Is it ever worth going to court?

[Sadmum68]

Hi all. I'm looking for advice on whether it is ever worth going to court. My (silly) daughter was caught using a fake railcard. The letter came and after reading advice on this forum she responded and asked for an out of court settlement. The letter came yesterday and they have offered her an out of court settlement at a cost of £2023! This seems rather a lot and they also want the payment in full. We wonder whether it may be worth going to court instead, and whether personal circumstances are ever taken into account. She is 23, only has a part time job in a cafe, has some savings but nowhere near enough. In addition to this her (remarried) father is terminally ill and she sometimes has to miss work to help look after her younger sister. He hasn't been able to work for several years and they can not help. I can help a bit, but can not afford it all (and neither should I, as she has brought this on herself). We understand that she can not be anything other than guilty and we think the fine is so severe as they had evidence that she used the fake railcard over quite a few months. I suspect it is a case of 'shut up and put up', but any help would be greatly appreciated. Thank you.

 

[30907]

Your daughter needs to estimate the amount of travel she did, at full fare not discount, if she hasn't already done so, and see if £2023 is in the right ballpark.

I suspect the alternative is not a prosecution under the Byelaws, but under the Regulation of Railways Act S.5, which would be more serious though not life-changing, as well as potentially (not necessarily) costing more. A fine imposed by the court will be income-related, but the costs on top won't be

It might be worth uploading a redacted copy of the letter, or at least giving the key information - what train operator, what railcard, what potential offence is mentioned (if it's specific).

 

[Titfield]

The out of court settlement offered is not a fine (though it may appear as one). It will be based on the fares avoided plus an administration fee for investigating this matter.

If the matter goes to court and your daughter pleads guilty she will have to pay (1) a fine based on her income (2) a victim surcharge (3) compensation to the train operating company which is the amount of fares avoided as calculated by the train operating company plus an admin fee (which is probably the same as the out of court settlement offered).

You are effectively asking if going to court and pleading guilty would mean that somehow the court would rule that the amount of money claimed by the Train Operating Company for fares avoided is too high and that a lower amount of compensation (fares avoided) is more appropriate. This is very unlikely.

Have you and your daughter calculated the fares avoided? Have you done two different calculations (1) based on the full single fare for each and every journey (2) based on the lowest possible fare ie off peak singles / returns as appropriate. Some tocs taken into account the fares already paid, some ignore it. Can you see how the out of court settlement is calculated.

Have you also considered the fine your daughter would have to pay (to the court based on income) and the victim surcharge?

Unless the TOC have miscalculated I very much doubt that the total monies to be paid from going to court would be less than the out of court settlement avoided.Indeed it should be more because of the fine and victim surcharge. The advantage (if one can call it that) is the court can be paid in stages over a period of time however she would then have a criminal record which could cause problems later.

My opinion is that going to court to plead guilty should be avoided. It may be possible to persuade the toc to accept 50% upfront and then the remaining 50% over say 6 months. You could offer to act as a guarantor. Some companies are more amenable to this type of arrangement than others.

The only personal circumstances taken into account is income and thus the amount of the fine and victim surcharge.

 

[Gloster]

If you upload the letter, make sure you obscure any identifying details: name, address, reference numbers, etc.

When making an out of court offer the railway normally calcules their offer on the basis of the full Anytime Single fare for each and every journey made, i.e. for a return journey that is a Single fare for the outward leg and another Single fare for the return. No allowance is made for any money that was paid for any tickets that were bought. They then add their investigation costs, which usually start at around £100-150, but can be more if the investigation is complicated.

 

[Wolfie]

Out of curiosity which TOC is your daughter engaged with?

 

[Sadmum68]

Thank you so much for your replies. Here is a copy of the letter.

It has been recommended to us to email them back and explain the lack of personal finances and see if they will reconsider the amount. Do you think there is any mileage in this idea? I understand that we need to work out the estimated cost of the fares, and we will do so, but as a general principle would they ever reconsider the amount? Many thanks

 

[Pushpit]

A court imposed sanctions can be paid over time. Courts try to make that as short as possible, and will press quite hard for this to be as short as possible. One year is at the top end of this (so 12 payments over 1 year). But they can authorise a longer period, say 2 years, and can modify the payment schedule to take account of changing circumstances. Non payment of the court sanction could result in imprisonment (but almost never does, plus the debt doesn't go away), and failure to communicate with the court about non payment can result in further sanctions and hassle.

That said, the rail company will not want to see the money arriving in dribs and drabs via HMCTS, so they may be amenable to a payment plan. It may be the small amount of leverage you have here.

I do wonder if the rail company is using Anytime Single as a basis for their losses, whether a magistrate would be receptive to a recalculation based on actual loss to the railway - so whatever was the cheapest way of doing it plus the cost of a properly acquired railcard. The magistrate would thus view the court fine as the punishment and the TOC would get their admin. costs in the sanction. In other areas I've seen this happen. I'm not sure I've seen a report of this for rail based criminals, so I think it's unlikely, but it's the only risky benefit I can think of here.

 

[Puffing Devil]

Thank you so much for your replies. Here is a copy of the letter.

It has been recommended to us to email them back and explain the lack of personal finances and see if they will reconsider the amount. Do you think there is any mileage in this idea? I understand that we need to work out the estimated cost of the fares, and we will do so, but as a general principle would they ever reconsider the amount? Many thanks

Why should they reconsider? Your daughter has daughter knowingly defrauded the railway, which is publically owned, and by extension, defrauded the taxpayer.

The only point of contention is the amount of compensation owed. You'll need to base that on the journeys made. Did she have a valid rail card for any of the trips? Can that be proved? TPE has investigated her purchase history. I suggest you do the same by reviewing her online accounts and emails.

Should it go to court your daughter will have a criminal record, which may persist for some time and some applications and have implications for travel: she will need to attend an interview for the USA, for example. The costs sought by TPE will also increase to cover the course of preparing for, and attending, a court hearing.

For such an extended and deliberate period of evasion, there will be very little sympathy from the magistrates, should it end in court.

I would consider searching around family and friends to secure the payment and put it behind you and your daughter as a very harsh lesson learned for the sake of a £30 saving.

 

[island]

The only counterpoint I would give to the above is that if it goes to court it’s likely that only the offence committed on the day on which the passenger was caught will be prosecuted. Perhaps along with offences from the last quarter of 2023. Anything older is out of time.

 

[Puffing Devil]

The only counterpoint I would give to the above is that if it goes to court it’s likely that only the offence committed on the day on which the passenger was caught will be prosecuted. Perhaps along with offences from the last quarter of 2023. Anything older is out of time.

That is true if they stick to a railway offence. This is clear-cut fraud with no prosecution time limit. Possession of the fake railcard itself is enough for a conviction under the Fraud Act.

 

[Fermiboson]

We have seen cases on this forum before of TOCs demanding exorbitantly and unreasonably high out of court settlements, so it is not impossible that the amount may be reduced; but this needs to be based on the actual amount of fares evaded, not a sob story. 2000 pounds for a fake railcard does seem a bit high, unless your daughter has been commuting from Birmingham to London for half a year.

The TOC's usual practice is to assume all purchases made with a railcard are fraudulent. Is this true (i.e. has your daughter ever had a valid railcard)? If it isn't, there may be a case for identifying the transactions which were made with a valid railcard, and presenting those to the TOC to see if they will consider lowering the amount.

However, it must be emphasised that unless you are not guilty (either entirely, or of the vast majority of the offences they are accusing you of), going to court is always a bad idea, and will probably incur greater financial loss over the long term what with missed career opportunities and such, even if it is cheaper over the short term (which it may very well not be). Your case with the TOC has to be based on actual loss. We also do not know what offence the TOC plans to prosecute under; a Fraud Act conviction will, not to put too fine a point on it, ruin your life. If you don't have the money, the best course of action is to scramble it together through any available means.

You may also consider asking for a payment plan. It used to be believed that TOCs never agree to payment plans and will want the money within a very short timeframe, but we have seen several cases to the contrary lately.

 

[island]

That is true if they stick to a railway offence. This is clear-cut fraud with no prosecution time limit. Possession of the fake railcard itself is enough for a conviction under the Fraud Act.

I have never encountered the railway prosecuting for fraud. Though I grant you it cannot be completely ruled out.

 

[30907]

While the amount is quite high, it's about 50 anytime singles from York to Manchester, so one return trip a fortnight.

And the only potential charge mentioned is under the Fraud Act - this may be sabre-rattling, as TOCs now seem to mention it in their standard letters, but this is a case-specific letter.

@Sadmum68, was there an earlier letter/mail?

 

[Somewhere]

I have never encountered the railway prosecuting for fraud. Though I grant you it cannot be completely ruled out.

To prosecute for fraud, they would need evidence. They only have evidence of one occasion, unless the OP's daughter is willing to incriminate themselves.
Would a TOC prosecute for one occasion?

 

[Fermiboson]

To prosecute for fraud, they would need evidence. They only have evidence of one occasion, unless the OP's daughter is willing to incriminate themselves.
Would a TOC prosecute for one occasion?

They would have evidence of more than one occasion through ticket purchase records.

 

[Haywain]

They only have evidence of one occasion, unless the OP's daughter is willing to incriminate themselves.

There is evidence of other tickets being purchased and, from what we have been told, no possibility that the OP's daughter can refute suggestions that those tickets were also used.

 

[Puffing Devil]

There is evidence of other tickets being purchased and, from what we have been told, no possibility that the OP's daughter can refute suggestions that those tickets were also used.

Also, possessing and using the fake (fraudulent) railcard is a slam dunk prosecution win under the Fraud Act, even if it is a single occurrence.

 

[Somewhere]

They would have evidence of more than one occasion through ticket purchase records.

That is only evidence that those tickets were purchased. There is no evidence they were used by her

 

[SteveM70]

@Sadmum68 I think the fundamental question that you haven't clearly answered is whether your daughter has ever owned a valid railcard. They're suggesting she hasn't, at least not since 21/4/23. If that's the case, its a question of totting up the cost of the journeys she made to see if the amount demanded is correct.

If she has owned a valid railcard during some of this period she needs to provide them with evidence

 

[TheJester]

Could the railway even bring a private prosecution for fraud or would the CPS need to be involved?

 

[Haywain]

Could the railway even bring a private prosecution for fraud or would the CPS need to be involved?

Yes, they could.

 

[TheJester]

Yes, they could.

Interesting to know, thank you. I thought they could only prosecute under specific legislation.

 

[Somewhere]

Interesting to know, thank you. I thought they could only prosecute under specific legislation.

But would the railway be competent enough to bring such a prosecution?

 

[AlterEgo]

But would the railway be competent enough to bring such a prosecution?

It's unlikely they would choose to.

To be honest, for a fraudulently altered railcard, the OP should be lucky they were caught on the railway and not in some other setting, where the police would be called and they'd have been arrested.

 

[Puffing Devil]

That is only evidence that those tickets were purchased. There is no evidence they were used by her

Caught in possession of the fake railcard, history of the purchase of tickets with a railcard when none was held. I'd say that was beyond reasonable doubt.

But would the railway be competent enough to bring such a prosecution?

Yes, they could.

Last year, Northern raised the flag of using the Fraud Act to prosecute fare evaders. The letter posted by the OP is very specific about this. I'd say that they would be prepared to prosecute. Nothing stops TPE from hiring counsel to run the case in court.

Edit Fair/Fare. Thanks autocorrect!

 

[Sadmum68]

Thank you very much for your time in answering my query. Your replies have really helped me to understand the laws and likely scenarios and outcomes. I think we are going to have one attempt at seeing if we can agree a payment plan with the rail company. While that is ongoing we will try to scrape up the money between the family. I feel the easiest solution is to borrow the money within in the family and then create a payment plan between ourselves.

Again, thank you for considering our dilemma and helping us understand the laws.

 

[furlong]

As others have said, the most important thing is to work out yourself what journeys were involved and the estimated loss to the railway from the fraud. If this goes to court, that is the minimum amount of compensation they'll be awarded (plus there'll be all the other things added on top and a criminal conviction you really really do not want to collect). Then compare that figure of estimated loss with the figure they are asking for here, remembering that they've incurred additional costs dealing with the whole thing, and consider whether or not the difference makes it worth debating with them e.g. by requesting a breakdown of the amount or by presenting your own alternative calculation for comparison.

The forum has seen examples of people agreeing settlements lower than the amount originally presented in a letter such as this - but always on the basis of using a more-correct calculation (e.g. not being charged again for journeys when a valid railcard was actually held) and never on the basis of affordability or ability to pay. We also have examples of people agreeing payment plans, but I would tend towards saying it's better to handle that within the family if you possibly can so the entire matter is fully resolved in law and there's no risk of it reopening if any payment is missed.

There's one further factor to consider, which is if there are further journeys that TPE (or indeed any other railway company) has not yet discovered but might find later. If you ask for a breakdown, then it will be very clear what is and is not included in the settlement. As things stand, the settlement appears to cover all rail travel after the date given - even if they haven't actually taken it all into account in their calculation - because they chose to provide no details you're entitled to assume it covers everything it says. No railway company should be able to come back asking for more money later for travel after the date given, whereas if you obtain the breakdown from them, and they find more later, then they could certainly try. In other words, if you think the true loss to railway since the date given was more than they are asking for, then it's probably better just to accept it and not ask for a breakdown. (If this is the true situation, DO NOT say any more about this aspect on this public forum!)

 

[skyhigh]

I think it's probably a timely reminder from this thread that rail companies do prosecute under Fraud legislation, and that evading £2000 worth of fares with a faked Railcard is probably enough for them to pursue this option.

 

[MrJeeves]

I think it's probably a timely reminder from this thread that rail companies do prosecute under Fraud legislation, and that evading £2000 worth of fares with a faked Railcard is probably enough for them to pursue this option.

There's no suggestion from the article that they were prosecuted under the Fraud Act.

 

[SteveM70]

There's no suggestion from the article that they were prosecuted under the Fraud Act.

It does say "After he pleaded guilty to the fraud offence......"