Thameslink-case taken to court despite letter to settle out of court

[railtravel19]

To be fair to the OP, he didn't say island was wrong. He just answered post 21's (reasonable) question, clarifying that he was sure that the attendance was indeed for the Statutory Declaration; at least that was what the paperwork had led him to believe. And the basis on which he went to the Court, ie totally unprepared for a substantive hearing.
IANAL, so can an expert advise whether an absolute discharge does not constitute a conviction. I thought it just meant "found guilty, but no penalty imposed".
In which case the (overseas) OP would presumably have preferred the settlement he always thought he was going for.
The size (or absence) of the charge imposed by the Court does not seem to be the OP's main concern; he might prefer to pay, say, a £200 settlement to avoid a criminal record, however minor.

yes the email i got from court said that as well— your date for stat dec is such and such. Yes, I was even willing to pay £365 to settle out of court to avoid criminal record.

If the company wrote to the court (even if motivated by money) saying they agreed, then that may help.

There could be another option. Section 142 only gives a new hearing as an option, not a necessity. So I'm guessing that the court could agree to rescind the conviction on the basis of agreement between you and the company that there will be a settlement. I'm also guessing that the easier it's made for the court, the more likely the decision would be to rescind the verdict - so giving them everything they need in writing from you and the prosecutor to make a decision on the papers would seem ideal.

thanks, this will only make sense if i hire a solicitor and they convince the prosecutors to settle in principle or writing before i ask the magistrates court to re-open the hearing. i wouldn't want to unnecessarily do the first step when the prosecutors don't agree.

 

[tspaul26]

IANAL, so can an expert advise whether an absolute discharge does not constitute a conviction.

The OP has pleaded guilty, been convicted and sentenced to an absolute discharge plus ancillary compensation to the TOC.

If the OP wanted a settlement he should have pleaded not guilty and the case would have then been adjourned.

A key point which many people are not aware of or forget is that the over-riding objective in the Criminal Procedure Rules is that cases be dealt with justly, which includes convicting the guilty.
The (very limited) purpose of the section 142 power is to enable the court to rectify mistakes (cf.
R (Williamson)
v City of Westminster Magistrates’
Court [2012] Cr App R 24 at [31]) and as far as I can see there has been no mistake here.

In this case, on the basis of the information provided in this thread it is my professional opinion that if there is an attempt to re-open this case under section 142 simply in order for the OP to try to settle out of court this would not be an appropriate or lawful course of action for the magistrates to take. It would be contrary to the over-riding objective and the interests of justice.

 

[spag23]

If the OP wanted a settlement he should have pleaded not guilty and the case would have then been adjourned.

A solicitor would know this, and (now) I do. But the OP didn't, as he was un-represented at the court, not expecting a substantive hearing, but to meet the TOC's solicitor and to make a statutory declaration.
So, when asked if he had committed the alleged offence, he apparently "pleaded guilty", thinking this - as an acknowledgement of having committed the offence - was a necessary precursor to the settlement procedure.
It's not clear to me how the OP got wrong-footed into this position; perhaps through mis-reading correspondence? Or perhaps a language issue?
But either way, it doesn't strike me as in the interests of justice for the confused OP to have been convicted without realising what was happening.
But IANAL.

 

[Hadders]

I am not a lawyer but I agree with @tspaul26 If someone pleads guilty at a court hearing then that's it, game over, you're guilty and will be sentenced accordingly.

 

[tspaul26]

It's not clear to me how the OP got wrong-footed into this position; perhaps through mis-reading correspondence? Or perhaps a language issue?

It’s quite simple: he tried to do things himself without engaging with a qualified solicitor first. Appropriate advice would almost certainly have been available for free had he sought it.

And he was specifically warned by other posters in this thread in any event.

But either way, it doesn't strike me as in the interests of justice for the confused OP to have been convicted without realising what was happening.

It is in the interests of justice for the guilty to be convicted. As far as anyone can tell from this thread the OP did commit the offence in question which means that his conviction - whether he understood this or not - represents justice being done in this case.

He was then given the opportunity to offer a plea in mitigation which the magistrates appear to have accepted in full, hence the minimum sentence handed down. Again, this represents justice being done.

 

[spag23]

It’s quite simple: he tried to do things himself without engaging with a qualified solicitor first.

Apologies if I've missed it, but I can find no trace, prior to the hearing, of any forum expert advising the OP to engage a qualified solicitor, let alone of the OP ignoring this advice. We could all see that he was relying solely on this forum for "appropriate advice" on "how to do things himself".
But this advice turned out to be inadequate, as it didn't envisage the unexpected absence at the hearing of the prosecutor, with whom we'd all been advising the OP to engage. In the event, the OP having his own solicitor there might well have resulted in no £10 conviction, but a (more desirable for both parties) £365 settlement.
But this is all water under the bridge, as the OP has indicated that he (or perhaps she?) will probably have to accept this imperfect outcome.
To avoid a recurrence of this episode, can an Expert advise whether a Prosecutor is indeed obliged to attend such Hearings. And how should the defendant act in response to any such absence?

 

[island]

The normal process for taking a statutory declaration at a magistrates court where the case was originally commenced via a single justice procedure notice (as most railway prosecutions are) involves the defendant being asked to plead guilty or not guilty once the SD has been accepted.

If the defendant pleads guilty, the prosecutor will not usually be needed as the case papers will already contain everything the magistrates need to proceed to sentence. The defendant (or their solicitor) can give mitigation verbally.

If the defendant pleads not guilty, the case will usually be adjourned to a time when the prosecutor will be there.

I must stress however that different courts may have different local arrangements in place for the better administration of justice in their area, and some will seek to allow for SD appointments to take place at times when the prosecutor is present.

 

[tspaul26]

Apologies if I've missed it, but I can find no trace, prior to the hearing, of any forum expert advising the OP to engage a qualified solicitor, let alone of the OP ignoring this advice.

I did not say that the OP had ignored advice, although you will see from the following that he was specifically informed that the duty solicitor would be available if he had any questions:

You can ask questions to the court staff and/or duty solicitor.

I was simply responding to your question as to why he was “wrong-footed” and the answer is that he does not understand how criminal proceedings work and did not have advice from a suitably qualified solicitor prior to the hearing i.e. he was trying to deal with things himself. That is not in itself a criticism of the OP - it is a simple statement of fact.

To avoid a recurrence of this episode, can an Expert advise whether a Prosecutor is indeed obliged to attend such Hearings. And how should the defendant act in response to any such absence?

The prosecutor is not obliged to attend, but if he does not then the court may dismiss the information.

However, in practice, if the accused enters a not guilty plea the case will normally be adjourned for the parties to deal with various case management steps like disclosure.

Conversely, if a guilty plea is entered (as happened here) the court will either adjourn for sentencing or - if the convict is agreeable - proceed to sentence immediately on the basis of the admitted facts and any plea in mitigation without hearing further from the prosecutor. The risk for the prosecutor - as demonstrated in this case - is that if he doesn’t appear then the court might well be more lenient in sentencing than it otherwise would have.

The normal process for taking a statutory declaration at a magistrates court where the case was originally commenced via a single justice procedure notice (as most railway prosecutions are) involves the defendant being asked to plead guilty or not guilty once the SD has been accepted.

If the defendant pleads guilty, the prosecutor will not usually be needed as the case papers will already contain everything the magistrates need to proceed to sentence. The defendant (or their solicitor) can give mitigation verbally.

If the defendant pleads not guilty, the case will usually be adjourned to a time when the prosecutor will be there.

I must stress however that different courts may have different local arrangements in place for the better administration of justice in their area, and some will seek to allow for SD appointments to take place at times when the prosecutor is present.

Snap!

 

[Haywain]

I can find no trace, prior to the hearing, of any forum expert advising the OP to engage a qualified solicitor, let alone of the OP ignoring this advice.

I would say that the advice given was on the basis of the information provided. It wasn't entirely clear what the OP was attending the court for and how it would transpire. Normal advice on the board tends to be to submit a statutory declaration through a solicitor to prevent things panning out as they did in this case.

 

[railtravel19]

I did not say that the OP had ignored advice, although you will see from the following that he was specifically informed that the duty solicitor would be available if he had any questions:

I did ask the usher outside that this is the first time and is there a duty solicitor and she said you can ask questions inside, there was only one solicitor on the readers desk (who was commencing the procedures), there was no other person to answer my questions. that's why i told the magistrates that i came with the idea of settlement and that it was an honest mistake etc.

I would like to thank everyone for engaging in the conversation. thanks for your constructive criticism.

 

[spag23]

Normal advice on the board tends to be to submit a statutory declaration through a solicitor to prevent things panning out as they did in this case.

Good point, and clearly good advice. Sadly I don't think the OP would have seen it on this particular thread. And would the solicitor drawing up the SD have offered further advice, or even court attendance? I don't know.
On the issue of the availability of duty solicitors at this - or any other - hearing, I am again not qualified to comment.

 

[tspaul26]

I did ask the usher outside that this is the first time and is there a duty solicitor and she said you can ask questions inside, there was only one solicitor on the readers desk (who was commencing the procedures), there was no other person to answer my questions. that's why i told the magistrates that i came with the idea of settlement and that it was an honest mistake etc.

For the avoidance of doubt, I am a solicitor specialising in the transport sector (including rail) and with experience of both prosecution and defence work.

In case my previous comments have been unclear to you, you have received just about the best possible outcome from this case as you could have hoped for.

You committed this offence, pleaded guilty at the first opportunity (for which you have been given credit) and gave an explanation which the magistrates found convincing.

If you now attempt to reopen the case in order to seek a ‘settlement’ with the prosecution I implore you to consult with a qualified solicitor first because such a course of action is highly likely to constitute an improper use of court time and be outwith the court’s powers.

 

[railtravel19]

For the avoidance of doubt, I am a solicitor specialising in the transport sector (including rail) and with experience of both prosecution and defence work.

In case my previous comments have been unclear to you, you have received just about the best possible outcome from this case as you could have hoped for.

You committed this offence, pleaded guilty at the first opportunity (for which you have been given credit) and gave an explanation which the magistrates found convincing.

If you now attempt to reopen the case in order to seek a ‘settlement’ with the prosecution I implore you to consult with a qualified solicitor first because such a course of action is highly likely to constitute an improper use of court time and be outwith the court’s powers.

i agree this is a long shot. i have contacted a few qualified rail fare solicitors on friday and will see what they say tomorrow. I will not go ahead to request re-opening if the solicitors think there is no chance the TOC prosecutors will accept the out of settlement in writing or along those lines.

Could you please tell me if railway byelaw criminal conviction with absolute discharge is a criminal record? I have been trying to find whether it is a recordable offence or not and on unlock there's a list of recordable offences where transport act 2000 shows but not sure if byelaw 18 classfies in criminal record or not. i know it is a criminal conviction but from what i have gathered over the past few days, i have seen speeding offences fine from court are criminal conviction but not criminal record. is this similar?

 

[tspaul26]

i agree this is a long shot. i have contacted a few qualified rail fare solicitors on friday and will see what they say tomorrow. I will not go ahead to request re-opening if the solicitors think there is no chance the TOC prosecutors will accept the out of settlement in writing or along those lines.

Could you please tell me if railway byelaw criminal conviction with absolute discharge is a criminal record? I have been trying to find whether it is a recordable offence or not and on unlock there's a list of recordable offences where transport act 2000 shows but not sure if byelaw 18 classfies in criminal record or not. i know it is a criminal conviction but from what i have gathered over the past few days, i have seen speeding offences fine from court are criminal conviction but not criminal record. is this similar?

That’s good to hear. If you want to provide an update here once you have spoken with them then that may help others as well.

In terms of a criminal record, a Byelaw conviction is not ‘recordable’ so it should not generate a criminal record (in a technical sense) on the Police National Computer.

However, in a more general sense it is a criminal conviction and there will be a record of it - on the court register if nothing else.

Importantly, there may be circumstances where you need to disclose the offence even if it is spent or not formally recordable.

Similarly, there are certain circumstances where you would need to disclose the fact that you were the subject of criminal proceedings even if you had not been convicted.

If you are concerned about a visa application then you may wish to consult with a qualified immigration advisor or solicitor on this for more tailored advice on how much of a problem (if any) this conviction might actually be in practice.

 

[Cowley]

Ok and on that note, now that @railtravel19 has received some helpful advice and will be waiting for a reply from the solicitors, we’ll put a hold on this and if you could update us when you’ve got more information @railtravel19 by using the report function below, we’ll reopen for an update.

Thanks to everyone that’s been contributing.