Unlawful Use of SJPN by Train Companies for Section 5(1) RoRA Prosecutions

[thejuggler]

Silly question perhaps, but does Railforums ever issue press releases? If so, now would be the perfect time to welcome the CM's move, but further highlight the overlooked aspects & injustices.

If this isn't an option there are other options for presenting the facts, Byline Times is the first which springs to mind,

 

[NotDeadYet]

These two outstanding issues are arguably a bigger issue. This really needs some proper exposure in the media.

Perhaps it might be worth trying to interest some of the blogging lawyers such as Joshua Rozenberg and David Allen Green. They seem influential and often focus on important details that others miss.

 

[KirkstallOne]

Perhaps it might be worth trying to interest some of the blogging lawyers such as Joshua Rozenberg and David Allen Green. They seem influential and often focus on important details that others miss.

This has been covered by Joshua Rozenburg, as well as Alan Robertshaw and Daniel Shen Smith (youtube barristers). None of them touched on the 5(1) aspect.

 

[John R]

If this isn't an option there are other options for presenting the facts, Byline Times is the first which springs to mind,

Private Eye is another possible vehicle, which has an excellent record on campaigning against injustice.

 

[KirkstallOne]

Private eye are another publication that have possessed the full facts of this case for many months now.

Byline Times is the first which springs to mind

This is an interesting suggestion I will follow it up, I wasn’t aware of the nature of their reporting.

 

[John R]

Private eye are another publication that have possessed the full facts of this case for many months now.

I wonder whether it's a question of stepping them through exactly what has been resolved and the issues (and quantum of) which are still outstanding. Along the lines of "It may look as though all this is being resolved but in fact..."

 

[some bloke]

Agree with CM that it is not his place to rule on either the Section 5(1) or 5(3) points in the context of an inquiry into the abuse of the SJP. They are points on which TOC's can seek a ruling from other benches dealing with cases reheard under Section 142(2), if they are points germane to such rehearings. Likelihood is that the Section 5(1) point would only be germane if a TOC sought to contest at such rehearing a defendant's argument that he must be innocent of a Section 5(1) offence because he gave name and address. But since the TOCs accept that giving name and address is such a defence, it is pointless for them to seek a formal ruling to that effect.

Perhaps I 'm misunderstanding that point.

Where there is a new hearing under s.142 and the train company agrees with the "defendant" that there was no case to answer in the first place, how is the court ruling to that effect pointless?

Is it not worth a go for some of those affected to apply through s.142, perhaps in cooperation with the train company (bearing in mind that those convicted under s.5(1) where the case was begun with a summons cannot be brushed aside with the idea that their cases are being overturned because of the SJP error)?

 

[KirkstallOne]

Perhaps I 'm misunderstanding that point.

Where there is a new hearing under s.142 and the train company agrees with the "defendant" that there was no case to answer in the first place, how is the court ruling to that effect pointless?

Is it not worth a go for some of those affected to apply through s.142, perhaps in cooperation with the train company (bearing in mind that those convicted under s.5(1) where the case was begun with a summons cannot be brushed aside with the idea that their cases are being overturned because of the SJP error)?

I think the issue is the magistrates court can’t make precedent. i.e. regardless of what he ruled it couldn’t be referenced in other cases. So the cases would have to be reopened then passed up to a higher court. Typically this would happen on appeal of a guilty verdict.

 

[some bloke]

I think the issue is the magistrates court can’t make precedent. i.e. regardless of what he ruled it couldn’t be referenced in other cases. So the cases would have to be reopened then passed up to a higher court. Typically this would happen on appeal of a guilty verdict.

I'm not sure that's the point John Palmer is making: "the Section 5(1) point would only be germane if a TOC sought to contest at such rehearing a defendant's argument that he must be innocent".

Regardless of precedent, we might ask whether it's worth an individual trying this for their own case.

Perhaps taking it to a higher court would be feasible through crowdfunding.

 

[KirkstallOne]

I am sure John will respond in due course but that was explicitly given as the reason by the CM for not making such a ruling in court.

 

[furlong]

I'm not sure that's the point John Palmer is making: "the Section 5(1) point would only be germane if a TOC sought to contest at such rehearing a defendant's argument that he must be innocent".
Regardless of precedent, we might ask whether it's worth an individual trying this for their own case.
Perhaps taking it to a higher court would be feasible through crowdfunding.

1) 6 cases have been reopened by the court so far. All were deemed nullities. The courts with the help of the railway prosecutors are trying to identify all similar cases and arrange for a similar outcome.

2) During the proceedings various other categories of cases were discussed. This includes ones where the SJP was used correctly but it is now accepted that the defendant could not have been guilty. Those issues were outside the scope of the proceedings in front of him and so it would have been wrong to discuss them in his judgement.

3) We understand that the courts and railway prosecutors are in the process identifying some test cases in those further categories. It is anticipated that a similar process may be followed - one or more groups of similar cases may be reopened by the prosecutors and the court will determine what to do. The S142 process that the CM ruled against in the first set of cases would remain an option to consider for the resolution of those cases. There might need to be referrals to higher courts for one or more different reasons. Until the cases are reopened and examined, nobody really knows.

4) As far as I can tell, nobody is yet dealing with the matter of any out-of-court settlements that might have been entered into under false pretences. Political pressure / press attention might be required, needing some people affected to come forward to turn it into a live issue rather than a theoretical one.

 

[35B]

This has been covered by Joshua Rozenburg, as well as Alan Robertshaw and Daniel Shen Smith (youtube barristers). None of them touched on the 5(1) aspect.

I'd be more inclined to focus on posters like "Secret Barrister" or Matthew Scott - more hands on, and focused on criminal law.

 

[some bloke]

[email protected] may be interested.

Those issues were outside the scope of the proceedings in front of him and so it would have been wrong to discuss them in his judgement.

He did describe in the judgment the prosecution-after-appeal issue and the 2016-Order-possibly-going-beyond-govt-powers issue.

In that context we can wonder what reason he had for omitting any mention of the companies' submissions that in these 6 cases as for many defendants there had never been a case to answer - alongside the judgment giving a description of the offence under s.5(1) likely to reinforce in the minds of many affected people a wrong ldea that they were in fact guilty.

We understand that the courts and railway prosecutors are in the process identifying some test cases in those further categories. It is anticipated that a similar process may be followed - one or more groups of similar cases may be reopened by the prosecutors and the court will determine what to do.

Thank you - that's very interesting and perhaps to some extent reassuring.

 

[Haywain]

This matter has now been covered by the Independent, with a piece by Simon Calder. The case is really an afterthought to a generalisation about fare dodging. The piece does not appear to be behind a paywall, unless I've somehow escaped that! Headlines:

Fare-dodging: Simon Calder reveals the inside story on the rules on rail tickets and how they are enforced​

Chief magistrate insists 74,000 fines for alleged fare-dodging on the railway should be quashed – but efforts continue to catch passengers without valid tickets​

 

[Blackpool boy]

This matter has now been covered by the Independent, with a piece by Simon Calder. The case is really an afterthought to a generalisation about fare dodging. The piece does not appear to be behind a paywall, unless I've somehow escaped that! Headlines:

News aggregators are good for finding stories behind paywalls

MSN

The chief magistrate has insisted 74,000 fines for alleged fare-dodging on the railway should be quashed. The decision has focused attention on the extent of fare-dodging.

Often rail passengers are guilty only of a misunderstanding. Thousands of people have inadvertently made journeys they assumed could be paid for by contactless card – only to discover they could tap in but had strayed across an invisible “tariff border” and could not a tap out. Others get impatient after queuing for ages for a ticket and jump on a train without one, intending to pay on board or at the other end.

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At the other extreme, some commuters deliberately set out day after day to travel without paying, robbing the railway of revenue and increasing the financial burden on the majority of law-abiding passengers.

The cost to the rail industry of people travelling without a ticket is an estimated £330 million per year – about 3.2 per cent of rail revenue. This figure correlates to the estimate from one train firm, TransPennine Express, that 3.5 per cent of passengers travel without a ticket.

A spokesperson for the Rail Delivery Group (RDG), representing train operators, said: “Fare-dodging is unfair because it means less money to invest in improving services and increases the burden on fare-paying passengers and taxpayers.”

In 2023, the standard Penalty Fare increased from £20 to £50 (or £100 if the errant passenger has not paid within 21 days).

These are the key questions and answers.

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What does the law say?​

The Regulation of Railways Act 1889 requires the rail passenger to produce “a ticket showing that his fare is paid” on request by a staff member.

The rather more modern National Rail Conditions of Travel from April 2024 specify “you must purchase, where possible, a valid ticket before you board a train” and use it “in accordance with the specific terms and conditions associated with it” – for example, if it is a ticket with time restrictions or has been bought with a railcard discount.

A 21st-century ticket takes rather more forms than in the Victorian era, and can include:

• One on “a mobile telephone or tablet device”
• A smartcard as used in Greater London (with the Oyster card) and elsewhere
• A bank card on which you have tapped in at station entry gates or on a reader on the platform

Why wouldn’t everyone simply buy a ticket?​

About 29 out of 30 passengers do so, according to data from TransPennine Express. But if you plan to buy a ticket at the station and can’t do so, you may board a train if the ticket office is closed (or there isn’t one) and the ticket machine is either broken or won’t accept your preferred method of payment (card or cash).

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You should buy a ticket from the guard on board if there is one, or at an interchange station if time allows. If you can’t do either, you can pay at your destination.

Some stations still have “Permit to Travel” machines. You can pay a small sum in return for a receipt that shows the issuing station and the amount paid, which will be deducted from the ticket you eventually buy.

Or, of course, you could book a ticket on your smartphone – as, on TransPennine Express at least, three-quarters of passengers do.

What if the queue is just too long?​

You are expected to wait as long as it takes. As one insider posted on a rail forum: “Even if it was the second coming of Christ, as long as the ticket office is open a passenger must buy a ticket or be given authority to travel by an officer of the railway without one.”

If you have allowed reasonable time to buy a ticket but can wait no longer, you could ask station staff – or, in an “open station” the train guard (if there is one) – if you can buy a ticket on board.


Such authorisation may be granted if, for example, ticket machines are not working. Otherwise, if you decide to board a train without a ticket you will be breaking the law.

Train operators take fare-dodging very seriously and employ revenue protection officers to catch passengers who fail to pay. These staff work on trains and at stations.

What about travelling with “the wrong sort of ticket”?​

Revenue protection staff will also take interest in passengers who do the following:

• Use an Advance ticket on the wrong train, unless they have been told specifically that they can do so because of disruption
• Claim a railcard discount when they don’t have one (though if they have simply left it at home, they can claim back any penalty applied)
• Sit in first class with a standard ticket (unless the train has been declared as “declassified”)
• Try to use an operator-specific ticket on a service run by a different firm – eg a cheap London Northwestern ticket from Birmingham to London on Avanti West Coast
• Attempt a “split-ticket” trip without following the rules – for example, buying separate Bristol-Didcot and Didcot-London tickets to cover a Bristol-London trip, but boarding a train that does not stop at Didcot

What is the penalty for travelling without a ticket – or the wrong sort of ticket?​

Railway staff can choose from one of three options, which are progressively more serious and expensive.

• To charge you the full single fare
• To charge you a Penalty Fare, which is £50 (or £100 if you fail to pay within three weeks) plus the full single fare
• To report you for prosecution

How do they decide which penalty to apply?​

All passengers will come up with an excuse when challenged about why they do not have a ticket. From experience, rail staff can usually tell if a tale about running late and foolishly hopping on a train just before it left is true. If so, they may simply apply the full single fare.


The Penalty Fare is the standard response to an offence. But if the revenue protection officer believes that the individual is a repeat offender – perhaps a passenger who simply “pays when challenged” – they may report the traveller for prosecution.

Can I appeal a Penalty Fare?​

Yes, but if you were travelling without a ticket it is unlikely to succeed. For example, the many people who fondly imagine that they can pay with a contactless card or smartphone to travel between London and Stansted airport are routinely issued Penalty Fares.

They “tap in” with a contactless card for the Stansted Express at London Liverpool Street or Tottenham Hale, only to discover on reaching the airport that their card is not valid.

Warning signs have now been posted, meaning that anyone who is issued with a Penalty Fare is unlikely to succeed in an appeal.

What happens if a case goes to court?​

If convicted, the passenger can be fined up to £1,000 or jailed. This will no longer be under the Single Justice Procedure, with a single magistrate working behind closed doors. Instead, there will be a proper court hearing.

What’s the story with those 74,000 quashed convictions?​

Six rail firms – Northern, Transpennine, Avanti West Coast, Greater Anglia, Great Western Railway and Merseyrail – used the procedure.

All the convictions will be quashed after the chief magistrate for England and Wales, Judge Paul Goldspring, declared them all to be invalid. The people involved will see their convictions overturned and be handed their money back.


The government says: “If you think you may be affected, you should wait to be contacted directly and told what will happen next including if you have paid some or all of a financial penalty.

“For those who haven’t yet paid anything relating to their offence we will be writing to them is the conviction is declared invalid to confirm the court record has been corrected.”

The cases will be regarded as nullified – as though they have never taken place.

For more travel news and advice, listen to Simon Calder’s podcast

From news to politics, travel to sport, culture to climate – The Independent has a host of free newsletters to suit your interests. To find the stories you want to read, and more, in your inbox, click here.

 

[furlong]

What happens if a case goes to court?

If convicted, the passenger can be fined up to £1,000 or jailed. This will no longer be under the Single Justice Procedure, with a single magistrate working behind closed doors. Instead, there will be a proper court hearing.

The writer has clearly done no research and misunderstood the problems.

 

[KirkstallOne]

A quote in the article from our very own @najaB !

 

[John Palmer]

Perhaps I 'm misunderstanding that point.

Where there is a new hearing under s.142 and the train company agrees with the "defendant" that there was no case to answer in the first place, how is the court ruling to that effect pointless?

Is it not worth a go for some of those affected to apply through s.142, perhaps in cooperation with the train company (bearing in mind that those convicted under s.5(1) where the case was begun with a summons cannot be brushed aside with the idea that their cases are being overturned because of the SJP error)?

A court ruling certainly isn't pointless if it upholds a defence argument that no offence under Section 5(1) RoRA was committed because name and address was given. But the point that I was making is that it would be futile for a TOC to seek such a ruling if it were an interpretation to which that TOC already subscribed.

Recall that until the recent test cases Northern Trains' position was that Section 5(1) created a substantive offence of ticketless travel, which would have meant that giving name and address was irrelevant. There seems to be a strong likelihood NTL strove for such an interpretation because, if it were correct, it would permit the company to prosecute in cases where there had been an appeal of a penalty fare, and thereby circumvent the the bar on Section 5(3) RoRA and Byelaw 18 prosecutions imposed by Reg. 11 of the Penalty Fares Regulations. The same rationale may well underlie what I understand to be NTL's argument that the Reg.11 bar only operates whilst the appeal is in progress.

I'm glad that someone (Brian O'Neill KC?) has at last disabused NTL of the notion that Section 5(1) creates a substantive offence of ticketless travel. NTL's belief that it did certainly remained the position in @KirkstallOne's case until 19 April 2024, as witness the company's letter to him of that date (https://www.railforums.co.uk/attachments/northern-complaint-response-2024-04-20-redacted-png.156765/):

“Travelling on a train without a valid ticket, including on Northern's services, is an offence under both section 5(1) of the Regulation of Railways Act 1889 and under the Railway Byelaws.”

It is deeply unsatisfactory that this incorrect interpretation of Section 5(1) is one that has evidently been promoted by misleading (official?) guidance made available to magistrates, as described by @island in post #294. Erroneous attenuation of the Section 5(1) offence's description to “Railway fare evasion (failing to produce ticket)” is not only liable to lead magistrates astray, but also supplies TOCs with a ready excuse for having treated the subsection as creating an offence of ticketless travel. It increases the likelihood that a malicious prosecution suit would fail on the basis that TOC prosecutors were misled as to the scope of the Section 5(1) offence in the same way as magistrates seem to have been, and were thus not actuated by malice.

The very last paragraph of the Chief Magistrate's judgment suggests that the 240 NTL prosecutions of passengers who unsuccesssfully appealed penalty fares and were, apparently, thereafter convicted of a byelaw offence may become the subject of 'further listings' as their cases are a 'live' issue within HMCTS. The judgment makes no mention of any action to be taken by the state in relation to the 226 successful non-SJP prosecutions by NTL of a Section 5(1) offence where the company concedes that the defendants concerned had offered to pay or given name and address and thus had a complete defence to the charge. No doubt it would be embarrassing for the criminal justice system to have to acknowledge that its misleading guidance on what constitutes a Section 5(1) offence may have contributed to the bringing of those prosecutions, but that would not justify it in turning a blind eye to the resulting injustice to the defendants concerned. I look forward to learning what the state proposes to do to make the appropriate amends.

 

[pedr]

I can understand the Chief Magistrate not commenting on whether anything can be done about people convicted under s. 5 (1). In many of these cases there would be nothing on the court record to raise the issue of whether the prosecution is correctly interpreting the requirements of the offence, and it's an unfortunate aspect of our justice system that it's not terribly unusual for people to be convicted based on faulty understandings of the requirements of an offence.

The other two points are more technical, being about the procedures and the powers of prosecutors and courts (whether prosecutors did or didn't have a right to use the SJP, and whether prosecutions were barred by statute), rather than being about the (tacit) decision magistrates made about the meaning of s. 5 (1) for the purposes of the case before them. If a magistrate gets that wrong, the remedy is to appeal, which is difficult if the defendant has pleaded guilty, just as it is if a magistrate misunderstands any other statutory definition of an offence (see, for instance, the 'Twitter Joke Trial', where a misunderstanding of how the Communications Act offence worked persisted until the case got to the High Court. But there, the defendant had pleaded not guilty from the outset, and appealed promptly.) I do wonder how many trials of s. 5 (1) there have been, as opposed to guilty pleas, or withdrawn proceedings when defendants insisted on going to trial.

 

[soil]

The writer has clearly done no research and misunderstood the problems.

He never does.

 

[furlong]

[email protected] may be interested.

He was made aware of all this several months ago but indicated he didn't have the capacity to take it on as well as the Post Office, which was completely understandable.

 

[najaB]

A quote in the article from our very own @najaB !

Wow, that was unexpected!

 

[John Palmer]

I can understand the Chief Magistrate not commenting on whether anything can be done about people convicted under s. 5 (1). In many of these cases there would be nothing on the court record to raise the issue of whether the prosecution is correctly interpreting the requirements of the offence, and it's an unfortunate aspect of our justice system that it's not terribly unusual for people to be convicted based on faulty understandings of the requirements of an offence.

The other two points are more technical, being about the procedures and the powers of prosecutors and courts (whether prosecutors did or didn't have a right to use the SJP, and whether prosecutions were barred by statute), rather than being about the (tacit) decision magistrates made about the meaning of s. 5 (1) for the purposes of the case before them. If a magistrate gets that wrong, the remedy is to appeal, which is difficult if the defendant has pleaded guilty, just as it is if a magistrate misunderstands any other statutory definition of an offence (see, for instance, the 'Twitter Joke Trial', where a misunderstanding of how the Communications Act offence worked persisted until the case got to the High Court. But there, the defendant had pleaded not guilty from the outset, and appealed promptly.) I do wonder how many trials of s. 5 (1) there have been, as opposed to guilty pleas, or withdrawn proceedings when defendants insisted on going to trial.

Part of the reason for the CM confining himself strictly to 'the improper use of SJP' issue may be an awareness that the impropriety was taking place in magistrates courts right across Northern's and GA's territory, so there was a pretext for transfer of the six test cases to his own court that would avoid ruffling the sensibilities of the magistrates out of whose hands these cases were taken.

Whether errors in establishing the ingredients of a Section 5(1) offence would have been apparent from the court record obviously depends on what that record contains. Provided you understood the scope of the Section 5(1) defences, the likely availability of the 'give name and address' defence would be apparent in every case where a copy of an issued penalty fare formed part of the evidence tendered by the prosecution and remained on that record.

As you say, a defendant's remedy is to appeal a magistrate's error, but a guilty plea precludes this insofar as it constitutes acceptance that the offence is proved. Virtually every defendant convicted of a Section 5(1) offence despite having a complete defence must now be out of time to appeal, and I'm not aware of any basis on which such an appeal might now be allowed to proceed out of time. The implication is that where Section 5(1) convictions have resulted from a mass miscarriage of justice, that miscarriage can now only be corrected by state intervention. The only basis on which I can see the state being able to do so is by invoking Section 142(2) MCA 1980 to secure a rehearing.

 

[soil]

I can understand the Chief Magistrate not commenting on whether anything can be done about people convicted under s. 5 (1). In many of these cases there would be nothing on the court record to raise the issue of whether the prosecution is correctly interpreting the requirements of the offence, and it's an unfortunate aspect of our justice system that it's not terribly unusual for people to be convicted based on faulty understandings of the requirements of an offence.

The other two points are more technical, being about the procedures and the powers of prosecutors and courts (whether prosecutors did or didn't have a right to use the SJP, and whether prosecutions were barred by statute), rather than being about the (tacit) decision magistrates made about the meaning of s. 5 (1) for the purposes of the case before them. If a magistrate gets that wrong, the remedy is to appeal, which is difficult if the defendant has pleaded guilty, just as it is if a magistrate misunderstands any other statutory definition of an offence (see, for instance, the 'Twitter Joke Trial', where a misunderstanding of how the Communications Act offence worked persisted until the case got to the High Court. But there, the defendant had pleaded not guilty from the outset, and appealed promptly.) I do wonder how many trials of s. 5 (1) there have been, as opposed to guilty pleas, or withdrawn proceedings when defendants insisted on going to trial.

the CM rightly noted that the SJP convictions under RORA are void.

He has no power to make any general rulings about law. In general a wrongful conviction for reason of law , i.e. because 'providing an address' is a complete defence to RORA s 5(1), would be appealed by way of case stated, to the high court. There is a very strict no-exceptions 21 day time limit to appeals from the magistrates court to the high court.

There is a royal prerogative power of mercy, and there is the example of the Post Office (Horizon System) Offences Act 2024, which quashed those conviction, which is the same as an appeal in its effect. This requires an Act of Parliament, which doesn't seem likely.

For a person who was convicted in a magistrates court and pled guilty, there is no power to appeal against conviction to the crown court.

The magistrates' court can rectify its own mistakes under s 142.

There should probably also be civil compensation.

here is the High Court's judgment in respect of s 142 in Williamson [2012] EWHC 1444 (Admin)


The purpose of s.142 as originally enacted was to enable the magistrates’ court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the s.142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in magistrates’ courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. The power conferred with regard to sentence explicitly refers to replacing a sentence imposed which was invalid. That might be regarded as correcting a classic “mistake”. It could be contended that it would be in the interests of justice to substitute a new sentence on the grounds that the one originally imposed was manifestly excessive. However, the sentencing provisions, whether in their original or new form in s.142, cannot be read as conferring a power to substitute a new sentence in the same way as an appellate court might do so. So far asthe jurisdiction relating to convictions is concerned, the amendment enables the magistrates’ court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a magistrates’ court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under s.142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a s.142 application as possessed by the High Court.

Had Parliament contemplated such a broad power, it would not have chosen to describe the power in s.142 of the 1980 Act as being to “rectify mistakes etc” but used more expansive language

...

We accept that there may be circumstances in which s.142(2) could be used to allow an unequivocal guilty plea to be set aside. Examples which spring to mind include cases in which a guilty plea had been entered to an offence unknown to the law. Surprising though it may seem, such errors do occur in particular in connection with repealed legislation. That would fall comfortably within the language of mistake. They may include cases where a jurisdictional bar was not appreciated by the defendant relating, for example, to a time limit or the identity of a prosecutor. There may be cases in which the proceedings were, in truth, a nullity. We would not exclude the possibility that s.142(2) would be apt to deal with a case in which circumstances developed after a guilty plea and sentence which led the prosecution to conclude that the conviction should not be sustained.

...

Scally was an unusual case. The facts, to which we have referred in passing, more fully were these. Each of the four applicants had been arrested on suspicion of driving with excess alcohol. Each provided a blood specimen which was analysed in a laboratory. The results suggested that the proportion of alcohol in the blood was above the legal limit. Each pleaded guilty and was convicted. It was subsequently discovered that at the time of taking the specimens the medical cleansing swabs in some of this batch of blood sampling kits themselves contained alcohol. That plainly invalidated the test results.
...
The court mined a seam of authority which was analysed in R. v Secretary of State for the Home Department Ex p. Al-Mehdawi [1990] A.C. 876. In that case, a failure on the part of an immigrant’s legal adviser to notify him of an appeal hearing was rejected as a basis for quashing the result, because there had been no irregularity in the conduct of the proceedings by the decision-maker. By contrast, criminal cases in which the prosecution had acted improperly, for example, by suppressing material helpful to the defence, would provide a basis for the court to intervene and quash a conviction, as would fraud, collusion and perjury by the prosecutor. Watkins L.J. concluded at 556: “What happened here was that, there being no dishonesty, the prosecutor (a combination of police and C.P.S.) corrupted that process leading to a conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty, indeed it wrongly denied them a complete defence to the charge. In my view, that is conduct analogous to fraud, collusion or perjury if ever there was. I regard these applications … as providing a classic instance where the supervisory role of this court over magistrates’ courts is clearly required to be exercised. I would make the orders of certiorari sought.”

Even if it were established that Mr Mardon misrepresented the existence of two prosecution witnesses and his inability to view the CCTV, such conduct on the part of the defendant’s own legal adviser provides no analogy with prosecutorial fraud etc. It would fall squarely within the category of behaviour which the House of Lords in Al-Mehdawi concluded would not lead to intervention by a court of judicial review. We agree with Mr Lloyd that this claim is “simply not within the territory of Scally”.

It is of note that s.142 of the 1980 Act was not referred to in the course of argument or the judgments in Scally. That is because the case preceded the amendments introduced by the Criminal Appeal Act 1995, which swept away the restriction that the section could not be used following a guilty plea. In our judgment, the circumstances in Scally are of the sort which might well now be dealt with by an application under s.142(2) (following the amendment) because the underlying facts were not in dispute and the desired outcome, subject to arguments about the breadth of judicial review, was clear.


Williamson pleaded guilty on his solicitor's advice, because, he said, his solicitor was incompetent, who didn't know how to play a DVD which would have affected his plea to the charges (assault and drunken disorderly).

In Williamson the solicitor's uselessness was no fault of the court, so there was clearly no mistake, so no grounds to apply under s 142.


Here, the prosecution has clearly acted improperly because it has prosecuted people for simple failure to produce a ticket, instead of failure to produce a ticket, pay the fare, AND provide address.

There is thus prosecutorial misconduct in misrepresenting the nature of the offence, so the convictions should be quashed under s 142

 

[BanburyBlue]

the CM rightly noted that the SJP convictions under RORA are void.

He has no power to make any general rulings about law. In general a wrongful conviction for reason of law , i.e. because 'providing an address' is a complete defence to RORA s 5(1), would be appealed by way of case stated, to the high court. There is a very strict no-exceptions 21 day time limit to appeals from the magistrates court to the high court.

There is a royal prerogative power of mercy, and there is the example of the Post Office (Horizon System) Offences Act 2024, which quashed those conviction, which is the same as an appeal in its effect. This requires an Act of Parliament, which doesn't seem likely.

For a person who was convicted in a magistrates court and pled guilty, there is no power to appeal against conviction to the crown court.

The magistrates' court can rectify its own mistakes under s 142.

There should probably also be civil compensation.

here is the High Court's judgment in respect of s 142 in Williamson [2012] EWHC 1444 (Admin)


The purpose of s.142 as originally enacted was to enable the magistrates’ court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the s.142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in magistrates’ courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. The power conferred with regard to sentence explicitly refers to replacing a sentence imposed which was invalid. That might be regarded as correcting a classic “mistake”. It could be contended that it would be in the interests of justice to substitute a new sentence on the grounds that the one originally imposed was manifestly excessive. However, the sentencing provisions, whether in their original or new form in s.142, cannot be read as conferring a power to substitute a new sentence in the same way as an appellate court might do so. So far asthe jurisdiction relating to convictions is concerned, the amendment enables the magistrates’ court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a magistrates’ court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under s.142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a s.142 application as possessed by the High Court.

Had Parliament contemplated such a broad power, it would not have chosen to describe the power in s.142 of the 1980 Act as being to “rectify mistakes etc” but used more expansive language

...

We accept that there may be circumstances in which s.142(2) could be used to allow an unequivocal guilty plea to be set aside. Examples which spring to mind include cases in which a guilty plea had been entered to an offence unknown to the law. Surprising though it may seem, such errors do occur in particular in connection with repealed legislation. That would fall comfortably within the language of mistake. They may include cases where a jurisdictional bar was not appreciated by the defendant relating, for example, to a time limit or the identity of a prosecutor. There may be cases in which the proceedings were, in truth, a nullity. We would not exclude the possibility that s.142(2) would be apt to deal with a case in which circumstances developed after a guilty plea and sentence which led the prosecution to conclude that the conviction should not be sustained.

...

Scally was an unusual case. The facts, to which we have referred in passing, more fully were these. Each of the four applicants had been arrested on suspicion of driving with excess alcohol. Each provided a blood specimen which was analysed in a laboratory. The results suggested that the proportion of alcohol in the blood was above the legal limit. Each pleaded guilty and was convicted. It was subsequently discovered that at the time of taking the specimens the medical cleansing swabs in some of this batch of blood sampling kits themselves contained alcohol. That plainly invalidated the test results.
...
The court mined a seam of authority which was analysed in R. v Secretary of State for the Home Department Ex p. Al-Mehdawi [1990] A.C. 876. In that case, a failure on the part of an immigrant’s legal adviser to notify him of an appeal hearing was rejected as a basis for quashing the result, because there had been no irregularity in the conduct of the proceedings by the decision-maker. By contrast, criminal cases in which the prosecution had acted improperly, for example, by suppressing material helpful to the defence, would provide a basis for the court to intervene and quash a conviction, as would fraud, collusion and perjury by the prosecutor. Watkins L.J. concluded at 556: “What happened here was that, there being no dishonesty, the prosecutor (a combination of police and C.P.S.) corrupted that process leading to a conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty, indeed it wrongly denied them a complete defence to the charge. In my view, that is conduct analogous to fraud, collusion or perjury if ever there was. I regard these applications … as providing a classic instance where the supervisory role of this court over magistrates’ courts is clearly required to be exercised. I would make the orders of certiorari sought.”

Even if it were established that Mr Mardon misrepresented the existence of two prosecution witnesses and his inability to view the CCTV, such conduct on the part of the defendant’s own legal adviser provides no analogy with prosecutorial fraud etc. It would fall squarely within the category of behaviour which the House of Lords in Al-Mehdawi concluded would not lead to intervention by a court of judicial review. We agree with Mr Lloyd that this claim is “simply not within the territory of Scally”.

It is of note that s.142 of the 1980 Act was not referred to in the course of argument or the judgments in Scally. That is because the case preceded the amendments introduced by the Criminal Appeal Act 1995, which swept away the restriction that the section could not be used following a guilty plea. In our judgment, the circumstances in Scally are of the sort which might well now be dealt with by an application under s.142(2) (following the amendment) because the underlying facts were not in dispute and the desired outcome, subject to arguments about the breadth of judicial review, was clear.


Williamson pleaded guilty on his solicitor's advice, because, he said, his solicitor was incompetent, who didn't know how to play a DVD which would have affected his plea to the charges (assault and drunken disorderly).

In Williamson the solicitor's uselessness was no fault of the court, so there was clearly no mistake, so no grounds to apply under s 142.


Here, the prosecution has clearly acted improperly because it has prosecuted people for simple failure to produce a ticket, instead of failure to produce a ticket, pay the fare, AND provide address.

There is thus prosecutorial misconduct in misrepresenting the nature of the offence, so the convictions should be quashed under s 142

Surely the first point of call against a conviction or sentence from a Magistrates Court is the Crown Court, with a Crown Court judge and 2 magistrates?

 

[furlong]

Surely the first point of call against a conviction or sentence from a Magistrates Court is the Crown Court, with a Crown Court judge and 2 magistrates?

You're getting several things mixed up there, but what soil writes is correct. The court system has got to provide some finality. In almost all cases, the time limits for appeals will have been exceeded so in almost all of these cases, it wouldn't be possible to use appeal mechanisms to put right any injustices. (The Crown Court would only have a role if there had been a contested trial.)

Section 142 provides a mechanism for the court to try to put right its mistakes, but different cases might play out differently. For example, some railway prosecutors might still seek to convict some defendants. Where there is no consensus, some legal questions might need to be referred to the High Court for an answer.

S142 (2) Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct.

 

[soil]

Surely the first point of call against a conviction or sentence from a Magistrates Court is the Crown Court, with a Crown Court judge and 2 magistrates?

there are three routes from the magistrates' court:

1. appeal by way of case stated is where there has been an error of law. the case is 'as stated', i.e. there is no re-trial of the facts. this is not possible because of a fixed time limit.
2. appeal to the crown court is a re-trial, but is not possible against conviction where the defendant pled guilty - only against sentence. here it's likely that people pled guilty, so this would be entirely ruled out. (if there was not a guilty plea, the time limit here could be extended, so this might be an option in some cases)
3. reopening the case to correct of error is the remaining route here and is made by the magistrates' court itself. there is no time limit.

if the magistrates' court declines to reopen the case then that decision (not to reopen) is subject to judicial review by the High Court. this would need to be made promptly and within 3 months of the refusal to re-open.

 

[island]

There is thus prosecutorial misconduct in misrepresenting the nature of the offence, so the convictions should be quashed under s 142

Just to note that Section 142 does not provide the court a standalone power to "quash" a conviction on its own.

It can direct that there be a new trial of the matter conducted by different justices, and an effect of that direction is that the conviction and sentence are of no effect.

Following such a direction, the case comes back to court as though it were adjourned. The prosecutor of the case can then decide to offer no evidence, at which point the justices can dismiss the case. But they do not have to: they could instead seek to proceed with different evidence, or apply for permission to substitute a new charge such as a byelaw offence, or proceed on the old offence and ask the justices to state a case to the High Court. There are probably further alternatives also.

This latter part cannot be glossed over, or skipped.

 

[John Palmer]

if the magistrates' court declines to reopen the case then that decision (not to reopen) is subject to judicial review by the High Court. this would need to be made promptly and within 3 months of the refusal to re-open.

What event would start that 3 month clock? The case has been subject to final disposal, so I do not see how there can be a decision not to re-open that is susceptible to judicial review.

I agree with everything @island says in post #358, subject to the observation that a prosecution application for leave to substitute a different charge might well be opposed on a range of grounds, some, depending on the nature of the original charge and proposed substitution, with quite a high probability of success.

Application for a case to be stated would be an obvious route to test Northern Trains' proposition that Regulation 11 of the Penalty Fares Regulations operates as a bar to byelaw/Section 5(3) prosecutions only for so long as the relevant penalty fare appeal is in progress, if that is a line of argument the company wished to pursue. That option is, of course, available in any case in which the defendant invokes Regulation 11, irrespective of whether it is one that has been revived under Section 142(2).

 

[pedr]

Do we think there are any realistic available remedies for people in either or both of these positions:

1) Those who have pleaded guilty to a s. 5 (1) charge brought by a full summons/laying an information?
2) Those who have pleaded guilty to any offence prosecution-barred by Regulation 11?

There seems to be awareness by some train companies, and by the Chief Magistrate, that both of these situations are unjust. But can anything be done about it?

There may, presumably, be a tiny handful of people convicted after a full trial, who then didn't appeal after conviction. But I expect almost all of these cases were resolved by guilty plea, or in the defendant's absence.