Section 5(1) RoRA Prosecution

[SteveM70]

*** Update ***

Just had the court case. I went because I had not had any confirmation that Northern had withdrawn the case, and I spoke to the court on Tuesday and they said as far as they knew it was going ahead. Also I wanted to flag up all the irregularities if I got a chance.

Before I got called, a Northern representative came out and said they will be withdrawing the case. I said, why didn’t you tell me or the court before now and he said they always just withdraw on the day. I asked him if he was the prosecutor and after some obfuscation he said no. I said, well I will be attending anyway.

I got called in after that, the prosecutor was going to withdraw the charge as the first step but I said I wanted to speak first.

I said three things:

1) that they had no authority to charge RoRA offences via an SJP notice, quoting the name of the relevant legislation and saying they are only allowed to charge bye-law offences
2) that the charge was misleading, reading out the charge on the charge sheet and the RoRA legislation and pointing out that their own evidence shows I gave my name and address
3) that Res Judicata should apply here - non payment of penalty fares is a civil debt, and the issuing of a penalty fare should have closed the door to a criminal charge as the penalty has already been decided, which seems to have been the intention of the penalty fares legislation and is stated explicitly in the Explanatory Memorandum.

Then the prosecutor stood up and said because I had pled not guilty, they reviewed the appeal and decided that I shouldn’t have been issued with a penalty fare (not my reading of what happened). I had paid the original fare now and so they were withdrawing the charge.

They did then ask me if I wanted to say anything else, I probably should have said I would invite the court to declare the case a nullity and if so there is no charge to withdraw, but I didn’t say anything.

The bench then said the case was withdrawn.

There were dozens of northern rail cases listed at Doncaster today, only one other defendant had shown up so would be interested what all the others are.

Anyway, thanks again to everyone for their advice on this. I will be making a subject access request and some FOI requests now the court case is out of the way.

Wow. So they deliberately only withdraw the case on the day? Do you get reimbursed for your travel costs and time? If not, how are the courts allowing Northern to behave like this, when withdrawing prior to the day would avoid this?

 

[KirkstallOne]

Wow. So they deliberately only withdraw the case on the day? Do you get reimbursed for your travel costs and time? If not, how are the courts allowing Northern to behave like this, when withdrawing prior to the day would avoid this?

I don’t know the normal procedure but seemed odd to me that the court couldn’t tell me on Tuesday whether I was still expected to attend. No reimbursal for any costs.


Also in case anyone is still wondering about the missing charge sheet, I did manage to obtain a copy of everything the court had on Tuesday and it appears I must have sent the missing charge sheet to the court with my original not guilty plea by mistake which is why I didn’t have a copy. Not sure what happened there but I was having a particularly bad day when I fired that back about 5 mins after opening it! Overleaf apparently just means, included with.

 

[kkong]

So now we know who authorised the charge - the Revenue Enforcement Delivery Manager.

He - along with his Carlisle staff - is featured in a Feb 2023 article in Passenger Transport magazine.

https://www.passengertransport.co.uk/2023/02/northern-gives-fare-dodgers-the-red-card/

Shearer introduces me to her fraud and prosecutions team and young Andrew Turnbull, ice-hockey fanatic and marquee signing from local bus company Blazefield. He provides a compelling presentation, including how they nobbled someone 'doing a doughnut' which involves buying a ticket for both ends of a journey but not the hole in the middle. There’s also work being undertaken to profile different types of fare offenders, understanding their motivations and behaviours... Anyway, it’s Friday evening and, although Wade and Turnbull (whose mobile barcode validator is poised to check whatever ticket could be sniffed out) would happily spend their whole weekend hunting fare evaders, I’ve a long trip back to Surrey

 

[AlterEgo]

Well done on fighting your corner.

 

[NorthWestRover]

Hear hear. Very well done. I wouldn't like to be on the opposing side to KirkstallOne.

 

[furlong]

So you tried to educate the court about these issues, so that there's more chance they'll spot them if Northern does the same again to someone else? I also agree with the principles behind your number 3, that once issued, a Penalty Fare is final and can't be cancelled or converted into a prosecution unless there's new evidence that undermines the original decision to issue it (passenger found to have lied), but we know the train companies do this regularly unchallenged so it would be interesting if a court one day had to consider that argument.

 

[ChewChewTrain]

If it’s the case, as some claim, that TOC prosecution staff don’t read this forum anywhere near as often as is made out, then I hope they’ve made an exception for this thread. I hope it’s being shared.

 

[fandroid]

Well done KirkstallOne. It takes some guts to face up to big organisations like Northern. Let's hope that there is an actual legally qualified person there who is taking note

 

[KirkstallOne]

Good morning, as a lot of you know I have been pursuing a complaint with Northern Trains regarding their use of the Single Justice Procedure, in particular with their systematic policy of launching a S5(1) Regulation of Railways Act 1889 prosecution via a Single Justice Procedure Notice when a penalty fare which had been appealed remained unpaid.

I am pleased to share this response from Northern with the forum. Importantly they confirm that they will only prosecute byelaw offences via the SJP in future. The redacted person cc'd on the email is one of their in house lawyers.

For the forums information, the last line of this response is a new admission - at the time they stated that they had reviewed the case against me, looked at the appeal I sent to the Independent Appeals Service and had decided to offer a settlement of the original fare owing (£3.50). The same was also stated in court by the prosecution as the reason for withdrawal.

 

[Brissle Girl]

So they lied in court? Also, I think the letter you attached is missing the bit where they say they will review all past convictions to overturn any miscarriages of justice.

Anyone who was gripped by the incompetence of the witness in the last two days' evidence in the Post Office Inquiry will know that both of these points have come up time and time again as failures by those handling the prosecutions, and even from a couple of interventions from the Judge it's clear that they will be material points in his report.

 

[Haywain]

So they lied in court?

I doubt it matters given that they were explaining why they were withdrawing a case. If it had been in evidence, leading to a conviction, it would be a very different matter.

 

[KirkstallOne]

Also, I think the letter you attached is missing the bit where they say they will review all past convictions to overturn any miscarriages of justice.

Yes it is the obvious next question, although they are very careful to leave open the possibility that if examined in court these prosecutions would stand up.

 

[John Palmer]

It's concerning that Northern continue to insist that Section 5(1) RoRA 1889 creates a substantive offence of travelling without a ticket when that subsection in fact does nothing more than create an offence in relation to the procedure for establishing whether a ticketing iregularity has occurred – i.e. 'the three fails'. Were Northern's proposition of law correct, it would be an offence to travel on a train without a ticket from an embarkation station at which no facilities for purchase of a ticket were available.

The offence of travelling with intent to avoid payment of the fare is created by Subsection 3 of Section 5, not Subsection 1, but this was a case in which prosecution under Subsection 3 was barred by the provisions of the Penalty Fares Regulations by virtue of the appeal against the penalty fare. Northern's prosecution under Subsection 1 was, therefore, apparently prompted by a desire to circumvent that bar, notwithstanding that it was manifest that @KirkstallOne must have complied with that subsection's requirements and that consequently no offence under it could have been committed.

Northern have not taken a decision to commence all SJP proceedings under Railway Byelaws rather than under Section 5(1), as they have no authority in law to commence any form of RoRA prosecution by means of the Single Justice Procedure.

Also interested to know why Northern is under the impression that it could have amended the charge to one under the Byelaws when the relevant Byelaw charge was one which, in the circumstances of the penalty fare appeal, had become barred under the Penalty Fares legislation.

A most unsatisfactory response from Northern. Plans to take the matter further?

 

[KirkstallOne]

A most unsatisfactory response from Northern. Plans to take the matter further?

Yes I do. Although I do think the response does cede some important ground so it is a good result for now.

 

[Brissle Girl]

I doubt it matters given that they were explaining why they were withdrawing a case. If it had been in evidence, leading to a conviction, it would be a very different matter.

I’m not a lawyer, but I think giving one reason for withdrawing a case when the real reason is that the defendant pointed out to them that they were not entitled to bring the case (and where they have seemingly done so on previous occasions), does appear to be a lie. And I’m not sure the court distinguishes an ok lie from a bad lie.

This was highlighted yesterday when the PO was found to have given a logistical reason to court why it declined to put forward a witness, when documents now reveal that this was an excuse and the real reason was because it knew the witness was tainted.

 

[island]

Were Northern's proposition of law correct, it would be an offence to travel on a train without a ticket from an embarkation station at which no facilities for purchase of a ticket were available.

Yes. It would also be an offence to not pay one’s fare from the place one commenced one’s journey each time a railway officer asked, no matter how many times one was so asked. Which is clearly an absurd interpretation.

 

[Pushpit]

I’m not a lawyer, but I think giving one reason for withdrawing a case when the real reason is that the defendant pointed out to them that they were not entitled to bring the case (and where they have seemingly done so on previous occasions), does appear to be a lie. And I’m not sure the court distinguishes an ok lie from a bad lie.

This was highlighted yesterday when the PO was found to have given a logistical reason to court why it declined to put forward a witness, when documents now reveal that this was an excuse and the real reason was because it knew the witness was tainted.

One of the other things that came out the questioning of the hopeless Rodric Williams was that two Freedom of Information requests - one by journalist Nick Wallis, the other by a sub postmaster - did cause moderate panic when they reached the lawyers. I wonder if there is scope to ask Northern via FoI "how many RoRA cases have been processed via Single Justice procedures? How many have been reviewed subsequent to conviction?"

 

[Brissle Girl]

One of the other things that came out the questioning of the hopeless Rodric Williams was that two Freedom of Information requests - one by journalist Nick Wallis, the other by a sub postmaster - did cause moderate panic when they reached the lawyers. I wonder if there is scope to ask Northern via FoI "how many RoRA cases have been processed via Single Justice procedures? How many have been reviewed subsequent to conviction?"

It was compelling viewing wasn’t it, as he was so excruciatingly bad. And yet still commands a senior legal role in the PO.

And yes, that would be a very interesting FoI request to put in!

 

[furlong]

Sadly that letter refuses to acknowledge an understanding of the issues so it raises more questions than it answers. If that's the best response Northern can manage after all this time and investigation, perhaps it is necessary to accept that Northern is unlikely to be able or willing to resolve this internally and so an external inquiry of some form reporting publicly may be required. If that happens, other bits of the railway could end up sucked into it too (e.g. Merseyrail).

 

[Fermiboson]

@furlong, I recall you’ve previously mentioned contacting members of the press - has any interest resulted from that?

 

[KirkstallOne]

@furlong, I recall you’ve previously mentioned contacting members of the press - has any interest resulted from that?

I have been in touch with the press who appeared to take some interest. They said they could see at least 3 train companies (we know of Merseyrail and Northern) had launched similar prosecutions and were going to make some FOI requests to get some numbers. I am also pursuing this with my MP and have made an FOI request myself to Northern to find out how many S.5(1) prosecutions took place in 2023.