Confusing an out of court settlement for criminal matters with some sort of civil litigation?

[Tazi Hupefi]

Again, no. A bone fide out-of-court or administrative settlement of a criminal matter should be exactly what it says - the settlement of that criminal matter once and for all. This is one reason why its terms need to be so narrowly constrained in practice - each side must believe that the courts would enforce the settlement otherwise there'd be no point in making the agreement. (With rare exceptions) it blocks everyone from successfully prosecuting on the same (or substantially the same) facts - no double jeopardy. We saw that happen in the £43000 case, where the BTP (not a party to the settlement) was invited to investigate and prosecute independently but failed.


a fraudulent business venture - a scam

You honestly talk some absolute garbage at times, I'm afraid, and you persistently fail to read or comprehend what others are saying, not even just my posts.

What you are saying is categorically wrong. You appear ideologically opposed to out of court settlements, which is a fair enough opinion to hold, and are clearly expressing your frustrations, but legally, you are totally wrong and severely misguided.

You are falsely claiming that a train operator can offer total immunity to an offender by paying them an out of court settlement. Do you not see the serious flaw in that?! You could commit any crime you like, pay your mate an out of court settlement and sign a piece of paper so he does not prosecute you, and then by your logic, nobody else could either. I've already dismantled the myth that train operators had privileged powers of prosecution, so the analogy is fair, as a train operator has exactly the same legal footing as any member of the public.

Double jeopardy doesn't even come into it, as it only relates (simplistically) to being tried again, after being found not guilty. An out of court settlement means there wouldn't have even been an initial trial.

 

[furlong]

You honestly talk some absolute garbage at times, I'm afraid, and you persistently fail to read or comprehend what others are saying, not even just my posts.

What you are saying is categorically wrong. You appear ideologically opposed to out of court settlements, which is a fair enough opinion to hold, and are clearly expressing your frustrations, but legally, you are totally wrong and severely misguided.

Well readers can decide for themselves what is absolute garbage! At no point am I providing a personal opinion on the rights or wrongs of out-of-court settlements - I'm merely trying to suggest some of the additional factors involved in this complex area of law when they are used for criminal railway matters rather than for civil cases.

 

[35B]

You honestly talk some absolute garbage at times, I'm afraid, and you persistently fail to read or comprehend what others are saying, not even just my posts.

What you are saying is categorically wrong. You appear ideologically opposed to out of court settlements, which is a fair enough opinion to hold, and are clearly expressing your frustrations, but legally, you are totally wrong and severely misguided.

You are falsely claiming that a train operator can offer total immunity to an offender by paying them an out of court settlement. Do you not see the serious flaw in that?! You could commit any crime you like, pay your mate an out of court settlement and sign a piece of paper so he does not prosecute you, and then by your logic, nobody else could either. I've already dismantled the myth that train operators had privileged powers of prosecution, so the analogy is fair, as a train operator has exactly the same legal footing as any member of the public.

Double jeopardy doesn't even come into it, as it only relates (simplistically) to being tried again, after being found not guilty. An out of court settlement means there wouldn't have even been an initial trial.

So help me understand the enforceability of an agreement, following a simple scenario. I live in Grantham, and services to Peterborough are operated by two TOCs - LNER and EMR. Were I to be fare dodging and subject to action by EMR, and offered a settlement by that operator, what would constrain LNER from taking action against me? Not operationally (I’m aware that if EMR were dealing with my case, LNER would have little or no knowledge of it), but fundamentally.

Because, if I the agreement is solely between me and the TOC, it grants me very little certainty that the settlement is full and final. What am I missing?

 

[Haywain]

So help me understand the enforceability of an agreement, following a simple scenario. I live in Grantham, and services to Peterborough are operated by two TOCs - LNER and EMR. Were I to be fare dodging and subject to action by EMR, and offered a settlement by that operator, what would constrain LNER from taking action against me? Not operationally (I’m aware that if EMR were dealing with my case, LNER would have little or no knowledge of it), but fundamentally.

Because, if I the agreement is solely between me and the TOC, it grants me very little certainty that the settlement is full and final. What am I missing?

You might start by asking what knowledge LNER have of you that would allow them to take any action (as you have). There is nothing else that stops LNER prosecuting you any more than there is anything to stop me or anyone else prosecuting you.

 

[35B]

You might start by asking what knowledge LNER have of you that would allow them to take any action (as you have). There is nothing else that stops LNER prosecuting you any more than there is anything to stop me or anyone else prosecuting you.

So what is my assurance that an agreement is enforceable as being full and final?

 

[Fawkes Cat]

So what is my assurance that an agreement is enforceable as being full and final?

If I've understood this thread correctly, there's nothing in law that would stop LNER having a pop at you in this hypothetical situation. But there are very strong conventions that would come into play. So in practice

- as @Haywain suggests, you have been caught by EMR. They have the information and you settle with them. LNER won't know about any of this - but it's not just the settlement that they won't be aware of - they won't be aware of the offence either. SO LNER have no reason to pursue you - the story's over.

But let's assume that LNER have somehow found out about the offence (but not the settlement)
- LNER will initially write to you for your position. You presumably will explain that you have already settled this matter with EMR. Likely outcome - LNER back off

But let's assume that LNER don't back off, and as you have already paid a settlement to EMR you decline to pay LNER.
- LNER take the case to court. You presumably explain to the court that you have already settled this matter with EMR. Overwhelmingly (IMO) likely outcome - magistrate invites prosecutor for a word, and 'suggests' that prosecutor withdraws charge as the matter has already been dealt with out of court. If prosecutor (i.e. LNER) doesn't accept suggestion, magistrate will find you not guilty, or at worst will find you guilty but give an unconditional discharge.

Realistically, the courts would not tolerate the abuse of process that you have suggested. And just as realistically, LNER would know this, and would back off as soon as they realised that you and EMR had resolved the matter. So even if LNER did find out about whatever hypothetical offence EMR caught you for, you wouldn't face going to court after settling with EMR.

 

[furlong]

So help me understand the enforceability of an agreement, following a simple scenario. I live in Grantham, and services to Peterborough are operated by two TOCs - LNER and EMR. Were I to be fare dodging and subject to action by EMR, and offered a settlement by that operator, what would constrain LNER from taking action against me? Not operationally (I’m aware that if EMR were dealing with my case, LNER would have little or no knowledge of it), but fundamentally.

Because, if I the agreement is solely between me and the TOC, it grants me very little certainty that the settlement is full and final. What am I missing?

We've already had this discussion. Here's an answer from my position again:

You're missing the law around double jeopardy. A bone-fide settlement is an out-of-court disposal of the criminal matter - an alternative to a prosecution. Same as if the police were dealing with the matter the offender might accept a caution involving neither LNER nor EMR. Once settled, the matter can't be brought in front of a criminal court "on the same, or substantially the same, facts". But for that to work, all parties must be confident the court would accept it as a bone fide settlement consistent with public policy. In all situations (including after a successful prosecution), if LNER thinks some further payment or compensation is due to it contractually, then it can still pursue that in the civil courts against the offender and/or EMR. There can be multiple civil settlements but only one criminal one.

 

[pedr]

Strictly speaking double jeopardy doesn’t apply. It works, in English Law, by a defendant pleading “previously acquitted” when a charge is put to them in court (or, theoretically, “previously convicted”). Someone who has not been prosecuted to the point of a verdict has not been acquitted - this is why juries can be instructed to bring in a verdict of not guilty so that the acquittal is formally declared.

The practical answer and the safeguard must be that a prosecution following a commitment not to prosecute which the defendant has relied on (in the payment of money) should be considered so offensive to the conscience of a court that a permanent stay on prosecution would be given, preventing the prosecution from proceeding. That’s the solution here because if the prosecution did continue, even if there had been an agreement, the court would be likely to convict, since the offence would be proved.

Police cautions and other state-operated diversions from the criminal justice system will have their own rules and systems, and public prosecutions can only proceed if the prosecutor decides that it is in the public interest, but those factors aren’t relevant here, although if this became a significant issue the CPS might start taking over and discontinuing these cases.

 

[furlong]

Strictly speaking double jeopardy doesn’t apply.

Yes (but that's a concept more people are likely to have heard about and it might form one strand of a skeleton argument that the same matter can't be disposed of more than once as a consequence) - the mechanism if there was an attempt to prosecute would be through an abuse of process application as you describe.

This website gives a nod to it:

7.8.1 So far as possible, a prosecutor should establish the factual background of any previous disposal before initiating proceedings. If a potential defendant has been told that an out of court disposal would act as a bar to further proceedings, a prosecution may be an abuse.