FCC - notice to prosecute; time scales?

[spooks-4]

I would welcome your advice whether I should contest this further or just give up and accept a penalty fare. From reading the forum I appreciate my case is not the strongest but at the time I niaviely asumed that common sense would prevail.

 

I received the notice of intention to prosecute in August and sent my passenger response as follows:

 

"Upon arrival at Sydenham Hill the train I intended to board had also just arrived on platform. I touched in my oyster card – I travel on a PAYG basis – and was only then aware that I had insufficient funds on the card. I made a split second decision to board the train. The decision was made on a number of factors; the train was the second of only 2 trains which run direct to STP, a desire to arrive at work on time and the presumption that I could pay the fare upon arrival at STP. This final assumption was based on the practice at Victora (where I have commuted to for many years) where Southern operate a desk inside the barriers to allow passengers to purchase fares without penalty upon arrival.

Upon arrival at STP I approached what I believed was a ticket window. Your inspector intercepted me and asked if he could help. I told him I wanted to buy a ticket from Sydenham hill whereupon he informed me that he wanted me to pay a penalty fare. I advised that I was not willing to accept that as I had every intention of paying the correct fare. He then proceeded to issue me with a penalty notice even though he was aware that I had the means to pay the required standard fare.

I remain committed to trying to pay the correct fare and would have included the amount with this letter if it had not specially stated NOT to send money with my reply. I maintain my stance that there was no "intent to avoid payment" which is required under the Railways Act 1889."

 

I also advised them of a change of address and on the 16th August FCC replied to my new address confirming that they will be going forward with the case but have heard nothing since.

Is 6 weeks a typical waiting time - my worry is that they are corresponding with my previous address and that when they realise their error they will try and add these costs to any claim against me. Are there any time limits for them to enfore the notice, and from a proceedural point of view if they issue they summons etc to an incorrect address can the case be struck out? Any advice greatly received.

[Old-CodJA]

I'm sorry that this perhaps isn't what you were hoping to read, but it is factually correct. In short, it is NOT necessary for the rail company to prove intent in order to secure a conviction for travelling without a valid ticket

 

National Railway Byelaw 18.1 (2005) makes clear the strict liability responsibility of any intending traveller to pay the fare due and buy a ticket before boarding any train where facilities exist. Sydenham Hill has ticket issuing facilities.

 

Your post makes clear that you knew that you didn't have a valid ticket before boarding

 

The inspector gave you an opportunity to deal with it by 'civil remedy', but you refused to accept that leaving nothing more to be done except make out a report.

 

Yes, 6 weeks or more is not uncommon and the TOC have 6 months from the date of commission of an alleged offence in which they must lay that information before a Court if they wish to proceed with a summons.

[spooks-4]

Thank you for the reply. Obviously being wise after the fact it seems I had no choice but to accept the penalty. However at the time I believed that we lived in a country where the presumption of innocence prevailed; but not apparently when it comes to our TOCs.

 

I assume my best course of action now would be to try and pre-empt the process and contact FCC with a view to paying whatever is currently due before they proceed with a summons.

[Old-CodJA]

Thank you for the reply. Obviously being wise after the fact it seems I had no choice but to accept the penalty. However at the time I believed that we lived in a country where the presumption of innocence prevailed; but not apparently when it comes to our TOCs.

 

I assume my best course of action now would be to try and pre-empt the process and contact FCC with a view to paying whatever is currently due before they proceed with a summons.

 

 

Well I'm sorry if it offends, but I have to say this isn't a case of any 'presumption' of guilt. So far as any allegation is concerned, the most likely is that you 'failed to show a valid ticket' and 'had not paid the fare due before travelling'. These are both strict liability.

 

Your admission in your original post that you knew your card didn't have sufficient credit to pay and that you didn't have a ticket before you chose to board the train makes clear that you were in breach of the Byelaws.

 

You could write an apology and ask the TOC to allow you to pay the fare due and all of the reasonable costs that were incurred by them as a result of your actions as a way of avoiding prosecution, but the TOC is not forced to accept this and can continue as they have advised in the letter that they have sent to you.

 

I suggest that a well written letter along those lines will normally get full consideration.

[spooks-4]

Well I have now received my summons to appear in court next week. Last week I wrote to FCC asking if they would drop the court action and settle for payment of costs etc but despite following up with several phone calls - I even manged to get past their answering machine on one occasion- have had no reponse. So I have no idea whether I should appear in court next week or not as I have no idea if they are proceeding with the case or not.

 

Can anyone advise if as a first offender; if I were to plead guilty is this considered a non-recordable offence? I am still tempted to go to court and plead not guilty as while they are happy to dismiss an appeal out of hand within 24 hours they can't reposnd to a request for settlement in 10 days. I seems it really is just a numbers game as far as they are concerned.

[Old-CodJA]

What is the actual charge on the Summons?

[spooks-4]

Hi,

 

It is 'did not have a ticket entitling to travel contray to bylaw 18(1) under section 219 of the transport Act 2000'.

Having read through the forums it seems to be non-recordable - is this correct? Does this still mean a criminal record and how long would it stay on my record?

 

The request is for the fare plus costs of £110.00 which is what I proposed to FCC to settle before going to court. As I have been waiting for FCC to respond I am now too late to send a guilty plea with a letter of mitigation so I assume I must attend to try and minimise the consequences. If I attend and pleaded guilty would the court consider FCC's failure to respond to a request to settle in a positive manner?

[Engelbert]

You are correct that breach of the railway byelaws are non-recordable offences and thus do not go on the Police National Computer as part of your criminal record. They are, however, a criminal conviction so can still cause problems with applying for jobs/travel etc, depending how the "are you a criminal" question is phrased.

[Old-CodJA]

The request is for the fare plus costs of £110.00 which is what I proposed to FCC to settle before going to court. As I have been waiting for FCC to respond I am now too late to send a guilty plea with a letter of mitigation so I assume I must attend to try and minimise the consequences. If I attend and pleaded guilty would the court consider FCC's failure to respond to a request to settle in a positive manner?

 

Again, I am sorry that it probably isn't what you want to hear, but from experience I can say that the Magistrates are rarely concerned with the TOC's willingness to settle.

 

The Court is only concerned with the alleged offence and whether it can be substantiated or not by evidence. There is no obligation on the rail company ever to accept a settlement where an offence is reported.

 

In fact, I have been in Court at times when a defendant has made a very late application to the TOC asking them to accept a settlement and I have asked for 'adjournment to allow consideration of late correspondence'. On one occasion I made this application, only to be taken to task by a District Judge. He demanded to know what the correspondence concerned and on hearing that the defendant had written asking for such consideration, he was not at all happy, sharply reminding me of the Courts' need to ensure 'speedy delivery of justice' and making clear that he was of the mind that the case should proceed.

 

A lot depends on who you get sitting in judgement

[unlucky_1]

Old codja, just a quick query, are you a solicitor that could represent someone in court, just that you mentioned you had been there and asked for an 'adjournment' for a defendant? are there any people you could recommend ?

Many thanks

[SRPO]

Old codja, just a quick query, are you a solicitor that could represent someone in court, just that you mentioned you had been there and asked for an 'adjournment' for a defendant? are there any people you could recommend ?

Many thanks

He's not a solicitor, he is a prosecutor for the railways.

However if you could get him to represent you as a 'Mackenzie Friend' in court im sure he could get you off of pretty much any charge!

[honeybee13]

Hello there. Just to add that it's against CAG rules to recommend lawyers. You may well not need one, hopefully the guys will post a bit more.

 

My best, HB

[unlucky_1]

Hi honeybee13 sorry didn't realise :s

 

Iam confused about the different train departments for eg there's London underground, overground and various other railway companies. do they all have different prosecution departments? Or is it all one entity?

[honeybee13]

Apologies to the OP for continuing on here. unlucky 1, you need to be asking this on your own thread.

 

My best, HB

[Old-CodJA]

Hi honeybee13 sorry didn't realise :s

 

Iam confused about the different train departments for eg there's London underground, overground and various other railway companies. do they all have different prosecution departments? Or is it all one entity?

 

Short answer,

 

YES, there are a number of different prosecution teams acting on behalf of railways.