Again, an interesting analogy with the Post Office. There were subpostmasters who were never prosecuted because they used their own personal funds to correct for the Horizon errors.
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Unlawful Use of SJPN by Train Companies for Section 5(1) RoRA Prosecutions
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Indeed, and the analogy works in multiple directions here, but the TOCs will presumably be very concerned how this could end up. In the case of the PO, subpostmasters sold off houses and pensions in order to avoid prosecution, so the scale here is somewhat different, fortunately, and not as complex. But it also means the Chief Magistrate needs to somehow come up with a solution that addresses at least 99% of cases, including out-of-courts, otherwise some version of group litigation will be the TOCs / DfT's fate, which will go on for years and vastly exceed the sums received by the TOCs. Unlike the PO, I would guess out-of-court settlements would exceed the number of prosecutions.
Haywain
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Out of court settlements are nothing to with the Chief Magistrate because they didn't go to court.
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And in that scenario the "otherwise" part of my post will apply, short of some agile and comprehensive footwork from the TOCs.
Precisely.
And most out of court settlements followed on from an offence being committed, and were mutually beneficial to offender and TOC at the time.
If an argument is pursued that out of court settlements are somehow “unfair” and they get unwound, that just means people get prosecuted instead in future and end up with much more to pay.
Be careful what you wish for.
Tetchytyke
Veteran Member
Most out of court settlements followed on from a TOC alleging that an offence had been committed. As we have seen with the misuse of s.5(1), just because a TOC alleges something is an offence doesn’t mean it is actually an offence.
In most cases the settlement is “beneficial” for the simple fact that the cost of the settlement is less than the cost of going to court- even if you win. This has now blown open because of the tenacity of @KirkstallOne who, it seems, is still out of pocket despite the TOC withdrawing the charge at the last second.
As for what I would wish for, I would wish for the TOCs to lose the right to bring any prosecution. If it’s a serious fraud it goes to the BTP then the CPS, and if it isn’t then you get your £100 Penalty Fare and be on your way.
In this context, I’d regard starting with discussion being based on the law, not arbitrary assertion by the company without reference to what the law actually says.
This does then scan across into the train operators use of out of court settlements. The example is given of Section 5.1 cases. As has been said, these rely on an either/or test. If the operator uses an invalid threat of prosecution to influence an individual into settling, that is a form of misrepresentation and, at least in the lay sense, coercive behaviour.
Reference has been made to the Post Office prosecutions. I agree with the similarity. A specific charge has been alleged, and coercive behaviour applied to obtain admissions where, in general, there is no case under the law.
As with the Post Office, it is clear that a key part of the failing is slack work by enforcement teams, working in a culture of “the company is always right”. Reasonable tests are not applied, and facts are ignored. When challenges are made - as by @KirkstallOne or in a Merseyrail case referred to previously - the organisation doesn’t reflect, but hunkers down until there is no choice but to concede, generally gracelessly.
As we’ve seen with the Post Office, the effect is not that discretion transmutes to more prosecutions, but that the prosecutions stop. The prosecuting body no longer has the credibility to bring these cases, and therefore the harms of unjustified prosecutions no longer arise.
This undermines the work of good staff on the ground, trying to enforce the basic principle that fares are due.
I think three different issues are being conflated here.
1) Taking section 5 (1) prosecutions against passengers who have given their name and address. This is clearly wrong and anyone so convicted should have their case reviewed and conviction quashed.
2) TOCs bringing section 5 (1) prosecutions via SJPN when not authorised to do so. To the extent that any of these prosecutions do not fall under 1), this is a procedural issue only. The prosecutions should have been brought by laying an information instead. There is little to suggest that they would have concluded any other way.
3) Out of court settlements – there are few if any of these based on section 5 (1) allegations. Far more common are those based on byelaw 18 or section 5 (3). From what I can see, most of these settlements are being offered appropriately to people who have broken the law alleged. There are arguments that the amount being requested in some cases is too high. That is for a court to decide if a case ever gets there.
This conflation is making it difficult to address the specific claims and quality discussion is being supplanted by generalisations and availability heuristics. I would suggest that 3) be split for discussion in a separate thread.
Haywain
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With the disadvantage that for there to be a decision that the amount being sought is too high, the accused will have been found guilty and will be paying a fine and receiving a criminal conviction.
Are we positive that no regulated legal professionals have been involved ? While the majority of day to day work in these departments will be done by unqualified people, I'd be surprised if there has been no oversight by lawyers at any stage.
Pure supposition here, but I'd suggest it's as likely that legal professionals have looked over these processes. They've either not noticed the issues, or they have noticed the issues but advised ' keep quiet and carry on' because it's working
One difficulty though is that the remedy for case 1 is to plead not guilty and to appeal to the Crown Court if convicted. People are prosecuted for crimes they haven’t committed regularly, and there’s no difference between alleging a 5 (1) offence when the facts are that the crime hadn’t been committed and (say) prosecuting someone for theft when they did actually pay for their goods. If a person pleads guilty to a crime they didn’t commit, that’s also something that happens regularly and shows the problem with the very limited legal advice available to people charged with crimes that are perceived as insignificant. If a prosecutor misrepresented the crime, that’s inappropriate and unfortunate, but I’m not sure it gives rise to a right to a remedy well after any timescale for appealing has passed, although it would be right for relevant train companies to review whether they prosecuted people for crimes they didn’t commit and sought to remedy that.
Case 2 is the core of what’s been discovered and causing judicial concern at the moment, because (perhaps perversely) the courts are more concerned with decisions which could perhaps have been right in fact but which were reached in the wrong way, than they are when the right process reaches a result that’s considered wrong. From a system-wide viewpoint, getting the overall system right is better than aiming for the impossibility of ensuring every decision is right.
Fermiboson
Member
I would draw your attention to Northern's reply to my FOI request (#7):
The issue with Case 1 is when it is caused by a deliberate misrepresentation of the prosecuting authority on what the law actually says (i.e. obscuring the part of 5(1) which gives the giving of details as an absolute defence), and also when the systematic (i.e. not mistaken!) prosecution of people who the prosecutor knows or can be reasonably expected to know is not guilty of the crime charged takes place in order to financially enrich the prosecuting authority (i.e. to circumvent the penalty fare regulations and obtain additional OCSs).
I am disinclined to accept argument (2). Cases are routinely dismissed for failure to comply with procedural requirements (see https://taxpolicy.org.uk/2024/06/19/baxendale_walker_hmrc_mistakes_14m_penalty/ for discussion of a much more serious example), and the burden is on the prosecutor to get it right. They chose SJP as the route and as such can be assumed to be out of time to lay papers correctly.
This got published on the GOV.UK website on Friday
www.gov.uk
Train company prosecutions
Keep up at the back!This got published on the GOV.UK website on Friday
Train company prosecutions
A notice has been issued by the Department of Transport, Ministry of Justice and HM Courts and Tribunal Service.
Train company prosecutions
KirkstallOne
Member
Was covered in the independent, the financial times, the yorkshire post plus some of the other local papers. Mainly rehashes of Tristan’s pieces, I presume he was the only journalist in attendance at this mysterious hearing.
I have had some other media interest though so hoping to get some more substantive coverage with the role of the forum in this out there.
I have had some other media interest though so hoping to get some more substantive coverage with the role of the forum in this out there.
I think this is a useful primer thank you. You do have to just stop and think about it logically as there's quite a lot of moving parts to all this.
KirkstallOne
Member
See below for a response I have had from the Chief Magistrate's office. I have obfuscated the names apart from Sarah Cook as these are not currently in the public domain and I have no wish to put them there.
My reading of the post by island is not that it's arguing that the convictions can actually stand, just that if charges were correctly filed in the first place, convictions would be very likely to be safe. I think all of us would agree that the prosecution is responsible for filing any charge correctly.
John Palmer
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It is unfortunate that the response from the Chief Magistrate's Office doesn't identify the authority on which he claims the right to intervene in what appear to be cases that have previously been decided.
So far as I can tell, the most likely basis for such intervention is by reference to Part 44 of the Criminal Procedure Rules 2020. That caters for the reopening of a limited range of cases in a magistrates court. Part 44 applies to cases where the defendant had not found out about the case prior to trial, to cases falling with Section 16M Magistrates Courts Act 1980 (defendant’s acceptance of online conviction option under Section 16H of the 1980 Act), and to cases covered by Section 142 of the 1980 Act.
Section 142 appears to offer the most likely basis for the Chief Magistrate's intervention. Under Section 142(1):
“A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”
I note that this subsection only entitles a magistrates' court to vary or rescind a sentence or (like) order; it confers no power on the court to quash the conviction. However, Section 142(2) provides that :
“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.”
And Section 142(3) goes on to provide that:
“Where a court gives a direction under subsection (2) above—
(a) the conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; ...”
from which it is clear that the effect of a subsection (2) direction may be to set aside a conviction, pending re-consideration of the case by a differently constituted bench. That, however, amounts to nothing more than a temporary rolling back of the conviction, as it seems clear from the terms of subsection (2) that a direction given under it must lead to a rehearing of the case which may, or may not, result in an acquittal.
CPR Part 44 paragraph (7) indicates that a magistrates' court may exercise its power under Section 142 of the 1980 Act to set aside a conviction on its own initiative, whilst paragraph (8) goes on to set some constraints in the manner in which it may exercise that power, including an obligation before doing so to receive representations from an affected party (unless such party has agreed to the course the court is proposing to take or has itself proposed that course to the court). That may explain why the Chief Magistrate has invited the attendance of representatives of Northern Trains and Greater Anglia (though the latter has apparently chosen – as it may – to forego its opportunity to make representations). Since Northern Trains is represented by counsel, it is highly desirable for there to be 'equality of arms' in the form of professional representation of the six defendants, and if the Chief Magistrate has selected them as being representative of a wider class then the expense of such representaton should be underwritten by the state.
So far as I can see, even if the Chief Magistrate is exercising the power conferred by Section 142(2) (and it's hard to see what other power to intervene can be applicable), to quash convictions forming the subject of the six test cases, the limited effect of its exercise can be be nothing more than a rehearing of those six cases, and cannot of itself result in the quashing of up 75,000 convictions stemming from unauthorised use of the Single Justice Procedure.
In any event, the most damning aspect for me of the improper resort to the SJP is the supporting role it is likely to have played in deflection of appropriate magisterial scrutiny from the real mischief of seeking conviction for a Section 5(1) RoRA offence in cases (of which there may be thousands) where the accused could not properly have been convicted by reason of having given name and address in order to receive a penalty fare. In every case where that occurred there must surely be a prima facie case for enquiry into whether the prosecutor concerned failed to discharge his duty to make the court aware of a matter exculpating the accused, and where there is evidence that such a course of action was pursued on a systematic basis there must be grounds for wondering whether this amounts to a perversion of the course of justice. I hope that the reported review by the Ministry of Justice, HM Courts & Tribunal Service and Department of Transport will be taking steps to establish whether any such systematic abuse of a prosecutor's obligations has taken place, and, if it has, proceeding appropriately against the responsible parties.
Finally, if Northern Trains wishes to persist in its absurd argument that Section 5(1) RoRA creates a substantive offence of ticketless travel, perhaps it should be encouraged, on conclusion of the six test cases, to seek a determinative adjudication of the point by way of case stated.
So far as I can tell, the most likely basis for such intervention is by reference to Part 44 of the Criminal Procedure Rules 2020. That caters for the reopening of a limited range of cases in a magistrates court. Part 44 applies to cases where the defendant had not found out about the case prior to trial, to cases falling with Section 16M Magistrates Courts Act 1980 (defendant’s acceptance of online conviction option under Section 16H of the 1980 Act), and to cases covered by Section 142 of the 1980 Act.
Section 142 appears to offer the most likely basis for the Chief Magistrate's intervention. Under Section 142(1):
“A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”
I note that this subsection only entitles a magistrates' court to vary or rescind a sentence or (like) order; it confers no power on the court to quash the conviction. However, Section 142(2) provides that :
“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.”
And Section 142(3) goes on to provide that:
“Where a court gives a direction under subsection (2) above—
(a) the conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; ...”
from which it is clear that the effect of a subsection (2) direction may be to set aside a conviction, pending re-consideration of the case by a differently constituted bench. That, however, amounts to nothing more than a temporary rolling back of the conviction, as it seems clear from the terms of subsection (2) that a direction given under it must lead to a rehearing of the case which may, or may not, result in an acquittal.
CPR Part 44 paragraph (7) indicates that a magistrates' court may exercise its power under Section 142 of the 1980 Act to set aside a conviction on its own initiative, whilst paragraph (8) goes on to set some constraints in the manner in which it may exercise that power, including an obligation before doing so to receive representations from an affected party (unless such party has agreed to the course the court is proposing to take or has itself proposed that course to the court). That may explain why the Chief Magistrate has invited the attendance of representatives of Northern Trains and Greater Anglia (though the latter has apparently chosen – as it may – to forego its opportunity to make representations). Since Northern Trains is represented by counsel, it is highly desirable for there to be 'equality of arms' in the form of professional representation of the six defendants, and if the Chief Magistrate has selected them as being representative of a wider class then the expense of such representaton should be underwritten by the state.
So far as I can see, even if the Chief Magistrate is exercising the power conferred by Section 142(2) (and it's hard to see what other power to intervene can be applicable), to quash convictions forming the subject of the six test cases, the limited effect of its exercise can be be nothing more than a rehearing of those six cases, and cannot of itself result in the quashing of up 75,000 convictions stemming from unauthorised use of the Single Justice Procedure.
In any event, the most damning aspect for me of the improper resort to the SJP is the supporting role it is likely to have played in deflection of appropriate magisterial scrutiny from the real mischief of seeking conviction for a Section 5(1) RoRA offence in cases (of which there may be thousands) where the accused could not properly have been convicted by reason of having given name and address in order to receive a penalty fare. In every case where that occurred there must surely be a prima facie case for enquiry into whether the prosecutor concerned failed to discharge his duty to make the court aware of a matter exculpating the accused, and where there is evidence that such a course of action was pursued on a systematic basis there must be grounds for wondering whether this amounts to a perversion of the course of justice. I hope that the reported review by the Ministry of Justice, HM Courts & Tribunal Service and Department of Transport will be taking steps to establish whether any such systematic abuse of a prosecutor's obligations has taken place, and, if it has, proceeding appropriately against the responsible parties.
Finally, if Northern Trains wishes to persist in its absurd argument that Section 5(1) RoRA creates a substantive offence of ticketless travel, perhaps it should be encouraged, on conclusion of the six test cases, to seek a determinative adjudication of the point by way of case stated.
KirkstallOne
Member
Was just on itv calendar as the opening story. Hat tip to the forums!
Absolutely. Parliament sets caveats in the legislation for a reason. It is not for the Courts, let alone people on a random forum, to assert that ignoring those caveats is procedural and should be ignored. My authority for stating that is involvement in UK Supreme Court hearings....
I wholeheartedly agree but would add that the likely reason for DfT and MOJ direct involvement at this stage is likely to head off the possibility of allegations of misconduct in public office.
That is going to need to be looked at seriously: even if it was not found to be either deliberate or sufficiently negligent originally, the reasons for the continuation and defence of the practices after the problems were known need to be examined.
An inquiry is also needed to examine the current seemingly widespread reluctance to pursue unpaid Penalty Fares in the way parliament explicitly intended through the civil courts and Northern's alternative invention of the "penalty fake" and the role of the DfT in facilitating that alternative system (that I don't think was ever debated by parliament) by introducing fines for breaches of a renumbered byelaw 18 seemingly without public consultation. Or to put it another way, an inquiry into the behaviour exhibited by Northern and its legality may need to look back at least 20 years and include other parties such as the DfT and ORR within its scope in order to get to the bottom of what's been going on and find out if there are further classes of people who have been wronged and may need to be compensated.
Well done! You came across very well too in the piece, and explained your position very clearly (not always easy when being interviewed as I know from experience!)
jfowkes
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Just came here to say that whoever is running the rail forums twitter account is doing sterling work directing victims to this thread, providing information, fighting disinformation and holding companies to account.
Elecman
Established Member
Indeed and correcting some NCoT misconceptions as well