Viewpoint: the fare evasion prosecution scandal explained

It was widely reported this month that several train companies have unlawfully prosecuted individuals by misusing the Single Justice Procedure, and up to 75 000 convictions for fare evasion offences have now been quashed. This is shocking news and could have enormous consequences for the train companies involved, especially given that bills could, in theory, run into tens of millions of pounds.

The news is already being talked about in the same breath as the Post Office scandal, although there are several reasons why this is an unfair comparison.

In the judgement on August 15, Senior District Judge Goldspring formally declared that the prosecutions in question are a ‘nullity’, and that ‘it is as though the proceedings never existed’.

The immediate ramifications of this are that convictions will be removed from the record and the courts will need to reimburse the defendants of any sums paid as part of their sentencing. As each defendant may have paid approximately £400, the total bill could reach around £30m. It will be an extraordinarily time consuming and costly exercise to return the monies, especially given that many defendants will have long since moved address.

Single Justice Procedure

The Single Justice Procedure introduced by the Criminal Justice & Courts Act 2015 is at the heart of this scandal. It was designed to make it far more cost-effective and straightforward to prosecute and administer minor criminal offences, such as speeding or failing to hold a TV licence.

It has also been used by rail companies to privately prosecute fare evasion offences, although it is worth noting that prior to its introduction, fare evasion prosecutions routinely took place in open court listings.

Under the SJP, the paperwork is processed in closed court sessions before a single Magistrate and legal advisor, greatly improving economies of scale. Defendants have the option of requesting a court hearing, if they prefer not to use the SJP.

Alongside the law establishing the SJP, there was a separate legal order, under the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016, which authorised rail companies to prosecute under the procedure. Crucially, it limited the definition of ‘railway offences’, for the purposes of the SJP, to a number of specific bylaws.

This is where certain rail companies have fallen foul of the rules. Prosecutors have mistakenly charged some Defendants under s.5.1 and s.5.3(a) of the Regulations of Railway Act, which is not permitted.

The mistake in prosecuting under s.5(3)a of the Regulations of Railway Act, which carries a maximum sentence of three months in custody, is even more egregious, as the law introducing the SJP process expressly prohibited the prosecution of any offence which carries a custodial sentence.

Whilst the Post Office scandal had elements of an alleged cover up, the unlawful prosecutions were borne out of a deeply unfortunate technical mistake. This is illustrated by the fact that the issue would have been avoided entirely if the cases had been prosecuted under Railway Bylaw 18, which is simply travelling without a valid ticket.

Indeed, Transport for London, which privately prosecuted approximately 15 000 cases last year, did so under the relevant bylaws. Other train companies, such as Southeastern, have prosecuted under the Regulations of Railway Act but, as far as I am aware, have always done so lawfully, in open court listings. It also is worth noting that the Magistrates and legal advisors, who processed the many thousands of cases, also failed to spot the mistake.

My advice for anyone who believes they may have been unlawfully prosecuted, is to start by establishing whether the original court summons was via the SJP; the paperwork can be requested from the prosecuting train company. The second thing to check is whether the charges were under the Regulations of Railway Act. If both apply, you can expect a cheque in the post.

Meaningful change

The obvious question is whether this crisis will lead to any meaningful change. The train companies will likely fiercely defend their right to prosecute cases, especially given the huge sums that are lost each year to fare evasion. They will no doubt introduce safeguarding and oversight procedures to ensure that the mistakes do not happen again. Of course, there are various other train companies who are not caught up in the scandal and they may feel that they can simply carry on, undisturbed.

Nevertheless, despite the prosecuting error being very straightforward to rectify, the scale of the issue will mean that many will expect a tangible reaction.

In March 2024, the Magistrates Court Association presented a 12-point plan for reform, highlighting the impact of the SJP scheme on vulnerable people and the lack of time that justices have to spend on each case. Several of these proposals would have an impact in this area. For example, it is suggested that prosecutors should see all pleas and mitigation before cases are heard and that Magistrates should use their discretion to refer certain cases back to the prosecuting authority. This would provide additional safety nets and potentially stop some cases ending up in conviction.

However, it is unlikely that these changes would have prevented people like Ms Cook, who was one of the test cases during the proceedings, from being prosecuted and convicted, given that she simply did not receive the court paperwork. Another area which could be improved is the lengthy gap that often occurs between a commuter’s interaction with the inspector and the initial correspondence from the train company, which can take up to 4-5 months. The delay increases the chances that paperwork will be missed and can lead to court summonses being rushed out to comply with the six-month time limit.

There is a separate question about the merits and fairness of bringing criminal prosecutions for very minor ticket infractions.

In cases of intentional fare evasion, especially if over a prolonged period, one could make a case that the public interest test is satisfied. However, if a penalty fare is unpaid or if the ticket infraction was extremely minor or technical, this is far less clear. In these cases, prosecutions are largely brought in order to recover revenue, utilising the court’s ability to make attachment of earnings orders.

Another option would be to pursue the outstanding sums in the civil courts, which often would, on the face of it, seem a more proportionate response. However, the train company would have to pay a lodging fee for each application, which makes it less attractive. Of course, civil claims can also result in negative consequences for individuals, such as affecting credit ratings in certain circumstances.

These points illustrate that it is not a straightforward process in trying to balance the competing interests of recouping revenue on a huge scale and dealing with individual cases fairly.

Nathan Seymour-Hyde is a Partner and Solicitor at Reeds Solicitors, specialising in criminal defence. He has a niche practice in defending clients against prosecution and seeking out of court settlements.