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Railway Byelaws, Legality (or otherwise) of pre-conviction penalties
dramaqueen
post Fri, 11 Jan 2019 - 13:49
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The news that POPLA was hearing Byelaws appeals again was discussed on this thread back in November:
http://forums.pepipoo.com/index.php?showto...124136&st=0

I wrote to John Gallagher, the lead adjudicator (copy of letter posted at post 11) expressing concern that POPLA seem to think it's OK for TOCs to impose their own pre-conviction penalties, which they say the owner is legally obliged to pay. I got a predictable, polite, brush-off which didn’t address the issues I’d raised.

So here is my response. It’s just a few extra points showing how his standpoint on pre-conviction penalties isn't really workable. I've linked it to a PDF version on Dropbox because it's got some links which might be useful. I hope I’ve done it right. I think the links within the letter might have to be copied and pasted - not sure. Anyway, it’s here:

https://www.dropbox.com/s/jp01wucug8bwf5h/2....12.18.pdf?dl=0
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post Fri, 11 Jan 2019 - 13:49
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The Rookie
post Sat, 12 Jan 2019 - 03:21
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QUOTE (dramaqueen @ Fri, 11 Jan 2019 - 13:49) *
expressing concern that POPLA seem to think it's OK for TOCs to impose their own pre-conviction penalties

Hmm, while you could read it like that, I read it differently...... let me explain.

Absent anything that makes these penalties little more than an Obiter comment in the Byelaws (having no defined process etc. to back them up)
1/ Like any other penalty issued by an 'authority' (council, Police, DVLA, in this case by the TOC via an agent) they are issued as an OPTION for the accused to dispose of an allegation as an alternative to going to court, and we should treat them as such (ignoring there is no court case against an owner and the byelaws don't mention anything about it).
2/ As such POPLA is effectively giving accused owners (erm who've done nothing wrong and who can't be taken to court as the Byelaws don't state they can be) a second (or third maybe) bite of the cherry to get the penalty 'offer' cancelled as an alternative to going to court which they won't be anyway.....)

'Pre-conviction penalties' (ignoring PCN's under TMA 2004 for now) are not imposed, they are offered as an alternative to court, and while you can read them as being imposed by a TOC/it's agent that's not the legal position.

The only variant is PCN's under TMA where the accused is 'guilty until proven innocent' in that the penalty stands unless it's successfully appealed (the reverse of the magistrates court process), but none the less there is still access to a tribunal defined by statute as final arbitration.

Any AS (POPLA or ITAL) are not defined by statute and as such can not form the final arbitration, that can only still be court, but as the AS is offering an a way of getting an accusation disposed of without going to court that can only be a good thing IMO, especially as it adds a good 4-6 weeks to the process on the way to the 6 months.


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dramaqueen
post Sat, 12 Jan 2019 - 12:42
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Sorry Rookie – I don't think I've explained myself very well as we are substantially in agreement.

I tried to say in the first paragraph of my letter that there’s a lot of confusion because there are two types of penalty floating about:-

1. Type 1 which as you say is “issued as an OPTION for the accused to dispose of an allegation as an alternative to going to court”. It's an offer which the offeree can reject if he wants to. No-one is legally obliged to pay it. It has nothing to do with owner liability under Bylelaw 14/4/i. All that happens if the penalty isn’t paid is the driver remains exposed to the risk of prosecution. I think we’re agreed on that?

2. Type 2 is where the TOC attempts to impose a penalty. It’s a demand, not an offer. They rely upon Byelaw 14 (4)(i) to claim the owner is legally obliged to pay it. Words are used such as “you are liable”; “the above penalty is now due”; “failure to pay (the penalty) is an offence”; “debt recovery”; “balance outstanding”. Even solicitors’ letters (QDR of course) say things like: “We have been instructed by ZZPS Ltd….in connection with the recovery of the above debt….” “We require you to make payment in full within the next 14 days.”
In these cases it’s perfectly obvious the TOCs/their agents are attempting to impose a pre-conviction penalty. And it’s not allowed - partly because it's an alleged criminal offence we are talking about; and partly because there is no proper avenue of appeal. I think we're agreed on that too?

This is what I was trying to explain to Mr. Gallagher. He seems to have got the two types of penalty mixed up. He says it’s the owner who is liable (when actually, of course, no-one is liable); and that the owner should be warned about the consequences of non-payment including prosecution (which in this context can only be taken to mean prosecution of the owner). He does not accept that a demand for payment of a penalty for an alleged criminal offence is not allowed in this country and that an appeal should be allowed on this point alone.


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The Rookie
post Sat, 12 Jan 2019 - 13:48
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1/ Full 100% and total agreement.....

2/ Ditto, and I also agree that the wordings for the ‘reminders’ aka demands are as if it’s an invoice for a parking charge and not a reminder for a penalty charge, IMO they sail very close to the wind of the fraud act (if not right into it).

While POPLA don’t seem to ‘get’ it, I think ultimately it’s the DFT at fault for not issuing correct guidance on what the penalty is, and more critically is not, actually able to do. Not least the Byelaws don’t inhibit a prosecution of a driver even if the owner pays the penalty making it even more pointless.

This post has been edited by The Rookie: Sat, 12 Jan 2019 - 13:50


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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Glacier2
post Sat, 12 Jan 2019 - 16:15
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It is very unlikely that John Gallagher actually read or replied to your question as normally it is just a POPLA adjudicator that supplies a stock answer on his behalf.
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