Summons for using a found freedom pass

[Old-CodJA]

HB is spot on

 

If you were charged with 'intent to avoid a fare' and sent a plea of 'Guilty' to the Court, but then argued that the staff were rude, abusive or generally unfair, or you said 'I am guilty, but I didn't mean to avoid the fare', then your plea is equivocal and the Court cannot accept your guilty plea.

 

You will be required to attend Court to clarify your plea, or seek legal representation in good time before the next hearing date.#

 

You should not plead guilty if you genuinely do not believe that you are guilty of the offence charged.

 

You can enter a 'not guilty plea' and offer the explanation that you were wholly unaware that the card you were using could not be used by you and that because of this you did not set out intending not to pay. You can say that you now understand that you might have broken a rule unknowingly, but did not set out with any concious intention of avoiding payment of a fare.

Edited November 13, 2012 by Old-CodJA

[HelenKH]

Thanks OC,

 

I didn't mention anything about LU. Just said they refused my OOC offer and I apoligised at least 10 times in my letter. If you were me, what would you do? Say I intended to travel without payment or I traveled with a card which wasn't paid by me but I didn't intend to avoid payment (the second one is the true story)?

 

Just a quick explanation: I didn't say I didn't intend or intend to avoid payment in my letter to court. I just told them the story. I just told them what I had told you before, nothing else.

 

I have 2 weeks only. Can I put the day of hearing back?

[Nystagmite]

Thanks BazzaS,

 

How can I prove that I had no idea about the type of the card? It may not seem logical but that is the full story I can say. I can't change it to something else that is not true.

 

Ignorance isn't a defence.

[Old-CodJA]

It is perfectly legitimate to use somebody elses pre-pay card. I thought I had found one.

 

It is perfectly legitimate to use an unregistered pre-pay Oyster card that has been given to you for that express purpose. It is not perfectly legitimate to use one that is 'found lost' and it might be considered to be 'stealing by finding', but that is not the issue here.

 

To illustrate the point nonetheless, I doubt that you would consider it legitimate to find my lost wallet and spend the cash it contained. That is exactly what you would be doing with a 'found' pre-pay Oyster. It is someones' electronic purse.

 

Anyway, to the point that is the stumbling block for the Magistrates. I believe that you have been charged with the 'intention to avoid a fare contrary to Section 5.3.a of the Regulation of Railways Act (1889)'.

 

You have pleaded 'Guilty', but have said words to the effect that you 'admit that you used the Freedom pass, but did not know you could not use it and therefore did not set out intending not to pay and have apologised to the company'. It does not matter that those are not the exact words that you used, correct me if I'm wrong, but I believe that is the general explanation that you gave.

 

Nystagmite is spot-on. Ignorance of a rule is not a defence, however what you have said to the Court is 'I am guilty of the offence, but I did not intend to do it because I didn't know it was wrong'. That is an equivocal plea. The charge is 'intent', you cannot say you are 'guilty, but did not intend' to do it.

 

Unfortunately I now realise it was a non-transferable type of card. So I had intended to travel with a pre-paid card and didn't realise my mistake until it was too late. What should I do next?

 

Your explanation suggests that you did intend to use the 'found' card that was not yours and the evidence of the attempt to do so is included in the inspectors' statement. The fact that you say you had not checked to see what kind of pass it was and just thought 'It's a pre-pay, I'll use it' is not a defence to that charge.

 

You have two straightforward choices so far as I can see,

 

You can clarify your plea by writing to the Court and saying something like the following: 'I am guilty as charged, I know I should not have used a found pass and I apologise for doing so. I wish the Court to deal with the matter in my absence and I ask that the Magistrates take into consideration my financial circumstances as declared on the enclosed form MC100 and the fact that I have an exemplary record with no previous convictions.'

 

The Magistrates can say 'No, we want you here to explain yourself in person', but in my experience they will usually accept that kind of clarification and avoid much wasted Court time otherwise. This will result in a conviction, but Magistrates will also take into account that acceptance of responsibility and will reduce any penalty accordingly.

 

or

 

You can plead 'Not guilty' to the charge by saying 'I am not guilty of intending to avoid paying'.

 

In this instance the matter will go to trial at a later date when you will have to attend Court and the company will be required to bring their witness and prove to the satisfaction of the Magistrates that 'you did intend to avoid paying your fare'. If you are found to be 'not guilty' by the Court then there will be no conviction and no penalty. If you are found to be 'guilty' then a conviction will be recorded and a financial penalty imposed.

 

Do remember, if you choose to plead 'Not guilty', it is for the company to prove your guilt, not for you to prove your innocence.

Edited November 14, 2012 by Old-CodJA

[honeybee13]

Hello again.

 

I'm posting a link to a thread by iambilly, which forum regulars will remember. Billy also had a debate about whether to plead guilty or not guilty which might be useful for you.

 

The last we heard, it was going to Crown court because Billy disagreed with the magistrates' verdict as it didn't fit in with his own logic. We haven't heard what happened, but my own feeling is that when people don't come back here to post the result, often it's because it hasn't gone their way.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?354702-Caught-using-someone-else-s-Freedom-pass-convicted-leave-to-appeal-granted&highlight=

 

HB

[BazzaS]

Hello again.

 

I'm posting a link to a thread by iambilly, which forum regulars will remember. Billy also had a debate about whether to plead guilty or not guilty which might be useful for you.

 

The last we heard, it was going to Crown court because Billy disagreed with the magistrates' verdict as it didn't fit in with his own logic. We haven't heard what happened, but my own feeling is that when people don't come back here to post the result, often it's because it hasn't gone their way.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?354702-Caught-using-someone-else-s-Freedom-pass-convicted-leave-to-appeal-granted&highlight=

 

HB

 

HB ... Billy did go to Crown Court & got told that once he'd given a guilty plea and it was accepted, he couldn't then appeal against conviction, only sentence.

 

(There would be very limited grounds, such as a "coerced guilty plea" on which the plea, once accepted, could be vacated).

 

Billy posted on 6th September about his Crown Court appearance. Where he hasn't come back to us is where he was considering an appeal to the Criminal Cases Review Commision (perhaps he got an adult to review the thread and they too told him : you must be kidding!)?

[honeybee13]

Well remembered, Bazza. I couldn't bring the specifics to mind, just thought it might give Helen a different perspective.

 

HB

[HelenKH]

Thanks HB,

 

I haven't read all 23 pages as I am at work all day. Will go through it all tonight.

 

 

Thanks to OC for the post,

You mentioned this:

"You can plead 'Not guilty' to the charge by saying 'I am not guilty of intending to avoid paying'.

 

In this instance the matter will go to trial at a later date when you will have to attend Court and the company will be required to bring their witness and prove to the satisfaction of the Magistrates that 'you did intend to avoid paying your fare'. If you are found to be 'not guilty' by the Court then there will be no conviction and no penalty. If you are found to be 'guilty' then a conviction will be recorded and a financial penalty imposed.

 

Do remember, if you choose to plead 'Not guilty', it is for the company to prove your guilt, not for you to prove your innocence."

 

I know I shouldn't have used somebody else's card (no matter what the type was) but I didn't really plan to find that card and I didn't really intent to avoid the payment.

 

What are the chances of losing/winning this case? LU can't possibly know what my intention was but they can assume. However, what I understand is, all other people who have used freedom passes, have used the card which belonged to their family member/ friends. So they really knew/planned what they were doing.

 

Now, I know I shouldn't have used somebody else's card no matter what the type was (let's not mention it again) but I didn't really plan to find that card and I didn't really intent to avoid the payment. I am not like Iambilly who says he doesn't care about the money. I do care about the fine and I do care about conviction more than the fine and I want to avoid them if possible but not sure what my chances are. I didn't want to go to court because my English and stress won't help me much to defend myself but it seems that I must go.

 

Does anybody know what are the differences between the fine amounts when you plea guilty at the first place and plea not guilty but they find you guilty later? If I plea not guilty then there is at least a chance that I don't get conviction. Any thoughts are welcome.

 

Can my line above be something that I can use for my defence? ( I didn't really plan to find that card and I didn't really intent to avoid the payment)

 

Thanks

[HelenKH]

Something else that I forgot to say. In my last letter from court, they have changed the wording and the date is wrong. The wording suggests that I had actually travelled to my destination without paying at the first station and didn't want to pay after that either. Do you know if this is mistyped or is it a mistake which blows the whole thing out of court...or is it something else?

[honeybee13]

Hello again.

 

I don't think we should really be advising you on the chances of winning or losing the case, it seems like legal opinion to me.

 

Maybe someone can give you an idea of the likely fine and/or costs if you plead not guilty and are found guilty and on this:

 

Can my line above be something that I can use for my defence? ( I didn't really plan to find that card and I didn't really intent to avoid the payment)

I'm wondering if it's time to go and see a lawyer about this.

 

HB

[HelenKH]

Thanks HB,

 

Do you know any lawyer specialist in these cases? I don't have much time before the court hearing and I don't know where to start with. Google search is not that reliable to find a good lawyer. I prefer to keep the cost down if possible but if that is the way I have to go then, I 'll do that.

[Old-CodJA]

In my personal opinion, going on what we can glean only from a one-sided view of the incident, which is that being given by the person accused of the offence, and long experience of dealing with these cases I find it hard to see how you are likely to avoid conviction unless there is something wrong in the process undertaken by the prosecutor.

 

I strongly suggest that you seek qualified legal advice from a Solicitor that specialises in criminal matters and is known at the Court to which you have been summonsed.

 

It is not for any of us to promote any particular law firm, I suggest that you contact the Court office and ask if they can suggest criminal law specialists in their locality. Most Court admin staff are happy to help. You can contact them by Googling the name of the actual Court to which you are summonsed and using the general office number that will display on the HMCS website.

 

If convicted of the offence as charged, the maximum penalty that can be applied by the Magistrates is a fine of up to £1000 and they may order you to pay compensation of any unpaid fare, the prosecutors costs (all or part) and a victim surcharge imposed on all persons who are fined by the courts in these kind of cases.

 

Generally speaking, the fine for a first time offender will normally be around £400 if found guilty and that is reduced by around a third if an early 'guilty' plea is entered. Costs can vary, but as a rough estimate will usually fall between £100 and £200.

 

In cases where the defendant can show exceptional hardship or other difficult circumstances the Magistrates may take this into account and vary their judgment accordingly.

Edited November 14, 2012 by Old-CodJA

[Old-CodJA]

Now, I know I shouldn't have used somebody else's card no matter what the type was (let's not mention it again) but I didn't really plan to find that card and I didn't really intent to avoid the payment.

 

This goes to mitigation, it is not a defence to the charge.

 

The prosecutor will point out that having found it, you did attempt to use it and if not detected you would have avoided paying the fare.

 

You may say your intention was X, the prosecutor will say your intention was Y

 

What matters is what the Magistrates believe your intention was after appraisal of the evidence.

[honeybee13]

I absolutely agree with what OC has said. We don't recommend lawyers here, but if you do what he has suggested, hopefully you will find some help.

 

You want someone who has dealt with this type of case before, ideally, and who knows the court itself.

 

HB

[HelenKH]

Thanks both,

 

So if I ask for an advisor in court, is there anybody to help me? or are they are against me unless I pay them? Sorry I have never been to court I don't know what to expect!

 

And the other thing is, if the LU says if we didn't stop you, you would have used it.

 

Can I say: if I would have known the type of card, I wouldn't have used it and when I would have known it is a personal card, I would have handed that in (something like this was in my mitigation letter).

[Old-CodJA]

if the LU says if we didn't stop you, you would have used it.

 

Can I say: if I would have known the type of card, I wouldn't have used it and when I would have known it is a personal card, I would have handed that in (something like this was in my mitigation letter).

 

 

I'm sorry that I do not believe any of us can help you further here and would stop looking for alternative wordings for mitigation if I were you.

 

The fact is that you appear to admit attempting to use the card whether you were thinking it was something it wasn't, or not is not really relevant.

 

It was not yours and you knew that and we cannot alter the details that have already been reported.

 

 

 

So if I ask for an advisor in court, is there anybody to help me? or are they are against me unless I pay them? Sorry I have never been to court I don't know what to expect! )

 

 

You appear to be misunderstanding what I said. You need to act quickly and as soon as possible before the Court date.

 

You need to ring the enquiries office at the Court at which your case is listed and ask them to give you the names of Solicitors in the locality who specialise in criminal law and who regularly appear at that Court.

 

Once you have the details of one (or maybe more) you need to contact a Law firm quickly and explain that you have been summonsed to answer a charge that you don't accept.

 

It's up to you to engage legal representation if you feel you need help. ( From reading your posts I strongly believe that you do, but that's my personal opinion.)

 

This is not an allegation that will quailfy for Legal Aid so you need to ask the Solicitor how much s/he is going to charge you and discuss with them what your chances are from examination of the papers that have been sent to you.

 

Your qualified legal advisor will be the person best placed to help you from now on.

Edited November 14, 2012 by Old-CodJA

[HelenKH]

Thanks, that is clear now.

[Old-CodJA]

Right, now that bit is clear and just to add one more spot of clarification, can I ask you to go back to post 25, which I put on page 2 of this thread and re-read it before you attempt to explain your case to a solicitor.

 

I hope that it might save you some time & money to have all of this clear in your head.

 

In that post I did predict the Court would reject your plea given the way that you suggested explaining yourself, but that isn't the point. You need to see how they viewed the issue of intent.

 

Ignore for a moment what type of pass it was and focus on the fact that it was not yours. Once you found the pass you could have done nothing with it, but you chose to attempt to use it to travel.

 

That action showed intent to use it and by so doing you would retain the value held on your own card to use another day, thereby gaining a pecuniary advantage by using someone elses card without their consent.

 

YOU would not have paid YOUR fare in accordance with the legislation. (Legal precedent - Case of Browning & Floyd. 1946)

 

Make sure that you have that clear in mind, explain it to your solicitor and with the advantage of having all of the evidence and statements to hand, s/he may be able to find a way in which you can mitigate the damage when s/he addresses the Court on your behalf. It is unlikely, but not impossible for this to result in acquittal because you have been charged with 'intent' and that has to be proven, but you will not achieve that by continuing as you have thus far. I have given you a prosecutors' view of the case based on your declared 'evidence'. Please get this paperwork looked at by a solicitor and quickly.

Edited November 15, 2012 by Old-CodJA

[HelenKH]

Thanks a lot OC.

 

You're advice and viewpoint are excellent as ever. As said before, I had previously lost 2 Oyster Cards, and when I found what I thought was the same thing, I regarded it as finding £5 on the street, and using that money to buy a ticket (I know that doesn't clear what has happened and the is a wrong concept ethically) but in this case, I would say, although I used somebody else's card, I didn't attempt not to pay LU's fare so in my view the bad thing has happened to that person not the LU.

 

If I had known the potential pitfalls I would have crossed the street to avoid it - unfortunately the time between finding and using were too short for my brain to work properly and wisely. I was told by LU at the time that my lost cards were just 'lost' and they never mentioned I should register my card (now I know I could have registered them). I phoned the number I found in Google but that is an admin center and they didn't have any solicitor phone number. I have sent an email to the email address I found on Google for the court so I should see if anybody gets back to me. I am looking for a solicitor as you suggest, but unfortunately the costs involved in defending are enormous.

 

By the way, can I request to delay the date of hearing so I have more time? It doesn't say I can on the paper that I have received.

[HelenKH]

I have for a list of Solicitors now! Will contact them at my lunch time.

[markl1987]

Helen, please listen to what OC has said and you need to get things like losing to cards of your own, same as finding £5 etc out of your mind and focus on what he has said. You have quoted above that it is your view that you did not intend to not pay the fare but OC has already explained how this will be viewed from a prosecutors point of view. In his reply it states "Ignore for a moment what type of pass it was and focus on the fact that it was not yours. Once you found the pass you could have done nothing with it, but you chose to attempt to use it to travel.

 

That action showed intent to use it and by so doing you would retain the value held on your own card to use another day, thereby gaining a pecuniary advantage by using someone elses card without their consent.

 

YOU would not have paid YOUR fare in accordance with the legislation. (Legal precedent - Case of Browning & Floyd. 1946)

 

Yet you have replied straight away with how you lost cards, finding £5 etc despite all the advice given so far.

 

I've been reading this thread with some frustration as you are being given sound advice by someone who is very experienced and knowledgeable on this subject and you keep referring back to your own view of how you were not intending to avoid payment. OC's last post is very clear and he is a prosecutor himself so he has a very strong idea of what will happen in court and in all honesty you don't seem to be taking in how serious this is and the advice you are being given.

 

Please take a couple of minutes, step back and read through OC's last post and the whole thread again as you are going to end up wasting all the advice and possibly end up in a very costly situation along with a very stressful time building up to your court date.

Edited November 15, 2012 by markl1987
Typo

[honeybee13]

I phoned the number I found in Google but that is an admin center and they didn't have any solicitor phone number. I have sent an email to the email address I found on Google for the court so I should see if anybody gets back to me. I am looking for a solicitor as you suggest, but unfortunately the costs involved in defending are enormous.

 

Hello again.

 

Have you contacted the court where your case is to be heard? There should be a phone number on their letter.

 

HB

 

Edit: sorry, crossed posts. Please let us know how you get on.

[HelenKH]

Hi HB,

 

I will come back here later to ask more questions and let you know how I get on.

[HelenKH]

Hi Mark,

 

Thanks for your post. I accept the full responsibility for what I have done but I really don't want to get conviction for a mistake. I appreciate what OC has said and I have been thinking about it days and nights (even when I am sleep). I know the prosecutor's view but there should be a difference between somebody who has made a mistake and the person who intended/used the family member's card. somebody who has planned for it. What I have posted is a personal view and I know many people don't agree with that but that is the only thing I can stick with and use my chance for not receiving a conviction. OC told me to get some advice and I am trying to follow what he said. I have been very stressed since that day. I have read some pages of Iambilly's thread and when he says' I don't want conviction' everybody says 'then why you pleaded guilty.' I know my logic might not win my case if I represent myself but that is how I think and I need an advisor to go through it and reword it or find something else (if at all possible) to help me. Whatever I have said here is the truth. I haven't been trying to make you say something that I like but I have told you my thoughts to see what you think and all the comments have been very helpful so far and I agree with most of them.

[honeybee13]

Hello again.

 

How are you getting on with finding a lawyer, Helen?

 

HB