to court for and one they can charge you a fee for when representing you. Why else would they quote it?

OK its all an establishment conspiracy to get money from us- then the best advice anyone can give in respect of Byelaw 18 is

DON'T BOARD A TRAIN WITHOUT A TICKET WHERE TICKETING FACILITIES EXIST!

Then there's no need to worry about Byelaw 18 and "the man" cant get you!

 

[AlterEgo]

OK its all an establishment conspiracy to get money from us- then the best advice anyone can give in respect of Byelaw 18 is

DON'T BOARD A TRAIN WITHOUT A TICKET WHERE TICKETING FACILITIES EXIST!

Then there's no need to worry about Byelaw 18 and "the man" cant get you!

This relies on passengers being aware that ticketing facilities exist on a station. In another thread elsewhere it's been highlighted that the method of buying tickets may not be immediately obvious.

In any case, the fact a law firm advertised they can defend you from an allegation made under that law doesn't mean that the law itself won't be found to be unfit or unconstitutional or whatever if challenged at the appropriate level.

I hold no particular view about whether Byelaw 18 is legally fit for purpose.

 

[Clip]

As Fawkes Cat clearly states and the point i made in another post about ForTheLoveOf's claims - it is enshrined in law and surely that makes it lawful.

I simply do not understand how they can possibly claim otherwise.

 

[ForTheLoveOf]

Thank you for starting a discussion about this, and apologies for the delayed response - I have been doing rather a lot of travelling without much reliable Internet access!

Much though I find Byelaw 18 distasteful, my challenge is not based upon a my views on it. It is based on legal precedent.

There are numerous historical cases relating to older Railway Byelaws and their validity. Before Grouping, there was of course an array of different private railway companies, and each of these had their own Byelaws.

A number of these Byelaws contained clauses similar to the modern-day Byelaw 18, and a number of these were challenged on the basis that they were attempting to modify Section 5 of the Regulation of Railways Act 1889 (RoRA), or equivalent legislation before this. Very many of these challenged succeeded, with the defendants' convictions (where they had already been convicted) set aside.

Let us take one example: Huffam v The North Staffordshire Railway Company [1894] 2 Q.B. 821. I have to apologise severely that very little regarding this case is available in the public domain, and so it will be difficult for most people to verify what I am saying. However, the gist of the case is as follows.

Huffam had bought a ticket from Stoke-on-Trent to Macclesfield, the modern-day equivalent of a First Class Anytime Day Return, on the 28th of February for that day. He nevertheless used the ticket on 15th of March (there being no evidence that he had previously already used the ticket).

Tickets were checked at Congleton and Huffam produced his out-of-date ticket. He refused to pay the First Class fare from Stoke-on-Trent to Macclesfield but gave his name and address. He was then prosecuted under Byelaw 2 made by The North Staffordshire Railway Company, which was an equivalent of today's Byelaw 18.

It was argued by Huffam's solicitor that the Byelaw could not be valid, as it created an offence of failing to pay the fare due - like S5(3)(a) of RoRA - but did not require the intent to avoid payment that S5(3)(a). This was deemed unacceptable, and beyond the powers of the Byelaw, and hence the conviction was set aside.

There are plenty of other cases which run along similar lines - including:

• Dearden v Townsend [1865] L.R. 1 Q.B. 10
• Bentham v Hoyle [1878] 3 Q.B.D. 289
  
• Saunders v The South Eastern Railway Company [1880] 5 Q.B.D. 456
  
• The London and Brighton Railway Company v Watson [1878] 3 C.P.D. 429

Hence it is clear that Byelaws have no power to modify RoRA S5(3)(a), or S.103 of the Railway Consolidation Clauses Act 1845 which preceded this in a very similar fashion. The main difference was the regulation of travel on the railway - RoRA - vs the regulation of travel in a railway company's carriage - RCCA. This is a very technical difference which makes a difference in a limited number of "edge" cases.

The British Railways Board accepted that it was not lawful to create Byelaws that punished intentionless failure to have a ticket similarly to RoRA. So their equivalent of Byelaw 18 was exempted from punishment beyond being removed from the railway (with reasonable force if necessary) - in the same way Byelaw 17 is nowadays. It was only in 2005 that a "reorganisation" of the Byelaws resulted in Byelaw 18 no longer having this status in the same way Byelaw 17 did.

As to recommending taking this approach in relation to matters where a prosecution may be made under Byelaw 18, but where prosecution under RoRA is very unlikely (e.g. in the case of someone who forgot to buy a ticket without any dishonest intention, or who accidentally took the wrong TOC on a TOC-specific ticket, whose ticket was stolen, etc.). Basically - I don't think it's fair to tell people who post here asking for help that there is no alternative to pleading guilty or trying to get a settlement. There certainly is an alternative - as outlined above - although I certainly agree that it is equally only fair to outline the disadvantages and risks when explaining the alternative.

@ForTheLoveOf thinks that the byelaw is unenforceable, and advises posters that it may be a good idea to challenge it. IANAL, but I would respectfully suggest that this is poor advice. It would be good if we could clarify this so that we give the best advice we can. I have a couple of reasons for this, which may overlap but (in my view) any one of them is sufficient

Firstly, my view is not that they are unenforceable, but that they are invalid and void - which is quite different in terms of its procedure and impact. I would also object somewhat to the suggestion that I have been advising that a challenge would be a good idea. I think it is only fair to posters to mention the possibility, along with all advantages and disadvantages - I wouldn't say that I am pushing posters into anything (my latest substantive post on such a thread will confirm this).

As I have said above, I don't think it's fair to present the situation without giving full information. There can be no doubt that a challenge to Byelaw 18 would be stressful and potentially risky - but knowingly not even mentioning the possibility is not fair to people who might actually be up to mounting a challenge (which I fully admit will be only a minority of posters!).

On my reading of the law, there is nothing procedurally wrong with byelaw 18. Even if there is, to suggest that an everyday traveller should challenge it is taking them down a difficult road instead of paying a limited penalty and learning their lesson. I would suggest we drop suggesting challenges to byelaw 18 when we are advising people here.

I hope the reason why I see Byelaw 18 as fundamentally flawed is now made clear. I think it's very wrong to pay a out of Court settlement when there is every possibility that Byelaw 18 will be overturned down the line, meaning those who have been prosecuted under it would have to be refunded their fine and any costs, whereas those who made settlements may have great difficulty in getting any money back - let alone an apology from the relevant TOC. Plenty of other railways and even parts of the UK (e.g. Scotland!) function perfectly fine without having the equivalent of an enforceable and enforced Byelaw 18, so to suggest that there is a lesson to be learnt is wrong in my view.

Regardless of that, I would agree that it isn't the best advice to be giving such posters. Even if the legal challenge were viable it is very unlikely to be the best thing for them to do when looking at the bigger picture. The dangers of 'a little knowledge' are to be kept in mind as well, in this and other 'letter of the law' scenarios.

At the risk of repeating myself, I see this as far more than the letter of the law. There are plenty of cases where Byelaws similar to Byelaw 18 have been quashed, and to pretend that no such avenue exists when people ask if there is any alternative to paying the settlement/demand by the TOC, is fundamentally wrong in my view. People trust us to give proper advice, and to give a full view of the situation. Knowingly failing to mention the Byelaw 18 option - albeit always with the requisite warnings about the risks and stress etc. - is just not correct.

I suspect much of what I have said will be dismissed out of hand as drivel. Be that as it may, I suspect it will take a Court case which explores this avenue - whether as a defence to a prosecution or a judicial review - for there to be any greater degree of agreement across the community. If that is found in favour of what I argue, those who have outright denied it now will certainly not be the ones laughing!

 

[krus_aragon]

Thank you for starting a discussion about this, and apologies for the delayed response - I have been doing rather a lot of travelling without much reliable Internet access!

Thank you also for an engaging and enlightening contribution. I've not always been able to follow your argument in other threads, but you've taken the opportunity to state your case, and (imho) done so very clearly.

The main difference was the regulation of travel on the railway - RoRA - vs the regulation of travel in a railway company's carriage - RCCA. This is a very technical difference which makes a difference in a limited number of "edge" cases.

Off-hand, I can't think of many scenarios where there would be a distinction between the two, other than perhaps hopping on the back of a private goods wagon (not owned by the railway company), or maybe on the footplate of an engine. I'd be interested to hear of any other examples.

 

[ForTheLoveOf]

Thank you also for an engaging and enlightening contribution. I've not always been able to follow your argument in other threads, but you've taken the opportunity to state your case, and (imho) done so very clearly.

Thank you for the feedback. I hope I have not given the impression of being a Freeman on the Land type in other threads. I very much disagree with that line of thinking! However the legal (Latin) terms I have used are typically those used in Court judgments, e.g. ab initio, ultra vires. If you want to understand those more, I'm happy to explain them, or alternatively a quick Google should help!

Off-hand, I can't think of many scenarios where there would be a distinction between the two, other than perhaps hopping on the back of a private goods wagon (not owned by the railway company), or maybe on the footplate of an engine. I'd be interested to hear of any other examples.

The only time where I have seen this as having any meaningful difference is not to do with the technical definition of "carriage", but rather the concept of physically being in a moving vehicle, as opposed to travelling on the railway in general (which may involve being on railway property, e.g. a station, but not physically moving).

This was relevant when it was debated whether an offence was committed if the defendant formed an intent to avoid payment after exiting the carriage, but before exiting the station (i.e. sometime between the platform and the barrier line). Under RCCA, I think it was suggested that no offence would be committed. Under RoRA, since that references "travelling on the railway" rather than a "carriage", it was deemed that the travelling did not finish until the passenger exited the station at his destination, and hence the offence could indeed be committed during this intermediate time.

 

[cuccir]

So to put it in layman's terms, the argument is that (1) it's been established that Byelaws can't create offences that are the same as an existing law (2) Byelaw 18 does this because it creates an offence of ticketless travel, which is already illegal unde the RoRA (3) if we accept these, then Byelaw 18 is invalid? Have I more or less understood?

 

[Fawkes Cat]

As the person who started this thread, thanks for responding. I can't claim not to have decent internet access, but I am away from home for the weekend: if I have anything further to say, it won't be until Monday or Tuesday!

 

[ForTheLoveOf]

So to put it in layman's terms, the argument is that (1) it's been established that Byelaws can't create offences that are the same as an existing law (2) Byelaw 18 does this because it creates an offence of ticketless travel, which is already illegal unde the RoRA (3) if we accept these, then Byelaw 18 is invalid? Have I more or less understood?

Nearly:

1. Byelaws cannot modify existing statute law (such as by effectively removing the requirement to prove intent which RoRA S5(3)(a) currently requires) other than where Parliament has specifically delegated this power;
2. Byelaw 18 tries to modify existing statute law because it creates an offence that is as good as identical to RoRA S5(3)(a), including the maximum fine, but without the requisite intent, and
3. Byelaw 18 cannot therefore be valid, since there is no part of any Act of Parliament that gives it the power to do this - in other words, it is ultra vires (it is not empowered to do what it tries to do).

 

[najaB]

Byelaw 18 does this because it creates an offence of ticketless travel

Which it doesn't. It makes it an offence to enter a train with intent to travel. Subtle but important difference. You can't be prosecuted under the RoRA if the train doesn't move, but you can under the Byelaws.

 

[A Challenge]

I thought it was that the bylaws couldn't change primary legislation (meaning the Regulation of Railways Act), in this case it would remove the requirement for there to be intent, which is required under the Act.

Edit: I see that this has already been answered much better by @ForTheLoveOf, I missed the new page.

 

[Bensonby]

Fascinating conversation, surely the only real way to test the theory is to judicially review a decision by a magistrates court to convict for byelaw 18?

 

[ForTheLoveOf]

Fascinating conversation, surely the only real way to test the theory is to judicially review a decision by a magistrates court to convict for byelaw 18?

That is one option; the other option is to defend a prosecution on this basis.

 

[Llanigraham]

That is one option; the other option is to defend a prosecution on this basis.

So if you are so sure that this is the case why aren't you doing something about it, either by asking OFFICIALLY for a Judicial Review, or getting prosecuted yourself?

 

[Puffing Devil]

That is one option; the other option is to defend a prosecution on this basis.

Which will be of no use if it succeeds as the Magistrate's Court cannot set precedent. It would need to go up from there on appeal.

 

[ForTheLoveOf]

Which will be of no use if it succeeds as the Magistrate's Court cannot set precedent. It would need to go up from there on appeal.

A successful Magistrates' Court defence along these lines woul not set binding precedent. But it would at the very least be interesting - and it is very much more accessible than the cost of conducting a judicial review, which would likely cost into the five figures!

 

[najaB]

But it would at the very least be interesting...

Interesting, but not a valid test since the result carries no more weight than discussion on an Internet forum.

 

[ForTheLoveOf]

Interesting, but not a valid test since the result carries no more weight than discussion on an Internet forum.

I think that is very wrong. A discussion on an internet forum is between strangers; those who have no legal training or involvement in many cases. A Magistrate may be a lay person, or a District Judge (or any judge higher up for that matter, even if unlikely!). But whoever it is - they are very much more legally involved, and in many cases more legally trained, than strangers on an internet forum.

 

[krus_aragon]

Thank you for the feedback. I hope I have not given the impression of being a Freeman on the Land type in other threads. I very much disagree with that line of thinking! However the legal (Latin) terms I have used are typically those used in Court judgments, e.g. ab initio, ultra vires. If you want to understand those more, I'm happy to explain them, or alternatively a quick Google should help!

The only time where I have seen this as having any meaningful difference is not to do with the technical definition of "carriage", but rather the concept of physically being in a moving vehicle, as opposed to travelling on the railway in general (which may involve being on railway property, e.g. a station, but not physically moving).

This was relevant when it was debated whether an offence was committed if the defendant formed an intent to avoid payment after exiting the carriage, but before exiting the station (i.e. sometime between the platform and the barrier line). Under RCCA, I think it was suggested that no offence would be committed. Under RoRA, since that references "travelling on the railway" rather than a "carriage", it was deemed that the travelling did not finish until the passenger exited the station at his destination, and hence the offence could indeed be committed during this intermediate time.

I wouldn't have said that you were being intentionally obtuse elsewhere, but in heated debates you were naturally sticking to your guns when stating your case, and there was probably a it of the grey fallacy at play along with all the noise. I've no issue with the use of Latin in professions such as law and medicine: in fact, as an amateur linguist I've often said "the world needs more Latin"!

Thanks also for the clarification on the distincion between the RCCA and RoRA offences. I was envisioning something similar to the obscure laws that consider a bicycle to be a carriage as far as the public highway is concerned.

 

[Skymonster]

I'm just wondering why, in the 13 years since 2005, no one has taken this on and challenged byelaw 18. If 18 is so ill-founded, surely some determined customer working with an enterprising law firm would have gone to court to make the argument?

 

[najaB]

But whoever it is - they are very much more legally involved, and in many cases more legally trained, than strangers on an internet forum.

The set of legally trained/involved people intersects with the set of Internet users.

 

[Llanigraham]

I think that is very wrong. A discussion on an internet forum is between strangers; those who have no legal training or involvement in many cases. A Magistrate may be a lay person, or a District Judge (or any judge higher up for that matter, even if unlikely!). But whoever it is - they are very much more legally involved, and in many cases more legally trained, than strangers on an internet forum.

You are making some very dangerous assumptions in that statement. There are people on this forum who do have legal training and others who could quite possibly be Magistrates.
And I can assure you that Magistrates get no legal training. In their Court the legal advice comes from the Clerk to the Justices.

 

[krus_aragon]

The set of legally trained/involved people intersects with the set of Internet users.

As does the set of mathematicians. Bring on the Venn diagrams!

 

[pedr]

The procedure would be to apply for the convicting magistrates’ court to “state a case” setting out the question of law which is at issue in the case. This would enable the High Court to hear what is, effectively, an appeal against the conviction and answer the question. In theory that could then be appealed further. A High Court decision would have precedental value for future magistrates’ court cases.