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Summons to Magistrate's Court for breaching Railway Byelaw
AnonymousMouse
post Wed, 12 Jun 2019 - 20:22
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Hi and thank you for having me...! I have posted the below (now tidied up after some questions) on MSN and the Rail forums and both sides suggested I ask for specialist advice here. I hope you can help...

I've received a summons to the Magistrate's court over 2 occasions on which my car was parked in a railway station carpark without paying. The TOC itself is taking me to court and there is no mention of any debt collectors or similar, although on searching through paperwork I have received 3 reminders about these occasions from 3 different companies (ZZP, Indigo) which I unfortunately did not engage with. The occasions referred to in the summons are still within the 6 month deadline and the court date is in 2 weeks.

I have no legal knowledge whatsoever and have been looking for advice on what to do/what can be done when you receive a summons to a magistrate's court. I have had answers to the following:

- The summons is for a court that is over 80 miles from where I live. Do I get a say in where this takes place?
I understand I do not.
- The summons is for a date which I cannot make because I have a work engagement. Do I get a say in when this takes place?
I understand I do not, although I can choose not to appear but then the case will carry on without me.
- Apart from reminders of the 'fines' which were raised to £170 each, I have not received any notice of an intention to prosecute or an opportunity to defend myself to the TOC (although I realise I should have asked the debt collectors questions). Have I missed a letter or is this step not necessary for a Magistrate's court?
I understand you can be taken to a Magistrate's court without many warnings.
- Does anyone have any advice on what to do next?
I understand that the Summons is a little odd because it confuses Criminal with Civil, and this influences the process. I also understand there may be a technicality around the missing legal entity after Govia in the summons. I have tried to seek some free advice locally which I was advised, but I cannot find anyone specialist enough and the general advice has been that it may cost more than the fine if I am found guilty (although this can be close to 4 figures). I have also had advice that I could risk pleading not guilty due to the odd summons but that I may not 'win'.

Could anyone help me understand how I could tackle this? The driver did not pay for the two tickets because they always pay by mobile app from the train (a habit that has become established after many years of doing so, and parking in the same place 3-4 times a week) and on those two occasions the app failed and the driver was already underway on the train. The driver has no evidence of this, just evidence that they do pay on all the other occasions via the app.

I have uploaded the 3 letters from debt collectors and the summons, hopefully suitably redacted, into a dropbox: https://www.dropbox.com/sh/ihctpv0mr9rwbtk/...mSUwI2HGza?dl=0
I kept getting this wrong and revealing my identity so I hope I have now done this right and it is all completely anonymous but still clear.

Thank you so much in advance!
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post Wed, 12 Jun 2019 - 20:22
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Gary Bloke
post Wed, 12 Jun 2019 - 20:42
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Are you aware that the same issue is being discussed in the Flame Pit:
Link
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ostell
post Wed, 12 Jun 2019 - 20:57
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So your defence is that a failure of their equipment meant you were unable to pay, a situation over which you had no control.
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Gary Bloke
post Wed, 12 Jun 2019 - 21:10
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See Dramaqueen's Post #4 in the Flame Pit thread linked to above:

So unless the TOC can prove, by referring to clear statutory authority, that the Magistrates have the power to make the order sought, the complaint should be dismissed - literally, summarily. And since there is nothing in the Byelaws to say the "penalty" is a sum recoverable summarily as a civil debt, such statutory authority will almost certainly not be forthcoming.

Therefore anyone this happens to should be advised to raise this as a preliminary issue at the start of the hearing.

This use of the keeper's personal data also looks like a breach of the GDPR, article 6 (1) - it not being a legitimate interest to pursue an order the Mags do not have power to make. It's extremely distressing to be summoned to the Mags. Court when the Complainant knows or ought to know that the grounds are spurious.
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dramaqueen
post Wed, 12 Jun 2019 - 23:17
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You are not being prosecuted for a criminal offence. The question of guilty/not guilty doesn’t come into it.

Though the Magistrates mostly deal with criminal prosecutions they also have limited powers to make civil orders, such as orders to pay child maintenance etc. Here, the train company is asking the Magistrates to make a “civil order”. Unfortunately they don’t actually state what order they are seeking, but they do mention Byelaw 14(4)1). They don't say which set of byelaws but presumably they are referring to the Railway Byelaws 2005, of which Byelaw 14(4)(1) says:
The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.”
You can find it here:
https://assets.publishing.service.gov.uk/go...way-byelaws.pdf

So it’s a pretty good guess they are asking for an order you pay the “penalty” they’ve been chasing you for. There are plenty of reasons why you don’t owe them this, which we can go into.

But first things first: do the Magistrates have the power to make such an order anyway? What sort of “debts” can the Magistrates order a person to pay? For example, if a builder is owed money for work he’s done, can he ask the Magistrates to adjudicate? No. Magistrates don’t have jurisdiction over civil cases like that - it's a matter for the County Court.

As discussed on the other thread, for GTR’s “penalty” to be recoverable in the Magistrates’ Court the statute would have to state that it’s “recoverable summarily (ie in the Mags) as a civil debt.” Nowhere does it say this in either the Byelaws or in the Railways Act 2005.

It’s up to GTR to persuade the Magistrates they have this power. Otherwise their Complaint is going nowhere.

This post has been edited by dramaqueen: Thu, 13 Jun 2019 - 05:40
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Sheffield Dave
post Wed, 12 Jun 2019 - 23:20
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I think the TOC have just shot themselves in the foot. In their own complaint that say that they are acting in accordance with paragraph 2 of Schedule 9 of the Railways Act 2005. That paragraph says:

QUOTE
Bye-laws may provide that a person contravening them is guilty of an offence and liable, on summary conviction, to a fine not exceeding ...


Spot the word conviction. Since you haven't been convicted, nor are they seeking a private prosecution, there cannot possibly be a civil debt owed.


This post has been edited by Sheffield Dave: Wed, 12 Jun 2019 - 23:21
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Sheffield Dave
post Wed, 12 Jun 2019 - 23:35
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... or to put it another way, the TOC have tacitly agreed with us that there's nothing in the enabling legislation which enables the decriminalised penalty scheme envisaged by 14(4)(i). So there isn't a civil debt, and even if there was, as pointed out by dramaqueen et al, it can't be recovered in magistrates court.

Whether the magistrates will "get" this is another matter.
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dramaqueen
post Fri, 14 Jun 2019 - 14:03
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QUOTE (Sheffield Dave @ Thu, 13 Jun 2019 - 00:35) *
... or to put it another way, the TOC have tacitly agreed with us that there's nothing in the enabling legislation which enables the decriminalised penalty scheme envisaged by 14(4)(i). So there isn't a civil debt, and even if there was, as pointed out by dramaqueen et al, it can't be recovered in magistrates court.

Whether the magistrates will "get" this is another matter.

They’re also quite technical legal arguments for the OP to put across.

@OP: I think you should go pre-armed with 3 copies each of:-
i) a statement of preliminary issues, querying exactly what order the TOC is seeking, and asking where the Magistrates' Court is given the power to make it (ie where does it say the sum is "recoverable summarily as a civil debt"?);
ii) a brief witness statement along with exhibits; and
iii) final submissions showing why no-one, not even you, can be liable for a pre-conviction private penalty (assuming that's what the TOC is asking for).

If you’re not allowed to hand them over, at least you’ll have something to read out. I’m happy to draft something for you – I’ve sent you a private message. Perhaps a small email group to pool ideas would be a good idea?

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southpaw82
post Fri, 14 Jun 2019 - 14:15
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QUOTE (dramaqueen @ Fri, 14 Jun 2019 - 15:03) *
@OP: I think you should go pre-armed with 3 copies each of:-

5 copies, unless he’s in front of a district judge, no?


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HappyHarry
post Fri, 14 Jun 2019 - 14:54
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Are any of the legal experts here able to accompany AnonymousMouse on her day in court? I know this is asking a lot but I totally feel for her. I have no legal background or I would offer.


--------------------
“Nobody leaves their house because they want to go and do some parking; parking is simply a means to an end, and it should be as easy as possible.” Rishi Sunak, MP
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southpaw82
post Fri, 14 Jun 2019 - 17:34
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QUOTE (HappyHarry @ Fri, 14 Jun 2019 - 15:54) *
Are any of the legal experts here able to accompany AnonymousMouse on her day in court? I know this is asking a lot but I totally feel for her. I have no legal background or I would offer.

You're implying there is more than one...


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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dramaqueen
post Fri, 14 Jun 2019 - 19:44
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QUOTE (southpaw82 @ Fri, 14 Jun 2019 - 18:34) *
QUOTE (HappyHarry @ Fri, 14 Jun 2019 - 15:54) *
Are any of the legal experts here able to accompany AnonymousMouse on her day in court? I know this is asking a lot but I totally feel for her. I have no legal background or I would offer.

You're implying there is more than one...

You misunderestimate yourself....
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Sheffield Dave
post Fri, 14 Jun 2019 - 23:01
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Given that this section of the forum is concerned almost exclusively with private parking tickets and district courts, you might want to go somewhere like Legal Beagles to get specific help in how to represent yourself in a magistrates court: what paperwork should be submitted in advance, what paperwork you should expect to receive from Govia in advance, what paperwork needs to be presented on the day, how to handle the "incorrect venue for civil debt" preliminary matter, whether and how you can get costs if you win or if they agree its the wrong venue, etc.

We've been able to give you some advice about the specifics of byelaws and parking etc. But note that this business of a civil debt at a magistrates court appears to be a novel tactic by Govia, and what you've been told on this forum is mostly speculation by people (like me) who have no legal training. We may well have sussed it correctly and Govia may get shot down on the day, or they might make a cogent argument that we hadn't considered.

But I think what you present to the magistrates should be something along the lines of:

1) As a preliminary matter: this is the wrong venue. Civil debts are always handled by the county court unless there is specific legislation: but there is no such clause in the Railway Byelaws, nor its enabling legislation, the Railways Act 2005, schedule 9.

2) Govia have not (assuming they don't supply further paperwork in the meantime) provided anything amounting to a reasonable amount of detail to allow you to defend yourself - they haven't said what order they are requesting or even how much money they want, nor in what capacity (driver/keeper/owner) they are trying to make you liable.

3) Even if you had broken a byelaw (which you deny) there can be no debt owed to Govia. The clause of the Railways Act 2005 which Govia are relying on - 9(2) - is explicit that there would be a fine payable only on conviction. But you haven't been convicted, nor are you on trial today. And even if you had been convicted, the fine would be payable to to the state, not Govia.

4) They will argue that Byelaw 14(4)(i) applies. This merely states that the owner "may be liable to pay a penalty". If this clause is enabled by section 9(2) as they claim, then the penalty would only be due after conviction. There is no other part of the Railway Act 2015 that provides or enables any sort of mechanism for the owner to become liable to Govia prior to conviction, or even after. And Govia have conspicuously failed to identify any such clause in the Railways Act.

5) In any case, such a byelaw, even if in place, would be ultra vires. The railway byelaws are there to regulate the behaviour of persons while on railway property - they can't possibly apply to a third party (the owner) who may not even have been on railway property at the time of the alleged offence.

6) You didn't break any byelaws. As per Byelaw 14(3), the driver followed "instructions given by an Operator or authorised person at that place" to pay for parking, by using their recommended phone app once on the train. That their app failed to take your offered payment on a couple of occasions is their problem, not yours.

Costs (assuming you are allowed claim any): they picked an improper venue and one that is a 160 mile round trip from where you live. This has given rise to much unnecessary stress and expenses, including
train and taxi fares, a day's lost salary, preparation time etc.

Finally, if any of the driver, registered keeper and owner are not all the same person, then you could mention that in the places above where driver/owner are mentioned - e.g. "Byelaw 14(3) applies only to the driver, but i was not the driver", or "section 14(4)(i) applies only to the owner, but I was not the owner".

(Again, I am not a lawyer, nor do I have any experience with magistrates court. Hopefully others will chip in too)
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anon45
post Sat, 15 Jun 2019 - 06:38
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Regarding witness statements in particular, there is a danger that giving a witness statement is tantamount to a confession that the 'failure to pay' offence was committed, and committed by the defendant (the problems with the app are, sadly, likely to be seen as mitigation rather than a defence, with the TOC asking "why didn't the OP use an alternative payment method)?

The supposed "penalty charge" cannot be a statutory penalty charge, and ought properly to be considered as a demand for a sum of money not to prosecute, a demand which the OP was under no obligation to meet, and, accordingly, the correct course of action for the TOC to take would have been to prosecute for the alleged offence- their failure to do so does not entitle them to claim a sum of money that was never due in the first place.

I would also add that, if any charge at all should be ordered to be payable, it should be the original £x parking charge (which the driver attempted to pay at the time).

Finally, I wondered whether the OP might consider hiring a local criminal defence solicitor (local to the court) to represent her, and to advise the solicitor on the arguments she wishes him/ her to present, (I say this because it appears that many general solicitors have little knowledge of this specialised matter)?

Being represented would avoid having to take a day of work (a day on which the OP has a prior engagement) to make a long, expensive, trip to answer awkward questions, and would likely result in the defence being presented in a more skilled manner, increasing the chances of success (in actual practice, some magistrates seem to be more receptive to legal arguments from solicitors, (or, in theory, barristers) than to the same arguments put forward by laymen).

With luck, the OP should be able to recover some or all of these costs once the case is dismissed. I'm not sure whether the usual (lamentable, IMO) cap on costs borne by an acquitted defendant would apply to a civil claim brought by a TOC in the wrong venue, where the TOC themselves had asked for hundreds of pounds of costs which were never actually incurred. Perhaps southpaw82 could advise on this point?

This post has been edited by anon45: Sat, 15 Jun 2019 - 06:41
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dramaqueen
post Sat, 15 Jun 2019 - 08:57
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QUOTE (anon45 @ Sat, 15 Jun 2019 - 07:38) *
Regarding witness statements in particular, there is a danger that giving a witness statement is tantamount to a confession that the 'failure to pay' offence was committed, and committed by the defendant (the problems with the app are, sadly, likely to be seen as mitigation rather than a defence, with the TOC asking "why didn't the OP use an alternative payment method)?


The choice is not whether to produce a witness statement, but whether or not to give evidence. If she chooses to give evidence, it may help her to have a prepared statement to read out/hand out.

Should she give evidence? True, it pushes her into admitting what happened. That’s not necessarily such a bad thing. Being open and honest - specially admitting something that might be detrimental to your own case - can help to get the Bench to trust you and draw them on side; whereas not giving evidence can not only appear evasive, it can also leave the Bench suspecting you're a persistent and deliberate non-payer. They won't know there was a reasonable excuse.

It's a difficult choice. On balance, I'd say giving evidence would do less damage than not giving it.

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bobbione
post Sat, 15 Jun 2019 - 09:58
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Without the summons to read then all very unsure

burden is on prosecution to prove meaning they need to produce evidence or question witness to establish beyond reasonable doubt the offence or ,as here, the debt

http://www.legislation.gov.uk/ukpga/1980/43/section/58

if recoverable summarily.

If courts are going to accept on evidence the byelaw offence occurred as part of the recovery summons then the OP pleas guility or not guility.

If the case shouldn't be heard it must be settled before a plea is heard.

I'd leave evidence huting to them . Make witness statement if attending with understanding to be questioned about not guilty plea.

Big question is is the money recoverable summarily? Look into Party Wall Act and any cases heard as they appear to be an instance of a civil debt that can be heard by a Magistrates Court. Pethaps a Party Wall solicitor is a good choice to defend this.
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dramaqueen
post Sat, 15 Jun 2019 - 11:03
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QUOTE (bobbione @ Sat, 15 Jun 2019 - 10:58) *
Without the summons to read then all very unsure

burden is on prosecution to prove meaning they need to produce evidence or question witness to establish beyond reasonable doubt the offence or ,as here, the debt


The summons is in the Dropbox attachment in post 1. It's a summons on complaint, not a prosecution following the laying of an information.

The standard of proof in civil cases in the Magistrates' Court is a balance of probabilities - see Stones, para 1.299.
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anon45
post Sat, 15 Jun 2019 - 11:34
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QUOTE (dramaqueen @ Sat, 15 Jun 2019 - 12:03) *
QUOTE (bobbione @ Sat, 15 Jun 2019 - 10:58) *
Without the summons to read then all very unsure

burden is on prosecution to prove meaning they need to produce evidence or question witness to establish beyond reasonable doubt the offence or ,as here, the debt


The summons is in the Dropbox attachment in post 1. It's a summons on complaint, not a prosecution following the laying of an information.

The standard of proof in civil cases in the Magistrates' Court is a balance of probabilities - see Stones, para 1.299.

In this specific case, Govia are claiming before the magistrates that the charge is a statutory penalty imposed because the OP purportedly committed a (as yet-unproven) criminal offence, albeit one for which they have chosen not to prosecute. Putting to one side the questions of whether byelaw 14(4)(i), if not ultra vires, actually provides statutory authority for such penalties, this raises the question of whether the criminal offence itself (and also the identity of the vehicle *owner*) needs to be proven before the alleged debt may be said to be due, and, if so, by what process and to which standard?

This post has been edited by anon45: Sat, 15 Jun 2019 - 11:36
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dramaqueen
post Sun, 16 Jun 2019 - 07:46
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QUOTE (anon45 @ Sat, 15 Jun 2019 - 12:34) *
In this specific case, Govia are claiming before the magistrates that the charge is a statutory penalty imposed because the OP purportedly committed a (as yet-unproven) criminal offence, albeit one for which they have chosen not to prosecute. Putting to one side the questions of whether byelaw 14(4)(i), if not ultra vires, actually provides statutory authority for such penalties, this raises the question of whether the criminal offence itself (and also the identity of the vehicle *owner*) needs to be proven before the alleged debt may be said to be due, and, if so, by what process and to which standard?


I think the TOC would point to the wording of the Byelaw (the owner of a vehicle parked in breach of Byelaws 14 (1-3) may be liable …..) and argue they don’t have to prove the driver has committed an offence – which would mean prosecution under the criminal rules including criminal standard of proof. Instead, they’ll say, all they have to prove, on a balance of probabilities, is that the vehicle was parked without the necessary fees being paid; and that the Defendant is the owner.

If the magistrates had the power to make an order on that basis, it would produce the absurd result that the perpetrator of the alleged offence is presumed innocent but the owner still has to pay a penalty. This also highlights one of the crucial differences between TOC private penalties and council ones, with which they are often confused: with council penalties no-one is being accused of a criminal offence and the presumption of innocence doesn’t come into it. Nor, with council penalties, does the driver remain vulnerable to prosecution even though the owner has already paid the penalty.

But the magistrates don’t have the power, and this is one very good reason why not.
.

This post has been edited by dramaqueen: Sun, 16 Jun 2019 - 07:53
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bobbione
post Sun, 16 Jun 2019 - 17:24
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Read the dropbox letters

It is a private prosecution

Their burden of proof to establish guilt beyond reasonable doubt

OP needs to

- challenge the summons
Whether the ingredients of an offence known to the law are prima facie present;
Whether the offence is ‘out of time’;
Whether the court has jurisdiction;
Whether the informant has the necessary authority to prosecute; and
Whether in all the circumstances the allegation is vexatious.


or
- establish innocence or sufficient doubt for a not guilty plea

This post has been edited by bobbione: Sun, 16 Jun 2019 - 18:06
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