Getting out of prosecution, Oyster on Southeastern

[fllegend]

Just wondered if I could get out of prosecution after getting pulled up by RPOs from Southeastern

for not having a tapped in Oyster card on Southeastern between 2 Oyster card stations.

 

Rather brazenly I refused the offer of a penalty fare because I instead offered to go back to the station I got on and tap in,

I told them I had no bank card or cash to pay the penalty fare.

 

Therefore the RPOs started filling out a prosecution report and did a PACE interview.

They ascertained I had £1.65 on my Oyster, the Oyster fare with my Railcard discount is £1.50,

but they kept sticking to their line that the full adult single fare for a paper ticket is £4.00 so I had insufficient funds to pay my fare.

 

I refused to admit intention to avoid the fare.

I answered 'did you lie about having a bank card'

with 'I refuse to answer that as you did not explain the context and implications of the penalty fare'.

 

I answered 'do you admit if you hadn't been caught by us you would have avoided the fare'

with 'no because there are barriers at the station I am leaving so I would have had to pay a non tap in fare.'

 

Now I'm thinking of responding to the prosecution letter by restating that the RPOs are poorly informed on the Oyster fare with Railcard discount,

and that I had not avoided paying the fare as I offered to go back to the station I got on the train at

and the RPOs could have monitored this seeing as they got off the train with me at my destination,

so were obviously prepared to invest the time to monitor the fare.

 

I also planned to say my denial of having a bank card was on the basis that I was not under caution at that time

and was entitled to negotiate on how to settle a civil debt in whatever way I like.

 

I know there are a lot of risks with this approach,

so I also wanted to get thoughts on what my chances are of offering to pay just a penalty fare

and not a 3 figure out of court settlement or antagonising them enough for them to just prosecute.

[BazzaS]

Just wondered if I could get out of prosecution after getting pulled up by RPOs from Southeastern

for not having a tapped in Oyster card on Southeastern between 2 Oyster card stations.

 

Rather brazenly I refused the offer of a penalty fare because I instead offered to go back to the station I got on and tap in,

I told them I had no bank card or cash to pay the penalty fare.

 

Therefore the RPOs started filling out a prosecution report and did a PACE interview.

They ascertained I had £1.65 on my Oyster, the Oyster fare with my Railcard discount is £1.50,

but they kept sticking to their line that the full adult single fare for a paper ticket is £4.00 so I had insufficient funds to pay my fare.

 

I refused to admit intention to avoid the fare.

I answered 'did you lie about having a bank card'

with 'I refuse to answer that as you did not explain the context and implications of the penalty fare'.

 

I answered 'do you admit if you hadn't been caught by us you would have avoided the fare'

with 'no because there are barriers at the station I am leaving so I would have had to pay a non tap in fare.'

 

Now I'm thinking of responding to the prosecution letter by restating that the RPOs are poorly informed on the Oyster fare with Railcard discount,

and that I had not avoided paying the fare as I offered to go back to the station I got on the train at

and the RPOs could have monitored this seeing as they got off the train with me at my destination,

so were obviously prepared to invest the time to monitor the fare.

 

I also planned to say my denial of having a bank card was on the basis that I was not under caution at that time

and was entitled to negotiate on how to settle a civil debt in whatever way I like.

 

I know there are a lot of risks with this approach,

so I also wanted to get thoughts on what my chances are of offering to pay just a penalty fare

and not a 3 figure out of court settlement or antagonising them enough for them to just prosecute.

 

You were offered a penalty fare and declined it.

If they moved on to a report for non-payment then you asking for a penalty fare now isn't likely to help : a penalty fare is a discretionary stage, and the guidelines say it shouldn't be offered when it is felt there was deliberate fare evasion.

 

By all means cite how unhelpful or incompetent the RPO's were : it is just that I've yet to hear of someone achieving an alternative resolution than prosecution where they have cited this in their letter seeking that alternative.

 

Does the prosecution letter say which Act or Bylaw they are considering prosecuting under?.

 

However, with your chosen attitude ("brazen", "refused", "restating .... RPOs are poorly informed") ... I must wonder how CAG can help you when you appear so intent on "making a bed and lying in it"!

[fllegend]

You were offered a penalty fare and declined it.

If they moved on to a report for non-payment then you asking for a penalty fare now isn't likely to help : a penalty fare is a discretionary stage, and the guidelines say it shouldn't be offered when it is felt there was deliberate fare evasion.

 

By all means cite how unhelpful or incompetent the RPO's were : it is just that I've yet to hear of someone achieving an alternative resolution than prosecution where they have cited this in their letter seeking that alternative.

 

Does the prosecution letter say which Act or Bylaw they are considering prosecuting under?.

 

However, with your chosen attitude ("brazen", "refused", "restating .... RPOs are poorly informed") ... I must wonder how CAG can help you when you appear so intent on "making a bed and lying in it"!

 

I haven't received a letter yet as this was only yesterday.

I'm thinking of also mentioning that the RPO failed to mention I was not obliged to be present for the interview and I was entitled to request legal advice.

The penalty fare regulations also state collectors should explain penalty fares have a maximum collection period of 21 days. I also plan to mention that this was not explained as all the RPO said was 'you can pay now by card and the money probably wouldn't come off for 10 days'

[rebel11]

Hi filegend

 

I would wait for the letter before formulating a defence or a negotiated settlement, that's if they allow you to.

[BazzaS]

I haven't received a letter yet as this was only yesterday.

I'm thinking of also mentioning that the RPO failed to mention I was not obliged to be present for the interview and I was entitled to request legal advice.

The penalty fare regulations also state collectors should explain penalty fares have a maximum collection period of 21 days. I also plan to mention that this was not explained as all the RPO said was 'you can pay now by card and the money probably wouldn't come off for 10 days'

 

"That'll tell them"!

 

Are you aiming for a settlement or guaranteed prosecution?

[citizenkain]

they'll probably just throw the book at you for trying to be smart,they probably get loads of people with the attitude that you have

[fllegend]

they'll probably just throw the book at you for trying to be smart,they probably get loads of people with the attitude that you have

 

Yeah I appreciate the odds are against me as they know fare dodging is strict liability and magistrates handle these cases at a rate of 20 a day. I can only try to argue my point though as all the legislation and guidelines were not written with oyster cards in mind. I plan to make the point that they effectively turned down my way of payment as they could've either made me tap out at my destination or made me turn back or get off the train.

[BazzaS]

Yeah I appreciate the odds are against me as they know fare dodging is strict liability and magistrates handle these cases at a rate of 20 a day. I can only try to argue my point though as all the legislation and guidelines were not written with oyster cards in mind. I plan to make the point that they effectively turned down my way of payment as they could've either made me tap out at my destination or made me turn back or get off the train.

 

You seem to be assuming there is a "travel first, pay later (if caught)" scheme. That assumption is incorrect.

 

Some of the legislation is over 100 years old, so yes, it does predate Oyster, but doesn't remove the requirement to buy a ticket ( / tap in on Oyster, with sufficient funds) prior to travel.

[fllegend]

I was entitled to leave after I had given my details. The RPO not making that clear could be inferred to be false imprisonment. I know I'm potentially setting myself up for some lengthy appeal to the crown court with these points but maybe I could make these points and say I'm willing to pay the full fare to save both sides the time and energy.

Sure fare evasion is a problem and I don't aim to turn this into a discussion on getting away with it, I just don't agree with private operators having the power to prosecute.

[rebel11]

Regulations of Railways Act 1889.

 

You seem to be assuming there is a "travel first, pay later (if caught)" scheme. That assumption is incorrect.

 

Some of the legislation is over 100 years old, so yes, it does predate Oyster, but doesn't remove the requirement to buy a ticket ( / tap in on Oyster, with sufficient funds) prior to travel.

[SabreSheep]

I was entitled to leave after I had given my details. The RPO not making that clear could be inferred to be false imprisonment. I know I'm potentially setting myself up for some lengthy appeal to the crown court with these points but maybe I could make these points and say I'm willing to pay the full fare to save both sides the time and energy.

Sure fare evasion is a problem and I don't aim to turn this into a discussion on getting away with it, I just don't agree with private operators having the power to prosecute.

 

Did he physically try to stop you form leaving? If the answer is no then you have no grounds there

[fllegend]

Both the threat of being physically restrained and actually being physically restrained are false imprisonment. (I would post a link but being a new member with under 10 posts I can't)

The RPO got off the train with me at my destination station to conduct an interview under caution, that would create a reasonable belief on my part I was not free to leave and may be restrained if I attempted to leave.

[BazzaS]

I was entitled to leave after I had given my details. The RPO not making that clear could be inferred to be false imprisonment. I know I'm potentially setting myself up for some lengthy appeal to the crown court with these points but maybe I could make these points and say I'm willing to pay the full fare to save both sides the time and energy.

Sure fare evasion is a problem and I don't aim to turn this into a discussion on getting away with it, I just don't agree with private operators having the power to prosecute.

 

It doesn't sound like you want a negotiated settlement.

By all means "go in guns blazing", but you are likely to get the papers passed to someone senior in the prosecutions office who will no doubt say "seen all these arguments before, they didn't work then, bring it on ".

 

No doubt you offer to pay the £4.00 fare will then appear highly persuasive to them, when taken with your bluster and assessment of the RPO's as incompetent.

 

Crown Court appeal?. This seems to assume you will be convicted, then........

Are you planning on appealing against conviction, sentence, or both?. Do you have long pockets (consider that they may go after you for costs if your appeal is unsuccessful).

 

It is unfortunate that you don't agree the TOC should have the power to prosecute : case law establishes that they do, despite your disagreement.

[fllegend]

You seem to presume that I was entirely uncooperative Bazza. I offered to go back to the station I got on to tap in and I offered to get off the the train. I disagree with how the law is but I can see why the magistrates and their prosecution office won't really care for my opinions.

However you have not addressed my genuine points about their RPO failing to provide identification before giving an interview caution, and not telling me I was free to leave or ask for legal advice as per PACE interview guidelines.

I'm not asking you or any other readers to like me as a person, I was hoping someone with legal knowledge would be able to expand on those 2 points.

And I don't understand why you're happy with the fact that private companies can employ staff to carry out police powers without anywhere near the same level of training police have or the same entry requirements. Do any utility companies have the power to push for prosecutions for unpaid bills? Any other private companies? No they have to use the civil courts.

[BazzaS]

You seem to presume that I was entirely uncooperative Bazza. I offered to go back to the station I got on to tap in and I offered to get off the the train. I disagree with how the law is but I can see why the magistrates and their prosecution office won't really care for my opinions.

 

I made no assumptions about you being "entirely uncooperative."

However, something made the RPO's move from offering a penalty fare, and your "offers" don't mean they can't prosecute.

 

However you have not addressed my genuine points about their RPO failing to provide identification before giving an interview caution, and not telling me I was free to leave or ask for legal advice as per PACE interview guidelines.

 

Which wouldn't feature in any Bylaw 18 prosecution.

The Magistrates / DJ would be asked to consider : did you fail to show a ticket (/validated Oyster) when asked to do so.

If not, do you have one of the specified statutory defences?.

No? Guilty.

 

I'm not asking you or any other readers to like me as a person, I was hoping someone with legal knowledge would be able to expand on those 2 points.

 

I'm neither liking nor disliking you as a person : I don't know you to form such an opinion. I "dislike" your 'attitude as a defence to fare evasion', since it appears doomed to fail if you carry on as you have to date.

 

And I don't understand why you're happy with the fact that private companies can employ staff to carry out police powers without anywhere near the same level of training police have or the same entry requirements. Do any utility companies have the power to push for prosecutions for unpaid bills? Any other private companies? No they have to use the civil courts.

 

They don't have police powers. They are given (RRA 1889) the powers they need to do their job.

By all means sue them if you feel a court will agree you were falsely imprisoned : from your description of events I doubt it will succeed. It is worth considering:

a) they'll have their notes, and contemporaneous notes are usually regarded as more accurate than recollection

b) you describe them (RPOs) in the plural

One person's recollection against more than one persons' recollection and notes : an uphill evidential struggle.

[honeybee13]

Hello there.

 

This is a link to a previous thread by iambilly whom some of us will remember. He tried to quote the rules at TfL and it didn't go very well. He went to crown court and we didn't hear how it went, but I imagine if he'd won he would have come back to tell us. I know it's about a Freedom pass, but it's still a salutary lesson.

 

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

 

HB

[fllegend]

Would you care to quote a legal authority that says a not tapped in Oyster card is not a valid ticket for travel? Seeing as tapping out the other side also charges credit from the card regardless of whether you tapped in?

TfL open their ticket gates for large crowd events like Notting Hill or football matches at Wembley and charges customers on the basis of them tapping out the other side.

We all know these cases hardly ever proceed to Crown Court where there is chance of a binding precedent being set, so all the interpretations of a valid ticket just rely on guidelines and website info published by TfL or TOCs.

[fllegend]

Hello there.

 

This is a link to a previous thread by iambilly whom some of us will remember. He tried to quote the rules at TfL and it didn't go very well. He went to crown court and we didn't hear how it went, but I imagine if he'd won he would have come back to tell us. I know it's about a Freedom pass, but it's still a salutary lesson.

 

HB

 

Hi,

The situation is a bit different to me as he says he admitted using someone else's Freedom pass at interview which you aren't allowed to do. The Oyster card I used was my own and at interview I expressly said I don't feel I was evading a fare as I could have been charged for tapping out.

[BazzaS]

Would you care to quote a legal authority that says a not tapped in Oyster card is not a valid ticket for travel? Seeing as tapping out the other side also charges credit from the card regardless of whether you tapped in?

TfL open their ticket gates for large crowd events like Notting Hill or football matches at Wembley and charges customers on the basis of them tapping out the other side.

We all know these cases hardly ever proceed to Crown Court where there is chance of a binding precedent being set, so all the interpretations of a valid ticket just rely on guidelines and website info published by TfL or TOCs.

 

"Not tapped in Oyster" : depends in if it is a 17, 18(1) or 18(2) bylaw prosecution.

Southeastern are unlikely to make a mistake along the lines of Burns v FCC, since that error has been well highlighted.

 

R (on the application of Okoturu) v London Tramlink :

"The rules relating to travel on public transport such as tube and Tramlink are very clear: one must have a ticket with an Oyster card or a card ticket with one and to be able to produce it when travelling. On this occasion, unfortunately, the claimant did not have such a ticket. The complaints that the claimant makes about the Appeal Panel have no substance. The procedure was entirely fair and proportionate to the issues in question. The claimant feels aggrieved because he had every intention to pay and indeed had paid but the rules are the rules and there is no reason in law why the decision of the Appeal Panel can be challenged."

[honeybee13]

Hi,

The situation is a bit different to me as he says he admitted using someone else's Freedom pass at interview which you aren't allowed to do. The Oyster card I used was my own and at interview I expressly said I don't feel I was evading a fare as I could have been charged for tapping out.

 

Hi. I said in my post that I know you don't have a Freedom card case. I was just trying to highlight how wrong it can go if you end up going through the court system on a matter of principle. From memory, iambilly had a barrister friend advising him...

 

HB

[Conniff]

Hello there.

 

This is a link to a previous thread by iambilly whom some of us will remember. He tried to quote the rules at TfL and it didn't go very well. He went to crown court and we didn't hear how it went, but I imagine if he'd won he would have come back to tell us. I know it's about a Freedom pass, but it's still a salutary lesson.

 

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

 

HB

 

 

He's probably still inside

[fllegend]

The difference to the case of Burns is that he didn't have sufficient credit for the journey, whereas I did. I have screen printed the TfL Single Fare Finder page to show that the fare with my discount is £1.50. I also did hand over my Oyster for inspection and the RPOs took down the Oyster number, so the only legislation they could prosecute me for is s17(1) or s18(1)

[BazzaS]

The difference to the case of Burns is that he didn't have sufficient credit for the journey, whereas I did. I have screen printed the TfL Single Fare Finder page to show that the fare with my discount is £1.50. I also did hand over my Oyster for inspection and the RPOs took down the Oyster number, so the only legislation they could prosecute me for is s17(1) or s18(1)

 

Yup, definitely different to Burns (given Burns succeeded in his case!)

 

So, what if they go for a 17(1) / 18(1), bearing in mind they'll know not to use 17(2) or 18(2) due to 'Burns'?

 

Or S5 RRA 1889......

 

since if you had attempted to pay "only by tapping out" : what fare would be charged ? £8.60.

£8.60 from your £1.65 credit : yup, that will be convincing that you intended to pay on tapping out - when you had insufficient credit to do so.

 

A skilled prosecutor will be able to use that to show you never intended to pay by tapping out, and never intended to pay.

 

I'm not a prosecutor (let alone an experienced one) - I don''t even work on the railways, but I've spotted the flaw in your "I intended to pay on tapping out" ploy.

Do you think those with experience of the system will struggle?

[fllegend]

Oyster cards can go into negative credit, ticket gates will allow exits if there was sufficient credit pre-loaded for a single journey. Tickets will just be invalid if there was say £0.20 left on my card as that is insufficient for any length of journy.

Was it my intention to pay £8.60? No as that is a outcome that occurs where there has been some carelessness or unavoidable error. However, I don't feel Southeastern can prove that I had an intent to avoid a fare altogether because I had sufficient credit for a single journey.

[BazzaS]

It appears you've asked for advice, already having made up your mind.

 

This begs the question "Why ask, then?"

 

Oyster is an "electronic wallet". You didn't ensure you swiped in correctly (which is your responsibility), so didn't pay the reduced rate fare that offered you.

You couldn't show a valid ticket when you handed over your Oyster (Byelaw 17(1) and 18(1) being strict liability offences).

If they went for a S5 RRA 1889 ; you and I disagree on how the court will likely view the insufficient credit for the fare then due, becoming due as you hadn't swiped in.

 

Good luck.