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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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Rookies 1-0 Birmingham

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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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dramaqueen
post Mon, 28 Jan 2019 - 13:27
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QUOTE (The Rookie @ Sat, 12 Jan 2019 - 13:48) *
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.


What hope do we have when a state-run TOC is one of the worst offenders? This is a copy of the standard windscreen ticket issued by London North Eastern Railway: https://www.whatdotheyknow.com/request/5098...e_passthrough=1.
It says:
"By reason of your breach of Railway Byelaw 14... which is a criminal offence...you are required to pay the penalty shown below."
and
"If payment is not received within 30 days, London North Eastern Railway will commence collection procedures (which may include legal action) for the recovery of the sum......"
Accused, found guilty and penalised - all without any hearing at all.

As for appeals: you can only have one go - to Revenue Protection Support Services (aka Southeastern), the very people who deal with the whole scheme on LNER's behalf, and collect the money. They are described as "independent" on the LNER website: https://www.lner.co.uk/customer-service/par...enalty-notices/
Hmmm.

The final reminders are sent out by good old Debt Recovery Prosecution Services (also aka Southeastern). Here, the target for the bogus demand is switched from driver to keeper (on the unfounded assumption the keeper is the owner): https://www.whatdotheyknow.com/request/5098...e_passthrough=1
It actually threatens the owner with prosecution if the fake penalty isn't paid. Not many owners would realise there is nothing they can be prosecuted for.

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cabbyman
post Mon, 28 Jan 2019 - 17:01
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QUOTE (dramaqueen @ Mon, 28 Jan 2019 - 13:27) *
As for appeals: you can only have one go - to Revenue Protection Support Services (aka Southeastern), the very people who deal with the whole scheme on LNER's behalf, and collect the money. They are described as "independent" on the LNER website: https://www.lner.co.uk/customer-service/par...enalty-notices/
Hmmm.


They still require payment within 30 days, even if you have appealed!


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roythebus
post Tue, 29 Jan 2019 - 11:42
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Debt Recovery Protection Services, part of South Eastern, is also part of the Go-Ahead Group.

Maybe an "owner" ought to ask them what "offence" they will be prosecuted for?
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anon45
post Tue, 29 Jan 2019 - 21:12
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Since this is the Flame Pit rather than an advice thread, with greater freedom to debate general principles, I think that there is a big difference between a 'pre-conviction penalty' issued under statutory authority (such as an actual Penalty Fare or council PCN) and a purported 'pre-conviction penalty' issued by a private company without statutory authority.

I'm not legally qualified, but I have had the benefit of receiving detailed written advice from a retired barrister on this topic. Based on that advice, I believe the issuing of fake byelaw 14 penalties by private companies:
1) without statutory authority;
2) either knowing that there is no statutory authority, or, at the very least, being reckless as to whether such statutory authority exists;
3) nevertheless falsely claiming that such statutory authority exists, or, in the alternative, falsely claiming that failure to pay the purported 'penalty' is an offence in its own right;
4) intending to use the threat of prosecution to intimidate the recipient into paying the sum demanded rather than be prosecuted;
5) despite typically having no evidence that the (RK) recipient personally committed any offence, and therefore;
6) in almost all cases, having no intention to actually prosecute (and knowing that such prosecution, if actually brought, would likely fail), and;
7) where the sum demanded, purportedly being a statutory penalty, is neither claimed to be a contractual charge for parking, nor claimed to be a reasonable estimate of loss suffered as a result of the wrongful parking, but instead is intended to make vast profits for the private company concerned;

amounts to an aggressive and/ or misleading commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 (for which mens rea is not an essential element of the criminal offence), or even a outright fraud (for which mens rea would need to be proven).

In the alternative, insofar as the recipient may indeed have committed an offence, I wondered whether it could nevertheless amount to the improper "sale of justice". After all, if I, as a private citizen, saw my neighbour (say) drop litter, I would myself be committing a crime if I demanded that my neighbour pay me £100 in lieu of me bringing a private prosecution. How is this any different? (Penalty Fares are indeed different because they have statutory backing).

A punitive contractual charge for parking would likely be enforceable, at least in principle, against the driver, and, in the alternative, a reasonable claim for loss would likely also be enforceable against the driver, but an attempt to (mis)use the criminal courts with the intention of securing private enrichment and betterment in the form of a profitable "out-of-court settlement", or to use threats and lies to secure private enrichment and betterment, is not.

I suppose the next question is "well, yes, but what can realistically be done about it in practice?"

This post has been edited by anon45: Tue, 29 Jan 2019 - 21:18
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dramaqueen
post Wed, 30 Jan 2019 - 10:11
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QUOTE (cabbyman @ Mon, 28 Jan 2019 - 17:01) *
They still require payment within 30 days, even if you have appealed!


And yet ITAL - the appeal service recently chosen by Indigo/Saba to replace POPLA for Byelaws tickets - say the opposite: "Please note that paying for a notice is deemed an admission of liability, and you will no longer be entitled to appeal the notice". (It's the first of their FAQs, here: https://www.asparking.co.uk/Faq )
How on earth is the poor motorist supposed to know what to do?

LNER also, misleadingly, suggest a further appeal can be made to Transport Focus, whom they describe as an independent ombudsman. It's in the last 2 FAQs, here: https://www.lner.co.uk/customer-service/par...enalty-notices/ I have checked with Transport Focus, who say: We are a passenger watchdog as opposed to an ombudsman and so do not have the powers to advise any train company to revoke or refund a parking fine, which we may feel is unjust. ......
.....If a passenger disagrees with the outcome of their parking fine appeal to the train company, they should be made aware of Transport Focus as part of the escalation process. As part of our process, we would then gather evidence from the passenger and make representations on their behalf."

So not an appeal process at all. They simply assist by making further representations to the TOC on the appellant's behalf.

These guys just make it up as they go along.

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dramaqueen
post Wed, 30 Jan 2019 - 10:23
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QUOTE (roythebus @ Tue, 29 Jan 2019 - 11:42) *
Maybe an "owner" ought to ask them what "offence" they will be prosecuted for?


Exactly. It's not an offence to be the owner of a car that was allegedly parked in breach of the Byelaws. If it was, the Prosecution would only have to prove a) the Defendant is the owner and b) the allegation was made. They would not have to prove the truth of the allegation, which would be absurd.
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dramaqueen
post Wed, 30 Jan 2019 - 11:55
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QUOTE (anon45 @ Tue, 29 Jan 2019 - 21:12) *
I think that there is a big difference between a 'pre-conviction penalty' issued under statutory authority (such as an actual Penalty Fare or council PCN) and a purported 'pre-conviction penalty' issued by a private company without statutory authority.


Absolutely agree. I think this is exactly how TOCs have got away with their fake penalties for so long. The average motorist isn't going to appreciate the difference.

With pre-conviction parking penalties the TOC is saying: "You have committed a criminal offence and must now pay a penalty". As discussed, that is completely unlawful: only the Court can decide whether or not a criminal offence has been committed; only the Court can impose the punishment.

Penalty fares are completely different. They aren't really pre-conviction penalties in this sense because the person is not being accused, presumed guilty, and penalised for a criminal offence without trial. Instead the TOC is saying: "Since you didn't buy a ticket at the regular price we are now going to charge you a higher price." It's a civil (as opposed to criminal) arrangement, fully authorised by statute, and subject to civil recovery - see http://www.legislation.gov.uk/uksi/2018/36...ulation/12/made

As for a council PCN, it is not a "pre-conviction" penalty because the contravention is not a criminal offence and prosecutions are not permitted - see reg 7, here: https://www.legislation.gov.uk/uksi/2007/34...gulation/7/made . So convictions don't come into it - it's a purely civil matter - a civil penalty created by statute and subject to civil recovery. (And since it results in a civil liability there is, alongside, an "independent and impartial tribunal established by law" as required by Article 6 European Convention on Human Rights.)

This post has been edited by dramaqueen: Wed, 30 Jan 2019 - 12:33
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dramaqueen
post Wed, 30 Jan 2019 - 12:15
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QUOTE (anon45 @ Tue, 29 Jan 2019 - 21:12) *
I believe the issuing of fake byelaw 14 penalties by private companies:
1) without statutory authority;
2) either knowing that there is no statutory authority, or, at the very least, being reckless as to whether such statutory authority exists;
3) nevertheless falsely claiming that such statutory authority exists, or, in the alternative, falsely claiming that failure to pay the purported 'penalty' is an offence in its own right;
4) intending to use the threat of prosecution to intimidate the recipient into paying the sum demanded rather than be prosecuted;
5) despite typically having no evidence that the (RK) recipient personally committed any offence, and therefore;
6) in almost all cases, having no intention to actually prosecute (and knowing that such prosecution, if actually brought, would likely fail), and;
7) where the sum demanded, purportedly being a statutory penalty, is neither claimed to be a contractual charge for parking, nor claimed to be a reasonable estimate of loss suffered as a result of the wrongful parking, but instead is intended to make vast profits for the private company concerned;

amounts to an aggressive and/ or misleading commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 (for which mens rea is not an essential element of the criminal offence), or even a outright fraud (for which mens rea would need to be proven).

In the alternative, insofar as the recipient may indeed have committed an offence, I wondered whether it could nevertheless amount to the improper "sale of justice". After all, if I, as a private citizen, saw my neighbour (say) drop litter, I would myself be committing a crime if I demanded that my neighbour pay me £100 in lieu of me bringing a private prosecution. How is this any different? (Penalty Fares are indeed different because they have statutory backing).

A punitive contractual charge for parking would likely be enforceable, at least in principle, against the driver, and, in the alternative, a reasonable claim for loss would likely also be enforceable against the driver, but an attempt to (mis)use the criminal courts with the intention of securing private enrichment and betterment in the form of a profitable "out-of-court settlement", or to use threats and lies to secure private enrichment and betterment, is not.

I suppose the next question is "well, yes, but what can realistically be done about it in practice?"


(Sorry - my last posts should have been in one but I haven't figured out how to do multi-quotes.)

Great post - thank you. But as you say - what can be done? Specially when a state-run TOC is one of the worst offenders. It goes to show how the rule of law counts for little when Big Business rules.

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cp8759
post Wed, 30 Jan 2019 - 12:36
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QUOTE (dramaqueen @ Wed, 30 Jan 2019 - 11:55) *
Penalty fares are completely different. They aren't really pre-conviction penalties in this sense because the person is not being accused, presumed guilty, and penalised for a criminal offence without trial. Instead the TOC is saying: "Since you didn't buy a ticket at the regular price we are now going to charge you a higher price." It's a civil (as opposed to criminal) arrangement, fully authorised by statute, and subject to civil recovery - see http://www.legislation.gov.uk/uksi/2018/36...ulation/12/made


There's a simple mechanism bus companies use outside London (where don't have any statutory powers). They have a big notice on the bus saying the standard bus fare is £20 or £50 or whatever, and the bus ticket you can actually buy from the driver for £2 is a "discounted" ticket. This way if you're caught without a ticket, you have to pay the "standard" fare as you've forgone the "discount".


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Redivi
post Wed, 30 Jan 2019 - 17:29
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LNER also, misleadingly, suggest a further appeal can be made to Transport Focus, whom they describe as an independent ombudsman.
It's in the last 2 FAQs, here: https://www.lner.co.uk/customer-service/par...enalty-notices/

I have checked with Transport Focus, who say: We are a passenger watchdog as opposed to an ombudsman and so do not have the powers to advise any train company to revoke or refund a parking fine, which we may feel is unjust. ......
.....If a passenger disagrees with the outcome of their parking fine appeal to the train company, they should be made aware of Transport Focus as part of the escalation process.
As part of our process, we would then gather evidence from the passenger and make representations on their behalf."

So not an appeal process at all. They simply assist by making further representations to the TOC on the appellant's behalf.


The "appeal" might have been useful to waste some more time before the six months deadline
Not so useful if it means providing the keeper's details to the TOC - something that Indigo isn't allowed to do

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