Ive got a court summons from SWT but i had a ticket! read on...

[nick180]

Hello i need some help here, last April 2010 i was going from Wallington station to Walton on Thames,

i asked the man at the desk for the best ticket and he sold me a Travelcard zones 1-6 uopn arriving at Walton i was stopped and given the penalty fare

despite saying i was mis sold a ticket he said i would not be able to prove it.

 

I gave my driving license as id and carried on about my business.

 

i went home and forgot about doing the appeal thing (my fault i know!) and also moved within a couple of weeks, the court summons letters went to my old address

and i didnt recieve them, to cut a long story short i did a stat dec and i have just recieved a new court summons for the £2.90 fare

 

I phoned SWT and the guy told me despite the ticket being cheeper from wallington to WOT (about £5.90)

i cant prove i was mis sold and i would DEFINANTLY lose the court case if i pleeded not guilty?

 

he said it was my duty to know which ticket to get and despite paying over £2 more than i should have it was my fault i purchased the travelcard!

 

can anyone help should i pay the £100 + the £2.90 as he said i should or got to court where the costs could reach £4-500

and recieve a criminal record?

 

i still have the ticket but he said thats no good!

 

Regards

 

Nick

[Conniff]

I'm not sure where you got the 4-500 figure from, but it sounds as if he is just trying to frighten you into paying, that's sort of going on the attack to ward off defeat.

 

I'm not into travel problems, but the guys will be along later to help.

[nick180]

He said if it goes to trial they bring in the officer who gave me the fine as a witness thats £300 straight away with out the other court costs!

[honeybee13]

Hello Nick, welcome to the forum. As Conniff said, the guys usually arrive later, as their day jobs allow.

 

Just to clarify a bit, was the summons because you had a Travelcard that didn't cover the zone you went to?

 

My best, HB

[nick180]

Yes HB the summons was sent because i failed to appeal in time and its all over the travelcard not covering the zone, really annoyed me that i paid more for the tavelcard than it would have cost to get the correct ticket!

 

Nick

[honeybee13]

Hello again, thank you for that. I hope someone will be around soon.

 

Sorry to ask more questions, but it would help the guys to advise you if you could tell us what the grounds for the summons are please.

 

My best, HB

[RPI]

If the ticket was Invalid it is regardless whether it was cheaper or not, the magistrate will be fully aware of the fact that you were given a Penalty Fare which had the option to appeal, an option that you failed to use, not appealing has certainly not helped you.

[Old-CodJA]

Yes, spot-on I'm afraid.

 

You don't say what charge is alleged on the summons, but I guess it will state something like:

 

'that on XX/XX/XXXX you failed to show a valid ticket for your journey on demand and travelled with intention of avoiding payment of the correct fare'

 

From your original post, it seems you showed your drivers license as confirmation of identity and address.

 

Have you moved home since the incident, or does your driver's license still have an old address??

There is a liability issue if it still has your old address so I'd get that sorted promptly if I were you.

 

Failing to take up the opportunity to appeal hasn't helped you and I can think of a few pertinent questions that I would want to ask in front of the Magistrates in order to try to prove the offence if I were putting this case and a not-guilty plea were made.

 

It is a matter for you, but I too think a conviction is a likely outcome unless you can obtain evidence to support your claim that you were misinformed.

[Engelbert]

Hello nick, sorry to hear of your plight. I must say I find the way you have been treated absolutely disgusting.

 

First of all, we need a few more facts. As well as SWT's prose of the charge, they must cite which law you are alleged to have broken, please say exactly what this is (my guess is it is Railway Byelaw 18, and not Regulation of Railways Act section 5, see my post #11 on thread 309720 for details). Also, did you pay a penalty fare at the time and get a receipt?

 

It's not necessarily a good thing to appeal a penalty fare once the train company have your money: if they have a penalty fare they are not allowed to bring a prosecution against you (unless they refund it). It is rather bizarre that if you pay a penalty fare, but then succesfully appeal it (e.g. because the train company broke the penalty fare rules), they are then allowed to turn around and bring a more serious criminal prosecution against you (nevermind the fact they themselves broke the rules!).

 

As the railway byelaws are "strict liability" offences there is no requirement of intent on your part, so unfortunately if the ticket clerk makes a mistake of selling you the wrong ticket (and you then make the mistake of assuming the ticket clerk is competent) and travel with that invalid ticket you may have commited a criminal offence (doesn't seem fair does it?!). I only say 'may' because byelaw 18.3 says "No person shall be in breach of Byelaw 18(1) or 18(2) if: ... (iii) an authorised person gave him permission to travel without a valid ticket.". Also it could well be argued that selling you the wrong ticket and then letting you travel is entrapment.

 

It is in the interests of SWT to scare you into sending them a big fat cheque instead of going to court so take anything they say such as "you're sure to be found guilty" with a pinch of salt. You don't need to prove you are innocent; they need to prove, beyond reasonable doubt, that you are guilty.

 

Regarding a criminal record, if you are prosecuted under the railway byelaws these are not "recordable" offences so will not get you a criminal record (of course it is in SWTs interests to mislead you into thinking so with scary letters). They are, however, criminal convictions so it depends on the wording of the 'Are you a criminal?' box of application forms etc. whether you need to say yes.

 

Note that I am someone who belives in justice and fairness, and that many prosecutions brought by railway companies over invalid tickets are neither just nor fair, and wish more people would stand up to the bullying train company prosecution departments. [edit]. The courts are supposed to administer justice in the public interest (and that doesn't mean bringing a prosecution whenever an offence is committed), not let railway companies have their vengeance. I'm probably being rather too idealistic here: my faith in the justice system took a dent when I read on this forum that the Prosecutions Manager of First Capital Connect is also a magistrate, as I cannot see how someone can both be in charge of a department that brings malicious prosecutions (see thread 211114) and also be a good magistrate.

 

Of course standing up for yourself does carry more risk than buying off the railway company, so which route you choose is really down to you. Best of luck!

Edited July 15, 2011 by dx100uk
please refrain from pers insults in whatever form - dx siteteam

[Old-CodJA]

I'm sorry that I need to correct one point that I made in my earlier reply to Nick180, I had missed the fact that you did say you moved home during the appeal period. My apologies, I had forgotten that in replying first time.

 

Englebert is right n that it depends on which charge has been laid as to whether you have any chance of successfully contesting this.

 

My final line in responding to the OP was to say "It is a matter for you, but I too think a conviction is a likely outcome unless you can obtain evidence to support your claim that you were misinformed" and I stand by that. I did not say s/he should pay-up and I have answered based on the little information we have been given. The specific wording of the charge would be very helpful.

 

If SWT have charged the strict liability Byelaw offence, which by the way I personally don't like in unpaid penalty fare cases, but recognise that many prosecutors will use, then the offence is complete.

 

If SWT have charged the 'intent to avoid a fare' matter contrary to Section 5 of The Regulation of Railways Act (1889) they do have to prove beyond any reasonable doubt that the traveller intended not to pay the full fare. The OP did not do themselves any favours by ignoring the notice which s/he probably signed, accepts was handed to him/her as understood and which the court will recognise was an opportunity to resolve the matter promptly.

 

On the subject of FCC, I think it would be a really good idea to take forward any EVIDENCE that anyone has in respect of a claim of malicious prosecution.

 

If a court thought this were the case I strongly doubt that it would get very far and action against the prosecutor would almost certainly have ensued.

 

It isn't enough to call a prosecution 'malicious' based on personal opinion, without evidence and simply because someone doesn't like the particular law under which it was brought.

 

In the OP's case, if SWT have given an opportunity to settle the second summons administratively it is entirely a matter for the OP.

 

I am not saying it is the case in this instance, but it is worth remembering that a great many recipients of a summons offer to pay the fare and costs only after receiving notice that a prosecution is intended.

 

A great many may well send a cheque, only to get it returned with the advice that the case is to proceed.

 

In my experience this is not for any perverse or mallicious reasoning, but because a law has been broken and quite often, earlier opportunities to remedy that have failed.

[nick180]

Thanks for all your replies, yes it was Bye law 18, and i did not pay the £20 fine as i felt i was in the right so i was going to appeal, unfortunantly i completely forgot as i was moving house other things were on my mind! (my driving liscense has the correct address on it now). im guessing i should pay the fine as i have no witness or proof i was mis sold the ticket it was April last year so i doubt the CCTV is still about! its a shame because i really didnt mind being sold a more expensive ticket and helping SWT with and extra £1.50 but to be accused of fare evading really got my goat. Anyway i have a few days to pay up or appeal in court so if anyone else has any opinions i'll just pay up

[Enchiridion]

nick180,

 

Railway Byelaw 18(3) states:

No person shall be in breach of Byelaw 18(1) or 18(2) if:

...

(iii) an authorised person gave him permission to travel without a valid ticket.

Tht ticket clerk who sold you the travelcard was an authorised person. If you told the clerk what the journey was which you wanted to make and the clerk sold you the travelcard, I believe that by so doing the clerk authorised you to travel with that ticket. So whether the ticket was valid or not, you were not in breach of Byelaw 18(1) or 18(2). Not only do I think you did nothing wrong, I think that SWT are engaged in a malicious prosecution. In order to succeed with this prosecution, SWT need to prove beyond reasonable doubt that you are lying when you say that you told the clerk the journey which you wanted to make and the clerk sold you that ticket. If they can't do that, they don't have a case.

[SRPO]

nick180,

Not only do I think you did nothing wrong, I think that SWT are engaged in a malicious prosecution. In order to succeed with this prosecution, SWT need to prove beyond reasonable doubt that you are lying when you say that you told the clerk the journey which you wanted to make and the clerk sold you that ticket. If they can't do that, they don't have a case.

 

Im guessing you are not a lawyer, an abuse of process would need to show that SWT know that their prosecution is without merit but are continuing anyway.

They just need to prove that:

a) It was you who was reported.

b) That you failed to hand over a valid ticket.

 

The responsibility to ensure you hold a valid ticket for your entire journey is yours & no one elses, there may be some mileage in mitigation by saying you asked for a ticket for the journey & was mis-sold but it is not a defence under 18(3).

 

Your biggest hurdle, IMO is that you were given a Penalty Notice & failed to either pay it or appeal against it, the magistrates may draw an inference from that.

[Enchiridion]

SRPO,

 

Are you suggesting that if I tell the ticket clerk what the journey is which I wish to make and he sells me a ticket which is not valid for that journey, I am liable to prosecution under Byleaw 18? I do not think that this was Parliament's intention in establishing the framework of law under which the National Railway Byelaws are made.

 

Although there is strict liability under Byelaws 18(1) and 18(2) it remains the case that the prosecution has to prove beyond reasonable doubt that the byelaws have been breached. Byelaws 18(1) and 18(2) cannot be read on their own. They must each be read with Byelaw 18(3). If one of the conditions in Byelaw 18(3) applies, there is no breach of Byelaw 18(1) or 18(2).

 

It is not the case that Byelaw 18(3) offers a defence or a mitigation. If the defendant asserts that something happened which may have come within the scope of Byelaw 18(3), it is for the prosecution to prove beyond reasonable doubt that Byelaw 18(3) does not apply. The defendant does not even need to cite Byelaw 18(3). It is for the court (including the prosecution) to uphold the law. If the evidence does not achieve the required degree of proof that an offence has been committed, the court must acquit.

[Grotesque]

Enchiridon = Englebert, BTW.

[Old-CodJA]

Just as the Rail company will need to present evidence to support their case, so will the defendant.

 

Yes, there is a presumption of innocent until proven guilty, but although some people might think it OK, in the vast majority of cases it isn't enough simply to say 'I asked someone and he said it was OK' without being able to confirm that claim.

 

If that is the defence that were offered I am certain that the rail company prosecutor would have done his/her homework and would be ready to refute the claim and if there were evidence to support it, would have withdrawn the Summons in any case

 

On the other hand, if the defendant arrived at court with a signed note from the booking clerk to say s/he had made a mistake, then of course things would be different.

 

Incidentally, I was once in court where something very like this happened and the reaction of the Magistrates wasn't exactly what the defendant had expected.

[Enchiridion]

Given the passage of time, I don't think that it would be reasonable to expect the defendant to supply a signed note from the booking clerk. Nor (regrettably) would I expect a booking clerk to admit to that sort ot mistake even if nick180 had gone back straightaway and asked for a statement.

 

I consider that it is significant, and very much in nick180's favour, that the ticket which he bought, a Travelcard, cost more than the ticket which he should have bought. Of course, it's possible that he was on autopilot and just asked for a Travelcard. But his post says that he asked for the best ticket and was issued with the Travelcard. It would help his case substantially if he corresponded with SWT at the time and asserted then what he is saying now about what happened at the ticket office.

 

I expect that it will end up with the magistrate assessing the demeanour of the defendant and deciding whether he is telling the truth or just trying it on.

 

If the magistrate decides that he's telling the truth, I don't see that there is any offence. Does anyone (apart from SRPO) think that strict liability extends to having the wrong ticket because the ticket clerk sold you a ticket which was not valid for the journey which you had told him you wanted to make?

[SRPO]

Seeing as im not allowed to answer, I wont say that if genuinely sold the wrong ticket there would be no offence committed by the passenger.

[Enchiridion]

Enchiridion ≠ Englebert

 

While I may have similar views to Englebert, I should have thought that my syntax and semantics were sufficiently distinct for there to be no doubt that we are different.

[Enchiridion]

SRPO,

 

I was trying to protect you. What inference must we draw if (as it now appears) you consider that there is no offence if someone travels on an invalid ticket sold to a passenger who specified to the ticket clerk the journey which he wished to make?

[SRPO]

I specifically used the words genuinely sold the wrong ticket, in the case of a travelcard that would be extremely rare, unless on LU where the staff tend to sell whatever is the easiest to print.

[Engelbert]

The Railways (Penalty Fares) Regulations 1994 says:

 

9. (1) Where a person charged a penalty fare has in due time provided the operator by or on whose behalf the penalty fare was charged with a relevant statement, in any proceedings for the recovery of that penalty fare, it shall be for that operator to show that any of the facts described in the relevant statement is not true.

 

So whilst this is not directly revlant to the OP's case (as it is now a byelaw prosecution not a penalty fare), I think it serves as a good reminder of the general principle of innocent until proven guilty, and that the burden is on the train company to prove the defendant is lying, not for him to prove he is telling the truth.

[SRPO]

The Railways (Penalty Fares) Regulations 1994 says:

 

 

 

So whilst this is not directly revlant to the OP's case (as it is now a byelaw prosecution not a penalty fare), I think it serves as a good reminder of the general principle of innocent until proven guilty, and that the burden is on the train company to prove the defendant is lying, not for him to prove he is telling the truth.

 

 

That relates to persons who claim that there were no ticketing facilities available at the point of embarkation.

[Grotesque]

Engelbert = Enchiridon, BTW.

[Engelbert]

Engelbert = Enchiridon, BTW.

 

Ummmmm, no I'm not, though I do commend him on his choice of name, particularly the first 2 letters.