The issue of revenue protection and the manner in which the rail operators deal with passengers found to be travelling without a valid ticket or evading fares (and it is important to note that the two are not necessarily synonymous) is very much under the spotlight at the moment. In Ballington v Northern Trains Ltd [2024] 8 WLUK 114 the Chief Magistrate ruled that the wrong procedure had been used to secure a large number of convictions for offences relating to travelling without a valid ticket. The case has contributed to a general pattern of concern that the law in this area is apt to cause confusion and that those charged with enforcement lack clear policies on which action to pursue in which circumstances. The whole system of revenue protection and related offences and penalties is now being reviewed by the Office of Road and Rail Regulation (ORR) in a major ‘Review of train operators’ revenue protection policies.’
As will be seen below, the legal framework is indeed complex and travelling without a valid ticket for the journey could give rise to different offences and liabilities. In many cases the rail companies have no clear strategy as to which remedy to pursue in which circumstances. Passengers can be left confused as to whether they can travel when confronted with unstaffed stations and out of order ticket machines. The media is replete with accounts of individuals claiming to have incurred disproportionate penalties for minor infractions and honest mistakes. At the same time, fare evasion is not a victimless crime and costs the rail companies £240m per year, according to the Rail Delivery Group, which is passed on to honest passengers in increased fares.
The Ballington case
The Ballington case arose from the use of the Single Justice Procedure (SJP) which is designed to expediate justice by enabling persons charged with minor offences to plead guilty by post or online without the need to attend court. The procedure was introduced by the Criminal Justice and Courts Act 2015 which slotted it into section 29 Criminal Justice Act 2003. Over several years the procedure had been used to secure convictions against tens of thousands of passengers for travelling without tickets and/or failing to pay the appropriate fares contrary to sections 5(1) and 5(3) Regulation of Railways Act 1889 by inviting them to plead guilty by way of the SJP. Following complaints about the use of the procedure the Department for Transport referred the matter to the Ministry of Justice who instigated the proceedings at hand by asking the Chief Magistrate to adjudicate upon the matter by considering six test cases. In effect the case was a form of judicial review instigated by the government rather than the individuals concerned (given the very precise nature of the procedural defect it is likely that certain of the individuals concerned would have been in a position to instigate judicial review proceedings before the High Court although a great many would have been out of time).
All parties were said to be in agreement that the offences in question were not covered by the SJP and most of the judgment was devoted to the issue of how best to resolve the issue. Before looking at that aspect of the judgment, however, it is worth noting the specific statutes and bylaws at issue in that, given the general level of agreement, these were not fully set out in the judgment.
Ticketing offences
Railway companies are empowered to conduct their own prosecutions and are entitled to use the SJP under article 6 of the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutions) Order 2016. This sets out a closed list of offences for which the SJP may be used and neither of the offences under sections 5(1) and 5(3) of the 1889 Act are among them. Rather, the provision refers to byelaws saved by or created under section 46 of the Railways Act 2005; these include byelaws 17 and 18, implemented under section 219 of the Transport Act 2000, on travelling without a ticket. Byelaw 17 makes it an offence to ‘enter a compulsory ticket area on the railway unless he has with him a valid ticket.’ A compulsory ticket area includes station concourses and platforms etc which cannot be entered unless one is in possession of a valid ticket. Where the premises have not been designated as a compulsory ticket area (such as an open unstaffed station where access to the platforms is not controlled), it is still an offence to board a train without a valid ticket under byelaw 18.
The byelaws clearly overlap section 5(1) of the 1889 Act which also makes it an offence to fail to produce a valid ticket when requested to do so by an official. Both offences are of strict liability although there are also some key differences. For one thing, section 5(2) of the 1889 Act specifically empowers a railway official to forcibly detain someone whom they suspect of committing an offence; byelaws 17 and 18 are not accompanied by any such power, although there is a general power to require persons in breach of any of the byelaws to leave railway premises and to use reasonable force if necessary (byelaw 24). Moreover, the byelaws allow a defence if there were no working facilities for purchasing a ticket at the station where the journey began or there was a notice authorising the commencement of a journey without a ticket. The offences under the 1889 Act, on the other hand, were never updated to reflect the introduction of ticket machines and unstaffed stations.
Finally, section 5(3) of the 1889 Act sets out a more serious offence of specific intent which thus has a mens rea requirement; namely intending to travel without paying the fare or knowingly and wilfully travelling beyond the journey covered by the ticket (in other words overt fare evasion of the most egregious kind) – there is no equivalent of this under the byelaws.
The remedy
Given the consensus that the SJP was not available for the offences in question, much of the Chief Magistrate’s judgment was focused on the appropriate way forward in terms of dealing with the multitude of convictions which were fundamentally flawed. In this respect there was some debate as to whether the power under section 142 of the Magistrates Courts Act 1980 could be used which enables the courts to correct procedural errors by reopening the case and replacing the sentence or order with an alternative which it is empowered to make, such as an acquittal. However, after a thorough review of the case law on the scope of the power, it was held that the provision could only be used to correct minor procedural defects. It could not be used where the proceedings were a nullity from the outset because a power or procedure had been used which was entirely outwith (or ultra vires) the scope of the authority conferred by Parliament.
The whole premise of s. 142(1) is that the case can validly be tried (even if to an inevitable acquittal), it’s just that there has been a mistake (or similar) in the way the court reached its verdict, which Parliament has given the court a power to put right, the purpose aimed at properly brought prosecutions where something has gone wrong, the effect of nullity is as though the proceedings never existed, after all, s142 setting aside and a NG [not guilty] finding does not truly reflect the position for some if not many cases, void ab initio does as does nullity ,some of those prosecuted, had they been prosecuted through the “ normal” route, would have undoubtedly been guilty, does a setting aside and offering of no evidence leading to an acquittal truly reflect the position or does a declaration that the proceedings null as if they never occurred better encapsulate the position? (at para [62]).
The rhetorical question at the end of the above passage was answered in the affirmative. Moreover, given the large number of cases concerned (some 74,000), section 142 might prove to be cumbersome and impractical, whereas: ‘Declaring all relevant prosecutions a nullity requires a simple declaration by the court and that is all, the court could even list all relevant cases together and do so.’ (at para [66])
This did, however, leave open the issue of how best to reimburse passengers in respect of the fines which they had paid. The task has fallen to His Majesty’s Court Service which has been pursuing the painstaking process of using court records to identify and write to every person convicted of an offence not covered by the SJP. See Train Company Prosecutions.
The broader context
The Ballington case has fed into a wider debate about revenue protection, the clarity of the law and whether rail operators have a coherent enforcement policy. Some of the complexities and overlaps of different laws have already been noted above. To this we can add the option of imposing a penalty fair which is in effect a civil penalty carrying no criminal liability; these are governed by the Railways (Penalty Fares) Regulations 2018 SI 2018/366. We are familiar enough with announcements on trains to the effect that travelling without a valid ticket may result in a penalty fare or prosecution, but does a lay person know the difference and are railway employees always clear as to which approach should be used and when?
Some of the confusion which can arise is illustrated by the media coverage. As part of its coverage of the Ballington case, the BBC featured an individual who had presented himself at the excess fares window at the destination station having found the ticket machine at his home station out of order and there being no guard on the train. He was ‘pulled aside’ by revenue inspectors and issued with a penalty fare. Now, in common with byelaws 17 and 18, section 6(2)(a) of the 2018 Regulations establishes a defence if there were no working ticket facilities at the departure station. It is not clear from the coverage whether the individual made this point but that it was contested, whether the inspectors fully informed him of the legal position, or to what extent they actually understood the legal position and properly conveyed it to the individual. In any event, he refused to pay and the matter escalated culminating in a prosecution under the 1889 Act and an offer to plead guilty by way of the SJP, which he rejected. It is not clear whether this refusal contributed to the discovery of the defect in the procedure; suffice it to say, the prosecution was withdrawn and the matter was settled for the grand total of £3.50.
As noted above, the Secretary of State for Transport asked the Office of Road and Rail Regulation (ORR) to conduct a review into how the rail operators deal with suspected fare evasion or failure to show the correct ticket for the journey. This included a call for evidence and an extensive set of questions aimed at persons who have been subject to penalty fares and/or prosecution; the call of evidence closed at the end of January this year and we await the outcome. From the tenor of the questions it is clear that the ORR wants to gain an understanding of what passengers are told, to what extent they understand the consequences of travelling a ticket, when it is permissible to trave without a ticket, and how those who faced a penalty fare or prosecution were treated by the overall legal process including appeals.
Conclusions
Irrespective of the outcome of the ORR investigation it is clear that there are major anomalies in the legislation which require urgent attention. It is frankly, ludicrous that the availability of a defence relating to the unavailability of ticket purchasing facilities rests upon whether the matter is being pursued under the 1889 Act or the more recent byelaws or the penalty fare system. Section 5(1) and of the 1889 Act covers the same ground as byelaws 17 and 18 and should be repealed for the sake of certainty and justice. Indeed, the current conflict between the 1889 Act and byelaws 17 and 18 constitutes a clear breach of the principle of legal certainty. In Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 591 at 638 Lord Diplock stated:
The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it.
This was cited with approval by the House of Lords in R v Rimmington [2006] 1 AC 459 where Lord Bingham noted at [33]:
There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.
His Lordship also noted that a lack of certainty and consistency in offences could amount to a breach of Article 7 ECHR.
Given the conflicting provisions, a passenger faced with deciding whether or not they can board a train having failed to find working ticket facilities, cannot know for sure what the legal consequences will be and whether they will be committing an offence. Any prosecution under section 5(1), in cases where the availability of ticket purchasing facilities is an issue, is thus susceptible to challenge as being contrary to the common law principle of certainty and Article 7 ECHR. Although Article 7 ostensibly concerns the prohibition of retroactive criminal liability and the treatment of conduct as criminal without the conduct having been formally criminalised by legal mechanisms; it has also been interpreted as requiring ‘offences and corresponding penalties’ to be ‘clearly defined by law.’ (see European Court of Human Rights, Guide on Article 7 of the European Convention on Human Rights, at para [26]). Contradictory laws clearly offend this requirement.
Moreover, revenue inspectors are placed in an invidious position by the overlaps and inconsistencies in that their powers to detain depend upon whether the matter is being pursued as an offence under the 1889 Act or the byelaws. At what point do they decide which route to adopt and is this communicated to the subject? The fact that, in the case reported by the BBC, a prosecution was used as a means of escalating the matter after the fact shows that at the material time revenue inspectors had a different view as to how the matter should be dealt with. In other cases such inconsistencies could leave them exposed to liability and even prosecution if they are found to have used powers of detention, for example, without the coverage of the proper procedure. Anecdotal evidence suggests that revenue protection inspectors are instructed not to use the power and to seek assistance from British Transport Police if matters have escalated to an extent where detention is deemed necessary. Nevertheless, the existence of the power leaves another unnecessary contradiction in the law.
Finally, the issue also has to been seen in the context of the wider debate about overly complex fare structures and the ease with which an honest passenger might find themselves travelling with the wrong ticket; such as another notable example covered by the BBC where an individual faced prosecution over a discrepancy of £1.90. Here the ambiguity arose from the fact that, although a ticket was bought with a railcard with time restrictions, the ticket itself was described as ‘anytime.’ Some rail companies have introduced a yellow card system and there are calls for such an approach to be rolled out more widely, although this may depend upon the outcome of the ORR report. In any event, rail operators must avoid creating the impression that the system is designed to catch people out.
As noted at the outset, it must be acknowledged that fare evasion is a major problem and it is to be hoped that the vast majority of enforcement actions are fully justified. In Ballington itself the Chief Magistrate acknowledged that some of those who stood to have their convictions nullified ab initio would have been correctly found guilty had the correct procedure been used. However, the current confusing and contradictory state of the law, combined with unclear enforcement strategies, makes it infinitely more difficult for the legal system to disentangle honest mistakes and minor infractions from overt fare evasion and impedes it from operating in a fair and proportionate manner in a great many cases.