In April 2015 I was prosecuted for travelling on a train with intent to avoid payment. There was no danger of being convicted and the Northern Rail prosecution fell apart at the first hearing. But, it was an unpleasant experience and showed how Northern Rail used prosecutions to protect its commercial interests.
Photo Pimlico Badger on Flickr.
Background to the Northern rail prosecution
In November 2014 I got on a Northern Rail train without my wallet. When I got on the train I did not know my wallet was on the kitchen table at home. The station – Mirfield – is unstaffed and there are no ticketing facilities. The guard came round, I asked for a ticket and then discovered I could not pay. The guard was relaxed – he could see I was more concerned about having lost my wallet than buying a ticket – and took my personal details.
A few weeks later I got a daft letter from Northern Rail’s Debt Recovery and Prosecution Unit about the seriousness of the offence I had committed. The letter asked for an explanation of why I hadn’t bought a ticket. It did not ask for payment. I wrote back with my explanation: I got on the train intending to and thinking I could make payment, but then found that I could not. I also tried to lighten the tone: Northern Rail should not feel too put out by what had happened. I had made the journey hundreds of times before and it was the first time I had not bought a ticket. For its part, Northern Rail had not sent the train on several occasions. Sometimes circumstances conspire against us and it’s important to keep a sense of proportion?
My letter did not work and in April 2015 I received a summons to appear at Huddersfield magistrates’ court. A summons is the document issued by a court which requires a defendant to attend court on a specified day and time. It also contains information about the alleged offence. My summons charged me with travelling on the railway with intent to avoid payment contrary to section 5(3)(a) of the Regulation of Railways Act 1889.
Northern Rail’s documents
The Northern Rail prosecution did not concern me – I was not guilty of the offence because I had no intent to avoid payment. When I got on the train I intended – and thought I could – make payment. What did worry me were the documents Northern Rail sent with the summons.
The first document was headed “I’ve received a summons what do I do?” It contained these questions and answers:
Q. Will I get a criminal record? A. Yes, if you are convicted of the offence, you would have a criminal record registered in your name. It will never become spent and will always have to be declared.
Q. What are the consequences of a conviction? A. The conviction for fare evasion is for an act of dishonesty which could place your present employment at risk and will certainly affect your future job applications.
Now, the answers to these questions are wrong. And so completely wrong, I cannot see how the person that wrote them could honestly believe the answers were right. In the real world, how long it takes for a conviction to be spent depends on the sentence you get. If you got the absolute maximum sentence possible for an offence under section 5 of the Regulation of Railways Act 1889 – three months imprisonment – your conviction is spent two years after leaving prison. And if you get a fine – the usual sentence – your conviction is spent after a year. The various rehabilitation periods are in section 5 of the Rehabilitation of Offenders Act 1974.
Further, ‘dishonesty’ is not an ingredient of any of the offences in section 5 of the Regulation of Railways Act 1889. Indeed, ‘dishonesty’ did not become a common element of criminal offences until the Theft Act 1968, long after the railway offences were created.
The second document was Northern Rail’s ‘SETTLEMENT OFFER’ which gave me the chance to pay the prosecutor £100 to stop the prosecution. The get-up of this document – including the red ink – was clearly designed to look serious and official. The ‘SETTLEMENT OFFER’ was apparently made under the ‘Railways and Tramways, Regulation of Railways Act 1889’ and the ‘Railway Byelaws Transport Act 2000’. Neither of these are actual Acts of Parliament. There is no statutory basis for the troubling premise of the offer: you can pay money to the prosecutor to stop a prosecution.
In addition to the documents, there were other problems with the Northern Rail prosecution – missing exhibits, out of date forms, etc. The sort of basic stuff which competent CPS prosecutors get right.
What happened at Court?
I went to court on 19 May 2015 and there were dozens of Northern Rail prosecutions listed for hearing. I found an employee of Northern Rail’s prosecution unit to speak to. Judging from his appearance and manner, he was a retired police officer topping up his pension. He tried his best to ‘bend’ me to plead guilty with five minutes of his ‘This is a serious offence. You’d be better off pleading guilty or paying £100. You are guilty because you did not buy a ticket’ routine. He was a bit miffed when it did not work.
He went to fetch the barrister Northern Rail had instructed to appear in court that day. The barrister’s position was that he’d looked at the papers for the first time and was going to recommend that Northern Rail withdraw the prosecution. Because he could not get hold of the person whose decision that was, the case would be adjourned and withdrawn at a later date. I let slip that I’d be asking the court to arrange a hearing for me to make an application to have the prosecution stopped as an abuse of process. Courts have a duty to promote justice and prevent injustice. A prosecution can be stopped where the behaviour of the prosecutor – here Northern Rail – is so unfair and wrong that the case should not be allowed to continue.
I do not know if the barrister had managed to speak to Northern Rail but things had obviously changed when the case was called on. The barrister was extremely keen to end the prosecution there and then. Either by withdrawing it before I entered a not guilty plea, or for me to enter a not guilty plea and then for the prosecution to offer ‘no evidence’ so I would be immediately acquitted of the offence.
So we were in the bizarre position where the prosecutor was trying his best to stop the prosecution – presumably because he did not want the Court to hear about how Northern Rail ran its prosecutions. And I was trying to have the prosecution continued so I could make my abuse of process argument and explain to the magistrates just how poor Northern Rail’s conduct was. After some haggling with the court clerk – who seemed keen to help the prosecutor – the prosecution was withdrawn. And that was the end of the prosecution.
After the court hearing, various things happened. I was interviewed on ‘Law in Action’, Joshua Rozenberg’s long-running Radio 4 legal magazine programme. After the programme aired, Northern Rail withdrew its existing ‘I’ve received a summons what do I do?’ document and withdrew its prosecution policy.
Northern Rail’s approach – starting a private prosecution, providing false information about the seriousness of conviction and charging £100 to stop the prosecution – looks like a revenue-raising wheeze. It was a cost effective strategy: unlike with civil claims, there is no court fee to start a criminal prosecution. Although Northern Rail paid no fee, it obviously costs money for the Court to deal with the case. Where a defendant paid £100 to stop the prosecution, Northern got to keep all the money but pay none of the costs. And I’m sure Northern Rail offering to stop prosecutions for money was an abuse of process. Deciding to prosecute someone for a criminal offences is a serious matter because of the impact a prosecution and conviction can have on a defendant’s life. If the CPS or police were ‘dropping’ prosecutions for payment, it would be a national scandal.
There is no simple or definitive answer to the question ‘What are the purposes of the criminal justice system?’ Certainly, the answer ‘To secure and subsidise the revenue protection and collection activities of private train operating companies’ cannot be right. Indeed the CPS position on the issue is clear from its legal guidance on prosecutions under the Fraud Act 2006:
Prosecutors should guard against the criminal law being used as a debt collection agency or to protect the commercial interests of companies and organisations. However, prosecutors should also remain alert to the fact that such organisations can become the focus of serious and organised criminal offending.
Northern Rail was a joint venture operated by the outsourcing company Serco and the international division of the state owned Dutch railway company Nederlandse Spoorwegen. Serco has falsified data in relation to its NHS contracts and was fraudulently claiming money for tagging offenders who were dead or in prison.
Northern Rail lost its franchise in 2016 and was replaced by Northern, owned by Arriva Rail North, a subsidiary of Arriva UK Trains which is itself owned by Deutsche Bahn AG, the state-owned German Railway operator. Arriva Rail North seems to have adopted a similar approach to Northern Rail in prosecuting unless people without tickets pay an £80 fixed penalty, even where prosecution would not be justified.
It is a peculiarity of rail privatisation that the profits of private railway companies in the UK – money which comes from passengers and public funds – benefit public railway companies in other countries. It is yet stranger that the UK allows its court system to be misused for free to assist this process.
Crown Prosecution Service, Legal Guidance, Fraud Act 2006 (link is to cps.gov.uk)
Northern Rail, Protection, Enforcement and Prosecutions Policy (link to document on this site)
Northern Rail, Settlement Offer (link to document on this site)
Northern Rail, ‘I’ve Received a Summons – What Do I Do?’ (link to document on this site)
Stephen Adams, ‘”Disgraceful” Serco falsified GP out-of-hours figures’ The Telegraph (London, 7 March 2013) <http://www.telegraph.co.uk/news/health/news/9913780/Disgraceful-Serco-falsified-GP-out-of-hours-figures.html> accessed 1 October 2017
Alan Travis, ‘Offender tagging: Serco to repay more than £68m in overcharging’ The Guardian (London, 19 December 2013) <https://www.theguardian.com/business/2013/dec/19/offender-electronic-tagging-serco-repay-68m-overcharging> accessed 1 October 2017