Summons for using a found freedom pass

[HelenKH]

Thanks Lookintoinfo,

 

This time is the hearing and I might plead guilty as I don't have much time and money to put on this case. 6 months of stress is more than enough that I can deal with. I don't believe I deserve to be in this situation because of a mistake and I might come out as not guilty if I hire a good and expensive solicitor but I can't afford that.

 

BTW, do you know what happens if the case goes to crown court? The costs,...? I was just reading on one of the websites that it is more likely to come out of crown courts as not guilty.

[honeybee13]

BTW, do you know what happens if the case goes to crown court? The costs,...? I was just reading on one of the websites that it is more likely to come out of crown courts as not guilty.

 

I think this has been covered before. I'm not quite sure what you're asking, but I believe that if you plead not guilty it goes to Crown court. Of course if it goes to another stage, TfL's costs have gone up.

 

I'll see if there's an old post with the answer to this.

 

HB

[Old-CodJA]

Thanks Lookintoinfo,

 

This time is the hearing and I might plead guilty as I don't have much time and money to put on this case. 6 months of stress is more than enough that I can deal with. I don't believe I deserve to be in this situation because of a mistake and I might come out as not guilty if I hire a good and expensive solicitor but I can't afford that.

 

BTW, do you know what happens if the case goes to crown court? The costs,...? I was just reading on one of the websites that it is more likely to come out of crown courts as not guilty.

 

 

 

An allegation of an offence against Section 5 of The Regulation of Railways Act ( or any breach of Byelaw charge ) is a summary matter. It will not be heard by a Crown Court.

 

You are summonsed to a Magistrates Court hearing where the case will be heard before a 'Bench' of 3 Magistrates.

 

Occasionally it will be a District Judge, sitting alone, but the process is the same in either situation

Edited November 24, 2012 by Old-CodJA

[HelenKH]

Thanks OC, Old-fashioned,

 

Can you please answer my previous questions? Please see below:

 

"I am not sure what happens in this hearing (the hearing is to clarify my plea)? If I plead guilty on the day, is it the last date and they decide the rest on the same day or will they have another date to hear the case/decide? Can you tell me what form the hearing will take? Will there be a magistrate, and will it be the same magistrate that will hear the case? Do I have to finalise my plea at the hearing, or will I have to enter a plea following the hearing? Do I need to write another mitigation letter for this hearing or for the case? Does it make any difference how to dress?"

[Old-CodJA]

If you attend and enter a clear, unequivocal guilty plea, they will normally hear the case there and then and dispose of it the same day

 

It is normally reckoned best to dress 'semi-formal' or 'smart casual'

[HelenKH]

Thanks a lot Old-CodJA

[BazzaS]

An allegation of an offence against Section 5 of The Regulation of Railways Act ( or any breach of Byelaw charge ) is a summary matter. It will not be heard by a Crown Court.

 

You are summonsed to a Magistrates Court hearing where the case will be heard before a 'Bench' of 3 Magistrates.

 

Occasionally it will be a District Judge, sitting alone, but the process is the same in either situation

 

I'd be hard pushed to ever "correct" OCJA, and he is indeed correct here, but just to clarify for those who may not be aware::

Some alleged offences are "summary" only : they are dealt with only in Magistrates Courts. The alleged offence the OP is summonsed for is one of these. It would only go to Crown Court if there was a conviction & the OP appealed : then (& only then) the appeal would be in Crown Court. What follows below may not be of interest / relevant to the OP, but follows for completeness.

 

There are "exceptions to the rule, of course" :

http://www.cps.gov.uk/legal/s_to_u/summary_offences_and_the_crown_court/

 

Some alleged offences (more serious, such as murder for example) are "on indictment" only : they would never be tried in Magistrates Court.

 

Some alleged offences are triable "either way". Depending on the circumstances they might be tried in either court.

In some circumstances, where a Magistrates Court has more limited power of sentencing than the Crown Court, and the Magistrates feel a steeper sentence than they can impose is required : after a trial for an "either way" offence in Magistrates court (& a guilty verdict), then the Magistrates can refer a case to the Crown Court for sentencing.

[HelenKH]

Thanks Bazza,

 

Loads of technical words!

[BazzaS]

Thanks Bazza,

 

Loads of technical words!

 

Hopefully with their explanation?

If not, time to clarify the clarification!

[Old-CodJA]

I'd be hard pushed to ever "correct" OCJA, and he is indeed correct here, but just to clarify for those who may not be aware::

Some alleged offences are "summary" only : they are dealt with only in Magistrates Courts. The alleged offence the OP is summonsed for is one of these. It would only go to Crown Court if there was a conviction & the OP appealed : then (& only then) the appeal would be in Crown Court. What follows below may not be of interest / relevant to the OP, but follows for completeness.

 

There are "exceptions to the rule, of course" :

http://www.cps.gov.uk/legal/s_to_u/summary_offences_and_the_crown_court/

 

Some alleged offences (more serious, such as murder for example) are "on indictment" only : they would never be tried in Magistrates Court.

 

Some alleged offences are triable "either way". Depending on the circumstances they might be tried in either court.

In some circumstances, where a Magistrates Court has more limited power of sentencing than the Crown Court, and the Magistrates feel a steeper sentence than they can impose is required : after a trial for an "either way" offence in Magistrates court (& a guilty verdict), then the Magistrates can refer a case to the Crown Court for sentencing.

 

 

 

Absolutely right of course Bazza, I just stuck to the Summary explanation because this is all that the OP is faced with at present.

 

In practice I hope that it is cleared up without issue at Magistrates Court because in the event it ends up with an appeal, the costs of representation at Crown Court would be much higher and as many have found out in the past, losing an appeal means you may well have the original judgment at Magistrates Court to pay and the greater costs claimed and which may be awarded to the prosecutor in relation to the Crown Court hearing as well

Edited November 26, 2012 by Old-CodJA

[wtlh]

Just to quickly reemphasis what OC had said in one of the posts earlier, that is:

 

If you plead guilty, that is it. You will have accepted ALL charges and evidences provided by LU, as written on the summons as absolutely true, and you will NOT be allowed to appeal the conviction on a later date in a Crown court (unless you can show you were coerced, which you cannot). So to any future employer and possible immigration officer looking at your application, you DID do exactly what LU said you did. It will become a fact.

 

If you plead not guilty, there will be a trial and the final verdict on what has happened on the day will be decided by the Magistrates, and this gives you a chance to truthfully present your version of events. Although the likelihood of you getting a conviction is very very high, it is also likely that the version of events stated in the conviction will not be exactly the same as the one claimed by LU, but more closer to what actually happened.

 

The worst outcome of you pleading not guilty, is that you pay around 100 to 200 pounds more. Of course you will have to make an effort to truthfully present your version of events, provide any hard evidences possible to back up your claims that may give mitigation, if not to contradict LU's version of events. I.e. do extra work.

 

It is your call.

 

Also note that although it may not be relevant to you, just for the record not all appeals in these matters to Crown Court are unsuccessful. A few years ago a man was found on a London bus by an inspector that he did not swipe his oyster card. He was prosecuted by TFL and found guilty by the Magistrates court. The man later appealed and won the case in Crown Court, with the judge ruling he had a "reasonable excuse" as he was unaware his fare had not been deducted. The story can be found here: BBC

 

I am sure if that man had ever sought advice from industry insiders etc, the advice would have been that he had absolutely no chance of winning the appeal and many rules and regulations would had been explained to him just to show how he had done wrong, and that ignorance is no defence and it was his responsibility to check he had swiped the card correctly, and how severe the consequences would be if the appeal failed etc. But these are still good advices, because:

 

You have to understand that what an industry insider can provide you, is how a prosecutor thinks, and how s/he is going to argue the case in court. What you should do, in your defence, is not to convince the prosecutor you are right, but to find contradictions and hole in his/her arguments, and dig in from there, and construct a credible argument to show the court that they are wrong. Remember it is the prosecution's job to "prove beyond reasonable doubt", the defence's job is to provide grounds for reasonable doubts.

Edited November 26, 2012 by wtlh

[HelenKH]

Thanks a lot wtlh. I 'll go to the court for the hearing and explain my story to see what happens. Will keep you updated.

[Old-CodJA]

Great post wtlh. A very clear explanation.

Edited November 26, 2012 by Old-CodJA

[HelenKH]

Hi Wtlh,

 

I just had a chance to read your post again. It is a very useful post. I didn't have enough time at work to read the whole post. Thank you very much.

[honeybee13]

Hello Helen.

 

I suppose you've had your hearing as we're into December now. How did you get on?

 

My best, HB

[HelenKH]

Hi HB,

 

I just saw your post. On the hearing day, the magistrates decided to go to trial because there was a different story from me and the witness. I went on trial recently and they charged me around £700. I told the story as it was. The witness didn't accept the I had shown my card to him and I was carrying my own card. Now, is there any chance that I can reduce the fine? if yes, should I write to the magistrate or the crown court? or is it better to just forget it? I believe this fine is extremely unfair. Because I am working and paying tax, my fine should be more than somebody who is not working and who is not paying anything back to the system! What a fair decision!!! London Underground has opened a business by prosecuting everybody no matter what they use to travel.

[Old-CodJA]

Hi HB,

 

I just saw your post. On the hearing day, the magistrates decided to go to trial because there was a different story from me and the witness. I went on trial recently and they charged me around £700. I told the story as it was. The witness didn't accept the I had shown my card to him and I was carrying my own card.

 

 

Unless you are not telling us something relevant, the decision to go to trial will have been yours by pleading 'NOT guilty'. Of that £700 total, how much was the actual fine? How much was prosecution costs?

 

This was a particularly long running thread as I recall and throughout, you were advised by many that you really ought to seek qualified legal advice before pleading 'NOT guilty', did you do so?

 

 

Now, is there any chance that I can reduce the fine? if yes, should I write to the magistrate or the crown court? or is it better to just forget it?

 

 

If you entered a not-guilty plea you could ask the Crown Court for leave to appeal both conviction and sentence although to be fair, I doubt that you would be successful in appealing conviction. It is clear that you found a specially restricted pass that you were not entitled to use and that you attempted to use it to avoid a fare. The Magistrates found that proven.

 

If you entered a 'guilty' plea you cannot appeal conviction unless you can show evidence that the plea was coerced.

 

 

I believe this fine is extremely unfair. Because I am working and paying tax, my fine should be more than somebody who is not working and who is not paying anything back to the system! What a fair decision!!!

 

 

The Magistrates can apply a fine of up to a maximum of £1000 for a first time offence. Without an actual breakdown of the £700 that you were charged it seems likely to me that you were fined around £400, ordered to pay prosecution costs of around £250 and then compensation and a victim surcharge that was introduced by the last government and which the Magistrates have to impose on everyone who is fined.

 

As for 'fair, after being convicted at trial it is likely that a fine of £400 or so will not be considered excessive.

 

 

 

London Underground has opened a business by prosecuting everybody no matter what they use to travel.

 

 

I'm afraid that I really do think that sort of comment is unhelpful and suggests that you probably did not heed the warnings that we all gave about tempering your comments before going before the Magistrates.

 

The legislation that governs this prosecution has been on the statute book for 124 years, it has nothing to do with LUL opening a new business prosecuting people 'no matter what they use to travel'.

 

The law determines that a traveller who attempts to avoid payment of his or her correct fare commits a criminal act.

 

 

If you do attempt an appeal to the Crown Court, please resist the temptation to share this kind of opinion with the Judge and stick only to the facts.

 

It's worth remembering that if you do appeal and are unsuccessful, the rail company may also ask the Judge to award their further costs in engaging a Barrister to put their case before the Crown Court. This might be a claim for up to £2000 or so and if you have been unsuccessful you will probably still have the original fine imposed by the Magistrates to pay too.

 

This really does need good legal advice to assess the risk before proceeding.

Edited February 28, 2013 by Old-CodJA

[HelenKH]

Hi Old- Cod,

 

As ever, thank you so much for your information. The LU costs is 260 and the rest is fine and the other thing. I just said about the story on the court day. I didn't say about my opinion about the LU. I got this view when I went to the court and saw the other cases. If you get off the train in the wrong station, then you are in trouble. If you are in hurry and forget to touch in, touch out, you are in trouble, if you lose your card accidentally, you are in trouble. None of the signs says you will be prosecuted if you don't have a ticket. they just say you have to pay double the price of the ticket/ £20 which ever is greater. Nowhere on the LU, they say there are different types are cards so people have anough info about what is going on in the system. I think These signs are like this intentionally but I might be wrong. Let's not talk about this as this is just a personal opinion. I have seen people who do not work and come to the court and get the fine of almost nothing. If it is a fair system then the fine should be equal amount. They can have financial aid for their defence which is paid by a tax payer. When it comes to a tax payer, they should pay for everything and the fine is 5-6 times more than the other person who doesn't work!

 

I intent to write to the magistrates to reconsider the fine. Is that possible? If I appeal to the crown court about the fine, what will happen? Will they put the prices up even more? What would you suggest? I don't think I will appeal against the decision as I am tired of this process and want to get on with my life but I still believe I made a mistake because of lack of awareness and I don't agree with the charge at all!

 

Many thanks,

Helena

[honeybee13]

Hello again Helen.

 

I'm sorry it hasn't gone well for you.

 

In your place, I would be taking OC's advice, I'm afraid. As he says, from your comments you seem to think that the system is out to get you, but it does seem that you broke the rules and then tried the wrong argument with the courts.

 

As one question of possibly a few which have been asked, how long would you have used the Freedom pass if you hadn't been stopped? I think that could be what the prosecution were thinking and it's hard to say it would only have been for one journey, because nobody knows what you were thinking at the time. I don't even know if that's relevant at this stage though, OC would.

 

Did you see a lawyer in the end please?

 

My best, HB

[HelenKH]

Hi HB,

 

I would have stopped using he card as soon as I would have realised that wasn't a normal card. I told this in the courttoo. I talked with a few solicitors on phone and a few emails with a few more. But I didn't get a paid one. I didn't know that I was breaking the law. I know you say I broke it but it wasn't intentionally broken.

[honeybee13]

Hi HB,

 

I would have stopped using he card as soon as I would have realised that wasn't a normal card. I told this in the courttoo. I talked with a few solicitors on phone and a few emails with a few more. But I didn't get a paid one. I didn't know that I was breaking the law. I know you say I broke it but it wasn't intentionally broken.

 

Helen, I'm sorry to say that not knowing the law isn't an excuse in the UK, it's probably mentioned elsewhere in this long thread.

 

My thoughts at the moment are that you shouldn't risk incurring more costs on this case if this is your reasoning, but I expect others will comment.

 

HB

[Old-CodJA]

Thank you for confirming my calculation. The costs of £260 will reflect that you pleaded 'not guilty' and that it was therefore necessary for the prosecution to bring their witness to give live evidence. A fine of £400 plus fares compensation and a £15 victim surcharge are normal in these cases on conviction.

 

None of the signs says you will be prosecuted if you don't have a ticket.

 

In the past I have spent a fair amount of time prosecuting in London, I do not do so now, but in my experience one of the most common sign states that 'if you board a train without a valid ticket you may be liable to a penalty fare or prosecution', or words to that effect.

 

There are no signs on every road that say 'If you drive without road tax, or insurance you may be prosecuted', but this isn't the issue.

 

You were not prosecuted for not having a ticket, you were prosecuted for using someone else's ticket to attempt to fraudulently avoid paying your own fare.

 

 

I have seen people who do not work and come to the court and get the fine of almost nothing.

 

When coming to their decision Magistrates will take into account any acceptance of guilt, any declaration of circumstances and ability to pay and any expression of remorse in deciding the penalty.

 

If any person recognises their responsibility and fault, admits it by pleading guilty to the charge, shows evidence of their financial circumstances and says 'sorry', the Magistrates will take all of this into account and will give credit for that admission.

 

That applies whether the individual is employed or not. Clearly Magistrates will have some sympathy for an individual who is of reduced means and on benefits. It's not discrimination, it is called being socially responsible.

 

 

If it is a fair system then the fine should be equal amount.

 

The maximum fine and entry level is equal for everyone, but credit will be given according to the amount of remorse shown by the defendant and their ability to pay.

 

 

They can have financial aid for their defence which is paid by a tax payer.

 

No, legal aid is not available to a person charged with this offence unless truly exceptional circumstances can be shown.

 

 

When it comes to a tax payer, they should pay for everything and the fine is 5-6 times more than the other person who doesn't work!

 

I think I've explained this, but in general if a person who is on benefits of £100 a week is convicted of an offence and an employed person earning £500 a week is convicted of the same offence, how would you make the penalty proportionate in both cases?

 

 

If I appeal to the crown court about the fine, what will happen? Will they put the prices up even more? What would you suggest?

 

 

It is unlikely that the Crown Court will increase the fine, but in my opinion it is equally unlikely that it would be considered unreasonable.

 

You may choose to go to appeal, BUT IF YOU DO, PLEASE GET QUALIFIED LEGAL ADVICE FIRST.

 

 

I don't think I will appeal against the decision as I am tired of this process and want to get on with my life but I still believe I made a mistake because of lack of awareness and I don't agree with the charge at all!

 

 

The last bit is your problem. You say "I don't agree with the charge at all!".

 

I'm afraid that all the evidence and legal advice as expressed by a Court of Law disagrees with you.

 

Lack of awareness is not a defence. Ignorance of a law can be put in mitigation, but is not a defence to the charge. In really simple terms you knew the card wasn't yours and still you tried to use it rather than use your own Oyster, which meant that if you succeeded in the attempt, you retained the stored value on your own card.

 

In my humble opinion, I think that you need to accept this and move on.

Edited March 1, 2013 by Old-CodJA

[HelenKH]

Thanks Old CodJA

[HelenKH]

Actually I have a question. If you went back to 30 years ago, would you still choose to be a prosecutor? It doesn't seem to be a nice and creative job to me!

[Old-CodJA]

I certainly would. 30 years ago people in general had a great deal more respect for other people, better discipline in all respects and a far greater respect for the rule of law.

 

In general, society was just as questioning, but far less selfish and speaking purely from experience, I believe that the general standard of basic education was far better than it is today. We receive thousands of letters each year and the standard of basic written language is appalling compared with 15 years ago.

 

You state that you feel the role is not 'nice and creative'. Well sadly, not all jobs can be nice all the time. It's a bit like bringing up children, we have two who have made us intensely proud of them and the grandchildren that they are raising with their husbands are giving them (and us) a similar joy. We always taught them that sometimes 'No' simply means 'NO'. In general people cannot always have things their own way. Laws that stand on the statute book for 120+ years do so because they are good law.

 

I believe that the most important aspect of this role is in the re-education of people who are classified as minor offenders and in a huge number of cases, simply educating and giving a mild warning, then moving on gives great job satisfaction. Of around 20,000 reports that staff have filed and in which there is clear evidence of an offence, which pass through our offices alone each year, only around a quarter ever receive a summons.

 

The ones who end up facing a Court are usually those who deserve to be prosecuted because of the serious nature of the offence, or they have committed a clear criminal offence and either repeatedly do so or, will not accept that the rule applies to them.

Edited March 3, 2013 by Old-CodJA