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

[soil]

What event would start that 3 month clock? The case has been subject to final disposal, so I do not see how there can be a decision not to re-open that is susceptible to judicial review.

The event would be the refusal to re-open the case under s 142. As far as I know nobody has applied yet so this is of academic interest at this point.

 

[Snow1964]

DfT has issued update 21 Aug

On Thursday 15 August 2024 the Chief Magistrate made a judgment on a small number of these cases to decide how erroneous proceedings and convictions are dealt with. He decided that these cases should be declared invalid, and anything paid for that offence should be reimbursed.

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. People involved in these cases will not be required to attend those hearings.

HMCTS will use court records and case information held by rail providers to contact those affected over the coming weeks about the hearing and decision. If you think you may be affected, you should wait to be contacted directly and told what will happen next including if you have paid some or all of a financial penalty. For those who haven’t yet paid anything relating to their offence we will be writing to inform them that the conviction is declared invalid and to confirm the court record has been corrected

If a case you are worried about does not meet all of the following criteria then we can already confirm that you are not affected. Affected cases were prosecuted:

• by Northern, Transpennine, Avanti West Coast, Greater Anglia, Great Western Railway, Arriva Rail Northern, Merseyrail or C2C (this list may be subject to minor amendments and will be updated on Tuesday 27 August 2024)
• between 2018 and 2023 (with the vast majority of affected cases prosecuted from 2020)
• under Section 5(1) or 5(3) of Regulation of Railways Act (and the wording of one of these would have appeared on the single justice notice you would have received)

If you believe that your address or payment information has changed since you last provided this to HMCTS, please make contact via email at [email protected] or telephone on 0300 303 0656 to provide updated information. You will also need your case number or account number so that we can update your details.

Train company prosecutions

www.gov.uk

 

[furlong]

And the one thing missing from that notice is that irregularities in some further categories of cases remain under investigation, so telling people definitively that they are not affected may be considered misleading. There should at least be a note to "watch this space".

 

[KirkstallOne]

C2C is a new addition the list. 8 companies now:

Northern
Transpennine
Avanti West Coast
Greater Anglia
Great Western Railway
Arriva Rail Northern
Merseyrail
C2C

 

[soil]

DfT has issued update 21 Aug

Train company prosecutions

www.gov.uk

A very poor communiqué.

Title: "Update" - to what? They've deleted the previous text.


first sentence:
"On Thursday 15 August 2024 the Chief Magistrate made a judgment on a small number of these cases " - which cases? They really should make it clear up front what they're talking about.

"The first stage will be to list other cases of this type before the court " - one court (if so, which one?), or multiple courts all over the country?

"The Single Justice Procedure (SJP) allows those who plead guilty to low-level, non-imprisonable crimes to resolve their case without going to court. " - this is poor. it is "a specified list" of "non-imprisonable crimes". It's not just any old "low-level"

"The decision to use SJP is a matter for prosecutors. When cases come to court, magistrates decide on conviction and sentence, advised by legal advisers. " - isn't the entire point, which you've neglected to mention, that it's ONE magistrate?

"Rail fare offences"
- not merely "rail fare offences". The section in the Act is titled "fare evasion". This seems to be endorsing the wrongful description of the offence

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

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

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

again not "rail fare offences", s 5(1)(a) is proximately "fare evasion by refusal to provide name and address"

and the "imprisonable" part isn't relevant - the offences MUST be included in the 2016 Order. it's true that 5(3) could never have been included in the 2016 Order because it's not imprisonable, but the point really is that it wasn't included in the 2016 Order, so the blame is with the TOCs - there's nothing wrong with the 2016 Order at all.

 

[John Palmer]

Still waiting to be told the basis in law on which these thousands of cases are going to be revived for re-listing, and, for that matter, the authority of any magistrate to substitute in the place of another magistrate's decision a declaration that the proceedings forming the subject of that prior decision were a nullity.

I'm as keen as anyone to see a mass miscarriage of justice corrected, but that correction needs to be accomplished by due process. For 'the rule of law' to have any worthwhile meaning, the prior verdicts must be given due respect and set aside only by application of a lawful process rather than the stroke of some administrator's pen. If the Executive (DfT, MoJ, HMCTS, etc) and Chief Magistrate cannot demonstrate that the action they are now taking is backed by appropriate legal authority then their conduct is no less open to criticism than that of the TOCs whose errors they now seek to correct. Permitting the Executive to reverse judicial decisions in the absence of clear legal authority to do so sets an exceptionally dangerous precedent.

 

[Narrowgauge725]

Still waiting to be told the basis in law on which these thousands of cases are going to be revived for re-listing, and, for that matter, the authority of any magistrate to substitute in the place of another magistrate's decision a declaration that the proceedings forming the subject of that prior decision were a nullity.

I'm as keen as anyone to see a mass miscarriage of justice corrected, but that correction needs to be accomplished by due process. For 'the rule of law' to have any worthwhile meaning, the prior verdicts must be given due respect and set aside only by application of a lawful process rather than the stroke of some administrator's pen. If the Executive (DfT, MoJ, HMCTS, etc) and Chief Magistrate cannot demonstrate that the action they are now taking is backed by appropriate legal authority then their conduct is no less open to criticism than that of the TOCs whose errors they now seek to correct. Permitting the Executive to reverse judicial decisions in the absence of clear legal authority to do so sets an exceptionally dangerous precedent.

Rail fare offences​

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

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

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

According to this Notice the offence wasn't included in the 2016 Order, therefore, surely any conviction is automatically null and void as the Prosecutor failed to prosecute legally?

 

[Haywain]

According to this Notice the offence wasn't included in the 2016 Order, therefore, surely any conviction is automatically null and void as the Prosecutor failed to prosecute legally?

That doesn't alter the fact that once a person has been convicted, there has to be a process to reverse or quash that conviction. You can't just pretend it didn't happen.

 

[brainiac_ghost]

That doesn't alter the fact that once a person has been convicted, there has to be a process to reverse or quash that conviction. You can't just pretend it didn't happen.

I'm not sure that there does, surely there's precedent, set by the supreme court (https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf), that some actions taken where the power to do so doesn't exist, are null and of no effect. In the prorogation case linked above, the exact wording was "It follows that Parliament has not been prorogued", the same principle could apply here - the powers to convict under the SJPN didn't exist, so it follows that the convictions don't exist and all that would be required would be for the court to make declarations to that effect (whether that be the magistrates court, the crown court, or the high court, I'm not sure).

 

[pedr]

One issue is that a Magistrates' Court doesn't generally have any power to do anything except what is provided by statute. It's the High Court that has general jurisdiction and the responsibility to issue remedies such as declarations and quashing orders when other public bodies (whether that's an inferior court or a local council or a central government department) purport to make legally binding decisions they didn't have the power to make.

Maybe the correct remedy is to re-list the cases for formal consideration at each magistrates' court which convicted them, but there are potentially theoretical difficulties with that, including questions over whether the convicting body is the court as a corporate body, or the specific magistrate who made each decision. The correct procedure would, I think, be thousands of judicial review cases heard by the High Court.

I have a feeling that the practicality will be that someone will assert they have an authority to deal with this, and then no-one will ever object even if it's legally and procedurally improper, so the records will be corrected, appropriate fines etc refunded, and everything will carry on as if the chief magistrate or some other similar authority had the power to do this.

 

[Belperpete]

I'm not sure that there does, surely there's precedent, set by the supreme court (https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf), that some actions taken where the power to do so doesn't exist, are null and of no effect. In the prorogation case linked above, the exact wording was "It follows that Parliament has not been prorogued", the same principle could apply here - the powers to convict under the SJPN didn't exist, so it follows that the convictions don't exist and all that would be required would be for the court to make declarations to that effect (whether that be the magistrates court, the crown court, or the high court, I'm not sure).

In the case of the prorogation of parliament, they were ruling on one particular occasion, and it was clear that ruling had no impact on any previous prorogations.

In the case of the misuse of the SJP, someone is going to have make a ruling as to exactly which convictions have been nullified (and therefore by exception, which haven't. That "someone" is going to need to have the appropriate authority. The TOCs surely don't have the authority to overrule court judgements, so it surely can't be left up to the TOCs to decide who they are going to repay and who they aren't.

 

[brainiac_ghost]

In the case of the prorogation of parliament, they were ruling on one particular occasion, and it was clear that ruling had no impact on any previous prorogations.

In the case of the misuse of the SJP, someone is going to have make a ruling as to exactly which convictions have been nullified (and therefore by exception, which haven't. That "someone" is going to need to have the appropriate authority. The TOCs surely don't have the authority to overrule court judgements, so it surely can't be left up to the TOCs to decide who they are going to repay and who they aren't.

I'd agree with that, I think the "cleanest" way would be that the cases are identified and listed as a block before the high court to issue such a declaration?

 

[MotCO]

I have a feeling that the practicality will be that someone will assert they have an authority to deal with this, and then no-one will ever object even if it's legally and procedurally improper, so the records will be corrected, appropriate fines etc refunded, and everything will carry on as if the chief magistrate or some other similar authority had the power to do this.

But is there a danger that this could cause a precedent?

 

[Gonzoiku]

I have a feeling that the practicality will be that someone will assert they have an authority to deal with this, and then no-one will ever object even if it's legally and procedurally improper, so the records will be corrected, appropriate fines etc refunded, and everything will carry on as if the chief magistrate or some other similar authority had the power to do this.

Let's keep things in perspective. Assuming that fines etc were of the order of £600 (conservatively) in each of 75000 cases, we are talking of £50 million or thereabouts. There is no way in the world that such s pragmatic approach will fly.

GZ

Edited context > perspective (I couldn't remember the word!)

 

[some bloke]

Apart from any danger from precedent, a potential disadvantage from a court going beyond its legal powers to do something (even if everyone concerned is otherwise content with it) is that it may distract from a general need for there to be such a power in law.

There may be a need for such a power (not necessarily for that court) for other existing cases as well as hypothetical cases that seem reasonably possible to occur in future.

If there is a need to rectify a particular set of miscarriages of justice and existing powers are inadequate for that, it may seem wise and fair to consider whether there could be other cases where the existing law has failed to provide an appropriate remedy, so that new legislation is needed.

 

[Belperpete]

I'd agree with that, I think the "cleanest" way would be that the cases are identified and listed as a block before the high court to issue such a declaration?

But who is going to do the identifying? The TOCs? I feel there should certainly be a way for individuals to put their cases forward.

And what about someone who feels their case should have been included, but hasn't? What remedy would they have?

 

[Hadders]

But who is going to do the identifying? The TOCs? I feel there should certainly be a way for individuals to put their cases forward.

And what about someone who feels their case should have been included, but hasn't? What remedy would they have?

HMCTS are going to use court records with assistance from the Train Companies.

 

[Fawkes Cat]

But who is going to do the identifying? The TOCs? I feel there should certainly be a way for individuals to put their cases forward.

And what about someone who feels their case should have been included, but hasn't? What remedy would they have?

This looks like a classic ‘80/20’ scenario, where 80% of the cases can be cleared with 20% of the effort.

As Hadders says above, the obvious place to start is with cases where TOC and court records are in good order, and where the railway doesn’t want to defend its position. That will be the 80% resolved with very little effort. But that will leave the 20% tail which need more work. It seems to me that some of those will need the defendant to pursue their case.

 

[talldave]

This looks like a classic ‘80/20’ scenario, where 80% of the cases can be cleared with 20% of the effort.

As Hadders says above, the obvious place to start is with cases where TOC and court records are in good order, and where the railway doesn’t want to defend its position. That will be the 80% resolved with very little effort. But that will leave the 20% tail which need more work. It seems to me that some of those will need the defendant to pursue their case.

Most of those will never know there was a case to pursue, sadly.

Although I can imagine the Facebook ads already..."were you a passenger on a diesel train between 2016 and 2024?..."

 

[Egg Centric]

Statistically at least a few hundred, and probably over a thousand (certainly would be the case if fare evaders didn't skew young) of these will be dead now. What happens if their estate is already settled? What a mess!

 

[Belperpete]

Statistically at least a few hundred, and probably over a thousand (certainly would be the case if fare evaders didn't skew young) of these will be dead now. What happens if their estate is already settled? What a mess!

It will be up to the executors to distribute the money in accordance with the will. It is not uncommon for extra monies to appear after estates have been settled. For example, investment funds to issue additional payments once they have done their year end accounting.

 

[Snow1964]

DfT has updated the notice 10 Sep with final list of rail companies

• by Northern, Transpennine, Avanti West Coast, Greater Anglia, Great Western Railway, Arriva Rail Northern, Merseyrail or C2C

Train company prosecutions

Operational update on Single Justice Procedure train company prosecutions.

www.gov.uk

 

[Hadders]

DfT has updated the notice 10 Sep with final list of rail companies

Train company prosecutions

Operational update on Single Justice Procedure train company prosecutions.

www.gov.uk

The wording of this 'Operational Update' makes it look as though what happened was just a procedural error, these people were guilty anyway but we used the SJPN system instead of a summons.

There's no mention that many of those charged with a s5.1 offence had a defence because they gave their name and address and consequently were not guilty of that offence.

 

[some bloke]

Even apart from the massive s.5(1) issue, given that

"He [the Chief Magistrate] decided that these cases should be declared invalid"

how is it other than highly improper for the courts service and two government departments to declare,

"He decided that these cases should be declared invalid, and anything paid for *that offence* should be reimbursed"

 and

"For those who haven’t yet paid anything relating to *their offence* we will be writing to inform them that the conviction is declared invalid and to confirm the court record has been corrected"?

 

[MotCO]

Even apart from the massive s.5(1) issue, given that

"He decided that these cases should be declared invalid"

how is it other than highly improper for the courts service and two government departments to declare,

"He decided that these cases should be declared invalid, and anything paid for *that offence* should be reimbursed"

 and

"For those who haven’t yet paid anything relating to *their offence* we will be writing to inform them that the conviction is declared invalid and to confirm the court record has been corrected"?

And how many people have moved house since the original incident, sorry "offence", so how easy would it be to trace these people?

 

[KirkstallOne]

This was raised in parliament today. Apparently representatives of the ToCs will be joining Heidi Alexander for discussions in the next few weeks.

https://hansard.parliament.uk/commo...4422-AC73-ADC7658D66D5/SingleJusticeProcedure

Lee Pitcher (Doncaster East and the Isle of Axholme) (Lab)
What steps her Department is taking to improve the single justice procedure. (901057)

The Minister of State, Ministry of Justice (Heidi Alexander)
I have listened carefully to concerns raised about the single justice procedure. As a first step, I have asked the Courts and Tribunals Service to redesign the SJP and make it clearer. I will also call in SJP prosecutors to discuss ways in which we can ensure that they consider the public interest in advance of making prosecutions.

Lee Pitcher
Earlier this year, a decision by the chief magistrate overturned the use of SJP for rail fines, potentially nullifying and requiring the refunding of as many as 74,000 fines. In the past few days it has been reported that LNER has brought similar prosecutions under SJP without supplying any evidence at all. I make no assumption about the guilt or innocence of anyone involved in those prosecutions, but justice must be open, clear and fair. It is unfair to expect people to engage with a process without it being clear what evidence has been laid against them. Will the Minister confirm that her Department will keep those principles at the heart of all our justice practices, including SJPs?

Heidi Alexander
I will raise the evidential questions that my hon. Friend raised with representatives of the train operating companies when they and other SJP prosecutors join me in discussions in the next few weeks. I am clear that the single justice procedure is vital for the efficient running of the magistrates court. However, it must operate fairly and effectively. I will not tolerate poor practice, and I will not hesitate to fundamentally reform the system if that is required.

 

[KirkstallOne]

Some more developments on this. The Evening Standard is reporting:

At Westminster magistrates court on Thursday, the first batch of convictions were overturned en masse in a single hearing lasting less than two minutes. Some 28,631 prosecutions brought by Northern Rail between August 6, 2020 and May 21, 2024 were dealt with, alongside 41 cases where Transpennine Express was the prosecutor.

https://www.standard.co.uk/news/cri...ctions-overturned-northern-rail-b1196732.html

And the gov.uk page was updated a week ago to say this:

While we continue to work with rail providers to verify a smaller number of further cases, we anticipate that all identified cases will be listed before the court on several dates between Thursday 28 November and Monday 16 December 2024. Cases related to a particular rail provider will be heard together with listing information made publicly available in the usual way online and in the court building. People involved in these cases will not be required to attend these hearings.

If the court takes the decision to declare these cases invalid, HMCTS will use court records and case information held by rail providers to contact those affected in writing. These letters will be sent up to 2 weeks after the decision being made by the court.

https://www.gov.uk/government/publications/train-company-prosecutions/train-company-prosecutions

And indeed there were two cases listed this morning at Westminster Magistrates:

TransPennine Express, 2401298373 Courtroom 03 10:00
Northern Railway, 2401298322 Courtroom 03 10:00

Presumably there are now 28,672 letters getting sent out with the outcome.

 

[John Palmer]

Still no explanation made available of the procedural basis on which these 28,000+ cases were revived, presuming all to have been subject to final disposal at some earlier date.

The Evening Standard also has an article on the forthcoming consultation upon reform of the Single Justice Procedure at https://www.standard.co.uk/news/uk/...ure-private-prosecutions-reform-b1196737.html. Apparently due to be launched early next year.

 

[ainsworth74]

I'm curious about what happens to those people who have moved since the cases were disposed of so the court no longer has up to date contact information for them. I suppose in some ways it doesn't matter, their conviction will still have been wiped but it feels rather unsatisfactory that they may not actually find out that it has!

 

[MotCO]

I'm curious about what happens to those people who have moved since the cases were disposed of so the court no longer has up to date contact information for them. I suppose in some ways it doesn't matter, their conviction will still have been wiped but it feels rather unsatisfactory that they may not actually find out that it has!

Well, if bailiffs can find addresses of people who have moved, presumably the TOCs can do likewise to correct their mistakes. Whether or not they will bother depends on how incentivised they are.

Also, presumably TOCs will be 'encouraged' to refund penalties paid. I do not think it is acceptable for a future FOI to discover that the TOCs are still sitting on loads of money resulting from the SJPN misjustice because they can't try hard enough to find the injured parties.