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

[talldave]

I also assume that should anyone who suffered such an OCS come forward and ask for a refund, Northern will quickly acquiesce.

Surely, 99.9% of "victims" won't be aware of what's going on?

 

[Fermiboson]

Surely, 99.9% of "victims" won't be aware of what's going on?

Correct, until as the HMCTS website states they "provide an update directly to people who may have been affected". It is hard to imagine, however, what other recourse is available - should Northern just send a £100 cheque in the mail to everyone they've asked for money from?

 

[MrJeeves]

Correct, until as the HMCTS website states they "provide an update directly to people who may have been affected". It is hard to imagine, however, what other recourse is available - should Northern just send a £100 cheque in the mail to everyone they've asked for money from?

Honestly, loss of earnings, travel to court, legal advice, etc. may well exceed this.

The CM talks about cost applications to the TOCs from those prosecuted in passing, so it's likely that people will very much be able to issue requests to claim these back.

 

[MotCO]

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.

There was also a report in the Telegraph which name-checked you.

Two rail companies admit they wrongly prosecuted 75,000 fare evasion offences

Prosecutions brought by Northern and Greater Anglia under single justice procedure – without defendant appearing in court – may be quashed

www.telegraph.co.uk

Two rail companies admit they wrongly prosecuted 75,000 fare evasion offences​

Prosecutions brought by Northern and Greater Anglia under single justice procedure – without defendant appearing in court – may be quashed

By Gareth Corfield, Transport Correspondent 19 July 2024 • 5:48pm



Two train companies have admitted they wrongly prosecuted alleged fare evaders in a case that could lead to 75,000 convictions being quashed.
Lawyers for Northern Rail and Greater Anglia said in court that they agreed the way they had pursued prosecutions was legally void.
Since 2016, about 75,000 prosecutions have been brought by train companies under the controversial single justice procedure (SJP).
Under the SJP, cases are decided in private, often by a single magistrate without the defendant appearing in court.
Northern and Greater Anglia are accused of criminalising alleged fare evaders by bringing some ticket evasion prosecutions under the SJP system, which is not permitted.
The admissions come as The Telegraph reveals that Nicholas Donovan, Northern’s chief executive, and Jenny Henderson, the train company’s head of legal, were warned about the unlawful prosecutions last year.
A member of the public who believed he was being wrongly prosecuted wrote to the two officials warning them that what he believed they were doing was not legal.
Christian Waters from Leeds claims he did not hear back from either of them or from anyone else at Northern for six months, until after he contacted Rachel Reeves, his local MP.
At Westminster magistrates’ court on Friday, six test cases were heard, three from convictions secured by Northern and three from Greater Anglia.
Brian O’Neill KC, representing Northern Rail, said both his company and Greater Anglia “recognise there was no power” to pursue such prosecutions.
He told Paul Goldspring, the Chief Magistrate of England and Wales: “We are all in agreement that the proceedings which were brought by the single justice procedure were a nullity.”

‘A series of significant errors’​

Greater Anglia said in written submissions that it acknowledged “a series of significant errors” had occurred and wanted to “apologise unreservedly” to those affected.
Mr Goldspring, who previously described the prosecutions as “probably unlawful”, said declaring them a nullity was the “correct legal way forward” and there was no danger of the defendants being prejudiced by that ruling.
Northern and Greater Anglia secured their convictions under the controversial SJP, where large numbers of court cases are ruled upon by a single magistrate behind closed doors.
The London Evening Standard has previously reported that such “hearings” last an average of 45 seconds each.
The single justice procedure was set up in 2015 to allow magistrates to decide on minor offences, such as using a television without a licence or driving without car insurance, without defendants going to court.
However, the Magistrates’ Association said in March “there are concerns” that cases are being brought before magistrates without prosecutors, such as the DVLA or TV Licensing, reading mitigations and that many of its members are “uncomfortable” with the system.
The chief magistrate adjourned the hearing to Aug 15 at the same court, when he is expected to hand down a judgment.
Northern said it was “unable to respond to individual enquiries” about rail ticket prosecutions, but that it was supporting the court ahead of the next hearing in the test cases, scheduled for August.
A spokesman said: “We welcome the views expressed by the Chief Magistrate in court today. We would like to apologise for the errors that have occurred and are co-operating fully with the court review.
“We will now support the court ahead of the next hearing.
“Northern remains committed to ensuring that all our customers are treated fairly, which means ensuring all passengers who board our trains have a valid ticket.”

 

[Wolfie]

There was also a report in the Telegraph which name-checked you.

Two rail companies admit they wrongly prosecuted 75,000 fare evasion offences

Prosecutions brought by Northern and Greater Anglia under single justice procedure – without defendant appearing in court – may be quashed

www.telegraph.co.uk

Nice quote from Northern at the end. I must have missed the bit where, when they talk about fairness to all passengers, that they committed to not wrongly prosecuting some of them or trying to coerce some of them into unwarranted and excessive out of Court settlements.

 

[Tetchytyke]

should Northern just send a £100 cheque in the mail to everyone they've asked for money from?

Well yes, they should.

Of course they won’t, but that’s something else entirely.

 

[Fermiboson]

Well yes, they should.

Of course they won’t, but that’s something else entirely.

How would you deal with cases where 5(1) is not the only offence charged?

 

[Tetchytyke]

How would you deal with cases where 5(1) is not the only offence charged?

I’d force Northern to send the cheque in the post. The threat used to extract the “admin fee” stems from the totality of the letter threatening prosecution; you can’t simply disapply part of it and shrug.

Northern would have no qualms about demanding £100 if we made an “honest mistake” relating to our understanding of the law…

 

[Fermiboson]

I’d force Northern to send the cheque in the post. The threat used to extract the “admin fee” stems from the totality of the letter threatening prosecution; you can’t simply disapply part of it and shrug.

Northern would have no qualms about demanding £100 if we made an “honest mistake” relating to our understanding of the law…

I look forward to your amicus brief on the 15th.

 

[Watershed]

There was also a report in the Telegraph which name-checked you.

Two rail companies admit they wrongly prosecuted 75,000 fare evasion offences

Prosecutions brought by Northern and Greater Anglia under single justice procedure – without defendant appearing in court – may be quashed

www.telegraph.co.uk

So much wrong with Northern's quote there. They can't even bring themselves to give a properly apology, instead using the passive voice to apologise:

for the errors that have occurred

...as if someone else bore responsibility for these alleged "errors" - which in reality amount to gross incompetence at best, or malicious prosecution at worst.

They then have the cheek to claim:

Northern remains committed to ensuring that all our customers are treated fairly

They sure didn't seem very committed about that when they unlawfully prosecuted thousands of people...

And then feel the need to stick in their usual - inaccurate - refrain that:

[ensuring all our customers are treated fairly] means ensuring all passengers who board our trains have a valid ticket

Of course for quite a lot of passengers, buying onboard not only entirely legal but required - because of cost-cutting decisions Northern has made, such as deciding to make most of their TVMs cash-only.

For others, such as @KirkstallOne, broken TVMs made it impossible to buy a ticket using any method of payment, and yet Northern still persecuted them.

But those are no doubt "minor details" they're happy to gloss over in their attempts to misrepresent the legal position.

 

[Tetchytyke]

I look forward to your amicus brief on the 15th.

Oh of course it’ll all be swept under the carpet. Northern have said sorry, nothing to see here, nobody senior facing the wrath of the SRA for gross incompetence.

I’m not naive enough to believe that Northern will have to repay a single penny.

 

[furlong]

...as if someone else bore responsibility for these alleged "errors" - which in reality amount to gross incompetence at best, or malicious prosecution at worst.

The courts must bear a key part of the responsibility too. There are indications that Northern might have thought the courts had (knowingly) given the nod to what they were doing several years ago - nobody was going to be imprisoned, and the courts certainly didn't stop them.

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

The line of argument here is that what was quoted there is part of the appeals process which limits its scope to the appeals process. It cannot place any constraint on what happens AFTER the appeals process is complete. Moreover, it would place a person who made an appeal in a different position in respect of future prosecution from that of a person who did not make an appeal, which is arbitrary, makes no sense and cannot possibly have been intended. It's purpose was surely to prevent prosecution from interfering with the appeals process.

What the argument misses is that parliament's clear intention was for a Penalty Fare to be entirely a civil matter, so prosecuting after a PF has been imposed simply doesn't arise - not before, during or after appeal - other than in exceptional cases where new evidence undermines the PF that was issued. If you read the regulations in that context, there is no puzzle as nobody expected the railway to be trying to prosecute over an unpaid PF. In other words, it is Northern - and other train companies - that are subverting the express intent of the regulations by attempting to invent ways of prosecuting over what remains rightly a civil matter.

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.

I'm not sure a comparison with Horizon is useful - those were basically abuse of process appeals - long, complex and different facts in each case - and Crown Court matters anyway. Deeming those proceedings a nullity was never an option.
The rail SJP cases could (in theory) be deemed a nullity. The non-SJP "name and address" cases are a small proportion and might need to be done differently.

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?

Seemingly not discussed yet.
Two categories.
1) Papers were laid, then there was a settlement.
2) Passenger settled prior to papers being laid.

I can imagine that it might be possible to reopen cases in the first category and then for the court to overrule the settlement agreements.
But based on the second category, perhaps a civil court can determine that each settlement is unenforceable and order repayment and compensation? Abuse of process without the initiation of proceedings but nevertheless a settlement intended to be enforceable and as such deemed to be made in the court's name.

The CM is only a small part of the jigsaw. An independent external figure should be appointed urgently to work out and oversee everything that needs to be done. I fear that without strong external knowledgeable co-ordination, it's all going to unravel.

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.

We don't know what private conversations there might have been, but the public information does suggest this important matter might have been overlooked by the court. (Not helped by court staff apparently giving out incorrect last-minute information about whether or not the defendants had to attend the hearing.)
In normal circumstances, I'd have thought that representations on behalf of the defendants would carry considerable weight in the forthcoming decision of the CM.

 

[John Palmer]

The CM's proposed course of declaring void all SJP prosecutions commenced by a body that was not, for that purpose, a 'relevant prosecutor' is one to which I am increasingly attracted. If any railway operator takes a different view it has the option of challenging such a declaration in the High Court. Presumably neither NTL nor GA would do so, having conceded that they lacked the authority to institute RoRA prosecutions by SJP.

Would such a declaration lead to the requisite amendment of records of conviction held on the PNC? HMCTS' IT systems may be well adapted to rolling back thousands of cases, but I see that as no guarantee of other bodies following suit.

Dealing with the thousands of cases by application under Section 142(2) MCA 1980 requires a rehearing of each such case, and in every such case the appropriate course for the defendant would be to submit that the proceedings were a nullity from the outset, i.e. taking the same point as the CM proposes to make the subject of a declaration, but by a more circuitous and time-consuming route.

An out-of-court settlement contract involving a payment by a passenger in return for a rail operator withdrawing a prosecution already commenced is one in which the operator could never fulfil its part of the bargain if no criminal proceedings were actually in progress because the attempt to commence them was ineffective for want of authority. In such a case the passenger could, ultimately, sue for return of the settlement money paid. Far better for the relevant operators to be required to identify the cases concerned and make the appropriate repayment.

I agree that the CM is but a part of the jigsaw. It's understandable that his attention has been directed towards abuse of the SJP because of the media focus on this, but it misses the point that certain operators have prosecuted under Section 5(1) RoRA when it should have been plain to them that the offence alleged could not have been committed. At the root of this lie Revenue Protection/Prosecution units so intent upon debt recovery that they have lost sight of their obligations to the court and those they prosecute, and seemingly immune to sanction for breach of those obligations because none of the personnel involved seem to be subject to external regulation or discipline.

 

[Wolfie]

The CM's proposed course of declaring void all SJP prosecutions commenced by a body that was not, for that purpose, a 'relevant prosecutor' is one to which I am increasingly attracted. If any railway operator takes a different view it has the option of challenging such a declaration in the High Court. Presumably neither NTL nor GA would do so, having conceded that they lacked the authority to institute RoRA prosecutions by SJP.

Would such a declaration lead to the requisite amendment of records of conviction held on the PNC? HMCTS' IT systems may be well adapted to rolling back thousands of cases, but I see that as no guarantee of other bodies following suit.

Dealing with the thousands of cases by application under Section 142(2) MCA 1980 requires a rehearing of each such case, and in every such case the appropriate course for the defendant would be to submit that the proceedings were a nullity from the outset, i.e. taking the same point as the CM proposes to make the subject of a declaration, but by a more circuitous and time-consuming route.

An out-of-court settlement contract involving a payment by a passenger in return for a rail operator withdrawing a prosecution already commenced is one in which the operator could never fulfil its part of the bargain if no criminal proceedings were actually in progress because the attempt to commence them was ineffective for want of authority. In such a case the passenger could, ultimately, sue for return of the settlement money paid. Far better for the relevant operators to be required to identify the cases concerned and make the appropriate repayment.

I agree that the CM is but a part of the jigsaw. It's understandable that his attention has been directed towards abuse of the SJP because of the media focus on this, but it misses the point that certain operators have prosecuted under Section 5(1) RoRA when it should have been plain to them that the offence alleged could not have been committed. At the root of this lie Revenue Protection/Prosecution units so intent upon debt recovery that they have lost sight of their obligations to the court and those they prosecute, and seemingly immune to sanction for breach of those obligations because none of the personnel involved seem to be subject to external regulation or discipline.

If TOCs have in-house legal teams any professionals involved could and should be subject to action by the relevant professional regulator. A few "striking offs" would very rapidly serve to concentrate minds....

 

[NotDeadYet]

If TOCs have in-house legal teams any professionals involved could and should be subject to action by the relevant professional regulator. A few "striking offs" would very rapidly serve to concentrate minds....

Presumably an FOI could establish how many legally qualified professionals were involved in overseeing these prosecutions? If the answer is zero that would be interesting. I guess a victim could complain to the relevant professional body but it might be difficult to discover the names of the professionals.

 

[Wolfie]

Presumably an FOI could establish how many legally qualified professionals were involved in overseeing these prosecutions? If the answer is zero that would be interesting. I guess a victim could complain to the relevant professional body but it might be difficult to discover the names of the professionals.

Difficult for you and l perhaps. Not for a regulator though.

 

[Watershed]

Would such a declaration lead to the requisite amendment of records of conviction held on the PNC? HMCTS' IT systems may be well adapted to rolling back thousands of cases, but I see that as no guarantee of other bodies following suit.

The CM indicated that HMCTS would be able to handle en-masse "voiding" of these convictions.

 

[randyrippley]

The CM indicated that HMCTS would be able to handle en-masse "voiding" of these convictions.

Voiding is one thing
Reissuing correct DBS certificates, and paying compensation to those incorrectly barred from working in specific jobs is another.
How many have been incorrectly dismissed from, or prevented from entering, occupations where a conviction creates a block to employment?

 

[talldave]

Voiding is one thing
Reissuing correct DBS certificates, and paying compensation to those incorrectly barred from working in specific jobs is another.
How many have been incorrectly dismissed from, or prevented from entering, occupations where a conviction creates a block to employment?

It's these secondary effects that are difficult to quantify.

In view of how excessively litigious TOCs are against their customers it would be nice to see the TOCs and/or their incompetent employees punished heavily for their abuse of the system. All that’s currently going to happen is the TOCs handing out a few £k, which is nothing to them. Being hit for a few £m might focus their minds.

 

[Starmill]

It's these secondary effects that are difficult to quantify.

In view of how excessively litigious TOCs are against their customers it would be nice to see the TOCs and/or their incompetent employees punished heavily for their abuse of the system. All that’s currently going to happen is the TOCs handing out a few £k, which is nothing to them. Being hit for a few £m might focus their minds.

Sadly the only way Northern and Greater Anglia will ever "pay" for these cases, beyond the blushing and reversing any compensation awarded, is if the person wrongly charged and wrongly convicted litigates against them.

 

[MotCO]

Sadly the only way Northern and Greater Anglia will ever "pay" for these cases, beyond the blushing and reversing any compensation awarded, is if the person wrongly charged and wrongly convicted litigates against them.

How will these secondary effects ever be identified? Erred customers may receive a cheque in the post with a note of apology, but with no alert that issues arising from their DBS checks may also be claimable.

 

[Wolfie]

How will these secondary effects ever be identified? Erred customers may receive a cheque in the post with a note of apology, but with no alert that issues arising from their DBS checks may also be claimable.

Perhaps has potential for a class action?

 

[Starmill]

Perhaps has potential for a class action?

Getting people to opt-in would be a bit of a mess. Probably can't go down the opt-out route. Not impossible, but not much compensation on offer for any possible litigation funder.

 

[Fawkes Cat]

Voiding is one thing
Reissuing correct DBS certificates, and paying compensation to those incorrectly barred from working in specific jobs is another.
How many have been incorrectly dismissed from, or prevented from entering, occupations where a conviction creates a block to employment?

Our general advice to people facing (apparently legitimate) prosecution is that a conviction for fare dodging is unlikely to be life changing. So unless our advice has been wrong, the likely answer to this question may well be ‘None’.

 

[randyrippley]

Our general advice to people facing (apparently legitimate) prosecution is that a conviction for fare dodging is unlikely to be life changing. So unless our advice has been wrong, the likely answer to this question may well be ‘None’.

I would suspect that advice is optimistic.........I can think of many areas where it's unlikely to apply.
Police/law/NHS/banking/finance/some military roles/some education.............just for starters

 

[30907]

Our general advice to people facing (apparently legitimate) prosecution is that a conviction for fare dodging is unlikely to be life changing. So unless our advice has been wrong, the likely answer to this question may well be ‘None’.

Related questions - if the prosecution had been undertaken through the correct channel, would the person lawfully have been convicted under RoRA?
- likewise, if the prosecution had been undertaken via the Byelaws?
(and OOC settlements similarly.)

I don't think we know anything approaching an answer, only that convictions via SJP were wrongfully obtained - which itself is well worth knowing.

 

[Starmill]

Related questions - if the prosecution had been undertaken through the correct channel, would the person lawfully have been convicted under RoRA?
- likewise, if the prosecution had been undertaken via the Byelaws?
(and OOC settlements similarly.)

I don't think we know anything approaching an answer, only that convictions via SJP were wrongfully obtained - which itself is well worth knowing.

If there's a statutory time limit applicable, and it has now expired, then answering those questions retrospectively may be incredibly difficult, even if only looked at from a hypothetical position.

 

[Hadders]

I would suspect that advice is optimistic.........I can think of many areas where it's unlikely to apply.
Police/law/NHS/banking/finance/some military roles/some education.............just for starters

None of these organisations say that a criminal record means you won't be employed. The basic principle is you are required to disclose unspent convictions and the organisation then decides whether to employ or not based on the level of risk.

A conviction for a minor railway ticketing matter is unlikely to adversely impact career opportunities.

 

[island]

An out-of-court settlement contract involving a payment by a passenger in return for a rail operator withdrawing a prosecution already commenced is one in which the operator could never fulfil its part of the bargain if no criminal proceedings were actually in progress because the attempt to commence them was ineffective for want of authority. In such a case the passenger could, ultimately, sue for return of the settlement money paid.

Yes, the passenger should be able to show, quite straightforwardly, that there was a total failure of consideration and/or unjust enrichment of the TOC. Subject of course to the six year statute of limitations.

Far better for the relevant operators to be required to identify the cases concerned and make the appropriate repayment.

I fear there is no realistic legal route to that happening.

If TOCs have in-house legal teams any professionals involved could and should be subject to action by the relevant professional regulator. A few "striking offs" would very rapidly serve to concentrate minds....

That also has no chance of happening.

 

[KirkstallOne]

This was featured on BBC Breakfast on Friday, unfortunately it was pushed off the transport news agenda shortly after by the IT meltdown. Not available on iPlayer anymore but the internet archive has a copy of the segment:

Breakfast : BBCNEWS : July 19, 2024 6:00am-9:01am BST : Free Borrow & Streaming : Internet Archive

The latest news, sport, business and weather from the BBC's Breakfast team. [S]

archive.org