Possible prosecution advice

[ninthrock]

Hello,

A friend inadvertently reused (by overwriting) a carnet card on their commute this morning and was caught by a ticket inspector. The details don't matter that much as they believe they are entirely at fault - they worked out what they had done later but were a bit dumbfounded at the time. They can only put it down to stupidity, laziness, and a bleary eyed early morning commute after a late flight last night - not that any of that excuses it; they entirely accept their guilt in the matter.

They didn't admit to anything at the time, saying that they believed their ticket to be valid; they were still trying to work out what had happened. The inspector confiscated their ticket, gave them an MG11(?) slip and said that they would send them out a letter. Unfortunately the train was FCC which I understand are the worst when it comes to prosecution.

It is a pretty cut and dried case really, and I've been reading through the sob stories here which has given me a rough idea of what they can expect. I was shocked and pretty upset to realise that they could get a criminal conviction for the sake of £5! They desperately want to avoid a criminal conviction as they regularly travel to and through the USA for work and to visit family (amongst other reasons of course).

Anyway, some questions:

- I understand that their only course of action is for them to hope to settle out of court by writing a grovelling letter of apology and offering to pay all costs. Should they wait until they receive a summons, or would there be something to be gained by pre-empting this?
- Will admitting guilt make it more likely that they then be prosecuted instead of settling?

Thanks in advance. I don't expect any sympathy for them as they know it was their own stupid fault. I'm just trying to work out what they can do now, hoping that a moronic lapse won't affect them for the rest of their life

 

[cuccir]

The bad news for your friend is that the FCC are often quite aggressive with regards to prosecuting mis-use of carnet tickets, due to the potential for fraud in their use.

An MG11 is a witness statement, so the slip is to confirm that your friend's comments have been taken down in evidence. It is likely that FCC will write to your friend asking for further details, before attempting to prosecute. This is usually the most appropriate time to write with an apology, and an offer to settle. Any settlement will likely be quite high, due to the potential seriousness of the offence.

In order to successfully prosecute under the Regulations of the Railways Act, they will have to prove that your friend attempted to avoid payment. I do not know if reusing a carnet ticket is sufficient evidence for this, but it may be - it may be worth your friend speaking to a solicitor (ideally one who specialises in railway legislation) in order to find out, but of course this does not come cheap. It may be that FCC attempt a Bylaw prosecution, and I'm sure that they will already have sufficient evidence for this (it does not require intent). If this were to occur, the good news for your friend is that Bylaw prosecutions do not create a Criminal Records.

So in summary - I'd wait, particularly as this is a potentially more serious case and therefore one which is less likely to be 'solved' with a small out of court settlement. That said, others may think that getting in touch quickly is the best solution...?

 

[ninthrock]

Thank you for that, I'll pass it on.

 

[ninthrock]

An update:

After several letters of apology my friend has managed to get in touch with the prosecutions department at FCC. They suggested that a settlement offer would probably be accepted in order to avoid prosecution and to write a letter of offer with a cheque enclosed (I'm paraphrasing). It was stated that they would pursue the matter under 'travelling without a valid ticket' and 'altering a ticket'.

The tricky part then becomes how much for them to offer.

The suggestion was ~£11 for the fare, and £140 for their costs, plus an amount of settlement. I understand the upper limit for a successful prosecution at a magistrates court would be £1000; the suggestion from the FCC prosecutor was for 50% of weekly take home pay as a starting point. Does anyone have any suggestions on this?

 

[Fare-Cop]

An update:

After several letters of apology my friend has managed to get in touch with the prosecutions department at FCC. They suggested that a settlement offer would probably be accepted in order to avoid prosecution and to write a letter of offer with a cheque enclosed (I'm paraphrasing). It was stated that they would pursue the matter under 'travelling without a valid ticket' and 'altering a ticket'.

The tricky part then becomes how much for them to offer.

The suggestion was ~£11 for the fare, and £140 for their costs, plus an amount of settlement. I understand the upper limit for a successful prosecution at a magistrates court would be £1000; the suggestion from the FCC prosecutor was for 50% of weekly take home pay as a starting point. Does anyone have any suggestions on this?

£1000 fine is the maximum applicable for a first offence and if this is a first time offence, the fine imposed would never reach that amount. More likely £400 reduced further to around £270 if the defendant pleads guilty and in any case, FCC receive no part of that even if they are successful in prosecuting the offence.

Remember all that FCC would get if successful at Court is the £11 fare and a maximum of their costs claim, which you have said will be £140.

 

[ninthrock]

Thank you, that is very much appreciated.

 

[martybabes]

Fines handed down are based on the Defendant's means although discounts are available for a first offence and if an early guilty plea is lodged. I have always used, as a rule of thumb, the formula of 10% of the max fine as the most likely outcome plus a contribution towards the prosecution costs (which can be anything from zilch to several hundreds of £££s). If the Defendant is on benefits, the fines can often be lower than that.

 

[Fare-Cop]

Fines handed down are based on the Defendant's means although discounts are available for a first offence and if an early guilty plea is lodged. I have always used, as a rule of thumb, the formula of 10% of the max fine as the most likely outcome plus a contribution towards the prosecution costs (which can be anything from zilch to several hundreds of £££s). If the Defendant is on benefits, the fines can often be lower than that.

Magistrates will consider an offenders' circumstances, but the actual process by which sentences are arrived at is quite clearly defined for them

This is the definitive guide to sentencing guidelines:

http://sentencingcouncil.judiciary.gov.uk/docs/MCSG_Update9_October_2012.pdf

In a case of conviction for a first offence of 'intent to avoid a fare' the maximum fine that can be considered is £1000. If nothing is known about an offenders means, in almost all the Courts that I attend, on conviction this fine will be reduced to an entry level at 'Band B' on the sentencing guidelines, which is equal to the assessed average national weekly wage (£400) then further reduced by one third for an early guilty plea (£265) and may be further reduced according to individual means at the discretion of the Court.

The Magistrates will take into account the offenders declared statement of means and use the sentencing guidelines accordingly. This means that someone earning less than £400 per week will be fined according to means. If an offender is in receipt of only state benefits the weekly income is usually assessed as average £100 and the formula defined by the sentencing guidelines is then applied to that.

On occasion the Bench may impose no financial penalty but may order a conditional, and even more rarely an absolute discharge.

In addition to this the Magistrates may order the defendant to pay all or a part of the prosecution costs applied for and compensation of any unpaid fare. Sometimes, if a defendant has very limited means there will be no award of costs.

In cases where a fine is ordered there will additionally be a victim surcharge at a minimum of £20 or up to 10% of the fine imposed