Fare evasion: Error use of freedom pass

[sad sally]

Desperately seeking help
I have been charged with fare evasion and saw the SJP very late. I used my mothers freedom pass by mistake. I would like to write to TfL to settle out of court and pay whatever penalty or compensation they require but avoid prosecution. I am currently unemployed and have a mortgage to pay so can't afford hefty fines or a criminal record . The due date for SJP response is 8th Jan 2024. I have two questions 1) What email should I write to explain my circumstances, admit my mistake and request for a settlement? 2) Is there any way that I can extend the deadline for the SJP? I would like to attempt an out of court settlement before going down that route. Please advise.

 

[Fawkes Cat]

Welcome to the forum!

I know this will not be what you want to hear, but the best option may be to plead guilty to the SJPN, now and without seeking an extension. That’s because from what you say you are guilty of the offence, and our understanding is that TfL do not generally agree to out of court settlements. This is especially the case for things like Freedom passes where there’s the possibility of TfL making quite a big loss.

If you do want to try for an out of court settlement, then you should plead not guilty to the SJPN (i.e. don’t ignore it - still get it returned as soon as possible). That will get you a court date some time in the future and that will give you the time before the court date to negotiate with TfL. But as above, I would not expect that you will succeed in that negotiation, and on top of that my understanding is that you will lose the full discount on the fine for an early guilty plea. So it will take longer (which may be stressful) and if you don’t succeed it will cost you more.

Whatever you do, don’t ignore the SJPN. If you do, the court will find you guilty, and charge a fine which assumes you have a fairly good income. If you respond, you should be able to explain how much (little) you have coming in, and so the fine will be based on your real income.

 

[sad sally]

Welcome to the forum!

I know this will not be what you want to hear, but the best option may be to plead guilty to the SJPN, now and without seeking an extension. That’s because from what you say you are guilty of the offence, and our understanding is that TfL do not generally agree to out of court settlements. This is especially the case for things like Freedom passes where there’s the possibility of TfL making quite a big loss.

If you do want to try for an out of court settlement, then you should plead not guilty to the SJPN (i.e. don’t ignore it - still get it returned as soon as possible). That will get you a court date some time in the future and that will give you the time before the court date to negotiate with TfL. But as above, I would not expect that you will succeed in that negotiation, and on top of that my understanding is that you will lose the full discount on the fine for an early guilty plea. So it will take longer (which may be stressful) and if you don’t succeed it will cost you more.

Whatever you do, don’t ignore the SJPN. If you do, the court will find you guilty, and charge a fine which assumes you have a fairly good income. If you respond, you should be able to explain how much (little) you have coming in, and so the fine will be based on your real income.

Thank you for the response. I was made redundant last year and have struggled to find a job ever since. I have no income right now. Would this be considered in my case? Also, if I plead guilty on the SJP and reach out to TfL Prosecution for an out of court where an settlement is agreed, does TfL have the authority to dismiss the SJP?

 

[alholmes]

If you plead guilty on the SJP then the court will impose the fine & costs. TfL will not be able to dismiss it. The SJP papers should have a section for you to set out your income, which will be considered when setting the level of the fine. You will probably also be able to negotiate with the court to pay in instalments, which is not usually possible with an out of court settlement.

 

[Fawkes Cat]

Thank you for the response. I was made redundant last year and have struggled to find a job ever since. I have no income right now. Would this be considered in my case? Also, if I plead guilty on the SJP and reach out to TfL Prosecution for an out of court where an settlement is agreed, does TfL have the authority to dismiss the SJP?

As I understand it, your level of income is considered in setting the fine.

You can't plead guilty and then look for an out of court settlement.

 

[sad sally]

Thanks for the advise. Could you please help me understand why I can't ask for an extension? Also, would you know the process to do so - is there someone I can email? I am asking this as I do want to give an out of court settlement a fighting chance before going down the judicial process and to your point, I dont want to not reponsd to the SJP.

As I understand it, your level of income is considered in setting the fine.

You can't plead guilty and then look for an out of court settlement.

 

[Fawkes Cat]

Could you please help me understand why I can't ask for an extension?

I'm not quite with you here. I'll answer what I think you're asking, but if I have the wrong end of the stick, please say and explain in a way I might be able to cope with!

I think you are asking why you can't negotiate an out of court settlement after the matter has been to court. That's because the court is a formal process which determines the facts (including your guilt or innocence) and then if you are guilty imposes a punishment. This is expensive and time consuming, so it is sometimes possible to short circuit the process by the parties involved coming to their own settlement without bothering the court.

In an out of court settlement, enough facts have been agreed for the parties to be happy. After the case has gone to court, the facts are known (they're what the court has decided) so there's nothing to negotiate. So there can't be an out of court settlement after you have been to court!

 

[WesternLancer]

I'm not quite with you here. I'll answer what I think you're asking, but if I have the wrong end of the stick, please say and explain in a way I might be able to cope with!

I think you are asking why you can't negotiate an out of court settlement after the matter has been to court. That's because the court is a formal process which determines the facts (including your guilt or innocence) and then if you are guilty imposes a punishment. This is expensive and time consuming, so it is sometimes possible to short circuit the process by the parties involved coming to their own settlement without bothering the court.

In an out of court settlement, enough facts have been agreed for the parties to be happy. After the case has gone to court, the facts are known (they're what the court has decided) so there's nothing to negotiate. So there can't be an out of court settlement after you have been to court!

or is @sad sally asking why the deadline to submit the SJPN of 8 Jan (with their plea) can't be extended - to give them time to ask TfL for an out of court settlement and then the court action be withdrawn?
Whatever the answer to that is, I would say to the OP to be mindful of your post #2 and the content of it.

 

[sad sally]

I'm not quite with you here. I'll answer what I think you're asking, but if I have the wrong end of the stick, please say and explain in a way I might be able to cope with!

I think you are asking why you can't negotiate an out of court settlement after the matter has been to court. That's because the court is a formal process which determines the facts (including your guilt or innocence) and then if you are guilty imposes a punishment. This is expensive and time consuming, so it is sometimes possible to short circuit the process by the parties involved coming to their own settlement without bothering the court.

In an out of court settlement, enough facts have been agreed for the parties to be happy. After the case has gone to court, the facts are known (they're what the court has decided) so there's nothing to negotiate. So there can't be an out of court settlement after you have been to court!

Thank you for confirming this. I do want to give an out of court settlement a fighting chance but given that the SJP is due tomorrow I want to ask for an extension rather than plead not-guilty (as, as you mentioned, out of court may not work and I did make a mistake). Therefore, mplease advise on how I can extend the deadline for the SJP? Will calling them up be helpful?

 

[Fawkes Cat]

Thank you for confirming this. I do want to give an out of court settlement a fighting chance but given that the SJP is due tomorrow I want to ask for an extension rather than plead not-guilty (as, as you mentioned, out of court may not work and I did make a mistake). Therefore, mplease advise on how I can extend the deadline for the SJP? Will calling them up be helpful?

With you now. Unfortunately I don't know the answer. You could try phoning them tomorrow to find out.

 

[AndroidBango]

I might have missed it, but why did you see the SJP late? If it was sent to another address or help up in the Christmas post you'll have a better chance of asking for a delay than, say, not opening your post

 

[skyhigh]

Probably not what you want to hear, but -

TfL normally send at least 2 letters before proceeding to issue a SJPN. This is when you have the chance to engage with them.

If you got these letters but ignored them, why should TfL now offer you the opportunity to delay things further when you missed your chance?

If you didn't get those letters (through no fault of your own) then that would offer a chance to negotiate with TfL. But as far as I'm aware the deadline for responding to a SJPN can't be extended.

 

[Snow1964]

Thank you for confirming this. I do want to give an out of court settlement a fighting chance but given that the SJP is due tomorrow I want to ask for an extension rather than plead not-guilty (as, as you mentioned, out of court may not work and I did make a mistake). Therefore, mplease advise on how I can extend the deadline for the SJP? Will calling them up be helpful?

Extending the deadline is very difficult unless there is a genuine reason, eg royal mail was on strike and only received it after the deadline. If as an example your postal deliveries have been sparse and only received it yesterday (2 days before deadline), then worth ringing and/or emailing stating that. It might buy you a week (but I don't know).

However if you ignored previous correspondence, when they were asking for info, then not much can be done now.

One thing I do know is if they have it on file there was late receipt, court will not be too impressed if they then declare you didn't respond.

 

[island]

If you do want to try for an out of court settlement, then you should plead not guilty to the SJPN (i.e. don’t ignore it - still get it returned as soon as possible). That will get you a court date some time in the future and that will give you the time before the court date to negotiate with TfL. But as above, I would not expect that you will succeed in that negotiation, and on top of that my understanding is that you will lose the full discount on the fine for an early guilty plea. So it will take longer (which may be stressful) and if you don’t succeed it will cost you more.

This is correct. There is no mechanism to “seek an extension”.

 

[Hadders]

Welcome to the forum!

I am sorry to hear of your recent difficulties.

Transport for London take misuse of Freedom Passes very seriously and they don't normally allow out of court settlements. Prosecution under the TfL Bylaws via the SJPN process is the normal outcome.

TfL will have sent you an initial Verification Letter asking you to confirm or deny the offence and to give any mitigating factors you wanted them to take into consideration before they decided how to proceed. Did you get this letter? If so did you reply to it? What did you say?

Here's a link to TfL's Revenue Enforcement & Prosecutions Policy which you might find useful.

https://content.tfl.gov.uk/revenue-enforcement-and-prosecutions-policy.pdf

 

[WesternLancer]

Thank you for confirming this. I do want to give an out of court settlement a fighting chance but given that the SJP is due tomorrow I want to ask for an extension rather than plead not-guilty (as, as you mentioned, out of court may not work and I did make a mistake). Therefore, mplease advise on how I can extend the deadline for the SJP? Will calling them up be helpful?

However you get on when you try to ring them, bearing in mind what others have said - but one key thing is do not miss the deadline of today unless you can get some sort of written confirmation of an extension (which seems unlikely from what others have said but I am no expert in this) as that will not help and I would far could make it all cost you more as a result.

 

[sad sally]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

 

[Hadders]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

I cannot be certain, but I would have thought that it would need to be a medical condition that impacts your ability to make decisions compared to someone who doesn't have a condition.

 

[FenMan]

I cannot be certain, but I would have thought that it would need to be a medical condition that impacts your ability to make decisions compared to someone who doesn't have a condition.

If the medical condition is the very common these days "suffering from anxiety" (and I'm not saying this could apply to the OP) then that would be a big hill to climb. Unless very compelling evidence is presented, the train company is likely to conclude such anxiety issues have resulted from being caught out.

 

[Brissle Girl]

Did your condition (assumed to be anxiety) contribute to your picking up and using the Freedom Pass? It would seem unlikely, so I doubt it would be regarded as mitigating circumstances.

As others have said, if anxiety is a consequence of your actions then rail companies will tend to take a rather jaundiced view of that, as being anxious having been caught will be rather normal. It’s very unlikely to influence their decision to prosecute.

 

[AlterEgo]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

Probably something which makes it not in the public interest to prosecute, like being terminally ill, or perhaps a severe learning disability.

 

[spotify95]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

To be honest, I highly doubt that anxiety will be a contributing factor to not prosecuting, more likely considered as a follow on from being caught (and the risk of prosecution).
Not sure about mental health as these can vary - someone with more knowledge should be able to comment.

Though interestingly, going back to the enforcement policy:

"TfL will not normally prosecute any person under the age of 18 on the day of the relevant offence. ... However, where the offence is of a serious nature, TfL may prosecute or in appropriate cases refer such an offence to the Police.
TfL considers the following offences to be of a serious nature:
Using valued passes issued to TfL Employees / Freedom pass holders"

So if TFL will prosecute a minor for Freedom Pass misuse, they will certainly prosecute an adult for the same offence. I reckon their decision is probably made up when they send the Verification Letter, because unlike other TOCs, TFL don't offer out of court settlements.

 

[Fawkes Cat]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

I hope that I am misunderstanding your exact position, but as the SJPN required a response by 8 January then unless you have managed to agree an extension you are now late in replying.

I don't know specifically how magistrates' courts deal with late pleas, but they would be within their rights to ignore anything they get late and treat you as failing to plead, so putting you on the default track to a conviction and being fined on the assumption of an average income.

I appreciate that you would like to negotiate with TfL but it seems to me that your priority should be staying off the default track and being treated as an individual. Get your plea and financial details in today, and then think about the chances of negotiation.

 

[Deafdoggie]

Thank you for the responses.
Out of interest, there is a reference in the Prosecution policy to prevailing medical conditions that may deter prosecution (8.2d). What kind of medical conditions would this be referring to? Would mental health and anxiety issues count?

I would take it to mean something that impacts the ability to have purchased the correct ticket, so, say, the only ticket machine was too high for you to reach as you're in a wheelchair, or it's only visible and you're blind. In these cases purchasing a ticket isn't possible for you. Should you be registered blind and picked up the wrong card that might be covered. But having been caught and getting stress or anxiety would not be covered. Indeed, they might argue that if you suffered from anxiety you'd be even more careful to get the right ticket to avoid making your condition worse. For example (I don't travel in London very much at all) I believe oyster readers "beep" when you present your ticket, I can't hear this, so I always look for the visual confirmation because I know I can't hear it. My disabled railcard was attached to my oyster and only once did an inspector call after me to look at it, but I didn't hear him so carried on! It was only when I felt a hand on my shoulder I stopped! However, once the inspector realised, they were fine with the explanation why I hadn't initially stopped. That is the kind of medical reason they are looking for & they are just checking they've not missed anything.

 

[sad sally]

In my comms with TfL, where I have admitted to my mistake, TfL wants to continue with the prosecution. TfL is very clear in stating that it wasn't a mistake and that it was intentional. However, it was a mistake. The question I have is, how does TfL prove intent? I have admitted to a mistake and unlike other posts, I'm not blaming ticket machines, inspectors, apps etc. It was a mistake on my part and I claim full responsibility. So I am surprsied that TfL is stating that it wasn't a mistake which is the basis of pursuing prosecution. From what I have read, intent is hard to prove. Is there a policy or Prosecutors Code that TfL follows to prove intent? How do I respond to this?

 

[JBuchananGB]

It would seem that somehow you have arranged a deferral of the process. Well done. However, I cannot see in this thread anywhere where you have explained how the “mistake” occurred, and thus what you are pleading in terms of mitigation. You have also not mentioned how often you made this “mistake”. TFL on the other hand will have looked at the usage history of the pass, and formed an opinion on that aspect of the case. You are between a rock and a hard place and may have to accept the consequences of your action, however mistaken it was.

 

[Brissle Girl]

If you look at the bottom of page 8 of TfLs prosecution policy, I’m afraid it clearly says that they will not accept use of someone else’s pass as a mistake. So I am afraid there appears no avenue open to you to avoid prosecution.

I think you are at the end of the road, and realistically the advice from the start has been that a settlement was highly unlikely given TfLs reluctance to offer them under any circumstances, let alone one involving a high value pass.

 

[AlterEgo]

In my comms with TfL, where I have admitted to my mistake, TfL wants to continue with the prosecution. TfL is very clear in stating that it wasn't a mistake and that it was intentional. However, it was a mistake. The question I have is, how does TfL prove intent? I have admitted to a mistake and unlike other posts, I'm not blaming ticket machines, inspectors, apps etc. It was a mistake on my part and I claim full responsibility. So I am surprsied that TfL is stating that it wasn't a mistake which is the basis of pursuing prosecution. From what I have read, intent is hard to prove. Is there a policy or Prosecutors Code that TfL follows to prove intent? How do I respond to this?

No intent need be proven, as they will prosecute you under the Bylaws for a strict liability offence.

TfL has a political incentive to prosecute Freedom Pass misuse; these passes are paid for mostly by London Boroughs from the proceeds of people's council tax, and TfL had to go cap in hand for extra funding in the past couple of years because of a shortfall in passenger revenue. TfL prosecute thousands of people a year.

Quite clearly, proving someone's intent in using a Freedom Pass which isn't theirs is going to be quite difficult. That's why, like speeding and a number of other criminal matters, the offence is one of strict liability. You only need to be caught using someone else's pass, and no "guilty mind" or intent comes into play at all. Whether you made a genuine mistake or used it on purpose is not relevant.

Could you upload a copy of the "comms" TfL has sent you where they are talking about your intent? It is odd they would bother with discussing this when it is not a fact relevant to the case.

This notwithstanding, settling out of court remains a remote possibility I'm afraid.

 

[Hadders]

In my comms with TfL, where I have admitted to my mistake, TfL wants to continue with the prosecution. TfL is very clear in stating that it wasn't a mistake and that it was intentional. However, it was a mistake. The question I have is, how does TfL prove intent? I have admitted to a mistake and unlike other posts, I'm not blaming ticket machines, inspectors, apps etc. It was a mistake on my part and I claim full responsibility. So I am surprsied that TfL is stating that it wasn't a mistake which is the basis of pursuing prosecution. From what I have read, intent is hard to prove. Is there a policy or Prosecutors Code that TfL follows to prove intent? How do I respond to this?

TfL does not have to prove intent. All they have to secure a Bylaw conviction is show you didn’t have a valid ticket when you were caught.

 

[sad sally]

Thank you for all the advice and guidance provided. It was very helpful given that this is such a stressful experience.

I wanted to uppdate those that helped on my case:
- As suggested by others, TfL did NOT agree to an out of court settlement. So I went ahead with the SJPN
- I called HMCTS to request an extension on the deadline given that I was emailing TfL for a settlement. There is no formal extension policy, HOWEVER, HMCTS did add a note on my account to state that I was in communication with TfL and would respond to the SJPN a few days late. HMCTS assured me that this would not affect the resolution in any way.
- Once I did submitted my plea, I received a response a few days later with the penalty amount. I am assuming that because I am unemployed, the penalty was limited to few hundred pounds.
- I did call HMCTS to ask about the impact on DBS checks, they were unhelpful in this matter. I guess I can do a check on myself to figure it out.

In all, this was a very harrowing process. My advice to others is to take action as soon as possibe and to not ignore the initial letter. I reached out to TfL on [email protected] for initial correspondence. An officer responded so emailed him directly thereafter. TfL was helpful in that they responded on the same day given that I was on a tight timeline. I called them to have the case expedited.

Hope this is helpful to others. And, again, thank you to all that helped with their insights.