used dad's 'free' oyster card - well im now in trouble - ** RESOLVED BEFORE COURT **

[firstclassx]

Aiding and abetting is American

 

we have conspiracy or incitement under the Criminal law Act in the UK

 

With any criminal prosecution ,intent, or Mens rea has to be proven by all parties to secure a prosecution

 

Please stop contributing nonsense.

 

First, not all offences require any mens rea. Strict liability offences (like most trivial railway matters, but not this particular case), just require you to break a rule. Whether you do so deliberately or not is irrelevant. Accidentally dropping a crisp packet on the floor of a railway station is a criminal offence, even if you are not aware you dropped it. (Railway Byelaw 6(7)).

 

Aiding and abbetting has been around for a long time, and there is case law, where people have transferred tickets on the railway and have been found guilty of various dishonesty/fraud offences.

[BazzaS]

Aiding and abetting is American

 

we have conspiracy or incitement under the Criminal law Act in the UK

 

With any criminal prosecution ,intent, or Mens rea has to be proven by all parties to secure a prosecution

 

What tosh!.

 

 

"Aiding and abetting is American" .... perhaps the Americans were influenced by a UK statute from 1861?

Accessories and Abettors Act 1861 (as amended)

http://www.legislation.gov.uk/ukpga/Vict/24-25/94/section/8

 

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

 

(although it does need to be an indictable offence for this act to apply ...)

 

Perhaps you have confused yourself and were thinking of 'accessory after the fact ', which does exist in US law, but not UK law (where it is instead dealt with under 'assisting an offender').

 

 

"With any criminal prosecution ,intent, or Mens rea has to be proven by all parties to secure a prosecution[" ... again, tosh.

 

Intent doesn't have to be shown for strict liability offences (such as Railway Bylaw 17/18, or speeding).

[Msduvet1703]

Hi HB

 

 

I have been given 10 days to respond. So far this is what I've come up with...

 

 

Dear Sir/Madam

In response to your letter dated 17th August, please find below my brief version of events as I recall them.

My dad offered me his oyster card after I mentioned I was planning a daytrip to London from Birmingham to visit Old Spitalfields market. I took it at as the kind gesture he intended.

On Saturday I entered the Underground at Euston Station, changed at Kings Cross and got off the tube at Liverpool St. Upon trying to exit at the barriers it said ‘seek assistance’. I decided to seek assistance in the form of buying a ticket as the card clearly wasn’t working and I wanted to continue my journey. I turned round in search of a ticket booth/machine as I was not familiar with the station.

After walking a few feet away from the barriers I was approached by 2 men, one of whom asked if he could see my oyster card. After answering questions with regard to my journey and how long I had been using the card for (just that journey) I was cautioned and subjected to further questioning. The inspector said that I was using a pass that allowed my dad free travel on the tube and I agreed. I agreed that by using the pass I had not bought a ticket for myself and by that point I knew that I had made a huge mistake.

I realise that I have made a grave error in judgement by choosing to use the pass and I am extremely remorseful. By not paying for my journey, TfL have not received my fare plus someone else is paying for the Oyster card, which I know is wrong. I cannot apologise enough.

I seldom visit London, but when I do I purchase a ticket for the underground – bar this one occasion. This has been my first offence and I wish to offer my unreserved apologies. I would never think to walk into a shop and start using a product or service without paying, but this is effectively what I have done here and I deeply regret my actions. I understand that there must be consequences to my actions in order for TfL to recover their losses and to make it clear that fare evasion is a serious matter.

To know that I have stupidly contributed to the millions of pounds worth of fare evasion losses experienced by TfL is not something I am proud of at all. I take full responsibility for my actions and have no one to blame but myself for making such a poor decision. I assure you that I am usually a law abiding citizen and I have absolutely no intention of repeating this mistake. Again, I would like to offer my sincere apologies.

To be prosecuted and receive a criminal record would severely damage my career prospects and reputation. It’s highly likely that I will no longer be able to secure further contracts once my current one expires in December due to the stringent checks that I have to pass to work on projects dealing with confidential customer records. The thought of ruining my future has caused dreadful anxiety and sleepless nights over the past few days.

If possible, I would be grateful for the opportunity to rectify my transgression by paying any costs incurred as a result of my stupidity including administrative fees and of course the fee of my ticket, as well as any penalty fine that you deem appropriate.

Yours Sincerely

 

Ok, but does anyone have any advice on my letter please?

[unclebulgaria67]

Good grovelling letter and hopefully will be well received.

 

Begs the question as to whether someone with your obvious intelligence did not realise you were committing an offence when you decided to use a free card. Not trying to be judgemental, but trying to think how someone in a bad mood might take the letter. They receive such letters on a daily basis.

 

All you can do is send the letter and hope it is dealt with by a reasonable person. I can't suggest any changes, because i would probably send a similar letter myself. You admitted the mistake and i cannot see them going forward with a prosecution, when it would seem an administrative solution would be best for both parties.

[honeybee13]

I agree, good letter. Old-CodJA usually also suggests apologising for taking up the time of the people who dealt with you and promising you will always have a valid ticket in future.

 

HB

[Msduvet1703]

Good grovelling letter and hopefully will be well received.

 

Begs the question as to whether someone with your obvious intelligence did not realise you were committing an offence when you decided to use a free card. Not trying to be judgemental, but trying to think how someone in a bad mood might take the letter. They receive such letters on a daily basis.

 

All you can do is send the letter and hope it is dealt with by a reasonable person. I can't suggest any changes, because i would probably send a similar letter myself. You admitted the mistake and i cannot see them going forward with a prosecution, when it would seem an administrative solution would be best for both parties.

 

Completely agree. I can be a bit of a div sometimes. My husband always complains that I never question anything and need to think more. If it were more humorous circumstances I would definitely be getting an 'I told you so'

[Msduvet1703]

I agree, good letter. Old-CodJA usually also suggests apologising for taking up the time of the people who dealt with you and promising you will always have a valid ticket in future.

 

HB

 

Thanks for that suggestion. I've tweaked it slightly

[Msduvet1703]

Right letter is posted. I've decided to ring some criminal lawyers based in London tomorrow. TfL seem to prosecute most people and I don't think my circumstances pose an exception. Also can't see the letter making a blind bit of difference but at least I've said my piece.

 

I'll be back when I hear more

[firstclassx]

Right letter is posted. I've decided to ring some criminal lawyers based in London tomorrow. TfL seem to prosecute most people and I don't think my circumstances pose an exception. Also can't see the letter making a blind bit of difference but at least I've said my piece.

 

I'll be back when I hear more

 

There is really no point in ringing any solicitors etc just yet.

 

You would be far better off waiting for the TfL response to your letter, (which may be 2-3 months away), and then deciding what to do.

 

A solicitor cannot help you at the moment, primarily because:

 

1) You don't know if you will actually be prosecuted;

2) You don't know what offence(s) will be put forwards;

3) You don't know whether your father will also be prosecuted or at least interviewed as to his involvement;

 

Whilst most solicitors will give one free, short consultation, you would be well advised to wait until you have all the paperwork, summons, evidence pack etc, and then go to a solicitor so that they can assess everything. At the moment a solicitor would be making pure speculative guesses and will not be able to assist. If they are not specialists in dealing with these cases, some law firms can actually make the situation worse by sending letters to the prosecutors etc which are inappropriate.

 

A lot of the legal profession are not aware that there are ;

 

a) Specific railway offences which are usually privately prosecuted

b) Good case law supporting the prosecution of the offences;

c) That the railway prosecution teams are usually in possession of vastly superior legal knowledge (unsurprisingly) when it comes to presenting this sort of case.

 

My final contribution to you will be to warn you, or any person you may instruct, to do ANYTHING else until you have a reply from TfL, (whether that reply is a summons or otherwise).

[Stigy]

(Aiding & Abetting) and there is case law on this.

Aiding and Abetting isn't a charge applicable in a summary offence (such as an offence under Byelaws or the Regulation of Railway Act 1889) as the offence for which an offender had been "aided" has to be that of an indictable one (an offence triable by a Crown Court in layman's terms). However the OP's dad could face charges under the Byelaws for the transferring of the Freedom Pass as has been stated already. I very much doubt this will be the case, but wouldn't be surprised if TfL didn't renew the pass or return it.

 

Edit: I notice you used an example of Aiding and Abetting under the Fraud Act. This is the only way Aiding and Abetting would come in to effect in a case such as this, and I highly doubt an operator would go to these lengths for what is to all intents and purposes, one of a trivial nature compared to mass fraud committed on a much larger scale.

[firstclassx]

Aiding and Abetting isn't a charge applicable in a summary offence (such as an offence under Byelaws or the Regulation of Railway Act 1889) as the offence for which an offender had been "aided" has to be that of an indictable one (an offence triable by a Crown Court in layman's terms). However the OP's dad could face charges under the Byelaws for the transferring of the Freedom Pass as has been stated already. I very much doubt this will be the case, but wouldn't be surprised if TfL didn't renew the pass or return it.

 

Edit: I notice you used an example of Aiding and Abetting under the Fraud Act. This is the only way Aiding and Abetting would come in to effect in a case such as this, and I highly doubt an operator would go to these lengths for what is to all intents and purposes, one of a trivial nature compared to mass fraud committed on a much larger scale.

 

I had TfL Railways Byelaw 21(2) more in mind as to what TfL is more likely to investigate in regards to her dad.

 

(2) No person shall transfer or produce a ticket on behalf of another person intending

to enable that other person to travel without having paid the correct fare.

 

However, S7(1)(b) Fraud Act 2006 - "Making or supplying articles for use in frauds"

or

S11(1) - Obtaining services dishonestly - "A person is guilty of an offence under this section if he obtains services for himself or another " etc etc...

 

...is also potentially applicable, but, as you say, unlikely to be progressed, UNLESS, he subsequently applies for another TfL concessionary pass and makes a false statement to obtain a replacement, or if there has been previous misuse.

TfL do use the Fraud Act 2006 "in house", more than any of the National Rail TOCs, (who tend to progress such cases to BTP to avoid Crown Court legal representation costs).

 

I find it useful to provide the full range of legislation and potential outcomes to visitors, especially those with a legal background.

[Msduvet1703]

Not that it makes much difference but it isn't a freedom pass it's something to do with the fact he gets a war pension

[king12345]

Aiding and Abetting isn't a charge applicable in a summary offence (such as an offence under Byelaws or the Regulation of Railway Act 1889) as the offence for which an offender had been "aided" has to be that of an indictable one (an offence triable by a Crown Court in layman's terms). However the OP's dad could face charges under the Byelaws for the transferring of the Freedom Pass as has been stated already. I very much doubt this will be the case, but wouldn't be surprised if TfL didn't renew the pass or return it.

 

Edit: I notice you used an example of Aiding and Abetting under the Fraud Act. This is the only way Aiding and Abetting would come in to effect in a case such as this, and I highly doubt an operator would go to these lengths for what is to all intents and purposes, one of a trivial nature compared to mass fraud committed on a much larger scale.

 

As stated above: Try Magistrates court act 1980 (44)(1)

[Old-CodJA]

Firstly, I have to say that I agree with firstclassx

 

This is exactly the sort of offence that inspectors on TfL and the Train Operating Companies are commonly deployed to detect and report for prosecution

 

The OP has been entirely honest posting here and admits that she accepted the pass from her father with the express intention of using it to avoid paying her fare. Mens Rea is evident. The OP has admitted that she confirmed this undercaution and that it was recorded by the inspectors contemporaneous notes, which I believe were signed and accepted as a true record.

 

This is an offence contrary to Section 5 (3)(a) of The Regulation of Railways Act (1889) and the most relevant case precedent is the Appeal Court judgment in the case of Browning (1946).

 

The OP may wish to consider legal advice once she receives a letter from TfL and might like to come back to the forum to tell us exactly what the letter alleges before proceeding. We may be able to assist.

 

In exceptional cases TfL prosecutors may be persuaded to allow an administrative disposal, but prosecution of that offence is the normal action.

 

This is not a Byelaw offence and does result in a criminal record if convicted, however they may also lay a Summons alleging a Byelaw offence in relation to failing to pay a fare before travelling.

 

If that process is followed they may be persuaded to drop the more serious offence if the OP pleads to the strict liability matter and might allow that to be resolved by alternative means.

 

I would forget all about the 'aiding & abetting' debate, there is a separate Byelaw offence of transferring a ticket to another person with the intention that that other person may avoid their fare and if the company wished, they might pursue that, but in my experience, it's unlikely in this case

[Old Cogger]

if you cannot do the fine/time then do not do the crime!

[unclebulgaria67]

I would think that a good percentage of people would not believe they were committing any crime. It was a free travel card that was not being used at the time by the person it was issued to and TFL would be compensated by government for services used.

 

Not justifying it or saying ignorance is any defence. But perhaps TFL and other transport operators need to publicise the issue to create greater awareness.

[Old-CodJA]

With regard to intent it is worth remembering the words of one time Master of the Rolls Lord Denning, who said words to the effect that "We should not be required to look into a person's mind, but that person will be judged by their words and actions."

 

Someone may not intend to avoid a fare at the time they decide to travel, but an intent can arise at any time, it may simply mean that an opportunity arises and the person takes that opportunity not to pay thereby changing their intention.

 

This is also illustrated to some extent in a judgment by the Appeal Court in the case of Corbyn (1978).

 

In this case it appears the OP did set out with intention not to pay her fare, because she accepted and used a pass, paid for by public funds and issued for the sole use of her father. I understand that she may not have recognised the serious nature of the offence, a Masters in Law does not necessarily mean expertise in low level criminal matters, but it is the travellers actions that will be closely studied.

 

As HB indicated earlier, frankness and honesty now and a willingness to accept responsibility and make good any losses for the company may lead to a mutually acceptable conclusion, but we will not know until the OP receives the letter. We also do not know what the full content of the inspector's report may show.

[Old-CodJA]

I would think that a good percentage of people would not believe they were committing any crime. It was a free travel card that was not being used at the time by the person it was issued to and TFL would be compensated by government for services used.

 

Not justifying it or saying ignorance is any defence. But perhaps TFL and other transport operators need to publicise the issue to create greater awareness.

 

 

You may be right about needing more publicity, although marketing departments and customer relations staff seem to want to run a mile from telling people 'You need to abide by the rules for your own sake"

 

All of these passes are strictly for the use of the named traveller only and most require or include photographic identification.

 

I expect that the high numbers of cases of prosecution & conviction for misuse of Freedom Passes (paid for by public money), which do get reported in Court results and which is always in the public domain, might have an effect in keeping numbers lower than they otherwise might be.

 

There is a drive to protect and minimise losses in all public funding as we all know

[Msduvet1703]

Update: £300 fine and a warning letter received off the back of my letter to them. Quick turnaround.

[unclebulgaria67]

Update: £300 fine and a warning letter received off the back of my letter to them. Quick turnaround.

 

Better than a prosecution. So a result that is hopefully pleasing, given that you could have ended up with a criminal conviction.

[king12345]

You are very lucky!

[honeybee13]

Hello again.

 

I'm pleased you managed to resolve this, thank you for updating the thread because it will help future Caggers who find themselves in the same position as you were.

 

Take care, HB