Fawkes Cat
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- 8 May 2017
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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 S219 was repealed by Railways Act 2005 but I think a statutory instrument rolled the bye-laws forward.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.
@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.