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

[John Palmer]

Just seen the ITV Calendar item, which has left me puzzled. It seemed to confirm that Northern Trains had agreed not to proceed with its prosecution of Sarah Cook in return for a payment from her of her £4 fare. But if Northern's prosecution didn't go ahead, as the piece suggested, there can't have been a conviction. If that is so, then what can be the basis for re-opening the case, whether under Section 142 MCA 1980 or otherwise? In principle, doing so revives the risk of conviction for Sarah Cook and may also entail interference by the court, acting on its own motion, in an out-of-court settlement to which the railway operator and the passenger had previously agreed.

I also note that the notice of hearing on 19th July advises Sarah Cook that she need not attend because this is a directions hearing. I do hope that this is because she will have the benefit of state-funded representation at that hearing.

 

[talldave]

Just seen the ITV Calendar item, which has left me puzzled. It seemed to confirm that Northern Trains had agreed not to proceed with its prosecution of Sarah Cook in return for a payment from her of her £4 fare.

I also found that a bit puzzling.

I'm not sure these reports have covered the issue that SJP was being used for offences it wasn’t permitted on?

 

[furlong]

It seems to me that anything that amounts to the reinstitution of proceedings howsoever withdrawn or terminated after a settlement would almost certainly amount to an abuse of process, though there might be a technical way to side-step that by applying constraints to the range of outcomes available. (E.g. can't result in a conviction or any other outcome unfavourable to the defence so in practice defence doesn't raise a challenge to proceedings that might otherwise not have been legitimate.)

Also from another viewpoint there can be no out-of-court settlement if there was no case to settle - was that agreement entered into under false pretences and might it be deemed unenforceable?

It's hard to see how any of this can be happening without providing the participants with funded legal representation to ensure their interests are protected. It might be easier to understand what was going on if this was some sort of discretionary preparatory hearing ahead of a proposed application to a higher court.

From the snippets of information leaking out, it's a struggle to understand how this hearing, whatever it is, can have any legitimacy.

I think the Chief Magistrate should put out a statement to explain the precise nature of this hearing.

 

[John Palmer]

I'm not sure these reports have covered the issue that SJP was being used for offences it wasn’t permitted on?

I agree; some of the media reports seem so fixated upon the SJP leading to people being convicted without a hearing that they are missing the equally important point that there have been prosecutions (Sarah Cook's being one) where the Section 5(1) RoRA offence cannot have been committed according to the prosecution's own evidence (unless you accept Northern Trains' preposterous contention that any travel without a ticket is, without more, an offence under Section 5(1)).

I entirely agree with @island's point in post #95 that unwinding out of court settlements as being unfair could, in the long run, prove to be highly disadvantageous to passengers and that the facility to reach such settlements may be beneficial. However, that needs to be balanced against the danger that train operators will coerce passengers into entering such settlements by threatening a prosecution for which there is no basis.

A documented example of this appears in https://www.railforums.co.uk/thread...r-the-single-justice-procedure-notice.238488/. In that case the passenger was served with a SJPN that charged her with a Section 5(1) RoRA offence when her unsuccessfully appealed penalty fare remained unpaid. The penalty fare notice exhibited to the the accompanying prosecution witness statement clearly showed that her name and address had been given. Thus, leaving aside the unlawful employment of the SJP to initiate proceedings, there was no basis on which the prosecution could have succeeded, though that would not have been apparent to the uninformed recipient from the truncated version of Section 5(1) appearing in the charge. Notwithstanding this Northern Trains offered not to proceed with its unmeritorious prosecution in return for a payment of £100 plus the outstanding fare; this offer being set out on a red-printed “Settlement Offer” enclosed with its SJPN. Unless Northern can justify its argument that Section 5(1) creates a substantive offence of ticketless travel, I cannot see how concealment of that subsection's full terms and effect by omission of the “give name and address” option from the charge coupled with the concurrent issue of a settlement offer can be anything other than an improper attempt in the course of criminal proceedings to coerce acceptance of that offer.

The settlement offer made in that case appears to be in boilerplate form, suggesting that its issue with an SJPN may be part of a practice which Northern has systematically pursued. If so then there is every justification for enquiry into how many passengers have been induced to enter into such settlements and whether the sums they have paid should be refunded. Since the Chief Magistrate is, in Sarah Cook's case, apparently looking to into a prosecution that was terminated when a settlement was agreed (albeit for only £4), I'm led to wonder whether he has taken on board the possibility that railway operators have been using an unsustainable criminal charge to coerce payments from passengers and will seek to address cases where such a charge has been accompanied by a 'settlement offer', but I agree with @furlong that the basis on which he is dealing with these cases is hard to comprehend.

 

[KirkstallOne]

Ms Cook was convicted without her knowledge and fined £475. The £4 is the settlement after she had the case reopened.

 

[Haywain]

Ms Cook was convicted without her knowledge and fined £475. The £4 is the settlement after she had the case reopened.

So she had the case reopened and the prosecution was withdrawn?

 

[KirkstallOne]

So she had the case reopened and the prosecution was withdrawn?

That is my understanding but I don’t have the full details. Seems very curious given John’s comments about the difficulty in finding what authority the Chief Magistrate has to do this.

 

[Fermiboson]

I’ve been unable to extract any information from the Chief Magistrate on the time and location of this 17th July hearing. Does anyone have this information?

 

[MrJeeves]

I’ve been unable to extract any information from the Chief Magistrate on the time and location of this 17th July hearing. Does anyone have this information?

See https://www.railforums.co.uk/thread...ion-5-1-rora-prosecutions.269410/post-6827309

I think it's the 10am on 19th July, not the 17th? It'll be at the Westminster Magistrates Court.

 

[island]

I’ve been unable to extract any information from the Chief Magistrate on the time and location of this 17th July hearing. Does anyone have this information?

It'll be listed on CourtServe by two days beforehand, if nothing else. A (free) account will be required.

 

[KirkstallOne]

I have received another FOI response from the MoJ, not telling us much that we don't already know but the headline figure is 60,393 Section 5(1) offences prosecuted via SJP since 2020. Complete response below. Ties in quite well with the 75,000 number quoted in the news reports.

Thank you for your request dated 15 June 2024 in which you asked for the following
information from the Ministry of Justice (MOJ):

For the period from 1st January 2020 to the latest available date you have
publishable statistics for, the number of convictions under the Single Justice
Procedure for an offence under Section 5(1) of the Regulation of Railways Act
1889.

These can be provided in any suitable format via this email address. If the
exact dates are not possible, please give statistics for dates as close as is
possible to those requested.

Your request has been handled under the FOIA.

We have interpreted your request to mean, the number of convictions for failing to
produce a rail ticket on request and/or providing a name under the Regulation of
Railways Act 1889.

On that basis, I can confirm that the MOJ holds the information that you have
requested, and I have provided it below alongside notes about the data.

Please note, data beyond 31st December 2023 is exempt from disclosure under
section 44(1)(a) of the FOIA, which refers to prohibitions on disclosure ‘by or under
any enactment’ of the FOIA. In this case, the information you are seeking is
prohibited by the Statistics and Registration Services (SRS) Act 2007 and the
Prerelease Access to Official Statistics Order 2008.
Therefore, as the data you have requested is a subset of MoJ statistical data which
is planned for future publication, it is exempt under section 44(1)(a) of the FOIA. As
such we are required to consider your request in a manner compliant with the
Prerelease Access to Official Statistics Order 2008 further to sections 11 and 13 of the
(SRS Act 2007).

The MoJ is obliged under section 13 of the SRS Act to continue to comply with the
Code of Practice for Official Statistics (the Code) for statistics designated as National
Statistics. Section 11(3) of the SRS Act regards the Pre-Release Access to Official
Statistics Order as being included in the Code. Protocol 2 of the Code reflects the
requirements of the Pre-Release Access to Statistics Order. Specifically, it requires
producers of official statistics to ensure that no indication of the substance of a
statistical report is made public or given to the media or any other party not recorded
as eligible for access prior to publication. I can confirm that the MoJ will publish
information related to these matters as part of national statistics. Therefore, to now
disclose as part of your FOI request, will violate the provisions of section 13 of the
SRS Act and the Pre-Release Access Order to Official Statistics 2008 and as such
engages the exemption under section 44(1)(a) of the FOIA.

Section 44 is an absolute exemption and does not require a public interest test.

Number of Single Justice Procedure convictions in the Magistrates Court
under the Regulation of Railways Act 1889
Data Source: Libra MIS, extracted 21-Jun-2024

Year Number of Cases
2020 9,705
2021 20,909
2022 17,956
2023 11,823
Grand Total 60,393

Notes
1. The data extract is based upon a case opened date falling between the
reporting period 1st January 2020 and the 31st December 2023 (in line with
published statistics) where result code RW89008 - Fail to produce / deliver rail
ticket on request / give name and address has been applied and where the verdict
is defined as the following: 'Found Guilty', 'Proved in Absence', and 'Proved Single
Justice Procedure'.

2. Although care is taken when processing and analysing the data, the details are
subject to inaccuracies inherent in any large-scale case management system and
is the best data that is available.

4. Data are management information and are not subject to the same level of
checks as official statistics.

5. Data are taken from a live management information system and can change
over time and for that reason might differ slightly from any previously published
information.

6. Data has not been cross referenced with case files.

 

[furlong]

Has anyone asked for similar numbers NOT via SJP for comparison?
If they have the data you could also get a baseline from the years just before and just after SJP was introduced.
Did cases move over to using SJP? Or did the non-SJP cases remain, while SJP led to additional cases?

 

[talldave]

Sarah Cook and the others are scheduled for 10am tomorrow in Courtroom 11 at Westminster Magistrates Court.

 

[MrJeeves]

I'm sure I'll see some people there

 

[KirkstallOne]

I'm sure I'll see some people there

I’ve just booked my train ticket down, via the forum of course!

 

[ainsworth74]

Those of us who can't make it look forward to the in person reporting from the various members who are apparently going to be in attendance!

 

[Watershed]

I will try my best to attend

 

[ainsworth74]

They might need to spin up one of the bigger court rooms

 

[Hadders]

I'm working in London tomorrow so I might be able to attend.

 

[KirkstallOne]

My understanding from listening to the hearing:

- Neither Northern nor Greater Anglia dispute that the convictions need to be reversed
- much discussion about how to do that. The ToCs seem to want to use s142 to reopen and have a not guilty verdict entered. Chief Magistrate wasn’t keen and seemed to think the more efficient but still proper method was to just void on the system
- reversing finances of these prosecutions will be done after
- NTL keen to get the CM to give a ruling on giving name and address being a defence to 5(1). Both GA and NTL agree it is. CM said not his role to do that, has to be a higher court. Invited submissions to change his mind but pretty strongly against it
- same argument about exact circumstances a penalty fare can be prosecuted, both appealed and non appealed. Seems NTL and GA disagreed on this, GA I think thought an appealed penalty fare could never be prosecuted (if not cancelled in required time period). NTL had arguments for and against and again inviting CM to make a ruling, again CM strongly disinclined to but open to submissions
- 30m hearing scheduled for 15th Aug @10am for CM to give ruling, if submissions change his mind on the two previous points then this may change

 

[ainsworth74]

Seems NTL and GA disagreed on this, GA I think thought an appealed penalty fare could never be prosecuted (if not cancelled in required time period). NTL had arguments for and against and again inviting CM to make a ruling, again CM strongly disinclined to but open to submissions

Would love to know how Northern are reading this and concluding anything other than what GA have concluded!

11.— (3) Where a person falling within paragraph (1)(a) has appealed against the penalty fare under regulation 16, proceedings for any of the offences specified in paragraph (4) may only be brought against that person for the same failure to produce a platform ticket or a valid travel ticket if the operator, on whose behalf the penalty fare was charged, notifies the relevant Appeal Panel that the penalty fare is cancelled before—

(a) the relevant Appeal Panel has decided the outcome of the appeal under regulation 16; or

(b) the time period mentioned in paragraph 6 of Schedule 2 expires,

whichever is sooner.

The Railways (Penalty Fares) Regulations 2018

These Regulations make provision for the charging of penalty fares for the failure to produce, when required to do so, a ticket or other authority authorising a person to travel by train or to be present in a compulsory ticket area at a station.

www.legislation.gov.uk

 

[John Palmer]

My understanding from listening to the hearing:

- Neither Northern nor Greater Anglia dispute that the convictions need to be reversed
- much discussion about how to do that. The ToCs seem to want to use s142 to reopen and have a not guilty verdict entered. Chief Magistrate wasn’t keen and seemed to think the more efficient but still proper method was to just void on the system
- reversing finances of these prosecutions will be done after
- NTL keen to get the CM to give a ruling on giving name and address being a defence to 5(1). Both GA and NTL agree it is. CM said not his role to do that, has to be a higher court. Invited submissions to change his mind but pretty strongly against it
- same argument about exact circumstances a penalty fare can be prosecuted, both appealed and non appealed. Seems NTL and GA disagreed on this, GA I think thought an appealed penalty fare could never be prosecuted (if not cancelled in required time period). NTL had arguments for and against and again inviting CM to make a ruling, again CM strongly disinclined to but open to submissions
- 30m hearing scheduled for 15th Aug @10am for CM to give ruling, if submissions change his mind on the two previous points then this may change

Agree with NTL and GA that Section 142 MCA 1980 seems to be the only way to obtain quashing of wrongful convictions. Seems to confirm my understanding that there is no mechanism by which the state can reverse a mass miscarriage of justice – hence the Horizon Offences legislation was intended to be a one-off. Presumably the CM was unable to cite authority for his view that the convictions could be voided en masse.

Glad to hear that the restitution point is accepted – what about settlements extracted under threat of prosecution under Section 5(1) RoRA where passenger had given name and address, and prosecution was withdrawn in return for the settlement payment?

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.

I can see no basis on which the argument that Section 5(3) creates only a temporary bar on prosecution where a penalty fare is appealed can be ventilated in any reheard case other than those in which it formed the original charge. I also think that such an argument must fail, given the terms of Reg. 11(3) of the Penalty Fares Regs, a point on which it seems GA agrees.

Any Section 5(1) or (3) adjudication by the CM does not represent binding precedent; that would be a matter for the Divisional Court on a case stated.

Did any representatives of the six test case defendants appear on their behalf? TOC representations to the CM about the scope/effect of Section 5 appear to be a matter of considerable significance for those defendants on which they too should have been heard.

If NTL accepts that giving name and address constitutes a defence to a Section 5(1) charge, how does it account for having prosecuted such an offence when its own evidence, in the shape of the passenger's name and address on the penalty fare notice, demonstrated that the offence had not been committed? And, given its acknowledgment that giving name and address constituted such a defence, why was that limb of Section 5(1) omittted from its specification of charge? Pressing ahead with a prosecution in circumstances where it was apparent that such prosecution must fail looks like a strong candidate for a malicious prosecution suit.

 

[MrJeeves]

Presumably the CM was unable to cite authority for his view that the convictions could be voided en masse.

There were multiple case law references, but as someone outside the legal field I didn't keep a note. CM was rather insistent that declaring them as "void ab initio" would effectively make it so that the prosecutions never happened, and that downstream HMCTS processes would make this very easy and fast to do.

The CM stated, I believe, that his opinion was that S142 should be used to correct prosecutions where issues have come to light during a procedurally correct prosecution and this was not the correct route to go down for a prosecution that never should have been initiated to begin with. The skeleton argument from NTL/GA seemed to appear as though they hadn't explored alternatives to just using S142, according to CM.

A good quote from the NTL's representative was, "having gotten it wrong a number of times, we want to get it right". All parties do genuinely seem to want to get to an end result that does the right thing for those affected by this, but there is disagreement into which road to take to that end result.

CM said (paraphrased): "If one path is "correct", and one path "might be correct", then the "correct" path should be chosen."

GA's rep explicitly stated that S142 acknowledges the fact that an error was made during the prosecution process, while a nullity would just pretend nothing ever happened. NTL agreed with this view. GA cited one case, which was handed up during the discussion, which appears to support GA/NTL's POV but this, to me, seemed like one case that was an abnormality in a sea of others which didn't use S142.

Both seemed to use the excuse that S142 should be use so the cases cannot be reheard, but CM pointed out all the affected cases were summary only and are >6 months old now so that wouldn't be possible anyway. CM also said that if noone wants to rehear the cases, what's the issue with just nullifying them anyway?

CM was seemingly primarily concerned that S142 could be argued against by other TOCs which have prosecuted similarly but were not heard from during the hearing, if any exist, while nullifying the existing cases wouldn't really have any way to argue against it.

Glad to hear that the restitution point is accepted – what about settlements extracted under threat of prosecution under Section 5(1) RoRA where passenger had given name and address, and prosecution was withdrawn in return for the settlement payment?

OOC settlements were not discussed at the hearing, as this was solely about reversing the incorrect prosecutions.

---

Additionally, GA said that they had found at least 431 prosecutions related to Regulation 11 so far, with NTL finding 204 of these too, plus 226 RoRA 5(1) prosecutions outside SJP.

 

[MotCO]

Did RailForum members make up most of the public gallery?

 

[ainsworth74]

Fascinating stuff, thanks to our roving reporters for updating us all.

 

[KirkstallOne]

There were a few other people, and at least 3 press (PA, FT, Standard) who got to sit in the court as the public gallery was full.

 

[Fermiboson]

Unfortunately other commitments meant I couldn't make it to the court, but I am glad to see progress being made on the matter.

 

[MrJeeves]

Did RailForum members make up most of the public gallery?

I think it was probably 50/50!

 

[Watershed]

I'm disappointed - though not hugely surprised - that there seems to be little movement towards getting other categories of unlawful prosecutions reviewed.

I can understand the CM's reluctance to make any kind of ruling on the meaning of section 5(1) RoRA (though who will pay for it to be taken to the High Court?) but he even seemed reluctant to reopen those barred by Penalty Fares Regulation 11(3).

What about the many settlements that resulted from threatened prosecutions that could not lawfully have been brought? Or indeed those which were brought without the defendant's knowledge (e.g. due to a change of address) and which were settled after being reopened via a statutory declaration?

Progress is being made but it is all rather unsatisfactory at the time being.

 

[Fermiboson]

I was under the impression that the 75k cases included those for which the prosecution was subsequently settled out of court - at least, that's how Northern presents its data in the FOIs. I also assume that should anyone who suffered such an OCS come forward and ask for a refund, Northern will quickly acquiesce.