Revenue Protection Officers' obligations under PACE

[Flamingo]

I don't get this.

If the OP thinks that there is a PACE requirement that wasn't satisfied then surely they plead not guilty. What's the point of a JR?

Because they can?

 

[DaveNewcastle]

Because they can?

I guess that's right.
And because they think they have a prospect of success.

Sadly, I have followed scores of JRs through to judgement. And I have followed scores of JRs through to dismissal.

What so many litigants seem to get wrong, if I could generalise for a moment, is the thought that a sense of injustice can be addressed in a JR. A topical example might be the JR by 'Keep it Rural' v Newport City Council, just last week. They had impressive evidence of flood risks that would put the City's own findings to shame in an Appeal. But instead of a JR against the decision to refuse an appeal, they sought to introduce the evidence of facts at their JR where it had already been accepted that the risk was low. Lindblom J decided that "I cannot accept that the proposed Appeal is arguable and has any real prospect of success".

As for launching a JR of a decision made over 50 years ago in Bremme v Dubery, I'm not holding my breath, or, as Flamingo might say, I'm not ordering the popcorn.

 

[furlong]

I'm still trying to dig up more details, but the courts do seem already to have considered whether some railway byelaws were ultra vires around the time that RORA was introduced.

For example, in Huffam v. North Staffordshire Railway Co. (QBD in 1894) there was no alleged intention to defraud and a conviction under a byelaw was quashed because, in effect, RORA 5(3) was held to deal with fare evasion.

Are there subsequent legal developments that overtook that, or might it (and some other similar judgements from that era) explain why the previous form of the byelaw had no fine attached and might this still have some application today?

 

[Sprinter153]

Because I have been subject to this nonsense and risk my practicing certificate... I was late for the train in two occasions. The ticket inspector sold me a ticket the first time... The very next week they refused to sell me a ticket again an cautioned me so I am now at risk of being struck off.

Just to clarify, you've been caught on Metrolink for not purchasing a ticket before boarding.
You then board a train on the 'big railway' without purchasing a ticket, because you were late, and got sold a ticket presumably with the warning that you should have bought a ticket before boarding.
You then do it again, one would hope by now having some idea you should have bought before you boarded, and are righteously indignant when a perfectly permissible punitive action is taken?

This sounds like what my brightly-hued avian colleague would describe as a member of the "pay-when-challenged" brigade.

At least five times a day I will sell an SDS with no discount to someone who boarded at a staffed station without purchasing and is conveniently going somewhere either unstaffed or with no barrier, because they were 'running late'. Many of these people are similarly indignant. They all seem to do it again and again (and sigh when they see me as they know it will be expensive).

I agree that some aspects of the current system don't work. I'd like to see more prosecutions, perhaps overseen as some have suggested by an independent revenue protection body. I feel that if we have more of a culture, like Metrolink, of coming down hard and making an example of regular opportunists, we'd see a massive improvement in people's attitude to purchasing tickets (and allowing time to do so!).

And yes, I believe there should be a criminal aspect to it. People wouldn't shoplift but think nothing of walking past a ticket office, sitting at the front and glancing back nervously. If these things were treated equally, and it was pushed that fare-dodging = threat to career/finances, I feel that we'd have much less of a problem.

In my view, and with the greatest respect, I feel that labelling action taken against evasion as 'nonsense' is symptomatic of the wider issue of people not taking responsibility for their actions. "I could lose my job and it's all the TOC's fault, even though I should have purchased a ticket in the first place."

Do you genuinely believe there needs to be reform, or is your judgement clouded by hate for the TOC and the system? After all, they just want redress for your failure to pay for the service. I don't want you to think I'm digging at you, it's a genuine question.

 

[furlong]

The current Transport Act 2000 Section 219:

219 Power to make bye-laws.
(2)The Authority may, in particular, make bye-laws—
(a)with respect to tickets issued for entry on railway assets or travel by railway and the evasion of payment of fares or other charges,

From the OED:

evasion ...The action of evading (a duty, law, ...charge, etc.); dodging...

evade...To contrive to avoid (doing something); to ‘get out of’ performing (a duty), making (a payment), etc.

Does the current byelaw incorporate this element of 'contrivance' or 'planning', or, should I say, 'intent'?
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An alternative position might be that S219 2(a) exists precisely to avoid a challenge that evasion is solely a matter for RORA succeeding, and that "evasion" should be interpreted broadly to support byelaws that tackle the problem in general, even if an individual strict liability offence does not itself constitute 'evasion'.

 

[DaveNewcastle]

. . . . the courts do seem already to have considered whether some railway byelaws were ultra vires around the time that RORA was introduced.

. . . . or might it (and some other similar judgements from that era) explain why the previous form of the byelaw had no fine attached and might this still have some application today?

You are correct. The earlier Byelaws were often challenged successfully on the basis that they were ultra vires due, frequently, to the fact that there was an identical statutory offence. Perhaps a prime illustration is in Bentham v Hoyle (1878) 3 QB 289 "The legislative cannot have intended, while it was legislating with reference to the very case under consideration, to give the company, when it gave that power to make Byelaws, a power to supersede that Act and make that an offence which the legislature did not."

But conversely, there were many Appeals in which the Company succeeded in securing a conviction where the lower Court had found against the Company, e.g. London Midland & Scottish Railway Co v Greave & another (1937) 1 KB 367

The current incarnation of Railway Byelaws overcomes those difficulties encountered in the past.
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. . . . . Does the current byelaw incorporate this element of 'contrivance' or 'planning', or, should I say, 'intent'?

I would say that on the face of the wording of Byelaw 18, then it is clear that it does not. But in the procedural approach to statutory interpretation it might be possible to read mens rea into the Byelaw (though I am not offering to provide a reading of the Byelaws and their context which does this!).

There has been abundant analysis of private law (e.g. Local Authority regulations) in Judicial Review, brought by traders, Companies, residents, motorists, etc. and argument could be made that some of the approaches taken towards challenges of public law could be applied to Criminal Law on the railways.

 

[RPI]

It is a requirement under PACE to be told when cautioned that you are not under arrest and are free to leave at any time (this is the same for any staff who question under caution, be it rail staff, Police, RSPCA, DWP etc). It's good practice for staff to put this in question format too, so it's part of the verbatim interview. If this is said but not noted in notes made at the time, but appears in the officer's statement, it's breaching PACE so can't really be used legally. This is only required when a suspect is obviously not under arrest.

A caution+2 which is caution followed by defendant advised they are not under arrest and free to leave will be noted, so in your notes you don't write the whole caution and that they are free to leave, you just put the time and "caution+2", however in your statement you write the entire thing. As for CCTV badges, the ones we have on GWR are clearly marked and all stations and trains have CCTV notices so there is no requirement to tell anyone that they're being filmed but it is deemed good practice to point it out.

 

[Tetchytyke]

There have been a few suggestions of vested interests in this thread, particularly relating to out of court settlements. I would just point out that in such cases there are two parties who have a vested interest

Indeed there are, although there is a significant power imbalance between the TOC and the punter. The TOC can make a fare dodger's life extremely unpleasant if they so wish, but a customer who has been treated badly has no such recourse.

Because I have been subject to this nonsense and risk my practicing certificate... I was late for the train in two occasions. The ticket inspector sold me a ticket the first time... The very next week they refused to sell me a ticket again an cautioned me so I am now at risk of being struck off.

You rolled the dice and took a gamble. And, as anyone who's been to Las Vegas will tell you, the house always wins.

 

[techno]

Just to clarify, you've been caught on Metrolink for not purchasing a ticket before boarding.
You then board a train on the 'big railway' without purchasing a ticket, because you were late, and got sold a ticket presumably with the warning that you should have bought a ticket before boarding.
You then do it again, one would hope by now having some idea you should have bought before you boarded, and are righteously indignant when a perfectly permissible punitive action is taken?

This sounds like what my brightly-hued avian colleague would describe as a member of the "pay-when-challenged" brigade.

At least five times a day I will sell an SDS with no discount to someone who boarded at a staffed station without purchasing and is conveniently going somewhere either unstaffed or with no barrier, because they were 'running late'. Many of these people are similarly indignant. They all seem to do it again and again (and sigh when they see me as they know it will be expensive).

I agree that some aspects of the current system don't work. I'd like to see more prosecutions, perhaps overseen as some have suggested by an independent revenue protection body. I feel that if we have more of a culture, like Metrolink, of coming down hard and making an example of regular opportunists, we'd see a massive improvement in people's attitude to purchasing tickets (and allowing time to do so!).

And yes, I believe there should be a criminal aspect to it. People wouldn't shoplift but think nothing of walking past a ticket office, sitting at the front and glancing back nervously. If these things were treated equally, and it was pushed that fare-dodging = threat to career/finances, I feel that we'd have much less of a problem.

In my view, and with the greatest respect, I feel that labelling action taken against evasion as 'nonsense' is symptomatic of the wider issue of people not taking responsibility for their actions. "I could lose my job and it's all the TOC's fault, even though I should have purchased a ticket in the first place."

Do you genuinely believe there needs to be reform, or is your judgement clouded by hate for the TOC and the system? After all, they just want redress for your failure to pay for the service. I don't want you to think I'm digging at you, it's a genuine question.

Hate is a good place to start legal action, is it not?

The facts of my alleged "intentional?" previous fare evasion incidents are of no relevance.

The Metrolink fine i received when I was 17 and had no money to get home (over 15 years ago). Big deal.

 

[Stigy]

A caution+2 which is caution followed by defendant advised they are not under arrest and free to leave will be noted, so in your notes you don't write the whole caution and that they are free to leave, you just put the time and "caution+2", however in your statement you write the entire thing. As for CCTV badges, the ones we have on GWR are clearly marked and all stations and trains have CCTV notices so there is no requirement to tell anyone that they're being filmed but it is deemed good practice to point it out.

I know, I didn't mean to write the whole thing in ones notes, just something to state that the defendant was cautioned and are what time. In the MG11 it would be the same to all intents and purposes. I know some do write the caution as a while in their statement, but this really isn't necessary as long as you're clear and any verbatim discussions are written as such.

 

[Clip]

As for launching a JR of a decision made over 50 years ago in Bremme v Dubery, I'm not holding my breath, or, as Flamingo might say, I'm not ordering the popcorn.

Have you not seen the stash of popcorn he has already? He gets the old stuff from the buffet.

And whilst you may not think so Stiri your previous fare evasion - even if 15 years ago may still be on a databse somewhere within GMPTE or just Metrolink.

 

[cjmillsnun]

So my interpretation of the situation is this.

Stiri 15 years ago deliberately evades a fare (you did, you boarded deliberately with no intention of buying a ticket) on the Metrolink and got a PF (not a fine - we all know the technicalities so I won't go into them again)

Stiri more recently is running late so decides catching the train and not being late for work is more important than buying a ticket prior to boarding. He/She is lucky the first time and finds a guard, who decides to sell a ticket.

Stiri the following week is again running late and makes the same decision. He/She this time comes across an RPI and has now been reported for prosecution, and because of this thinks that it is unfair and wants a JR of the whole situation.

First off Stiri stop panicking. Wait for the inevitable letter and you may find you're offered an administrative settlement instead of either a byelaw conviction (non recordable - you won't lose your job) or a RoRA which they'll only go for if they know there is intent.

Second off, buy a ticket before boarding. You buy a ticket before you board a plane, it's the same on a train. If you're regularly travelling to the same destination, then a season ticket may be worth the money. Especially as you can break the journey on the way to a destination, or use it to travel to the extent of its validity and buy a ticket from there to your destination (split ticketing) - something a guard or RPI may have more sympathy as long as you buy whilst the season is within its validity with as you boarded with a valid ticket.

 

[techno]

So my interpretation of the situation is this.

Stiri 15 years ago deliberately evades a fare (you did, you boarded deliberately with no intention of buying a ticket) on the Metrolink and got a PF (not a fine - we all know the technicalities so I won't go into them again)

Stiri more recently is running late so decides catching the train and not being late for work is more important than buying a ticket prior to boarding. He/She is lucky the first time and finds a guard, who decides to sell a ticket.

Stiri the following week is again running late and makes the same decision. He/She this time comes across an RPI and has now been reported for prosecution, and because of this thinks that it is unfair and wants a JR of the whole situation.

First off Stiri stop panicking. Wait for the inevitable letter and you may find you're offered an administrative settlement instead of either a byelaw conviction (non recordable - you won't lose your job) or a RoRA which they'll only go for if they know there is

Second off, buy a ticket before boarding. You buy a ticket before you board a plane, it's the same on a train. If you're regularly travelling to the same destination, then a season ticket may be worth the money. Especially as you can break the journey on the way to a destination, or use it to travel to the extent of its validity and buy a ticket from there to your destination (split ticketing) - something a guard or RPI may have more sympathy as long as you buy whilst the season is within its validity with as you boarded with a valid ticket.

A train and a plane don't even compare. People don't commute to work every day on a plane, it's very well established that you can't/would not even get through the front door of a plane without a ticket, and RPIs on trains hold them selves out to offer to sell you a ticket whilst you travel (regardless of which station you come from). The whole system and law is a load of rubbish and is incompatible with real life.

 

[MichaelAMW]

A train and a plane don't even compare. People don't commute to work every day on a plane, it's very well established that you can't/would not even get through the front door of a plane without a ticket, and RPIs on trains hold them selves out to offer to sell you a ticket whilst you travel (regardless of which station you come from). The whole system and law is a load of rubbish and is incompatible with real life.

In that case, how do you think things should be, given that it is important to collect fares from even the most reluctant of passengers?

 

[techno]

by fining passengers instead of convicting them of a criminal offence. Doesn't really serve any purpose in these circumstances.
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AnywYs I've been asked to provide a mitigation statement - I have been sent an information sheet explaining the law (the Byelaw and the RoRwA)...

Only it is only in freference to the first incident.. Not sure whether to include a statement in relation to the second in one letter.

 

[DaveNewcastle]

Only it is only in freference to the first incident.. Not sure whether to include a statement in relation to the second in one letter.

Respond to exactly the incident alleged on the letter - if it alleges just one offence, then that is all that you should refer to.

 

[techno]

The problem here now is that I feel that the possible criminal conviction creates a huge opportunity for rail companies to impose ridicolousy high cost out of court settlement which is akin to "legal" duress. We all know there are huge conflict of interest issues in these revenue matters.

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Whether any of you like it or not, this whole situation is a big con. And this isn't me feeling hard done by because I've fallen foul of all this. This is a real objective stand point on the matter and I think this about a lot of other similar laws.

 

[Clip]

The problem here now is that I feel that the possible criminal conviction creates a huge opportunity for rail companies to impose ridicolousy high cost out of court settlement which is akin to "legal" duress. We all know there are huge conflict of interest issues in these revenue matters.

Most out of court settlements is around a few hundred pounds for these offences so not that high although what price would you put on swerving a criminal conviction?

Whether any of you like it or not, this whole situation is a big con. And this isn't me feeling hard done by because I've fallen foul of all this. This is a real objective stand point on the matter and I think this about a lot of other similar laws.

The biggest con is you not buying a ticket before you travel, just this one time.

 

[Haywain]

The problem here now is that I feel that the possible criminal conviction creates a huge opportunity for rail companies to impose ridicolousy high cost out of court settlement which is akin to "legal" duress. We all know there are huge conflict of interest issues in these revenue matters.

If you don't like the potential conflict of interest, then don't agree an out of court settlement. However, you may find that conflicts with your interests. It's not all one way traffic.

 

[techno]

The biggest con is you not buying a ticket before you travel, just this one time.

Do you honestly believe that?

 

[Clip]

Do you honestly believe that?

well you have already admitted to doing it before so why not? And the ones who are most outraged at being caught with no ticket are those who maybe have something else to hide.

Who knows but I wish you well in your endeavour.

 

[DaveNewcastle]

The problem here now is that I feel that the possible criminal conviction creates a huge opportunity for rail companies to impose ridicolousy high cost out of court settlement which is akin to "legal" duress. We all know there are huge conflict of interest issues in these revenue matters.

No need to worry about ant of that if you're unhappy with the 'imposed' OOC settlement offer. Just disregard it, and let the matter proceed to a prosecution.

Remember, if it was a public prosecution, then it would jump right over this opportunity. The Police or CPS don't go offering OOC settlements like this (though they do have some alternative resolutions available).

Just let it go forward to prosecution and save yourself the anxiety of "duress", "imposition" or a "conflict of interests". It's quite simple really. And unless you've abandoned the intention to launch a JR, then you're going to need a judgement against you to have it reviewed, so I can't see what the level of OOC settlement has to do with your plans to gather facts and authorities to support the review of that decision against you in the Mags.

 

[techno]

So I purchase a ticket on the platform this morning (nearly made late due to some woman discussing how to renew her lost rail card)... I get on the trainsnd the inspector announces "anyone wishing to purchase a ticket from here this morning can get one from me"... Surely not?! I thought if you board a train without a ticket where there was facilities at the staton you are a CRIMINAL!... Look at the byelaws, it must be true!!!.... Sorry not buying this bull s**t!
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The System is absolutely ridiculous.
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He's selling a ticket to a criminal behind me right now...

 

[najaB]

I thought if you board a train with facilities at the staton you are a criminal... Look at the byelaws, it must be true!!!.... Sorry not buying this bull s**t!

Not all crime must be prosecuted.

 

[techno]

Not all crime must be prosecuted.

But a good way to levy an extortionate out of court settlement.

But the fact remains, why are they expressly offering to sell tickets on the
Train when in fact this is a criminal offence which another RPI has cautioned me for!!

 

[najaB]

But the fact remains, why are they expressly offering to sell tickets on the Train when in fact this is a criminal offence which another RPI has cautioned me for!!

Different person, different day, different result.

 

[Deerfold]

But a good way to levy an extortionate out of court settlement.

But the fact remains, why are they expressly offering to sell tickets on the
Train when in fact this is a criminal offence which another RPI has cautioned me for!!

It's unlikely you got an RPI on your train today - you may have got a guard who is not trained in prosecutions and the company presumably feels it is worth their while to give customers another chance to pay.

If you inadvertently walked out of a supermarket without paying the company could choose to let you simply pay for your shopping or call the police, there's no obligation on them to ensure you're prosecuted.

 

[philthetube]

So I purchase a ticket on the platform this morning (nearly made late due to some woman discussing how to renew her lost rail card)... I get on the trainsnd the inspector announces "anyone wishing to purchase a ticket from here this morning can get one from me"... Surely not?! I thought if you board a train without a ticket where there was facilities at the staton you are a CRIMINAL!... Look at the byelaws, it must be true!!!.... Sorry not buying this bull s**t!
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The System is absolutely ridiculous.
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He's selling a ticket to a criminal behind me right now...

It also depends if all stations on your route had open ticket offices.

 

[WCMLaddict]

Let's be honest here.... It's Monday morning .... That's when you earn most of your commission

 

[Agent_c]

The problem here now is that I feel that the possible criminal conviction creates a huge opportunity for rail companies to impose ridicolousy high cost out of court settlement which is akin to "legal" duress. We all know there are huge conflict of interest issues in these revenue matters.

Considering that it costs money to investigate, hire lawyers, check CCTV, gather evidence, and the railway wanting to have a detterential effect in the process, I actually think its rather cheap.

Start cranking it up to 5,000 or so and maybe that will stop people doing it.

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Whether any of you like it or not, this whole situation is a big con. And this isn't me feeling hard done by because I've fallen foul of all this. This is a real objective stand point on the matter and I think this about a lot of other similar laws.

There's no con about it. These payments are completely optional, you do not have to pay it, you don't even have to pay a court fine.

All you have to do is not get on a train without a blooming ticket. Its not that hard.

He's selling a ticket to a criminal behind me right now...

And? Perhaps thats not an RPI who can follow the prosecution route, or maybe there are unstaffed stations.

Somebody else getting away with it does not change your situation.