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

[Engelbert]

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

 

That and other circumstances too. To quote the legislation in more detail:

 

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.

(2) A relevant statement is a statement in writing informing the operator in question:

(a) in the case of a person charged a penalty fare in circumstances where he was travelling

by, present on or leaving a train:

(i) of the train and of any preceding train by which he was travelling or had travelled

or on which he was present or had been present;

(ii) of the station and the time at which he boarded that train and any preceding train

and, other than in the case of his leaving a train at a station, the station at which he

intended to leave that train;

(iii) whether any of the circumstances described in regulation 6(2) arose in relation to

the station at which he boarded the train and any preceding train, and, if so, which;

 

Circumstances in which a penalty fare is not to be charged where a person is travelling

on a train

6. (2) The circumstances to which this regulation applies are that, at the time when and at the

station where the person in question boarded the relevant train, or, in the case where a

person has boarded the relevant train after travelling on a preceding train, that, at the time

when and at the station where the person in question boarded that preceding train,

(a) there were no facilities in operation for the sale of the appropriate ticket or other

authority to make the journey being or having been made by that person;

(b) the requirements of rules in respect of the display of notices were not satisfied;

© a notice was displayed indicating that the person in question was, or persons generally

were, permitted to travel by or be present on the relevant train or, as the case may be,

the preceding train without having a ticket or other authority; or

(d) a person acting or purporting to act on behalf of:

(i) the operator of the relevant train, or

(ii) the operator of the station in question,

indicated that the person in question was, or persons generally were, permitted to travel by or be present on the relevant train or, as the case may be, any preceding train without having a ticket or other authority.

[Enchiridion]

It seems to me that there is a consensus that if I tell the ticket clerk the journey which I wish to make and he sells me the wrong ticket, there is no offence under the railway byelaws. I believe that this is because the ticket clerk is an authorised person within the meaning of Byelaw 18(3) and by selling me the ticket for that journey he is giving me permission to travel. Is this right?

[Enchiridion]

Grotesque,

 

I have already told you (post #19) that I am not Engelbert. Now (post #25) Engelbert has told you that he's not Enchridion. Why do you persist in these unfounded allegations which appear to me to be contrary to the rules of this Forum? An apology would be in order.

[Nystagmite]

It seems to me that there is a consensus that if I tell the ticket clerk the journey which I wish to make and he sells me the wrong ticket, there is no offence under the railway byelaws. I believe that this is because the ticket clerk is an authorised person within the meaning of Byelaw 18(3) and by selling me the ticket for that journey he is giving me permission to travel. Is this right?

 

What proof would you have that you were mis-sold this ticket?

[Enchiridion]

Nystagmite,

 

I agree that there is a problem if you have to prove that you were mis-sold the ticket. But you don't.

 

The thing which I am trying to establish is that if you are sold the wrong ticket, you do not breach the railway byelaws by making your journey with it.

 

Once that is accepted, the basic principles of English law kick in (or at least, they should). It is for the prosecution to prove beyond reasonable doubt that an offence has been committed. If you give a credible explanation as to what happened which involves no offence (and the court will determine the credibility of your explanation), it becomes the prosecution's problem to prove beyond reasonable doubt that the offence occurred.

 

So you don't need to prove that you were mis-sold the wrong ticket. The prosecution needs to prove that you weren't mis-sold the wrong ticket.

[SRPO]

Ench, you have fallen into the trap that most lay people do.

You cannot use the Penalty Fare rules as a defence under the railway byelaws, the byelaws create strict liability offences under 18 (1) & 18 (2).

18 (3) states that no offence is committed if an authorised person gives permission to travel without a ticket, you need to prove your defence rather than just claim it.

A scenario for example would be a shoplifter who says that a member of staff said they could take an item without paying for it, it would not be for the prosecution to prove that it didnt happen, even though the evidential test is much higher for theft.

[Enchiridion]

SRPO,

 

I have been looking further into the burden of proof. You are correct (and I have been wrong) that in the case of an exception (which is what Byelaw 18(3) is), the burden of proof lies on the defendant. But the burden of proof is a "persuasive" burden rather than "beyond reasonable doubt". This means that the defendant has to show on the balance of probabilities that the exception applied to him. Even this burden must be hedged around because of the effect of Article 6(2) of the European Convention on Human Rights. This provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

There have been a number of cases concerning the compatibility of the reverse burden of truth (i.e. the defendant has to prove something, as here) with Article 6(2) which have gone to the Court of Appeal or the House of Lords. The position seems to be that a "persuasive" burden is compatible, although some judgements have substituted the "evidential" burden, i.e. sufficient evidence as to raise the issue.

 

Criminal Law, Simester and Sullivan (2005) http://www.hartpub.co.uk/updates/crimlaw/crimlaw_burden05.htm summarises the position thus:

Whether or not the reverse burden at issue offends against Article 6 requires a proportionality assessment. In conducting that exercise, one should balance, on the one hand, society’s interest in the effective suppression of the social mischief with which the offence is concerned and, on the other hand, D’s right to a fair trial. When balancing these two competing interests, one should take into account the severity of the offence in terms of sentence, ease of proof for one party or the other in relation to the matter covered by the reverse burden, and (from previous authority) whether the matter to be proved or disproved is related to a definitional element of the offence or to a defence. In the light of these factors, the final judgement must be made on whether the reverse burden in question is a fair and proportionate legislative response, in the circumstances of contemporary society, to the social mischief with which the offence is concerned.

To return to nick180's case, I consider that the ticket and contemporary records, i.e. the original statement taken at Walton-on-Thames and any letters which nick180 sent to SWT at that time, would help to settle the matter. Tickets issued by machines are different from those issued by ticket clerks. SWT will, I hope, have retained the ticket as evidence so it should be clear whether the ticket could not have been sold by the ticket clerk. If the witness statement taken at Walton-on-Thames records the assertion that nick180 asked for a ticket to Walton and was sold a Travelcard, that would tend to support his assertion. Equally the absence of such an assertion would tend to undermine it. If nick180 wrote letters of protest to SWT, that would also help his case. Evidence of good character and a prior absence of penalty fares or prosecutions against him would also help to sway the balance of probabilities.

[Enchiridion]

nick180,

 

Although these are criminal proceedings, your adversary is a business, not a public body. As a business, SWT is engaged in trying to make a profit. Penalty fares and costs which you have to pay represent income to SWT. The costs of running their prosecutions department and costs awarded against them represent expenditure. They don't know what the outcome of the case will be, so they have to make an assessment of the likelihood of each outcome.

 

Think of it as a game of poker. It doesn't really matter how good or bad your hand is, if you raise the stakes, your opponent may consider that the stakes are too high given the quality of his hand and he will fold. In this case the standard "fold" is that they drop the prosecution in return for your paying the equivalent of the standard penalty fare, i.e. £20.

 

You will have seen that Byelaw 18(3) provides a defence and that under the standard rules of evidence you need to show on the balance of probabilities that you were mis-sold the wrong ticket.

 

It seems to me that you will be able to demonstrate:

 

• you bought your ticket from the ticket desk at Wallington;
  
• the ticket which you bought cost £4.90, compared with the £2.90 cost of the correct ticket (was this the cost of a return to Walton or a single? - you should compare like with like).
  

The question then is: "on the balance of probabilities, were you mis-sold the wrong ticket?" The answer to this may not be clear.

 

This is the point at which you can raise the stakes. Given:

 

• the puny nature of your alleged offence (paying £4.90 for the wrong ticket when the correct ticket cost less);
  
• the severity of the punishment (a criminal conviction, albeit not a recordable one);
  
• the difficulty to you of proving what was said by the railway employee at the ticket office window
  

is it compatible with Article 6(2) of the European Convention on Human Rights that the reverse burden of proof placed on you should be "persuasive" rather than "evidential". In other words, do you need to prove that you were mis-sold on the balance of probabilities or does it suffice for you to show that you have a credible argument?

 

In my previous post I quoted Simester and Sullivan's Criminal Law (2005). In writing to SWT you could also quote Lord Bingham of Cornhill's lead judgement in Sheldrake [2004] UKHL 43 http://www.bailii.org/uk/cases/UKHL/2004/43.html. Paragraph 21 says:

 

21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of

mens rea

. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.

The stakes here are incredibly high. First, they will cost SWT a pile to argue - this sort of question would end up in the Court of Appeal or the Supreme Court (formerly the House of Lords). Secondly, if SWT were to lose, all the railway companies would find it much harder to prosecute successfully. So it is in SWT's interest to avoid allowing this matter to be raised, even if there is only a minuscule chance that it might succeed. Of course, they could try calling your bluff. But would they?

 

You have a further line of argument, which is the proportionality of prosecution to the alleged offence. Should the courts be spending their time pursuing you when you had paid more for your ticket than the correct fare? The court could dismiss the case as beneath its dignity.

[honeybee13]

Grotesque,

 

I have already told you (post #19) that I am not Engelbert. Now (post #25) Engelbert has told you that he's not Enchridion. Why do you persist in these unfounded allegations which appear to me to be contrary to the rules of this Forum? An apology would be in order.

 

Engelbert's easier to spell though, isn't it? Better luck next time .

 

HB