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

[AlterEgo]

In any case, thank you for updating us on the outcome. The more outcomes we hear the more we can tailor our advice to be realistic to other people who come to this forum.

 

[WesternLancer]

Anyway, now its done and I have this on my record, but been thinking if this could have issues for me when travelling

I would assume hopefully not - however key thing now is to always make sure you have correct ticket (even unintentional errors) as I guess your name would be on their database so if it cropped up again they might be less inclined to settle out of court if requested. I guess that means if in doubt check ticket validity at ticket office or with staff before boarding train. This will be with any operator as they share info on fare evasion issues.

 

[railtravel19]

Hi all apologies for another post

As I mentioned I had my statutory declaration on tuesday and I was hoping to settle the case
out of court. However, the prosecutor was not present, the initial conviction was made void and the
magistrates went ahead with the hearing and gave me an absolute
discharge.

I am writing because I was told by a friend today that this may still
be recorded in the PNC, which I didn't know. I wanted to settle it out
of court but the hearing happened immediately. I did
not fully understand what was happening and initially thought I was
just supposed to go for a statutory declaration. However, I plead guilty
and explained to magistrates it was an honest mistake and that I had wrongly
bought the ticket under distress. To which they gave me an absolute discharge

Is there something that can be done? I am worried that I need to apply
for jobs. I cannot afford such a record on PNC.

 

[Bletchleyite]

What offence were you convicted of?

 

[railtravel19]

What offence were you convicted of?

Byelaw offence 18 (1) and 24 Transport Act 2000

Hi all apologies for another post

As I mentioned I had my statutory declaration on tuesday and I was hoping to settle the case
out of court. However, the prosecutor was not present, the initial conviction was made void and the
magistrates went ahead with the hearing and gave me an absolute
discharge.

I am writing because I was told by a friend today that this may still
be recorded in the PNC, which I didn't know. I wanted to settle it out
of court but the hearing happened immediately. I did
not fully understand what was happening and initially thought I was
just supposed to go for a statutory declaration. However, I plead guilty
and explained to magistrates it was an honest mistake and that I had wrongly
bought the ticket under distress. To which they gave me an absolute discharge

Is there something that can be done? I am worried that I need to apply
for jobs. I cannot afford such a record on PNC.

also to add that I have to apply for UK work visa and this could potentially affect the decision from home office

 

[SouthEastBuses]

also to add that I have to apply for UK work visa and this could potentially affect the decision from home office

For this you'll need to find a qualified immigration advisor (at https://www.gov.uk/find-an-immigration-adviser ). For legal reasons, we, the general public, cannot give you advice about your visa.

 

[island]

An absolute discharge is spent immediately upon receipt and need not be disclosed to anyone who cannot ask about spent convictions.

It's illegal for us to advise on your visa application, as immigration advice can only be given by certain people such as a solicitor or someone appropriately qualified and registered with the home office.

 

[SouthEastBuses]

An absolute discharge is spent immediately upon receipt and need not be disclosed to anyone who cannot ask about spent convictions.

It's illegal for us to advise on your visa application, as immigration advice can only be given by certain people such as a solicitor or someone appropriately qualified and registered with the home office.

Out of curiosity, is the UK the only country in the world that makes it a criminal offence for the general public to give immigration advice?

 

[island]

Out of curiosity, is the UK the only country in the world that makes it a criminal offence for the general public to give immigration advice?

I haven't encountered any other country where this is the case, but it would be foolhardy for me to make a generalisation from that

 

[UserM]

Out of curiosity, is the UK the only country in the world that makes it a criminal offence for the general public to give immigration advice?

The answer to which I do not know.

But a simple google search will explain the law around immigration advice, as well as the reasons as to which it was introduced. Needless to say advice in purely work related visas and nothing further is one of the very very few parts of the justice and immigration systems that actually work and function, notwithstanding the government of the day changing the rules around who is eligible for such visas.

 

[MadMarsupial]

I haven't encountered any other country where this is the case, but it would be foolhardy for me to make a generalisation from that

Hungary for starters - see BBC webpage from a few years back. Note it is an offence there for anyone - including legally trained staff, https://www.bbc.co.uk/news/world-europe-44288242

 

[Bletchleyite]

Byelaw offence 18 (1) and 24 Transport Act 2000

A Byelaw offence doesn't I believe come up on a DBS check.

Section 20 of the Transport Act 2000 doesn't describe an offence, it provides for the application of the Byelaws. (Section 24 appears not to exist).

I wouldn't worry about this in terms of life generally provided it wasn't a Regulation of Railways Act offence; it's less significant than a minor speeding fine. The Byelaw mostly exists as a means of applying a fine rather than a criminal record. It has the same sort of status as being fined for dog fouling in your local park, for instance.

 

[tspaul26]

Section 20 of the Transport Act 2000 doesn't describe an offence, it provides for the application of the Byelaws.

Section 20 doesn’t even do that: it related to air transport, not rail.

That to one side, the Byelaw offence is not “recordable” and the absolute discharge is “spent” immediately so for most purposes it is as if there never was an offence.

However, there will still be a record of the conviction and it may still be necessary to disclose it in some circumstances. Whether the OP’s case is one I cannot say.

 

[spag23]

Never mind all this Byelaw discussion.
We seem to be ignoring the elephant in the room.
In post #33, the OP states he went to the Court under the impression this was to consider his statutory declaration.
But instead he reports he was tried, found guilty and penalised; and all in the absence of the prosecuting TOC.
Can no-one else see that something seems to have gone seriously wrong here?
The OP identifies as not being a UK citizen, and therefore may not have English as their first language.

 

[railtravel19]

Never mind all this Byelaw discussion.
We seem to be ignoring the elephant in the room.
In post #33, the OP states he went to the Court under the impression this was to consider his statutory declaration.
But instead he reports he was tried, found guilty and penalised; and all in the absence of the prosecuting TOC.
Can no-one else see that something seems to have gone seriously wrong here?
The OP identifies as not being a UK citizen, and therefore may not have English as their first language.

Yes, they said that the prosecutors dont have to be here, even though i said that i would like to settle out of court and the train company had said that they can only consider once the stat dec is accepted and conviction is void, but everything happened on the same day.

 

[some bloke]

What exactly did you and the magistrates say? Section 142 of the Magistrates' Courts Act can be used to reopen a case. It is usually thought of as a way to correct mistakes, and some sources say it cannot be used where the person has pleaded guilty (though I can't find anything in the legislation to support that).

If you were successful in getting the case reopened, it might mean you get a fine instead of a chance to settle.

You might be able to get some help from a law clinic or law centre on this; it would seem a good idea to apply to the court quickly if you decide to.

This says,

"If you pleaded guilty, you cannot ask the court to reconsider your conviction."

https://www.gov.uk/appeal-magistrates-court-decision/ask-the-court-to-reconsider-a-decision

However, I can't see anything in the legislation or the Rules which backs that up. Nor is it clear that there must have been an error by the court, rather than it just being in the interests of justice to reconsider the case. And the legislation and Rules don't say there has to be a legal reason as the government page claims.

Magistrates’ Courts Act 1980

An Act to consolidate certain enactments relating to the jurisdiction of, and the practice and procedure before, magistrates’ courts and the functions of justices’ clerks, and to matters connected therewith, with amendments to give effect to recommendations of the Law Commission.

www.legislation.gov.uk

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

This statement seems to me more sensible than the government page:

"Acting in the best interest of justice is quite a broad term and implies many variables"

https://www.binarylaw.co.uk/articles/the-situations-when-a-case-can-be-reopened-in-uk/

Like the government page, that page says "There are also situations in which case reopening cannot be requested and these are the cases when an offender was not convicted and when he/she pleaded guilty for the crime committed." But I don't know why. The text below may imply that the CPS thinks a decision can be reopened even if you have pleaded guilty:

"A court has no power to allow a plea of guilty to be withdrawn after sentence (R v McNally [1954] 38 Cr.App.R 90). However, where a magistrates’ court sets aside a conviction under section 142 of the Magistrates’ Courts Act 1980 it is submitted that they will then be able to allow a change of plea if it is in the interests of justice to do so."

https://www.cps.gov.uk/legal-guidance/termination-proceedings-including-discontinuance

It seems anyway not true that you can't ask. If it isn't in the law or the rules, no-one can reasonably object to you asking.


These also discuss the procedure:

https://www.pattersonlaw.co.uk/motoring-offences/your-court-appearance/reopening-a-case/

https://content.tfl.gov.uk/how-to-get-your-case-reopened.pdf

 

[railtravel19]

What exactly did you and the magistrates say? Section 142 of the Magistrates' Courts Act can be used to reopen a case. It is usually thought of as a way to correct mistakes, and some sources say it cannot be used where the person has pleaded guilty (though I can't find anything in the legislation to support that).

If you were successful in getting the case reopened, it might mean you get a fine instead of a chance to settle.

You might be able to get some help from a law clinic or law centre on this; it would seem a good idea to apply to the court quickly if you decide to.

This says,

"If you pleaded guilty, you cannot ask the court to reconsider your conviction."

https://www.gov.uk/appeal-magistrates-court-decision/ask-the-court-to-reconsider-a-decision

However, I can't see anything in the legislation or the Rules which backs that up. Nor is it clear that there must have been an error by the court, rather than it just being in the interests of justice to reconsider the case. And the legislation and Rules don't say there has to be a legal reason as the government page claims.

Magistrates’ Courts Act 1980

An Act to consolidate certain enactments relating to the jurisdiction of, and the practice and procedure before, magistrates’ courts and the functions of justices’ clerks, and to matters connected therewith, with amendments to give effect to recommendations of the Law Commission.

www.legislation.gov.uk

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

This statement seems to me more sensible than the government page:

"Acting in the best interest of justice is quite a broad term and implies many variables"

https://www.binarylaw.co.uk/articles/the-situations-when-a-case-can-be-reopened-in-uk/

Like the government page, that page says "There are also situations in which case reopening cannot be requested and these are the cases when an offender was not convicted and when he/she pleaded guilty for the crime committed." But I don't know why. The text below may imply that the CPS thinks a decision can be reopened even if you have pleaded guilty:

"A court has no power to allow a plea of guilty to be withdrawn after sentence (R v McNally [1954] 38 Cr.App.R 90). However, where a magistrates’ court sets aside a conviction under section 142 of the Magistrates’ Courts Act 1980 it is submitted that they will then be able to allow a change of plea if it is in the interests of justice to do so."

https://www.cps.gov.uk/legal-guidance/termination-proceedings-including-discontinuance

It seems anyway not true that you can't ask. If it isn't in the law or the rules, no-one can reasonably object to you asking.


These also discuss the procedure:

https://www.pattersonlaw.co.uk/motoring-offences/your-court-appearance/reopening-a-case/

https://content.tfl.gov.uk/how-to-get-your-case-reopened.pdf

Thanks very much for this! So it seems section 142 is similar to statutory declaration (which is what I went to do)

I said my stat dec and then they accepted it. Then they asked if im guilty or non guilty and i asked if i have to say now. to which they said you have to say whether im guilty of the offence or not guilty (and if i choose this, i will be on a trial). I plead guilty but explained to magistrates it was an honest and reasonable mistake and that I had bought the wrong ticket as I was under distress.
I told the magistrates that i talked to rail company and they told me they had initially agreed out of court settlement and even one day before the train company prosecution dept had replied that they can only consider out of court settlement if the stat dec is accepted and that at this moment they cant do anything until conviction is void. I also told that is what i was hoping to do. the magistrates asked if the prosecutor is there but they werent so they went ahead and gave me an absolute discharge.

I went in with the idea that after the court will accept my stat dec, i will be send back and there will be a new hearing date. And in the mean time i can request TOC to settle the matter out of court.

Do you think the case can be re-opened again? It was already re-opened and then heard the same day.

"If you were successful in getting the case reopened, it might mean you get a fine instead of a chance to settle." If you think this is the case, then do you not agree that it is not worth re-opening the case? I would only think of it if i get the chance to talk to the TOC and settle out of court. Also, are there chances that my absolute discharge also gets taken away and they give a higher charge as they already removed my fine and i only had to pay compensation

 

[AlterEgo]

Thanks very much for this! So it seems section 142 is similar to statutory declaration (which is what I went to do)

I said my stat dec and then they accepted it. Then they asked if im guilty or non guilty and i asked if i have to say now. to which they said you have to say whether im guilty of the offence or not guilty (and if i choose this, i will be on a trial). I plead guilty but explained to magistrates it was an honest and reasonable mistake and that I had bought the wrong ticket as I was under distress.
I told the magistrates that i talked to rail company and they told me they had initially agreed out of court settlement and even one day before the train company prosecution dept had replied that they can only consider out of court settlement if the stat dec is accepted and that at this moment they cant do anything until conviction is void. I also told that is what i was hoping to do. the magistrates asked if the prosecutor is there but they werent so they went ahead and gave me an absolute discharge.

I went in with the idea that after the court will accept my stat dec, i will be send back and there will be a new hearing date. And in the mean time i can request TOC to settle the matter out of court.

Do you think the case can be re-opened again? It was already re-opened and then heard the same day.

"If you were successful in getting the case reopened, it might mean you get a fine instead of a chance to settle." If you think this is the case, then do you not agree that it is not worth re-opening the case? I would only think of it if i get the chance to talk to the TOC and settle out of court. Also, are there chances that my absolute discharge also gets taken away and they give a higher charge as they already removed my fine and i only had to pay compensation

So your statutory declaration was accepted and they proceeded with the new prosecution? You’ve been convicted of the offence; your problem before was you weren’t aware of the summons, not that the prosecution was wrong or misguided. Section 142 means your case will be heard again, not that it is somehow “batted back” to the train company.

You pleaded guilty to the offence. If you wish to explore options for appeal you are really best off getting a solicitor.

 

[railtravel19]

So your statutory declaration was accepted and they proceeded with the new prosecution? You’ve been convicted of the offence; your problem before was you weren’t aware of the summons, not that the prosecution was wrong or misguided. Section 142 means your case will be heard again, not that it is somehow “batted back” to the train company.

You pleaded guilty to the offence. If you wish to explore options for appeal you are really best off getting a solicitor.

Yes.

Section 142 is not really an appeal, it is more like a request to the court listings department to ask magistrates to re-open the case (from what I understood). My only concern would be that the magistrates impose a higher fine than before etc. My reason to re-open the case would be that i did not get a chance to talk to the prosecutor after my stat dec and it would be to get a chance to speak to the proseuctors. In retrospect, i didnt understand why my stat dec and hearing is on the same time but i am now told this is normal...

 

[some bloke]

I would only think of it if i get the chance to talk to the TOC and settle out of court.

If a hearing is listed (with the aim of enabling a settlement) and a settlement is reached, it is hard to see why the court would insist on hearing the case.

Section 142 means your case will be heard again, not that it is somehow “batted back” to the train company.

The way it would work is:

The decision would be that the case is to be heard again, because it's in the interests of justice to give a chance for a settlement (perhaps especially if the person deciding thinks that the magistrates should have given an adjournment). Since that means it won't be heard again, it's a bodge - which the person deciding would be aware of - and may be unlikely. If agreement can be reached with the company in principle for a settlement before the application, then the risk of losing the absolute discharge is hopefully minimal.

 

[AlterEgo]

Yes.

Section 142 is not really an appeal, it is more like a request to the court listings department to ask magistrates to re-open the case (from what I understood). My only concern would be that the magistrates impose a higher fine than before etc. My reason to re-open the case would be that i did not get a chance to talk to the prosecutor after my stat dec and it would be to get a chance to speak to the proseuctors. In retrospect, i didnt understand why my stat dec and hearing is on the same time but i am now told this is normal...

I’m not a lawyer but I don’t see how it’s in your interests, having secured the very minimum punishment for the offence, to have the case heard again.

I wouldn’t recommend doing this without taking experienced and qualified legal advice.

 

[island]

Never mind all this Byelaw discussion.
We seem to be ignoring the elephant in the room.
In post #33, the OP states he went to the Court under the impression this was to consider his statutory declaration.
But instead he reports he was tried, found guilty and penalised; and all in the absence of the prosecuting TOC.
Can no-one else see that something seems to have gone seriously wrong here?
The OP identifies as not being a UK citizen, and therefore may not have English as their first language.

I warned in post 21 that this was likely to happen, but was told I was wrong ‍shrug

 

[some bloke]

I’m not a lawyer but I don’t see how it’s in your interests, having secured the very minimum punishment for the offence, to have the case heard again.

If the application comes with evidence of an agreement in principle for a settlement, then there would seem to be a minimal risk of the listed hearing taking place (unless the company goes back on its agreement in principle or the court somehow insists on not allowing them to withdraw the case, neither of which seems likely).

I wouldn’t recommend doing this without taking experienced and qualified legal advice.

The suggestion above is to contact a law centre/clinic.

I warned in post 21 that this was likely to happen, but was told I was wrong ‍shrug

If @railtravel19 was told by the court that the appointment was for the declaration, then they were justified in telling us that (though we got the impression earlier that this was a substantive hearing).

 

[railtravel19]

The way it would work is:

The decision would be that the case is to be heard again, because it's in the interests of justice to give a chance for a settlement (perhaps especially if the person deciding thinks that the magistrates should have given an adjournment). Since that means it won't be heard again, it's a bodge - which the person deciding would be aware of - and may be unlikely. If agreement can be reached with the company in principle for a settlement before the application, then the risk of losing the absolute discharge is hopefully minimal.

so in principle, you're saying i tell the prosecutor (TOC) and settle before asking the case to be listed again but how would i word it. Which law clinic?

If @railtravel19 was told by the court that the appointment was for the declaration, then they were justified in telling us that (though we got the impression earlier that this was a substantive hearing).

yes, i have email which says i have stat dec on the day. it even said on the court listing when i went on the day

 

[some bloke]

I don't want to give false hope as someone may explain why this cannot work or why it would be a bad idea. But to answer here:

As before, the prosecutor has no case to drop until the conviction is void. So it would be an agreement in principle to settle, rather than a settlement.

On law clinics/centres and Advocate, please see here:

Used expired railcard unknowingly - possible prosecution

If the DVLA, God bless 'em, are capable of sending me a reminder that my car tax is due, surely it's not beyond the wit of the RDG (or whoever) to create a system capable of something similiar? Especially, as many on here like to remind us, that it's a criminal offence to travel with the wrong...

www.railforums.co.uk

The Rules mean that the prosecutor has to have a chance to make representations.

"(3) The court must not exercise its power in a party’s absence unless—

(a)the court makes a decision proposed by that party;

(b)the court makes a decision to which that party has agreed in writing; or

(c)that party has had an opportunity to make representations at a hearing (whether or not that party in fact attends)."

The Criminal Procedure Rules 2020
https://www.legislation.gov.uk/uksi/2020/759/rule/44.3/made

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.

 

[furlong]

You were given an absolute discharge and only required to pay a minimal amount? Don't look a gift horse in the mouth! Put the episode out of your mind and move on with your life.

 

[30907]

IANAL but I am with furlong on this:
- you made the SD at the court, which means that the Magistrates immediately reopened the case and you pleaded guilty.
- there was no prosecutor there (an error by GTR?).
- they could not dismiss the case but they gave you an absolute discharge, no award of compensation etc etc.

If one of our members with a legal background can correct that, I would be pleased.

 

[Haywain]

You were given an absolute discharge and only required to pay a minimal amount? Don't look a gift horse in the mouth! Put the episode out of your mind and move on with your life.

This. If the case were to be reopened there is no way on earth that the train company would settle for only £10 (and however many pence it was).

 

[tspaul26]

IANAL but I am with furlong on this:
- you made the SD at the court, which means that the Magistrates immediately reopened the case and you pleaded guilty.
- there was no prosecutor there (an error by GTR?).
- they could not dismiss the case but they gave you an absolute discharge, no award of compensation etc etc.

If one of our members with a legal background can correct that, I would be pleased.

Based on the information provided by the OP, this appears to be correct.

You were given an absolute discharge and only required to pay a minimal amount? Don't look a gift horse in the mouth! Put the episode out of your mind and move on with your life.

If I were advising a client I would say the same.

This. If the case were to be reopened there is no way on earth that the train company would settle for only £10 (and hiwever many pence it was).

I agree.

so in principle, you're saying i tell the prosecutor (TOC) and settle before asking the case to be listed again but how would i word it. Which law clinic?


yes, i have email which says i have stat dec on the day. it even said on the court listing when i went on the day

I appreciate that you are not my client and I may not have all of the relevant facts (I infer that you have no legal knowledge, training or experience), but I would ask you to consider carefully whether the further use of court time on this case is proportionate especially in light of the fact that:
(a) you pleaded guilty;
(b) as far as I can tell from the information that you have provided, you did commit the offence libelled; and
(c) the court imposed the minimum punishment open to it (on the admitted facts) upon your conviction.

My advice is that you should let sleeping dogs lie, but if you do wish to attempt to re-litigate the case then I recommend in the strongest terms that you retain a qualified solicitor with experience in criminal work before you do anything further.

 

[spag23]

I warned in post 21 that this was likely to happen, but was told I was wrong ‍shrug

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.