contrex
Member
Greengrocer's or greengrocers' according to the Oxford English Dictionary 2nd Ed:
I like that asparagu's - that's a classy greengrocer!
-
Our new ticketing site is now live! Using either this or the original site (both powered by TrainSplit) helps support the running of the forum with every ticket purchase! Find out more and ask any questions/give us feedback in this thread!
Unlawful Use of SJPN by Train Companies for Section 5(1) RoRA Prosecutions
- Thread starter Fermiboson
- Start date
Sponsor Post - registered members do not see these adverts; click here to register, or click here to log in
R
RailUK Forums
So had Jarnail Singh of the Post Office and I've seen his written evidence in the Horizon Inquiry.
I think this article has unfortunately failed to fully explain what the issue is here.BBC News - Thousands of rail fare convictions set to be quashed
Thousands of train fare prosecutions set to be quashed
As many as 74,000 cases could be overturned after a ruling by the chief magistrate of England and Wales.www.bbc.com
Looking at the comment section, many seem to have gotten the impression that all SJP prosecutions for fare evasion have been ruled unlawful.
As a result, some seem to now believe that many hundreds of intentional fare evaders will be compensated, and many hundreds more future fare evasions incentivized.
As I understand it, it seems that the issue here was the TOCs using the SJP for RoRA prosecutions after a penalty fare appeal had been rejected.
Which flies in the face of the idea that a PFN is a civil debt and that issuing one should bar the TOC from then choosing to prosecute the same case.
The BBC article seems to make fairly clear that that is what Northern unlawfully tried to do in the case of a certain @KirkstallOne, who as we all know, has asked the question of whether this has become a regular occurrence. Thanks to his efforts, and this community’s contributions, we now know it indeed has, and it could well be regarded as a scandal.
I cannot claim to know anything close to what those of you who have been here since the start know, so if I have said anything wrong please correct me.
But if my recollections are correct, for everyone who has been tracking this thread I have probably just restated the obvious.
My concern is that the BBC have not made particularly clear that that is what has been ruled unlawful, and that fare evasion can, and will, still be prosecuted under the Bylaws.
It’s only the attempt of TOCs to use the RoRA and thus get around the “PFN blocks future prosecution” principle, that is the problem here.
Again, this is my understanding as someone who has read this thread only briefly. Please correct me if I am wrong.
That's not what the case is about at all. Indeed the judge specifically didn't rule on that topic.
No, I'm afraid that's not correct. The magistrate specifically didn't rule on the issue of prosecution after appealing penalty fares. The issue is that SJPN shouldn't have been used to prosecute offences under Sections 5(1) and 5(3) of the Regulation of the Railways Act 1889 at all, as these offences aren't included in the SJPN legislation.
Adam Williams
Established Member
I think newspaper comment sections are always like this for any sort of nuanced issue. It just tends to be the first drivel that comes into the person's mind, often without even reading the article the comment is attached to. And then the comments get voted on to decide which ones show at the top, so the sensationalist / reductionist comments rise to the top, much like the scum in a cesspit. You've also got the problem that it's .. your average member of the British public reading these news stories.
So you get lots of "Well, I have to pay for my ticket - these people got in trouble in the first place so clearly they're at fault!" because they can only process things being that black and white.
The reality is that two things can be true:
- Fare evasion is something rightly to condemn
- Relentless abuse of process by train operators, as we've seen laid out here in great detail over numerous forum posts, is also something to condemn
Fawkes Cat
Established Member
- Joined
- 8 May 2017
- Messages
- 3,906
No, it should be 'greengrocers apostrophe's'.
(Mods - yes, I know. Sorry. I'll try to stay on topic. And not deliberately mis-use apostrophes for comic effect.)
That is not really the point I was making: a magistrate can either be a lay magistrate - essentially an unpaid busybody with no legal training who is advised by the court, or a professional judge with a law degree and lots of experience.
In this case, Goldspring is the latter, and Chief Magistrate is a reasonably prestigious role where you'd expect competition from competent and qualified professionals.
Working as a generic solicitor in a publicly owned company is not really a prestigious role and it's not particularly surprising that Singh is useless.
185
Established Member
- Joined
- 29 Aug 2010
- Messages
- 5,473
Whilst I do agree with this point, I can fully understand the public's total distrust in these operators given their behaviour in those cases where they broke the law and were perhaps behaving more dishonestly than the actual fare dodgers.
This has brought the wider railway into disrepute and undermines the vast majority of correctly done PFs & prosecutions.
DfT should not hesitate to show the clowns responsible the door. Hopefully in the future a single, uniform body will handle the railway's prosecutions.
See I thought I might’ve missed something. Although I did scan this thread many weeks ago, my perception was based mostly on something a friend who has been tracking this told me, so chances are I misheard him.
So that brings me to my next question. What exactly can TOCs prosecute under the SJP?
If this means fare evasion cannot be prosecuted at all under the SJP, how then do we deter fare evasion, especially in non-Penalty Fare areas where the choice for conductors / revenue inspectors is either just an Unpaid Fare Notice or prosecution (which now they can’t do)?
What role do the Bylaws play in all this? Which I’ve heard can be prosecuted via SJP?
And if the issue here isn’t prosecuting after a failed PFN appeal, then what is the issue? Is it just a technicality?
I am just confused.
There are many issues.
The TOCs (Northern at least) wrongly prosecuted many passengers under RORA s 5(1). They committed numerous frauds (in the widest sense of the word) here:
- they did not allow customers lacking a ticket to buy one, as s 5(1) requires
- they lied to passengers that by not having a ticket they had committed an offence under s 5(1). This is not true - s 5(1) requires the passenger to not have a ticket, to refuse to buy one when promoted by the guard AND to refuse to give a name and address
- they repeated this lie to the courts, thereby misrepresenting the nature of 5(1)
- in order to maximize the chance that their evil plans were successful they wrongly used the Single Justice Procedure in respect of offences which couldn't possibly be prosecuted under SJP. This had the effect of eliminating the usual safeguards of 3 magistrates, eliminates legal aid eligibility (so they can lie to people about the law and those people are unlikely to have the benefit of legal representation to realize that they are being conned by the TOC), and also eliminates proper scrutiny of their actions because it's essentially just rubber stamped by the court without proper scrutiny.
- they wrongly gave their customers a criminal record, by charging with s 5(1) offence when their own evidence showed that no such offence had been committed. A Byelaw offence would have been appropriate and not given such a record.
- doing this can be done in order to further cheat, ripping passengers off further because the penalty fare regulations give TOCs a choice between prosecution OR penalty fare, not both, UNLESS the offence is no address (s 5(1)) or false address (s 5(3)(c)). The reason for the exception is that in false/no address cases, the passenger intends to frustrate the civil recovery of the penalty fare, so it's reasonable to allow both routes, but here the TOCs may have set out to cheat by charging s 5(1) when it didn't apply (i.e. when the passenger has provided their, details) in order that they could wrongfully get two bites of the cherry
It's not just a technicality: they acted illegally and gave people criminal records where those people had done nothing to justify this. This is not a technicality it is a serious miscarriage of justice for which they should be fined millions of pounds for malevolence and/or incompetence.
Last edited:
copernicium112
Member
Is it possible that the TOCs involved in this mess could quite possibly find themselves at the wrong end of a lawsuit for malicious prosecution in the cases of RoRA 5(1) being charged when their own evidence showed the defendant was unambigously not guilty of the offence? If so, they could be on the hook for quite a bit of money, especially if an enterprising law firm starts advertising it widely. I can imagine adverts along the lines of 'Mis sold PPI?' such as 'convicted of train fare evasion? Claim back £100s today!'
As I understand it there are three main issues:
It is scandalous that something like this can go so spectacularly wrong. All of this only came to prominence because of the persistence of people like @KirkstallOne and advice given by some members of this forum.
- Prosecutions under s5.1 of the Regulation of the Railways Act cannot be conducted via a SJPN. They must be dealt with through a requisition, i.e. the defendant must be summonsed to appear in court. Train Companies have been using the SJPN to deal with s5.1 prosecutions which they cannot do. This is what today's hearing was about - six test cases were declared void and nullity by the Chief Magistrate. There are another 74,000 cases that will also be voided and expunged from the records and fines paid returned. Although the train companies are clearly at fault the courts are not blameless in this either.
- Whether someone who has appealed a Penalty Fare can be prosecuted. The Chief Magistrate declined to rule on this as he doesn't have the authority to rule on this but in his judgement it seems to be pretty clear to me that he doesn't believe a prosecution can be bought following an appeal.
- Many people charged under s5.1 of the Regulation of the Railways Act would not have been guilty. This is because s5.1 requires you, when asked, to show a ticket, give your name and address or purchase a ticket. Anyone giving their name and address cannot be guilty of a s5.1 offence but despite this Train Companies still prosecuted people under s5.1. As far as I know this wasn't addressed as the cases will be voided anyway.
It is scandalous that something like this can go so spectacularly wrong. All of this only came to prominence because of the persistence of people like @KirkstallOne and advice given by some members of this forum.
Courts make decisions about live disputes, rather than ruling on larger issues which might be confused or confusing. The issue for the cases which were decided today was “what do we do when we discover that prosecutions were brought in a way which the law does not allow?” This is because the offences created by the RoRA cannot be initiated by the single justice procedure. The court’s decision was that these cases should be treated as if they never happened, because the various courts had no power to try those cases under the procedure used. It’s a narrow decision limited to that issue. The train companies could have brought these prosecutions by full summons, but due to their errors they included RoRA cases in their process for initiating SJP proceedings, and this should have had no legal effect.
The offences created by the Railway Bye-laws can be initiated using the SJP so this case has no direct effect on any past or future Bye-law case.
I agree that the larger issues are probably prosecution after concluded appeal and some train companies’ interpretation and use of RoRA 5 (1) but this case couldn’t meaningfully consider that. Magistrates’ courts can’t create precedent so anything said in this case on a point not directly involved in determining the current cases would not be helpful or have any effect. My first thought is that both of these are harder to deal with as the process for challenging a court which reaches the wrong interpretation of what behaviour is criminalised, or for arguing that a prosecutor is prohibited by a statutory provision from bringing the prosecution is to appeal, having raised the point as part of a not-guilty plea. It may be difficult or impossible to remedy cases where people have pled guilty to offences under the bye-laws or under RoRA which were within the jurisdiction of the magistrates court and used the correct procedure. And getting a binding precedent on these points requires a defendant to plead not guilty, be convicted, and appeal by way of case stated to the High Court. The experience of a couple of people on this forum is that when train companies are faced with arguments that they are mis-using RoRA 5 (1) they back down and withdraw the charge, so it may be that only people who plead guilty are convicted of those.
John Palmer
Member
- Joined
- 23 Oct 2015
- Messages
- 367
The Chief Magistrate was obliged to confine himself to a decision on how to deal with the six test cases that were transferred to his court as 'live' cases that had not been subject to final disposal. As published, his judgment is incoherent (is it nothing more than a court reporter's transcript of a judgment verbally delivered?), in particular in paragraphs 62-63. However, he seems to be saying that the RoRA charges brought by SJP must be nullities because TOC prosecutors had no power to issue such a charge in the way they did.
That's as far as the CM's judgment goes, strictly speaking. Correctly, he declined to adjudicate upon the lawfulness of prosecuting what he refers to as 'railway offences' following unsuccessful appeal of a penalty fare because that was evidently not in issue in any of the six test cases. I do not understand why he allowed the TOC prosecutors to make submissions on this issue without simultaneously inviting the six defendants to make submissions of their own, if they chose to do so. Those six defendants seem to have been treated as bystanders to the entire proceedings – was Paul Jenkins' application for costs granted?
So much for the six 'live' test cases, but what happens to all the thousands of cases which according to the judgment must be treated as nullities but have been the subject of final disposals. They can't be brought to court as live cases in the way the six test cases were, so on what legal authority can they come before the CM for a finding that they are all nullities? It is telling that in paragraph 70 of his judgment the CM himself states that “Magistrates’ courts do not have an appellate supervisory jurisdiction to determine abstract points of law.” If affected defendants' time limit for appeal against conviction has already passed, in what sense is the possibility that the proceedings against them were a nullity anything other than such an 'abstract point of law'? What is the procedural rule that entitles them to re-open their case, whether in the CM's court or otherwise? I see nothing in the CM's judgment to indicate what that rule might be.
I gather there are also several hundred Section 5(1) RoRA cases in which Northern Trains concedes that the convictions should be overturned even though they were correctly commenced otherwise than by SJP. I suspect at least some of these cases may also have involved issue of a penalty fare. If so, then the relevant prosecutors must already have been aware that there was no basis for bringing a Section 5(1) charge because defendants must have given their name and address in order to receive the penalty fare. Any such case should prompt inquiry into whether prosecution was malicious because the prosecutor knew from the outset that the defendant must be innocent, having complied with his obligations under the subsection. Whether the penalty fare was appealed or not is irrelevant: issue of a penalty fare must imply that name and address was given so that no Section 5(1) offence was committed, and in every such case where the SJP was used the real significance of its use is the extent to which it deflected the court's attention from the availability of an obvious defence. As at 24 July, HMCTS was taking no steps to ascertain how many such cases there had been.
Out of Court Settlements: at any rate in any case where a TOC has agreed to withdraw a RoRA prosecution begun by SJP in return for a settlement payment from a passenger, the contract so formed is arguably void for mistake – the mistake being that valid criminal proceedings were on foot and were thus capable of being withdrawn. If, per the CM's judgment, such proceedings were a nullity then there was never anything capable of being withdrawn, notwithstanding both contracting parties' mistaken belief to the contrary. In every such case the pre-contract status quo should be restored by reimbursement of the settlement payment made ( I think that probably applies to Sara Cooke's and @KirkstallOne's cases).
That's as far as the CM's judgment goes, strictly speaking. Correctly, he declined to adjudicate upon the lawfulness of prosecuting what he refers to as 'railway offences' following unsuccessful appeal of a penalty fare because that was evidently not in issue in any of the six test cases. I do not understand why he allowed the TOC prosecutors to make submissions on this issue without simultaneously inviting the six defendants to make submissions of their own, if they chose to do so. Those six defendants seem to have been treated as bystanders to the entire proceedings – was Paul Jenkins' application for costs granted?
So much for the six 'live' test cases, but what happens to all the thousands of cases which according to the judgment must be treated as nullities but have been the subject of final disposals. They can't be brought to court as live cases in the way the six test cases were, so on what legal authority can they come before the CM for a finding that they are all nullities? It is telling that in paragraph 70 of his judgment the CM himself states that “Magistrates’ courts do not have an appellate supervisory jurisdiction to determine abstract points of law.” If affected defendants' time limit for appeal against conviction has already passed, in what sense is the possibility that the proceedings against them were a nullity anything other than such an 'abstract point of law'? What is the procedural rule that entitles them to re-open their case, whether in the CM's court or otherwise? I see nothing in the CM's judgment to indicate what that rule might be.
I gather there are also several hundred Section 5(1) RoRA cases in which Northern Trains concedes that the convictions should be overturned even though they were correctly commenced otherwise than by SJP. I suspect at least some of these cases may also have involved issue of a penalty fare. If so, then the relevant prosecutors must already have been aware that there was no basis for bringing a Section 5(1) charge because defendants must have given their name and address in order to receive the penalty fare. Any such case should prompt inquiry into whether prosecution was malicious because the prosecutor knew from the outset that the defendant must be innocent, having complied with his obligations under the subsection. Whether the penalty fare was appealed or not is irrelevant: issue of a penalty fare must imply that name and address was given so that no Section 5(1) offence was committed, and in every such case where the SJP was used the real significance of its use is the extent to which it deflected the court's attention from the availability of an obvious defence. As at 24 July, HMCTS was taking no steps to ascertain how many such cases there had been.
Out of Court Settlements: at any rate in any case where a TOC has agreed to withdraw a RoRA prosecution begun by SJP in return for a settlement payment from a passenger, the contract so formed is arguably void for mistake – the mistake being that valid criminal proceedings were on foot and were thus capable of being withdrawn. If, per the CM's judgment, such proceedings were a nullity then there was never anything capable of being withdrawn, notwithstanding both contracting parties' mistaken belief to the contrary. In every such case the pre-contract status quo should be restored by reimbursement of the settlement payment made ( I think that probably applies to Sara Cooke's and @KirkstallOne's cases).
Section 5 (1) convictions are non-recordable.
For what it's worth they can, but not by TOCs. The BTP (for example) could conduct one.
Were there any such cases though?
Most out of court settlements have been where a TOC has agreed not to prosecute in return for a payment. That is rather distinct from withdrawing a RoRA prosecution begun by SJP. I have not seen a case of the latter occurring. In a case where the TOC would have been able to prosecute by laying an information, it would seem to me that the contracts are still good.
Last edited:
Fawkes Cat
Established Member
- Joined
- 8 May 2017
- Messages
- 3,906
Just to pick up on this point, I suspect that in practice there aren’t any (or at least not many) of these. From what I remember us seeing, typically a settlement offer is made by the company before prosecution is started - so no mechanism for the prosecution is yet defined: indeed, the potential charge (and so what legislation and whether it is SJPN-able) may not be known when the passenger chooses to settle.
There are, I suppose, a couple of exceptions to this:
- where a summons or SJPN is sent out with an offer to settle. We have seen some of these, but only from Chiltern and only in the last few months. What’s more they seem to have stopped appearing so I think that it may have been an attempt to clear a backlog (they tended to be very late in the six month prosecution window) so either the backlog has been cleared or the idea has been dropped. And without going back to check, I am not sure whether SJPNs were used appropriately or not.
- cases where an out of court settlement is agreed ‘at the door of the court’. Where this is literally true then an SJPN can’t be in play unless the passenger pleaded not guilty and moved back to the face to face route. And I am unsure whether we see any cases where an issued SJPN has been withdrawn after a settlement is agreed.
All this assumes that the cases we see are more or less a representative sample of what happens. But if they are then I don’t see wide scope for many out of court settlements needing to be unwound.
Haywain
Veteran Member
- Joined
- 3 Feb 2013
- Messages
- 19,707
But such cases were not eligible to be commenced through SJPN, regardless of the plea.
Fawkes Cat
Established Member
- Joined
- 8 May 2017
- Messages
- 3,906
KirkstallOne
Member
There were a lot of settlements agreed after prosecution had commenced via SJP. My own being a good example, Sarah Cook’s being another. The foreign student case on the forum being a third. Given that Northern included a ‘final offer of settlement’ with the SJP pack there must be thousands.
Also, given it now seems that all threats to prosecute appealed penalty fares were illegitimate, there must be tens of thousands where this was the case. Arguably all of those settlements are in question.
Also, given it now seems that all threats to prosecute appealed penalty fares were illegitimate, there must be tens of thousands where this was the case. Arguably all of those settlements are in question.
I think that many hard working, highly professional, lawyers working in industry (or government) rather than private practice might find that comparison deeply offensive. It also presumes that prestige and capability are the same - if you follow the Horizon case, you might want to apply that test to Lord Grabiner KC…
KirkstallOne
Member
Was just on LBC talking about this ~08:37
- Byelaw breaches can be prosecuted under the SJP (and are, at the rate of thousands a week)
- Intentional fare evasion can be prosecuted under section 5 (3) of the Regulation of Railways Act. As an imprisonable offence, it cannot be put through the SJP, but the prosecutor can lay an information before the court under section 1 (1) of the Magistrates Court Act and a summons, or indeed an arrest warrant, is then issued by the court. This also happens at the rate of hundreds a week.
- There is also the lesser spotted offence of failing to quit the carriage upon arrival at the point to which one's fare is paid contrary to section 103 of the Railway Clauses Consolidation Act.
Haywain
Veteran Member
- Joined
- 3 Feb 2013
- Messages
- 19,707
Star of the airwaves!!
KirkstallOne
Member
Official update:
www.gov.uk
Confirms that currently these companies are involved:
Northern
Transpennine
Avanti West Coast
Greater Anglia
Great Western Railway
Arriva Rail Northern
Merseyrail
Train company prosecutions
Confirms that currently these companies are involved:
Northern
Transpennine
Avanti West Coast
Greater Anglia
Great Western Railway
Arriva Rail Northern
Merseyrail
The phrase "(this list may be subject to minor amendments and will be updated on Monday 19 August 2024)" doesn't give me much hope that the list of TOCs is currently exhaustive!
KirkstallOne
Member
Feels like a good time to revisit the response to my complaint received on 19th April 2024, some 8 months after I sent it. The bolded part has now been accepted by Northern and Greater Anglia's counsel as not possible due to a bar on prosecution for appealed penalty fares.
I have also contacted Northern asking if they would like to extend a personal apology to me given yesterday’s ruling.
I have also contacted Northern asking if they would like to extend a personal apology to me given yesterday’s ruling.
Last edited:
John Palmer
Member
- Joined
- 23 Oct 2015
- Messages
- 367
At the forefront of my mind when composing my previous post was this settlement offer, issued with the SJPN in the Preston case to which I have previously referred. A Northern case rather than one brought by Chiltern, and to my way of thinking having every appearance of being a template-generated document likely to have been used extensively. In every case where this notice accompanied an SJPN alleging a RoRA offence and induced a settlement payment from the recipient it is arguable that the settlement agreement reached was void for mistake. As @KirkstallOne says, there are grounds for thinking that such a 'final settlement offer' went out with a large number SJP packs.
I note that the Government's 'Train company prosecutions' update of 15 August (https://www.gov.uk/government/publications/train-company-prosecutions/train-company-prosecutions) states that "The first stage will be to list other cases of this type before the court so that a decision can be made as to whether they too should be declared invalid" but fails to cite any rule of law that authorises such listing. I recognise that Section 142 Magistrates Courts Act 1980 gives magistrates a limited power to set aside a conviction so that a case may be re-heard by a different bench, but the Chief Magistrate plainly desires not to go down that road, so the question remains: on what authority will these 70,000+ cases be listed for further consideration?
Hand-waving.
It seems that the Chief Magistrate is of the view that a Magistrates' Court retains a power (forever?) to recognise that it has done a thing it had no power to do, and to declare that it didn't, in fact, do that thing.
My knowledge of administrative law is rusty because at first glance that would seem to be something that would need the High Court / Administrative Court to do by way of a quashing order, but clearly it's more efficient for the initial decision-maker to provide the remedy, and no-one is likely to oppose this, unless the train companies which argued for the use if s.142 think they ought to appeal.
The nullity argument seems to me to be weaker for post-Penalty Fare prosecutions - does hearing a case using an authorised procedure, in circumstances where the prosecutor was barred from bringing that case, amount to something entirely beyond the power of the court? Though again, perhaps if the train companies accept that they shouldn't have brought those, the same pragmatic outcome will be possible, since no-one will argue against them.
I can't see a simple way to overturn s.5 (1) convictions which don't have the Penalty Fare appeal problem as a block - a prosecutor arguing for an incorrect interpretation of a criminal statute is not that uncommon, and there's no jurisdictional issue except the concept that errors of law go to jurisdiction. I'm not sure this rises to that level, and (from a skim read) it seems as if the higher courts are uncomfortable with s.142 being used to allow appeals against unequivocal guilty pleas. And some TOCs seem to be persisting in the argument that the prosecution bar is less absolute than we tend to think, and they're free to put those arguments until the High Court, at least, provides something of a definitive interpretation.
My knowledge of administrative law is rusty because at first glance that would seem to be something that would need the High Court / Administrative Court to do by way of a quashing order, but clearly it's more efficient for the initial decision-maker to provide the remedy, and no-one is likely to oppose this, unless the train companies which argued for the use if s.142 think they ought to appeal.
The nullity argument seems to me to be weaker for post-Penalty Fare prosecutions - does hearing a case using an authorised procedure, in circumstances where the prosecutor was barred from bringing that case, amount to something entirely beyond the power of the court? Though again, perhaps if the train companies accept that they shouldn't have brought those, the same pragmatic outcome will be possible, since no-one will argue against them.
I can't see a simple way to overturn s.5 (1) convictions which don't have the Penalty Fare appeal problem as a block - a prosecutor arguing for an incorrect interpretation of a criminal statute is not that uncommon, and there's no jurisdictional issue except the concept that errors of law go to jurisdiction. I'm not sure this rises to that level, and (from a skim read) it seems as if the higher courts are uncomfortable with s.142 being used to allow appeals against unequivocal guilty pleas. And some TOCs seem to be persisting in the argument that the prosecution bar is less absolute than we tend to think, and they're free to put those arguments until the High Court, at least, provides something of a definitive interpretation.