The Single Justice Procedure scandal affecting railway users in England

This refers to two separate issues relating to invalid conviction of rail users in England.

I present a detailed background of the legislation which allows the train operating companies (TOCs) to prosecute and/or attempt to impose penalties on passengers without tickets, in order to properly understand the context in which the scandal has taken place.

The first part of this is the Penalty Fare scheme. Penalty Fares are in general issued under The Railways (Penalty Fares) Regulations 2018. In some areas other schemes may apply. For example, on TFL trains and at TFL stations, the Greater London Authority Act 1999, schedule 17 has effect instead of the 2018 Regulations.

In this context, e.g., a Overground or Underground station will be TFL-managed, a mixed station might be managed by TFL, by another company (e.g., Southeastern), or by Network Rail.

The PF legislation defines two schemes:

• Compulsory Ticket Areas, being signed parts of certain stations
• Penalty Fare-signed stations, which means a PF can be issued in certain circumstances where you have boarded a train at such a station

You must have a ticket to be in a Compulsory Ticket Area, which will be a signed part of a station. Outside of TFL stations (including parts of stations, e.g., Overground platforms at Clapham Junction) it appears that only Chiltern railways have designated CTAs, at their gated stations. This article is focused on the railways ‘in general’, i.e. the TFL laws are not specifically considered.

Signage

Penalty fare stations/CTAs must (PF Regs, Schedule 1) have a standard notice with this logo:

and these phrases:

• “WARNING”
• For Penalty Fare stations: “Please buy your ticket before you travel otherwise you may be charged a Penalty Fare” (for CTA: “You are about to enter a Compulsory Ticket Area” and “You must have a platform ticket or valid travel ticket before passing this point” and “Otherwise you may be charged a Penalty Fare”)
• “A Penalty Fare is £100 plus the price of the full single fare applicable for your intended journey. However, if it is paid within 21 days, the Penalty Fare is reduced to £50 plus the price of the single fare applicable”

and:

• information about where to learn about the circumstances in which a person may be charged a penalty fare
• the logo (and name if the logo doesn’t contain it) of every Train Operating Company which wishes to rely on the Penalty Fare Scheme in respect of that station

Penalty fare issuance

A penalty fare is not valid if the signposting requirements (Regulation 8) were not met:

• a notice compliant with the above must be displayed at each entrance to a platform. Where the platform is within a CTA, a CTA notice must instead be displayed at each entrance to the CTA; and,
• sufficient notices must be displayed so that passengers boarding, or changing trains at the station can see them.

In addition, the following will also mean (Reg. 6) a penalty fare cannot be issued:

• there are no ticketing facilities at the origin station, which includes cases where the passenger’s payment method should be accepted at that time of day but is not (e.g., the ticket machine is not accepting card payments)
• there was authorisation by a notice at the station, by station staff or staff of that train company to travel without a ticket

In cases where a passenger boards at a station where penalty fares don’t apply (no penalty fare signage, etc.), but then changes trains at a station where they do (signage), he will become liable for a penalty fare at the second station UNLESS “the passenger did not have sufficient time to purchase a ticket”. This is fact-dependent, e.g., if you arrive on platform 2 at 13:07, and there is a train leaving at 13:10 from platform 7, you clearly do not have sufficient time so a Penalty Fare cannot be issued.

A penalty fare in England is charged as :

• the full single fare, being the fare:

1. from the station where the person boarded the train, or the previous stop, if the collector does not know which station this was.
2. taking into account the time of day (anytime/off peak/super off peak etc.), the age (5–15 = child), the route of the train (e.g., if you boarded the Reading to Waterloo train at Reading at 3pm, the applicable fare would be ‘Evening Single’ ‘Via Staines’ (£17.30)) (Reg 9(6)). Note this does NOT take into account any railcards the passenger might hold.
3. issued either to the next stop on the train, or to a subsequent stop of the same train at the collector’s discretion.

• plus £100, reduced to £50, if paid within the following 21 days (i.e. if issued on the 3rd, you have till the end of the 24th)

If a passenger is caught in a CTA and intends to travel, the same rules apply. If he does not intend to travel then the penalty fare is the £100/£50 without any separate ‘travel’ element.

There are two separate appeals services, https://www.penaltyservices.co.uk/ and https://www.appealservice.co.uk/, which are appointed by the different TOCs to hear the appeal. During the appeal period(s), the 21 days do not count down.

Appeals Procedure

There are strict procedures set out in the law (Reg 16):

• passengers must apply within the 21 day period following the day of PF issue
• the appeal service must decide the appeal within 21 days starting from the day of appeal

The passenger can appeal for any reason(s) of:

1. “the penalty fare was not charged in accordance with the requirements of these Regulations”. For example, a passenger who boards the 09:01 from Severn Beach arriving at Bristol Temple Meads at 09:43 and then taking the 10:03 to Keynsham, should be charged an Off Peak Single fare from Bristol Temple Meads to Keynsham (£4.90). If an Anytime fare, or a fare from Severn Beach is charged, the penalty fare is not valid
   — this is a mandatory reason, the appeal MUST be allowed if the Regulations were not fully complied with.
2. “the appellant is not the person liable for the payment of the penalty fare” — this is a mandatory reason
3. “the appellant owns a season ticket valid for the journey in question but was not in possession of the season ticket at the time the penalty fare was charged” — this is a mandatory reason
4. “there are compelling reasons why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare.” — this is discretionary: for example, the appellant might have been issued a penalty fare when they had temporarily mislaid their ticket. It would be up to the appeal body to decide whether this is “compelling”. As the Penalty Fare is essentially a penalty for breach of contract, attempting to issue a Penalty Fare in circumstances where e.g., an excess fare as laid out in the NRCoT, would be appropriate should be appealed.

The appellant can make submissions in particular:

• about where they boarded, changed trains, and intended to alight from the train
• that any of the grounds for quashing a PF apply (i.e. authorised to travel, improper signage)

and the TOC has the burden of proof to show that these are untrue.

If the appeal is rejected there are two possible further stages:

• appeal stage 2 — the passenger can appeal within 14 days starting from the date of notice, and this appeal must be concluded within 21 days starting from the date of appeal
• final stage — this must be comprised of three different decision makers, not involved in the previous two stage (a 2–1 majority is sufficient). there is again 14 days to appeal, 21 days to determine the appeal.

Penalty Fare can only be issued by designated staff (RPIs — ‘penalty fare collectors) with appropriate identification:

A penalty fare can be recovered as a civil debt when:

• the initial 21 day period has expired, during which no appeal was submitted, or
• after any subsequent appeal has been resolved in the TOC’s favour, and no further appeal is made within the 14 day period starting with the appeal decision, or
• 14 days after the final appeal has been resolved in the TOC’s favour

The Penalty Fare Regulations create an offence, under Regulation 13. This is failing to give, when required for the purposes of issuing a Penalty Fare, your name, address, and/or date of birth. This is a summary-only (magistrates’ court) offence with a maximum Level 2 fine.

The Railway Byelaws

Byelaws are a form of delegated legislation, where the power to make the byelaws is delegated by an enabling power in an Act to some body or other (e.g., a harbour authority, or a local authority). The enabling Act will limit both the scope of the byelaws and the penalties that it might impose. These limits reflect the fact that byelaws are often made by relatively obscure/unaccountable bodies, yet may impose criminal penalties.

In the case of the Railway byelaws, these are circumscribed by the Railways Act section 46 under Railways Act 2005 Schedule 9, which provides that the Byelaws can impose fines on summary conviction of up to a level 3 fine. They were made in 2005, and have only been modified to add Merseyrail and remove TFL from their scope.

The most relevant byelaws are:

• Byelaw 17 provides that no-one shall be in a CTA without a valid ticket. As noted above, CTAs are rare outside of TFL (which is not covered by these Byelaws)
• Byelaw 18 provides that no-one shall enter a train to travel without a valid ticket

In both cases the only defence is:

• there were no working facilities to issue or validate a ticket at the station where he began his journey; or
• there was a notice at the beginning station allowing him to travel without a ticket; or
• an authorised person (Byelaw 25: staff or agent of the TOC, or other person authorised by the TOC, or a police officer in the course of his duties) gave him permission to travel without a valid ticket

Note that:

• an authorised person can state (Byelaw 23) that to a passenger that they suspect him to be in breach of Byelaw 17/18 (or any other byelaw), and thereby require their name and address (but not DoB). If this is not given, the passenger commits an offence.
• Byelaw 17/18 appear to be ‘strict liability’ (i.e. you need not intend to avoid fare to be guilty), under section 46, it’s provided that “bye-laws may include, in particular (a)bye-laws with respect to tickets issued for entry on relevant assets or for travel by railway or with respect to evasion of the payment of fares or other charges”.
  While this provides “in particular”, i.e. “not limited to”, there is in general in criminal law a strong presumption against strict liability, which should only be rebutted by clear wording in the Act (see e.g., R v K [2002] 1 AC 462). In this context, the Act specifying “fare evasion” suggests that any byelaws relating to “lack of a ticket” should require specific intent to evade fare. As such, it’s reasonable to contend that the byelaws might be found to be ultra vires. Cf. the case of Boddington, where it was unsuccessfully argued that the statutory power to make byelaws “regulating the railways” … “with respect to the smoking of tobacco” could not ban smoking outright. There “regulating” smoking could include its ban, such that a passenger intending to smoke, despite signage to the contrary would be guilty of an offence. (The Act now reads “prohibiting or restricting”, and the “with respect to evasion of the payment of fares or other charges” can no longer read as part of a sentence with “regulating”.)

Regulation of Railways Act 1889

The Regulation of Railways Act 1889, section 5, was passed to make it easier for rail companies to enforce their civil rights to collect fares, which existed under the Railways Clauses Consolidation Act 1845 sections 103 (which remains partly in force, but is not really used), and 104 (which has been repealed), in respect of fare evasion.

RoRA Section 5 is titled “Penalty for avoiding payment of fare”, and applies in cases where the passenger shows some form of intention to avoid payment.

5(1) reads as follows “Every passenger shall, on request by an officer of a railway company, produce a ticket showing that his fare is paid, or pay his fare from the place whence he started, or give the officer or servant his name and address; and in case of default shall be liable to a fine” “not exceeding level 2”.

It therefore has these necessary elements:

1. an officer of a rail company asks for his ticket, but he fails to produce a valid ticket, and
2. having failed element 1, he fails to “pay his fare from the place whence he started”, and
3. having also failed element 2, he further fails to “give his name and address”

5(2) then provides that if he makes all three failures, he may be arrested by the officer.

5(3) defines three different offences:

a) “Travels or attempts to travel on a railway without having previously paid his fare, and with intent to avoid payment thereof” — intent to avoid payment

b) “Having paid his fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof” — travelling over distance with intent to avoid payment

c) “Having failed to pay his fare, gives in reply to a request by an officer of a railway company a false name or address” — intent to avoid payment by giving a false address.

Any 5(3)(a) offence carries a sentence of up to level 3 fine on first conviction, and for subsequent convictions up to level 3 fine, or up to 3 months in prison.

In the case of Corbyn v Saunders [1978] 1 WLR 400, Piers Corbyn (brother of Jeremy) attempted a scheme involving him taking dozens of journeys on short fares where he bought a 10p fare and then at his destination delivered a letter detailing the facts of his journey, and inviting the railway to pursue him for the balance (25p). The court ruled that while his letters did not prove permanent intent to avoid fare, in that the railway could in theory pursue him for the balance as a civil debt, it was sufficient to prove intent to travel without having a ticket at the start of the journey.

“It is clear from the first clause of section 5 (3) (a) that the traveller is not to travel on the railway without paying the fare for the intended journey before he begins that journey. The intention that has to be proved is intention to avoid that obligation, i.e., payment of the proper fare before he begins his journey”.

and “Likewise, if he buys a ticket to a destination, but travels beyond that destination … and fails to tender the outstanding balance of the fare, at latest, when passing the ticket collector on the station of destination, the requisite intent to avoid payment is proved.” (i.e. 5 (3)(c ))

It should be seen that in Corbyn, the court found that it is necessary to have a ticket before you board a train. In this case, for example, if you board a train which departed at 10:12, and the facts show you bought an online ticket at 10:13, you could be found guilty in court under 5 (3)(a).

Meanwhile, unfortunately the Sentencing Guidelines for the Magistrates court have, for many years wrongly summarized the s 5(1) offence as “failing to produce ticket”:

This is not correct: s 5(1) is “when challenged, failing to pay fare and failing to give name and address”, and the passengers effectively demonstrates that they have an intent to avoid fare at the point when they are questioned. For example:

1. passenger boards station having ignored ticketing facilities — he is likely to be at this point guilty of s 5(3)(a).
2. He is then asked for his ticket by a RPI. He does not have one. He has met the first element of s 5(1)
3. The RPI offers to sell him a ticket. He refuses to buy one. This is the second element of s 5(1)
4. The RPI then asks him for his name & address. He refuses. The third element of s 5(1) is now complete.

We can see that the passenger intends to avoid his fare - this has been shown by his refusal to give his details to the RPI.

S 5(1) is an avoidance offence. Why would you not instead charge s 5(3), which is a slightly more serious offence? Because here the facts all take place in the course of the encounter with the passenger, so it can be easier to prove.

Note that if, instead of selling the passenger a ticket, the RPI had issued a penalty fare, he would first ask him for his name and address (and DoB) in order to issue a penalty fare. Since a penalty fare (“his fare”) is to be paid within 21 days, it follows that by refusing to give your details for the issue of the penalty fare, the refusal to provide an address in order to issue a penalty fare would mean that the last two elements of s 5(1) are completed in one go. He would also commit the Penalty Fare Regulations offence of refusing to give an address.

Wrongful use of s 5(1)

The following prosecution of a passenger shows how Northern Trains wrongfully prosecuted passengers under s 5(1):

In this case the passenger had boarded the 13:28 with an Advance ticket valid from Manchester Oxford Road to Manchester Piccadilly, and then on a specific service only from Manchester Piccadilly to Stockport. However, he did not realize that this fact, and instead boarded the first train from Piccadilly to Stockport, instead of waiting for his booked train. As such, he might be held to lack the required intent (“avoiding fare”) to be guilty of an offence under s 5(3)(a), but would be guilty of the strict liability Byelaw 18 offence, as he lacked a valid ticket.

Here, however, the RPI’s evidence was:

• that the passenger did not provide a valid ticket
• the RPI did not offer to sell him a ticket or issue a penalty fare
• the passenger did provide his name an address

Therefore the passenger had not committed any offence under s 5(1), as only one element of the offence was present, not all three, as required.

The misleading description of the offence in official sources as “failure to produce ticket”, appears to have led to people being prosecuted and convicted without having broken the relevant law.

Relationship between Penalty Fares and criminal offences

Under Penalty Fares Regulation 11(1), a penalty fare is not payable when the person is prosecuted for:

1. an offence under byelaws issued under the Railways Acts or Transport Acts, or
2. Regulation of Railways Act section 5(3)(a) (intent to avoid fare) or 5(3)(b) (travelling further than fare paid, with intent to avoid fare), or
3. obtaining services by deception (Fraud Act 2006 section 11)

and, if a passenger is prosecuted, having previously paid a penalty fare, then the penalty part (i.e. the £50/£100) must be refunded within 10 working days of being prosecuted.

Under PF Regulation 11(3), where a passenger files a first-stage appeal to the appeal panel, the TOC will no longer be able to prosecute the passenger for any of the three categories of offences above, in respect of the offence after the appeal is decided by the appeal panel, or the appeal expires (21 days from appeal). (The TOC is able to withdraw the Penalty Fare up to the point of expiry/decision, if it would prefer to prosecute)

It can be seen that PF Regulation 11 does not prevent a Penalty Fare being issued alongside “no address” (RORA 1889 s 5(1)) or “wrong address” (RORA 1889 s 5(3)) prosecution. This is logical— a Penalty Fare is part of the fare, that is to say the TOC has a contractual right to recover it, in cases where it has been properly issued. Giving no, or a false, address would obviously tend to frustrate these rights, so it is only proper that where the address is not given, the TOC can attempt to pursue by both routes.

In the context of the previous example it might be that by wrongly prosecuting passengers who had provided their name & address under RORA s 5(1), that the TOCs took two bites of the cherry, e.g., following the issue of a PF, and an unsuccessful appeal by the passenger, the TOC decided to then prosecute under s 5(1), under the misapprehension that this “failure to produce ticket”. Such a prosecution, under SJPN, is likely to be more remunerative than pursuing the passenger for the civil debt for the penalty fare. However, this is unlawful.

The Single Justice Procedure

The Single Justice Procedure refers to a single Justice of the Peace, i.e. one a magistrate, hearing cases in magistrates’ courts.

This allows for certain prosecutors to prosecute certain minor crimes without the defendant going to court (although they may choose to do so).

Upon receipt of a Single Justice Procedure Notice, the accused has 21 days to respond. If they fail to respond they will almost certainly be found guilty on the paperwork alone.

The prosecutors and crimes are listed in The Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016

Under the Order, the only offences TOCs may (not must!) prosecute via SJP is byelaw offences.

This is extremely clear in the Order, and in particular:

• Regulation of Railways Act offences are not subject to SJP
• the Penalty Fare Regulations offence of not giving details is not subject to SJP (Regulations are not byelaws (made by a body), instead they are made by the Secretary of State)
• any offences other than those listed (e.g., TV licence offences are subject to SJP, but not prosecuted by TOCs)

Despite this clear fact, magistrates’ courts nonetheless accepted large numbers of SJPNs for RORA offences. On 15 August 2024, the Chief Magistrate ruled that 74,000 unlawful prosecutions under RORA s 5(1) and 5(3) had taken place, and that these convictions and sentences are a nullity (void ab initio).

Byelaw prosecutions remain valid.

Effects of the various penalties

Broadly:

• a penalty fare is typically a good outcome for the passenger. Although in some cases the “full single fare” may be punitive in effect (e.g., by boarding a peak-time train instead of the booked train, a single fare of up to £200 might become due), in many cases the fare is minimal (e.g, for the Manchester — Stockport case above, the fare was £2.80). The penalty element is only £50, and this is a civil debt, not representing evidence of any dishonesty.
• penalty fares can also be appealed, and doing so will close the door on criminal prosecutions
• Byelaw 18 is a criminal conviction, but there is no finding of dishonesty, and it will not show up on criminal records
• RORA s 5(1) is a criminal conviction and may be evidence of dishonesty. However, it is non-recordable, as there is no prison sentence applicable.
• RORA s 5(3) is a recordable offence, and likewise may be evidence of dishonesty. The sentence is likely to be a fine, which is spent after 12 months.
• There is in general a six-month limitation period starting from the day after the offence for summary-only offences. Beyond this no prosecution is possible.
• For more serious offences, Fraud Act 2006 or Theft Act 1978 charges could be laid, and there is no time limit on these.

Conclusions

• 74,000 people’s convictions under RORA s 5 (1) & s 5(3) via SJP following prosecutions by Northern, Transpennine, Avanti West Coast, Greater Anglia, Great Western Railway, Arriva Rail Northern, Merseyrail or C2C are expected to be voided.
• It is known that people were wrongly convicted under s 5(1) — the refusal to pay a fare on demand, and to provide an address — when they were not guilty of this, in a full magistrates’ court. In their skeleton argument Northern (and other TOCs may have done the same) admitted that:
  “(iii) There were 226 prosecutions which were brought under s.5(1) of the RRA (not via SJP) where the passenger had offered to pay or had given their name and address and therefore had a complete defence.”
• In general there are three mechanisms to overturn a magistrates’ court conviction (in respect of the s 5(1) prosecutions):
  * an appeal to Crown Court, as a re-trial, but only where they pleaded not guilty. In addition, there is a time limit of 15 business days. However, permission can be applied for an extension.
  * an appeal to the High Court by way of case stated, i.e. only on the law, not a re-trial of facts. However, this has a strict, no exceptions 21 day time limit from the magistrates’ court.
  * the court’s power to correct mistakes under Magistrates’ Court Act 1980 s 142. Here there is arguably prosecutorial fraud (since the prosecution’s own evidence would show that the defendant was not guilty) — see R (on the application of Simon Williamson) v City of Westminster) [2012] EWHC 1444 (Admin). This would provide a power for the court to allow the defendant to vacate their plea of guilty.
• Northern also admitted:
  “ There were 240 prosecutions which were brought under Byelaw 18 of a passenger who had unsuccessfully appealed a penalty fare without notification of cancellation being given by NTL as may be required under Regulation 11.”
  As discussed above, the Penalty Fare Regulations essentially rule out any prosecution for any offence short of serious fraud once an appeal has been submitted, unless the penalty fare issuer withdrew the penalty fare before the appeal was decided.
  Therefore all these convictions, which are likely to have been under the SJP should also be voided. However, it is not clear whether this will be effected.