Forgot my railcard discussion thread

[BazzaS]

Taking a purposive approach is recognised.

 

In THEORY it could apply to the law such as Bylaw 18 and S5 RRA1889. This I agree with mere on (though my agreement ends there, because: )

 

Where courts are called upon to interpret law, they can utilise a number of different approaches (such as the "golden rule" and "literal rule").

 

In EU law, (influenced by their experience of civil law jurisdiction rather than the common law approach in the UK) the ECJ can take a purposive approach.

 

Where a UK court wishes, they too can take a purposive approach (see, mere can get something right!).

This might include considering the purpose of the statute law, and (if need be) Hansard for the discussion made in the Houses of Parliament regarding the bill / Act, with particular reference to statements made by the government and proposer of the bill.

 

Where mere is wrong (yet again) is that:

a) where the law is clear, the court need not take a purposive approach. A purposive approach is available where there is a question over the statute law.

b) if the law is felt to be unclear, a purposive approach is only one of the options available, not the only option.

 

So, if a case is going to the Court of Appeal or the Supreme Court, their Lordships MIGHT decide to use a purposive approach.

 

This is a world away from a Magistrate hearing a Bylaw 18 or S5 RRA 1889 case. The likelihood of a purposive approach in Magistrates' Court? Approaching zero.

 

I'm with OCJ : the case will be heard on the facts, according to statute and case law.

 

Something new would have to arise for it to get to a court where a purposive approach is a real possibility, let alone likely.

This is why my limited agreement with mere ended at "purposive law might be applied" : might in theory, in practice, highly unlikely.

[rebel11]

http://www.nationalrail.co.uk/static/documents/content/Ticket_Irregularities_Code_of_Practice.pdf

[Old-CodJA]

It is not a personal belief that a purposive interpretation (under which the TOC is unlikely to succeed) can be applied to the law in this area. It's a fact.

 

 

We were going down the same line here BazzaS

 

 

 

Mere is correct in that a purposive interpretation is a recognised fact in law

 

 

In my experience that is not going to happen at Magistrates Court, but if a conviction were recorded by the Bench a subsequent ( and possibly expensive) Appeal to the Crown might be asked to consider the matter.

[Old-CodJA]

It is not a personal belief that a purposive interpretation (under which the TOC is unlikely to succeed) can be applied to the law in this area. It's a fact.

 

 

 

Taking a purposive approach is recognised.

 

In THEORY it could apply to the law such as Bylaw 18 and S5 RRA1889. This I agree with mere on (though my agreement ends there, because: )

 

Where courts are called upon to interpret law, they can utilise a number of different approaches (such as the "golden rule" and "literal rule").

 

In EU law, (influenced by their experience of civil law jurisdiction rather than the common law approach in the UK) the ECJ can take a purposive approach.

 

Where a UK court wishes, they too can take a purposive approach (see, mere can get something right!).

This might include considering the purpose of the statute law, and (if need be) Hansard for the discussion made in the Houses of Parliament regarding the bill / Act, with particular reference to statements made by the government and proposer of the bill.

 

Where mere is wrong (yet again) is that:

a) where the law is clear, the court need not take a purposive approach. A purposive approach is available where there is a question over the statute law.

b) if the law is felt to be unclear, a purposive approach is only one of the options available, not the only option.

 

So, if a case is going to the Court of Appeal or the Supreme Court, their Lordships MIGHT decide to use a purposive approach.

 

This is a world away from a Magistrate hearing a Bylaw 18 or S5 RRA 1889 case. The likelihood of a purposive approach in Magistrates' Court? Approaching zero.

 

I'm with OCJ : the case will be heard on the facts, according to statute and case law.

 

Something new would have to arise for it to get to a court where a purposive approach is a real possibility, let alone likely.

This is why my limited agreement with mere ended at "purposive law might be applied" : might in theory, in practice, highly unlikely.

 

 

We were going down the same line here BazzaS

 

Mere is correct in that a purposive interpretation can be a recognised issue

 

In my experience that is not going to happen at Magistrates Court, but if a conviction were recorded by the Bench a subsequent ( and possibly expensive) Appeal to the Crown might be asked to consider the matter.

[BazzaS]

and neither is there a law requiring you to carry a railcard.

 

You managed to quote me in your other reply : you know quoting the bit where I said about driving licence:

"Law" OR "terms & conditions I agreed to".

 

Why did you feel the need to not quote (and to ignore) the "terms & conditions" aspect?

Ohh, because it showed the lack of applicability of your "compare it to a driving licence" comparison ......

[citizenB]

Actually I'm pretty sure you are required to carry your driver's license. It's just that the prescription for what happens when you don't is a producer.

 

Do I have to carry my licence with me at all times when driving/riding ?

 

No, but it is strongly recommended.

The Police are entitled to ask to see your licence at any time and if you do not have it immediately, you will be ordered to produce it to a Police Station within 7 days.

Failing to produce within that period of time is another offence, even if you do actually hold a licence.

[mere]

We were going down the same line here BazzaS

 

 

 

Mere is correct in that a purposive interpretation is a recognised fact in law

 

 

In my experience that is not going to happen at Magistrates Court, but if a conviction were recorded by the Bench a subsequent ( and possibly expensive) Appeal to the Crown might be asked to consider the matter.

 

My points are that it is open to the magistrate to do that. You may be right that it is not likely I don't know.

 

BUT

 

the higher the matter gets appealed the more likely it becomes and if it gets to the European Courts a purposive approach is guaranteed.

[mere]

Do I have to carry my licence with me at all times when driving/riding ?

 

No, but it is strongly recommended.

The Police are entitled to ask to see your licence at any time and if you do not have it immediately, you will be ordered to produce it to a Police Station within 7 days.

Failing to produce within that period of time is another offence, even if you do actually hold a licence.

 

You could say exactly the same about a carrying a railcard. Terms and conditions (the lawfulness of which is not guaranteed) do not prohibit anything or require anything. They just prescribe a consequence and one that is disproportionately draconian to the point of ridicule.

[BazzaS]

My points are that it is open to the magistrate to do that. You may be right that it is not likely I don't know.

 

BUT

 

the higher the matter gets appealed the more likely it becomes and if it gets to the European Courts a purposive approach is guaranteed.

 

An appeal to the Court of Appeal and above must be on a point of law. The RRA 1889 has over 100 years of case law behind it : what point of law are you suggesting needs clarification?

 

Even then, how is it going to go to the "European Courts"? (You don't even specify either the ECJ or ECtHR .... So, which European Court, and under what grounds??).

 

You are being vague, as ever, as there is no substance to your theories when the detail is looked at.

 

You haven't established why there would be a point of law needing to be clarified such that a purposive approach would be possible, let alone likely.

 

I suggest your proposal that a Magistrate would apply a purposive approach remains far-fetched & fanciful.

Nothing you have said so far yet suggests that the first stages of appeal seem realistic (given the costs involved and the requirement for grounds of appeal). Trying to drag "European Courts" into the mix (without defining the Court, or the grounds) reiterates that your approach is "puff, smoke & mirrors"

[Old-CodJA]

My points are that it is open to the magistrate to do that. You may be right that it is not likely I don't know.

 

 

Having handled tens of thousands of railway 'travel without valid ticket' reports over many years and Magistrates Court summonses involving charges ranging from traveller behaviour, through breach of various Byelaws to and including serious multiple fare evasion matters, I have never known it happen, nor has any Legal Advisor / Clerk of the Court at any of the Courts involved raised the matter.

 

Many thousands of 'unpaid fare / penalty fare notice' cases, where the notice has been cancelled because it hasn't been paid within the time laid down within the rules defined by the Railways Act, have resulted in conviction of either 'failure to comply with Byelaw' or 'intent to avoid payment'.

 

My opinion in respect of likelihood is based on assessment of that record.

 

The OP is seeking to avoid a Magistrates Court hearing as far as I can see and whatever opinions we might hold about other issues, it is that fact that we should not lose sight of.

[Consumer dude]

Do I have to carry my licence with me at all times when driving/riding ?

 

No, but it is strongly recommended.

The Police are entitled to ask to see your licence at any time and if you do not have it immediately, you will be ordered to produce it to a Police Station within 7 days.

Failing to produce within that period of time is another offence, even if you do actually hold a licence.

 

Are there actually any police stations left ?

[BazzaS]

You could say exactly the same about a carrying a railcard. Terms and conditions (the lawfulness of which is not guaranteed) do not prohibit anything or require anything. They just prescribe a consequence and one that is disproportionately draconian to the point of ridicule.

 

The T's & C's DO require the railcard to be carried for the discounted ticket to be valid.

 

I suspect (it's so hard to tell with your imprecise postings) that you feel the T's & C's wouldn't be held to be lawful, in court.

 

Yet the courts don't seem to "ridicule" them in the way you suggest they do .... Perhaps the issue is the gap between what you want to happen & what actually happens, evidenced by the threads witnessed on CAG .....

[mere]

The point of law is that the where the court is satisfied that there was no deliberate attempt at fare evasion (that would be theft) a purposive interpretation is correct because the literal interpretation allows the TOC to criminalize people for debt (which is what this amounts to) and Parliament cannot have intended that since this country stopped doing that sometime not long after the Victorian era.

[mere]

The T's & C's DO require the railcard to be carried for the discounted ticket to be valid.

 

It is not a given that the T&C's are lawful. I don't know how many times I have to tell you that.

[Old-CodJA]

It is not a given that the T&C's are lawful. I don't know how many times I have to tell you that.

 

 

Sadly, I don't know how many times we will have to explain to you that it is not a failure to comply with those T&Cs that would be charged on any Summons.

 

I shall leave this thread there. It seems that it is pointless trying to assist further.

[BazzaS]

The point of law is that the where the court is satisfied that there was no deliberate attempt at fare evasion (that would be theft) a purposive interpretation is correct because the literal interpretation allows the TOC to criminalize people for debt (which is what this amounts to) and Parliament cannot have intended that since this country stopped doing that sometime not long after the Victorian era.

 

As ever, you are muddying waters by confusing concepts.

 

Firstly, Bylaw 18 doesn't require intent.

 

Secondly, Bylaw 18 doesn't criminalise people for debt, but instead for "not showing a valid ticket on demand" ; this is independent of "debt".

 

Thirdly, are you really suggesting that someone should have a defence from prosecution for ticketless travel by claiming "ahh, but if you charge me for a ticket then I'm indebted to you, and if you prosecute me for that then I'll be being criminalised for debt"

 

In that case, applying your (for want of a better word "logic") I'll be round later to yours to "borrow" your belongings including any cash I find ..... What, they'd want to nick me for burglary : they can't do that, it is penalising me for the debt I'd owe you!. Ridiculous.

 

Ohh, and Theft is defined under the Theft Act.

Fare evasion isn't charged as theft, so the bit where you say "deliberate attempt at fare evasion (that would be theft)" is just plain incorrect.

If you were intending to say "but obtaining services by deception is covered by the Theft Act" : repealed, Schedule 3 of the Fraud Act 2006.

 

I return to a key issue regarding "purposive approach".

It is an option (and only one of many options!) where the law is unclear. If the court feels the law is clear : it is a non-starter as "purposive approach" won't get a look in.

 

With so many issues being confused in one (brief) post, I'm minded (not for the first time) that mere is either:

a) a genius, and we are all dullards ignorant of their brilliance,

b) too stupid to assist, or

c) a troll.

 

Whichever of these it is:

i) if they do the same to another OP's post, can I encourage the site team to again create a discussion thread, so the OP doesn't get "hijacked", as the site team did with the OP's thread here (creating a seperate discussion thread)

2) I'm out (for this thread, at least), and in future can refer back to this and mere's initial (own) thread if the brilliance / stupidity / trollery continues ......

[Conniff]

The point of law is that the where the court is satisfied that there was no deliberate attempt at fare evasion (that would be theft) a purposive interpretation is correct because the literal interpretation allows the TOC to criminalize people for debt (which is what this amounts to) and Parliament cannot have intended that since this country stopped doing that sometime not long after the Victorian era.

 

 

So you are now claiming that you didn't forget it but couldn't afford it otherwise that part sentence is silly and nothing whatsoever to do with anything.

[mere]

Having handled tens of thousands of railway 'travel without valid ticket' reports over many years and Magistrates Court summonses involving charges ranging from traveller behaviour, through breach of various Byelaws to and including serious multiple fare evasion matters, I have never known it happen, nor has any Legal Advisor / Clerk of the Court at any of the Courts involved raised the matter.

 

Many thousands of 'unpaid fare / penalty fare notice' cases, where the notice has been cancelled because it hasn't been paid within the time laid down within the rules defined by the Railways Act, have resulted in conviction of either 'failure to comply with Byelaw' or 'intent to avoid payment'.

 

My opinion in respect of likelihood is based on assessment of that record.

 

The OP is seeking to avoid a Magistrates Court hearing as far as I can see and whatever opinions we might hold about other issues, it is that fact that we should not lose sight of.

 

Magistrates court huh! Correct me if I'm wrong but magistrates are volunteers. They don't necessarily have any legal background do they?

 

I went up in front of magistrates once on a speeding matter. On the day the prosecuting lawyer accepted my defence of the charge which was brought against me and promptly substituted it with another one which got heard THE SAME DAY. They substituted a charge of speeding with one of failing to inform who was actually driving. I was not even in the car when the offence was committed. I had no prior notice, no idea what statute I was now being charged under, no opportunity to get legal advice and was not advised of what I should have done (ask for adjournment and to be served proper notice of the amended charge). In all probablilty the limitation period for bringing the fresh charge had already expired. Nobody told me that either and I got done.

 

So please don't tell me that what happens in a magistrates court is necessarily consonant with the law and how it should/can be interpreted. True in all probability absent a fairy godparent on the magistrates panel in a case like this you are probably going to get the short end of the stick unless you have access to good legal advice .

 

The OP's question has been moved to a different thread, this one has been marked for discussion.

[mere]

So you are now claiming that you didn't forget it but couldn't afford it otherwise that part sentence is silly and nothing whatsoever to do with anything.

 

Wow! You really need it explained to you that there is a very high probability that a person who qualifies for a railcard (senior citizens, young people) can't afford full on the day fares.

 

Basic state pension 113.10 a week.

On the day full fare Leeds to London. 124.50

[Conniff]

Who says you 'will' get a magistrate, District Judges also take these courts.

 

 

You must be a politician as you know everything and wont even take into consideration what an expert has told you.

 

 

As I said in an earlier post, I have no idea why you are here, I think this is just a wind up to see how far you can go.

[mere]

Sadly, I don't know how many times we will have to explain to you that it is not a failure to comply with those T&Cs that would be charged on any Summons.

 

I shall leave this thread there. It seems that it is pointless trying to assist further.

 

That was a red herring. I made the mistake of indulging a rather abusive fellow who has trouble understanding the relative seriousness of fare related offences versus driving without a licence.

[mere]

Who says you 'will' get a magistrate, District Judges also take these courts.

 

 

You must be a politician as you know everything and wont even take into consideration what an expert has told you.

 

 

As I said in an earlier post, I have no idea why you are here, I think this is just a wind up to see how far you can go.

 

Tell that to the person who brought magistrates into the conversation.

[Conniff]

Wow! You really need it explained to you that there is a very high probability that a person who qualifies for a railcard (senior citizens, young people) can't afford full on the day fares.

 

Basic state pension 113.10 a week.

On the day full fare Leeds to London. 124.50

 

 

So now you are saying you got on the train without the means to pay, so you're at last admitting that you are a fare dodger.

[mere]

Don't you think you and Bazza are getting rather hysterical about this. You both seem to have the same operandi too ...

 

Ok last time today.

 

On the day full fares can be 10-15 times the advance/railcard discounted fare so factor that into your affordability equation and please try not to pose scenarios that have such obvious responses because you'll only get more and more annoyed when they are given.

 

Also stop accusing me of anything. I'm not the OP.

 

I'm done. We are way past the point of diminishing returns.

[Conniff]

 

I'm done.

 

 

At last.