Rail bosses could face jail over ticket dodger prosecutions

Telegraph

2 days ago

Rail bosses have been warned they could face prison time for using unqualified staff to prosecute alleged ticket dodgers, The Telegraph can reveal.
Company directors have been warned by Department for Transport (DfT) lawyers that they may be 'criminally liable' for letting non-lawyers act as court prosecutors against passengers accused of not paying the right fare.
Thousands of criminal cases brought against rail travellers before April 2016 could be erased 'because they were instituted unlawfully', according to an internal DfT memo seen by The Telegraph.
In a crackdown, the Transport Secretary has now warned train bosses that 'any [ticket] enforcement must be proportionate and not punish those making genuine mistakes'.
Britain's notoriously complex railway fares system offers 55 million different types of ticket, most of which have separate restrictions, terms and conditions on when and how they can be used.
It comes after 75,000 wrongful fare evasion convictions had to be erased earlier this year after the Government realised train companies were prosecuting cases they had no legal authority to bring.
Heidi Alexander said in a letter published by the Government on Wednesday that train companies must stop using so-called 'lay prosecutors' – staff with no formal legal training as solicitors or barristers – to bring court cases against train passengers.
Such cases include one threatened last year against a 22-year-old Cambridge engineering student accused of underpaying his fare by £1.90.
Using lay prosecutors in the past has broken the law, according to internal DfT legal guidance.
Ms Alexander also accepted 'in full' an Office of Rail and Road report, which recommended simplifying the train ticketing system and concentrating on 'better passenger education' instead of prosecution for honest mistakes.
'My officials wrote to all operators in June on the specific issue of lay prosecutors,' said Ms Alexander in Wednesday's letter.
'It is your responsibility to ensure that you are adequately protecting revenue in a cost effective but lawful way, and where it is appropriate, you should continue using prosecutions as part of a robust and proportionate revenue protection strategy.
'However, as 'good' and 'efficient' operators, we would not expect you to use lay prosecutors to present cases in court and carry out other regulated legal activities until you are confident that it is lawful to do so, having taken advice as appropriate.'
Critics say the erasure of thousands of fare evasion convictions earlier this year was based on a legal technicality, while some rail sources claim that those who were wrongfully punished were probably guilty of breaking train rules anyway.
Others have sought to compare the rail prosecution saga to the Post Office scandal, which also involved state-backed companies carrying out private prosecutions against members of the public.
Train company directors could face prison sentences if they are prosecuted for letting non-lawyers bring criminal cases against their passengers.
It is a crime under section 14 of the Legal Services Act 2007 for a non-lawyer to carry out a 'reserved legal activity'. Breaking this law carries a prison sentence of up to two years or a £5,000 fine.
Annual accounts for DfT's arms-length railway company, which were published in June, said: 'This is an emerging issue and at the time of the approval of the accounts there is no way to reliably estimate the value of any possible liability or the extent of any obligation arising in respect of the Group.'
This means rail bosses do not yet know how many convictions will have to be erased, or how much they will have to return in wrongly-paid fines, compensation and legal costs.
'Enforcement must be proportionate'
Although the taxpayer will have to reimburse victims of state-owned train companies, including LNER, Northern, TransPennine Express, South Western Railway and Southeastern, the position for private companies – particularly those franchises which have ceased to exist over the last 30 years of rail privatisation – is unclear.
A government source said: 'Fare evasion costs the taxpayer hundreds of thousands of pounds a year and dents confidence in our railway, so we're dead serious about tackling it.
'But enforcement must be proportionate. We can't have operators going after an older person faced with an incomprehensible system, or a student who has made an honest mistake.
'We'll set out our full response to the ORR report in due course, and Great British Railways will simplify fares and ticketing – restoring a railway the public can be proud of again.'
The DfT's legal advice said: 'There is a statutory defence that the accused 'did not know, and could not reasonably have been expected to know, that the offence was being committed.'
'The defence becomes less likely to be available with each passing day and in particular each passing day subsequent to legal advice being given.'
'Consideration will need to be given to the criminal liability of individual lay prosecutors, the TOCs and the individual liability of TOC directors under the relevant provisions.'