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

[talldave]

Bravo.

The next step will be to figure out how many of these convictions were caused by unpaid penalty fares, which is a greater indication of malice rather than mistake.

and work out what action can/should be taken against TOCs or their employees for abuse of legal process. After all, TOCs are more than happy to push through prosecutions where their losses total £0 aren't they?

 

[Starmill]

and work out what action can/should be taken against TOCs or their employees for abuse of legal process. After all, TOCs are more than happy to push through prosecutions where their losses total £0 aren't they?

Unfortunately the bar for showing that a prosecution was wholly unreasonable is difficult to meet. It's not obvious it's met here by any means, though I accept anything is possible. It could be easier to argue that prosecutors were breaking the Court's rules, but exactly what that would achieve beyond some very red faces I'm not sure.

The more effective avenue could be political, though. Perhaps now, Ministers could be persuaded that the Single Justice Procedure should be withdrawn from statute. Parliament could make that change with minimum fuss. They may be rather busy when they're back of course.

 

[island]

So the Chief Magistrate is blaming the railway for the mess, and not his own Magistrates and clerks who nodded all the unlawful prosecutions through? I think he needs to look at himself first, doesn't he?

Magistrates have no legal training – they rely on legal advisers (formerly known as justices' clerks) to advise them on the law.

I did write to the magistrates association last week asking why the courts had failed to discipline prosecutors in this instance, as it is their role to do so.

Would that not fall to the SRA, BSB, and Law Society?

Unfortunately the bar for showing that a prosecution was wholly unreasonable is difficult to meet. It's not obvious it's met here by any means, though I accept anything is possible. It could be easier to argue that prosecutors were breaking the Court's rules, but exactly what that would achieve beyond some very red faces I'm not sure.

Correct.

 

[notmyrealname]

The London Evening Standard published this today.

Roughly 75,000 fare evasion prosecutions 'probably unlawful' and could be quashed

Rail companies bring criminal cases against alleged fare dodgers as private prosecutors.

www.standard.co.uk

 

[MrJeeves]

The London Evening Standard published this today.

Roughly 75,000 fare evasion prosecutions 'probably unlawful' and could be quashed

Rail companies bring criminal cases against alleged fare dodgers as private prosecutors.

www.standard.co.uk

As mentioned and discussed on the last page: https://www.railforums.co.uk/thread...-rora-prosecutions.269410/page-2#post-6819402

 

[John Palmer]

I appreciate that if the Chief Magistrate is correct in concluding that the RoRA prosecutions begun by SJP are nullities and therefore void, their status may well be different from cases in which a conviction has been obtained without such irregularity.

Nevertheless, it is noteworthy that the government found it necessary to legislate to bring about the quashing of many sub-postmasters' convictions, in the face of a significant body of opinion that the only appropriate mechanism for achieving this was by judicial decision.

According to the article in the Standard, the Chief Magistrate is proposing to hand down a quashing order in respect of the cases improperly begun by SJP, but I should be interested to learn the authority on which he claims to be entitled to do so.

The government website for the judiciary very plainly states that "The Chief Magistrate has no authority over lay magistrates, or over the several hundreds of district judges who sit in the county courts of England and Wales" (https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judges/chief-magistrate/), so it is far from clear to me whether he has the power to make an order having such an effect.

 

[notmyrealname]

Apologies MrJeeves, I don't know how I missed that. It's good news though.

 

[KirkstallOne]

Also in the independent:

In a hearing at Westminster Magistrates’ Court on Thursday, Chief Magistrate Paul Goldspring said his initial view was that “all of the offences which were not covered by (the) 2016 order but prosecuted under SJP process are void”.

He said there “isn’t a one-size-fits-all solution” for the tens of thousands of cases.

Mr Goldspring added that “there’s no doubt that had the 2016 order allowed this process then the vast majority of these cases would properly have been convicted”.

He said that the principle of innocent until proven guilty is “only really as good as the process” it takes to get there.

The hearing involved six “test cases” of fare evasion prosecutions and Mr Goldspring said 74,860 cases are thought to have been involved so far.

He asked the train companies to look into how many cases are believed to be affected in total.

Mr Goldspring said a letter was sent to those involved in the test cases explaining the process used was “probably unlawful”.

The court knows about a “certain number of the cases but it’s quite a task”, Mr Goldspring said, and added it would be “much easier if each of the prosecuting authorities are able to say we know there are these cases”.


There's a lot of moving parts to it
Chief Magistrate Paul Goldspring
He said: “I’d be anxious to avoid we come to a conclusion then miss a few people.”

Mr Goldspring questioned what would happen with “fines collected” and said in cases there could have been “bailiffs that are out”, adding “there’s a lot of moving parts to it”.

75,000 prosecutions of alleged rail fare evasion ‘probably unlawful’

The Chief Magistrate said a letter was sent to those involved in the test cases explaining ‘the process was probably unlawful’.

www.independent.co.uk

 

[furlong]

Here's my take on it:

An analogy might be if the courts ruled that a specific law was ultra vires: the convictions fall away. Once it's established that the courts made a procedural error and the cases are a nullity, it's really just a matter of record-keeping to sort that out and I'd be surprised if the courts couldn't devise an appropriate procedure to handle that reasonably centrally, rather than locally one case at a time (even if the detailed procedure ends up amounting to sending lists of cases back to local magistrates to nod through in bulk).

This is entirely different to the Post Office situation where, on the face of it, the courts did nothing wrong and the convictions were sound e.g. there was actual false accounting signing off accounts known to be wrong (just that the P.O. in effect advised some subpostmasters to do this). Appeals there would largely rely on multiple abuses of process which would have to meet a high threshold and as every case has its differences that would be a lot of legal argument to work through in the higher courts with no easy ways to streamline it, even trying to take groups of similar cases together.

 

[Starmill]

I appreciate that if the Chief Magistrate is correct in concluding that the RoRA prosecutions begun by SJP are nullities and therefore void, their status may well be different from cases in which a conviction has been obtained without such irregularity.

Nevertheless, it is noteworthy that the government found it necessary to legislate to bring about the quashing of many sub-postmasters' convictions, in the face of a significant body of opinion that the only appropriate mechanism for achieving this was by judicial decision.

According to the article in the Standard, the Chief Magistrate is proposing to hand down a quashing order in respect of the cases improperly begun by SJP, but I should be interested to learn the authority on which he claims to be entitled to do so.

The government website for the judiciary very plainly states that "The Chief Magistrate has no authority over lay magistrates, or over the several hundreds of district judges who sit in the county courts of England and Wales" (https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judges/chief-magistrate/), so it is far from clear to me whether he has the power to make an order having such an effect.

I think that the difference between these points is that if a case has been incorrectly admitted to Court, that's different to a question over whether a miscarriage of justice based on the charge, the facts, or the law in question has taken place.

If it were common ground among everyone that the cases should have never even been heard, there can be no arguments as to the correctness or otherwise of the charge, the facts of what happened or didn't, or the whether the law were complied with or not.

The Post Office convictions are not like this. They are based on inaccurate or unreliable evidence. The evidence shouldn't ever have been given, but that's not the same as the Court having never been permitted to hear the case in the first place.

If the Chief Magistrate (who is a Judge, at least) were acting outside of their powers in quashing the convictions, it could be fairly simple to get around that by obtaining the agreement of the prosecution in each case. They are in no position to be refusing, given it would only add to their blushes. We'll have to see what happens.

 

[pedr]

Magistrates’ courts are courts of limited justification, which means they can only do things specifically authorised by legislation. In this sense they are like any other public body, and if they purport to do things they are not authorised to, those acts and decisions are (supposed to be) of no effect. The “quashing order” the Chief Magistrate refers to is one of the formal remedies the High Court has at its disposal to supervise the activities of public bodies - it has the effect of undoing the decision made without jurisdiction or power. I don’t know if the Chief Magistrate has the power to issue such an order - presumably he’s not a High Court judge but there’s a possibility he’s empowered to act like one in some circumstances. But unlike the Post Office cases where as already said these were convictions within the power of the Crown Court or magistrates’ courts, just ones which shouldn’t have been brought and with serious evidential problems (requiring the Court of Appeal to rule they were “unsafe”, until there was specific legislation) the High Court has the power to quash convictions of magistrates’ courts if the magistrates misunderstood their powers and acted in ways they were not entitled to.

The issue of out of court settlements to avoid prosecution for crimes not actually committed is probably the most complex of these, although getting compensation for additional collection fees on top of fines wrongly charged may prove difficult too, even if all the wrongly prosecuted people can be identified and traced.

 

[island]

The “quashing order” the Chief Magistrate refers to is one of the formal remedies the High Court has at its disposal to supervise the activities of public bodies - it has the effect of undoing the decision made without jurisdiction or power. I don’t know if the Chief Magistrate has the power to issue such an order - presumably he’s not a High Court judge but there’s a possibility he’s empowered to act like one in some circumstances.

I think it has to go to the High Court. As said above, the Chief Magistrate, despite the name, has no authority over magistrates!

The issue of out of court settlements to avoid prosecution for crimes not actually committed is probably the most complex of these, although getting compensation for additional collection fees on top of fines wrongly charged may prove difficult too, even if all the wrongly prosecuted people can be identified and traced.

It is not at all clear whether out of court settlements can be unwound, although I should say that there does not seem to be evidence of anyone who had not committed some crime being asked for an out of court settlement.

I note that one of the Magistrates' handbooks most unhelpfully abbreviates the section 5 (1) offence to "failing to produce ticket".

 

[KirkstallOne]

Another article with details of one of the test cases.

A woman who was prosecuted by a train company for fare evasion under the controversial single justice procedure and whose case is being examined by a magistrate said she will “probably never again” get on a train.
Sarah Cook’s case is one of six “test cases” of fare evasion prosecutions being looked into at Westminster Magistrates’ Court by Chief Magistrate Paul Goldspring – who said about 75,000 cases are believed to have been involved.
...

Ms Cook from Barnsley, South Yorkshire, said she tried to appeal after being fined for not producing a ticket following her train journey from Wombwell to Barnsley on November 17 2022.

The 40-year-old said the ticket machine would not accept her card for the fare and as she had not been on a train in decades believed she could buy a ticket once on the train.

But when she got off one stop later and was asked to show a ticket, she said she was told she had to pay a fine.

“I haven’t got on the train for about 20 years,” Ms Cook said.

“I ran across, the machine wouldn’t accept my card to pay, then the train came and I thought it doesn’t matter, I’ll buy a ticket on the train.

“Nobody came, and when I went to get off people were checking their phones for tickets and I said ‘I don’t have a ticket, I need a return’, they said ‘if you’re already travelling we have to fine you’.

“I said ‘I wasn’t actually evading it, I thought I would get one on the train’, they said ‘it’s too late you should have got a promise to pay’.

“I gave all my details and she said ‘you can appeal it, it’s a £20 fine’, the journey is about £3.50.”

Ms Cook said she wrote an email to appeal but then got letters saying she should have attended a court case and was being fined £475 by Northern Rail.

https://www.standard.co.uk/news/cri...ort-barnsley-greater-anglia-sjp-b1165894.html

 

[John Palmer]

The premise that underlies the criminal justice system is that it is up to the aggrieved defendant to exercise the available rights of appeal in order to secure redress for a wrongful conviction, rather than a state institution taking the initiative to rectify an injustice. I am not aware of any mechanism prescribed by law to which the state can resort in order to remedy a mass miscarriage of justice.

If the £475 penalty referred to in Sarah Cook's case is representive, the total penalties at issue in consequence of the wrongful use of the SJP may lie north of £35M, and you would not expect the railway operators involved to repay sums of that magnitude without a fight.

So, I am intrigued to discover the way in which Chief Magistrate Goldspring is dealing with the matter. It's not clear to me from the press reports whether the six test cases referred to are the subject of a proceeding separate from what I understand to be some form of case management hearing at which the operators concerned are being invited to agree or reject his conclusion that convictions arising from unauthorised use of the SJP are void. In what proceedings has that case management hearing been convened? How have those test cases come about? In Sarah Cook's case the implication is that she paid £4.00 to secure disposal of the prosecution brought against her, in which event those proceedings are at an end. If, as one would expect, the railway operators will be legally represented in any proceedings the Chief Magistrate has set in motion, what about such representation for the opposite parties? Are the individuals in the six test cases legally represented, and is the state bearing the cost of such representation?

Incidentally, in the Independent's coverage of the matter Mr Goldspring is said to have commented that “there’s no doubt that had the 2016 order allowed this process then the vast majority of these cases would properly have been convicted”. That appears to me to be a highly tendentious observation and one that cannot be true in every case where a passenger was prosecuted under RoRA Section 5(1) after having given his name and address in connection with the issue of a penalty fare.

 

[AlterEgo]

Incidentally, in the Independent's coverage of the matter Mr Goldspring is said to have commented that “there’s no doubt that had the 2016 order allowed this process then the vast majority of these cases would properly have been convicted”. That appears to me to be a highly tendentious observation and one that cannot be true in every case where a passenger was prosecuted under RoRA Section 5(1) after having given his name and address in connection with the issue of a penalty fare.

Good point, and well spotted.

 

[KirkstallOne]

Well I am minded to attend the 17th July hearing personally so maybe we can get some more clarity then!

 

[AdamWW]

Good point, and well spotted.

Indeed. If I'm following this all correctly, Northern have successfully made up a law that gives the consequences of an RoR offence with the strict liability that should only apply to bylaw offences and which lets them prosecute someone after not paying a penalty fare. And they seem to intend to carry on prosecuting people using it, just not via the single justice procedure.

 

[Fermiboson]

Well I am minded to attend the 17th July hearing personally so maybe we can get some more clarity then!

Where is the hearing?

Indeed. If I'm following this all correctly, Northern have successfully made up a law that gives the consequences of an RoR offence with the strict liability that should only apply to bylaw offences and which lets them prosecute someone after not paying a penalty fare. And they seem to intend to carry on prosecuting people using it, just not via the single justice procedure.

Quite, and given the timeframe needed for such information to come to light I fear that Mr Chief Magistrate may be in danger of coming to an immature decision. It sounds as though the cases are mostly penalty fare ones - and if that is the case, perhaps someone should raise this point in person at the hearing. It sounds as though the defendants in the test cases have not been fully informed of the depth of the misconduct here.

 

[KirkstallOne]

Where is the hearing?

I am assuming at Westminster Magistrate's Court on 17th July

 

[Starmill]

If the £475 penalty referred to in Sarah Cook's case is representive, the total penalties at issue in consequence of the wrongful use of the SJP may lie north of £35M, and you would not expect the railway operators involved to repay sums of that magnitude without a fight.

It's not very easy for them to actually fight it, even if they want to, because doing so would invite further and further scrutiny of their own actions. As they'll have to agree, they've broken the Court's rules. They may in certain cases have made some misleading submissions. They'll be desperate to avoid further scrutiny, or negative publicity, so can't do too much to push back.

No doubt many in the Department (and Treasury) would see it that this was £20 - £40 million of revenue which rightfully was theirs, which incompetent management has allowed to go free to people who were trying it on in the first place. I don't think I'd see it that way exactly, but I can see the logic.

 

[Verulamius]

A notice has been issued by the Department of Transport, Ministry of Justice and HM Courts and Tribunal Service.

Train company prosecutions

www.gov.uk

The Single Justice Procedure (SJP) allows those who plead guilty to low-level, non-imprisonable crimes to resolve their case without going to court.
Train companies and various other bodies are authorised by the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 to institute proceedings by a SJP Notice.
The decision to use SJP is a matter for prosecutors. When cases come to court, magistrates decide on conviction and sentence, advised by legal advisers.

Rail fare offences​

HMCTS, the Department for Transport and the Ministry of Justice are aware that several train companies have prosecuted in error some specific offences through SJP in circumstances where:

• the offence was not included in the 2016 Order or
• the offence was imprisonable (albeit no prison sentence was passed for these offences through SJP)

Any procedural error of this type would only relate to specific rail fare offences and does not affect any other type of SJP prosecution.

What happens next?​

Only the courts could overturn or nullify an unsound conviction.

Action we are taking​

The Department for Transport, the Ministry of Justice and HMCTS are working together to urgently:

• review which train companies may have prosecuted cases using this legislation
• consider the next steps if any case is found by the courts to have been dealt with incorrectly

Guidance has been issued to courts, and they will monitor incoming prosecutions.
Once we have fully reviewed the situation we will, if necessary, provide an update directly to people who may have been affected. We are unable to respond to individual enquiries until we have completed our review, so members of the public are asked not to contact the courts or any rail providers in the meantime.

 

[Adam Williams]

A notice has been issued by the Department of Transport, Ministry of Justice and HM Courts and Tribunal Service.

Train company prosecutions

www.gov.uk

It all sounds very arms-length and outwith the govt's control in this notice, doesn't it?

"several train companies" should perhaps read "several train companies, some of which are a wholly owned subsidiary of DfT OLR Holdings Limited"

 

[Haywain]

It all sounds very arms-length and outwith the govt's control in this notice, doesn't it?

The judiciary is supposed to be independent of government.

 

[MrJeeves]

The judiciary is supposed to be independent of government.

I think the point is that the statement implies the Government had no way of knowing about this, and the TOCs that did it have nothing to do with central government.

 

[Adam Williams]

The judiciary is supposed to be independent of government.

It was a joint statement released by MoJ (& HMCTS) and DfT, wasn't it?

 

[Starmill]

The judiciary is supposed to be independent of government.

The prosecution isn't really independent though...

 

[30907]

"several train companies" should perhaps read "several train companies, some of which are a wholly owned subsidiary of DfT OLR Holdings Limited"

While the DfT has a reputation for micromanagement, I don't think that extends to checking up on the TOCs' Prosecutions Departments, whether OLR or not

 

[AdamWW]

While the DfT has a reputation for micromanagement, I don't think that extends to checking up on the TOCs' Prosecutions Departments, whether OLR or not

Nevertheless, the government/DfT still has ultimate responsibility.

 

[Haywain]

While the DfT has a reputation for micromanagement, I don't think that extends to checking up on the TOCs' Prosecutions Departments, whether OLR or not

I agree.

 

[furlong]

This is what happens when you choose not to employ qualified and regulated individuals to perform these roles in the train companies. As with the Post Office, whether this happened by a combination of ignorance and incompetence or whether it was a calculated attempt to distort the law to increase revenue at the cost of justice will be a matter for the inevitable (hopefully police) inquiry.

The SJP problem reported so far is only the tip of the iceberg though. We've seen ample evidence on this forum of practices that no regulated legal professional would have wanted anything to do with.

Artificially inflated "admin" charges when offering settlements is perhaps one of the next problems the train companies need to address. The courts should similarly review a small number of out-of-court settlements to determine the extent to which they are enforceable, and if it's found that the level of admin charges is unjustified in a settlement of a criminal case, then huge numbers of people might be due partial refunds.