Discussion: railway looking at past ticket purchases

[Fawkes Cat]

In the last few days we've had a couple of threads about different railway companies where

- passenger has been caught fare dodging but has settled the incident (off the top of my head I am not sure if this is only by out of court settlement or whether penalty fares have also applied)
- railway then researches (earlier) online ticket purchases and comes back to passenger to seek further information, apparently with a view to seeking either a further out of court settlement or maybe prosecution.

The fact that we've had two of these on (I think) the same day suggests a change of policy: we'll all have our own view on whether this is a good change or not. But I have started this thread so we can discuss in general terms what advice we should give.

To start with, there's the question of whether charges *can* be brought after six months: to give something to get us going, here's my take from one of the advice threads;

(...) please note that I am not a lawyer so I may have misunderstood the process or get the words wrong.

Typically, if a fare-dodger is taken to court then they are charged under either the railway byelaws or the Regulation of the Railways Act ('RoRA'). Both of these are charges which can be heard in the magistrates' court, and the rule for the magistrates' court is that the court must be told about the charge within six months of the incident.

But the byelaws and RoRA aren't the only possible charges: fraud is another charge - and I think it is accepted that buying a ticket for one journey when you are planning to use it for another, more expensive journey meets the definition of fraud.

Fraud cases are heard in the Crown Court rather than the magistrates' court. And the six month limit doesn't apply in the Crown Court.

So just because more than six months have passed, that doesn't guarantee that no action will be taken. Going back to a 'typical' case where only one occurrence is being pursued, in practice the six months bar does apply. But I can see that it might be different if the railway think that they are pursuing multiple breaches of the law.
(...)

 

[fandroid]

As well as advice on actions after the reopening of the case by the train company, we might think of its implications for advice to give to OPs that tell us that they have just been caught but have a history of fare avoidance.

Knowing which train companies are reopening cases might help there. In the latest case it was Northern.

 

[pedr]

Purchasing a discounted ticket you aren’t entitled to (with the intent of using it) is pretty obviously fraud.

Travelling on a train without buying any ticket, and without speaking to anyone, probably isn’t.

Whether there’s an implied dishonest representation made by purchasing a ticket or combination which you know does not cover the entire journey you intend to make, and whether this amounts to fraud when it causes yourself a gain or the railway companies a loss may be a more difficult question. Certainly worth train companies asserting that it does, until/unless higher courts clarify the situation.

 

[Fawkes Cat]

Knowing which train companies are reopening cases might help there. In the latest case it was Northern.

The other case is WMR.

 

[Titfield]

The obvious difference between the types of "incidents" reported here is that a single incident may or may not be a genuine mistake, but more than one incident of a similar nature is unlikely to be a genuine mistake.

I wonder if some TOCS have made the decision that if examination of a passengers booking history shows more than one "issue" it is very much worthy of a more detailed investigation with an initial starting point of a much harsher sanction being imposed or possibly more than 2 "issues" and it goes to court?

I recognise that out of court settlements are financially more beneficial to the TOC rather than going to court but perhaps with the Treasury being involved a new view is being taken.

 

[Fawkes Cat]

The obvious difference between the types of "incidents" reported here is that a single incident may or may not be a genuine mistake, but more than one incident of a similar nature is unlikely to be a genuine mistake.

I'd agree here. If the cases we have seen are typical the railway
- knows that the passenger is a fare dodger ( because they have agreed to make an out of court settlement) and
- knows that there are other ticket purchases which are typical of fare dodging.

That strikes me as giving reason to suspect that there's fare dodging going on. And if you have reason to suspect, then it seems to me to be reasonable to investigate to firm up (or alternatively eliminate) the suspicion.

I wonder if some TOCS have made the decision that if examination of a passengers booking history shows more than one "issue" it is very much worthy of a more detailed investigation with an initial starting point of a much harsher sanction being imposed or possibly more than 2 "issues" and it goes to court?

This is one of the difficult points that it would be good for us to bottom out. I can see that if someone is picked up through this process and has persistently fare dodged then prosecution may follow. Rather more tentatively, it seems to me that if only a small number of occasions of fare dodging are found them prosecution might not follow, in that the fewer the numbers, the less evidence there is of a pattern (and likely to have less evaded fares at stake).

But how many cases makes 'persistent'? And how few are 'only a small number '? If we can get some feel for this, it gives us a steer over whether to say 'ignore it, it will go away ' or 'prepare to negotiate a settlement', or even 'prepare to go to court'.

 

[skyhigh]

To start with, there's the question of whether charges *can* be brought after six months: to give something to get us going, here's my take from one of the advice threads;

My view is these letters are probably a fishing expedition looking for those who either don't understand the statute of limitations or worry about the potential consequences and want to get the matter settled as quickly as possible.

If over 6 months they can't look to prosecute under the Byelaws or RoRA but could look towards a Fraud conviction. In my opinion for a simple case of fare evasion it's unlikely they will have the evidence for this without a confession as it requires a much higher bar to pass compared to standard fare evasion.

However, my fear would be that they are looking into cases where the respondent was unwise enough to state in their letter/email/recorded phone call that the time they were stopped was a first offence or the first time they had evaded the fare when in reality it wasn't. The claim that the respondent had fraudulently represented their position, which was taken in good faith hence the settlement offer, had since through routine checks been found to be a lie would be a much stronger position for a Fraud conviction. Especially if supported by evidence that the respondent had lied.

 

[Fawkes Cat]

My view is these letters are probably a fishing expedition looking for those who either don't understand the statute of limitations or worry about the potential consequences and want to get the matter settled as quickly as possible

We probably don't want to get bogged down over language, but it's not a 'fishing expedition': please see my post #6. The railway have reason to suspect that an offence (or offences) has been committed and they're looking for evidence that will confirm or deny this. That's not fishing; it's following up existing evidence.

If over 6 months they can't look to prosecute under the Byelaws or RoRA but could look towards a Fraud conviction. In my opinion for a simple case of fare evasion it's unlikely they will have the evidence for this without a confession as it requires a much higher bar to pass compared to standard fare evasion.

It seems to me that many repeated short tickets will, in the absence of evidence that the appropriate short journeys were made (as opposed to longer journeys beyond the short fare), ultimately add up to showing beyond reasonable doubt that short faring was taking place.

I've said in another thread, but I think it bears repeating, that while 'beyond reasonable doubt' (the criminal test of certainty) is a lot more strenuous than 'the balance of probability' (the civil test), it's less strenuous than 'beyond all possible doubt'. There comes a point where it is so unlikely that something didn't happen (even though it is still conceivable) that a court will accept that it happened.

However, my fear would be that they are looking into cases where the respondent was unwise enough to state in their letter/email/recorded phone call that the time they were stopped was a first offence or the first time they had evaded the fare when in reality it wasn't. The claim that the respondent had fraudulently represented their position, which was taken in good faith hence the settlement offer, had since through routine checks been found to be a lie would be a much stronger position for a Fraud conviction. Especially if supported by evidence that the respondent had lied.

And this would be another route open to the railway.

 

[Watershed]

We probably don't want to get bogged down over language, but it's not a 'fishing expedition': please see my post #6. The railway have reason to suspect that an offence (or offences) has been committed and they're looking for evidence that will confirm or deny this. That's not fishing; it's following up existing evidence.

I'm not at all convinced that the railway has any real suspicion. I wouldn't be surprised if they are just digging up old cases in combination with some basic statistical/data analysis, and are "shaking the tree" in the hope that some recipients of their letters bottle it.

It seems to be little more than a revenue-raising exercise. If it were a genuine attempt at bringing fraudsters to justice, they would have done this sort of investigation in the first place.

 

[skyhigh]

It seems to me that many repeated short tickets will, in the absence of evidence that the appropriate short journeys were made (as opposed to longer journeys beyond the short fare), ultimately add up to showing beyond reasonable doubt that short faring was taking place.

Short faring, yes. But over 6 months the normal fare evasion options are out. Would it meet the evidential test for Fraud without anything else? I doubt it.

This is the key difference between this and the Delay Repay letters we saw - with those cases there was written evidence of the claimant misrepresenting their position for financial gain by claiming DR for trains they weren't on.

We probably don't want to get bogged down over language, but it's not a 'fishing expedition': please see my post #6. The railway have reason to suspect that an offence (or offences) has been committed and they're looking for evidence that will confirm or deny this. That's not fishing; it's following up existing evidence.

But they are following up existing evidence that is essentially useless to them. The wording in the letters is very careful - if they had what they needed for a Fraud conviction then the letter would say that (as they tend to do for normal RoRA/Byelaw cases). In my opinion with these letters they are fishing for a confession or additional evidence they don't hold to get a settlement.

 

[Titfield]

We can speculate as much as want to but the problem is we simply do not know what policies the various TOCS work to and how those policies have changed.

My gut feel is that TOCs used to treat every incident as a one off unless they were presented with proof or a suggestion that it was not a one off (for example by a simple admission of other incidents) However I am beginning to think that rather than being presented with proof it wasnt a one off, the TOCS now as a matter of course look for an online account belonging to the person and check the account. If they find what they believe to be suspicious activity then they investigate further. If the online account doesnt raise any flags then only the current incident is dealt with, if there is suspicious activity then the investigation goes up a notch. I wonder what % of customers do not use an online account to make bookings with.

Perhaps I am exceedingly cynical but I cant help but feel that many will see not paying their fare as an "easy win", victimless crime and a form of compensation for poor service, cancelled trains etc etc.

 

[fandroid]

Why are these cases being reopened rather than dealt with straight away? Unless someone has attempted to hide their purchasing history (as in the court case mentioned in another recent thread) then finding the suspect's purchasing history is not obviously a time consuming operation and putting pressure on the suspect early on is as likely to be a rewarding result for the TOC as going through one settlement and digging the history up later.

Most we encounter buy online tickets from a single source.

 

[30907]

Just a comment, slightly OT - while fraudulent behaviour is being discussed, and the likes of Chiltern have Fraud Teams, I don't recall any actual cases under the Fraud Act (or whatever its title is). Even Stonegate Man settled out of court IIRC and the recent case in Bucks doesn't specify the charge.

 

[island]

Why are these cases being reopened rather than dealt with straight away? Unless someone has attempted to hide their purchasing history (as in the court case mentioned in another recent thread) then finding the suspect's purchasing history is not obviously a time consuming operation and putting pressure on the suspect early on is as likely to be a rewarding result for the TOC as going through one settlement and digging the history up later.

Most we encounter buy online tickets from a single source.

They don't know who the suspect is until they catch them without a Railcard or short-faring. The vast majority of ticket purchases with Railcards are genuine, and there are also people who genuinely travel from Wembley Stadium to Marylebone.

 

[Master29]

Purchasing a discounted ticket you aren’t entitled to (with the intent of using it) is pretty obviously fraud.

Travelling on a train without buying any ticket, and without speaking to anyone, probably isn’t.

Whether there’s an implied dishonest representation made by purchasing a ticket or combination which you know does not cover the entire journey you intend to make, and whether this amounts to fraud when it causes yourself a gain or the railway companies a loss may be a more difficult question. Certainly worth train companies asserting that it does, until/unless higher courts clarify the situation.

Surely your first and third sentences mean the same thing in essence but as you say could be tricky questions in a court scenario especially bearing in mind words like "intent" and "implied". The joys of "grey areas"

 

[fandroid]

They don't know who the suspect is until they catch them without a Railcard or short-faring. The vast majority of ticket purchases with Railcards are genuine, and there are also people who genuinely travel from Wembley Stadium to Marylebone.

My point was - why don't they do the research on the purchase history at the same time as they deal with the offence for which the offender was challenged? So the occasions you mention have actually occurred and, for some reason, dealt with in isolation, before a later trawl through previous ticket purchases prompts an attempt at a second bite of the cherry. I don't think either of the occasions that prompted this thread involved Railcards

 

[island]

My point was - why don't they do the research on the purchase history at the same time as they deal with the offence for which the offender was challenged? So the occasions you mention have actually occurred and, for some reason, dealt with in isolation, before a later trawl through previous ticket purchases prompts an attempt at a second bite of the cherry. I don't think either of the occasions that prompted this thread involved Railcards

Sorry, I misunderstood your point. I agree that it should all be dealt with as part of the one sequence.

 

[pedr]

Surely your first and third sentences mean the same thing in essence but as you say could be tricky questions in a court scenario especially bearing in mind words like "intent" and "implied". The joys of "grey areas"

The first is where a person represents (to a machine, which counts) that they are entitled to a discount - that they are a child, or a holder of a railcard, for instance. If they know they are not entitled (rather than being a confused 17 year old or someone who hasn’t noticed their railcard has expired) then this is dishonest. This can then be fraud.

Calling doughnutting “fraud” means identifying the dishonest representation, so is much more arguable.

 

[Master29]

Calling doughnutting “fraud” means identifying the dishonest representation, so is much more arguable.

It would, however indicate knowledge of dishonesty knowing it would be cheaper by perhaps looking at the direct route and prices via the website. Again of course interpretable especially with hotspots where this is a common occurrence. Balance of probability perhaps?

 

[pedr]

It would, however indicate knowledge of dishonesty knowing it would be cheaper by perhaps looking at the direct route and prices via the website. Again of course interpretable especially with hotspots where this is a common occurrence. Balance of probability perhaps?

There may be other appropriate offences but for the main fraud one, a court has to be sure that the defendant a) was dishonest; b) made an untrue or misleading representation (expressly or impliedly); c) knew that it was, or might be, untrue or misleading; d) intended to cause himself a gain or some other person a loss.

Since the representation can be express or implied I think the main question is whether a person who buys a ticket from A to B and C to D is representing that these tickets entitle him to take the journey he's intending to make. I can see arguments on both sides of this, but it's clearly not as obvious a case of fraud as a person who buys a ticket they know they are not entitled to at all.

More involved and sophisticated schemes where there is the creation of multiple accounts, lying to revenue inspectors, and other methods to obfuscate things are easier to fit into the crime of fraud, in my opinion.