South Eastern Trains Limited -v- Nana Monteiro and also -v- Lejhae Levy
In the Westminster Magistrates’ Court
Before:
Senior District Judge Goldspring
(Chief Magistrate)
for England and Wales
Between:
South Eastern Trains Limited
-v-
Nana Monteiro
and
South Eastern Trains Limited
-v-
Lejhae Levy
Ruling
1. Introduction
1.1 The above cases find themselves before the court as a result of a review of undertaken by the Operating Companies (TOC) owned by the Department for Transport Holding company (DfT Operator Limited) of all Train relating to prosecutions by TOCs through the Single Justice Procedure, during which it came to the attention of South Eastern Trains that it may be impermissible to prosecute for offences contrary to s.5(3)(a) or (b) of the Regulation of Railways Act 1889 (RRA 1889), or Byelaw 18 of the Railway Byelaws made pursuant to s.219 of the Transport Act 2000 following an unsuccessful appeal against a penalty fare where South Eastern Trains had not notified the Appeal Panel that the penalty fare had been cancelled either before the expiry of 21 days or before the stage one appeal had been decided, whichever is sooner (as required by Regulation 11(3) Railways (Penalty Fares) Regulations 2018 [R(PF)R 2018])
1.2. Consequently the attention was drawn to the court and defendants of any and all cases where it may have brought a prosecution in a manner which could have been procedurally incorrect. I have already given judgment in relation to cases brought via SJP in respect of Section .5(1) Railway Act 1889. These cases relate to offences contrary to s5(3) (a) RRA and / or byelaw offences contrary to Regulation 11, known as “penalty fare cases”.
1.3. The defendants in these are examples of such prosecutions. This court is asked to:
(i) consider whether there is a bar to bringing a prosecution in such circumstances,
(ii) to give a ruling on this issue, and
(iii) if necessary to remedy this error by either using:
i. s142 Magistrates’ Courts Act to reopen the case and allow SET to offer no evidence or
ii. by utilising the court’s common law powers to declare such prosecutions a nullity. In circumstances where there was a bar to prosecution this court may conclude that any prosecution was void ab initio and the court acted in excess of its jurisdiction. Thus, this court may consider that any prosecution was a nullity from the outside and can be nullified using the common law powers as a result.
(iv) If remedy is required, then SET invite this court to remedy all other concluded cases in the manner considered most appropriate.
1.4. Of course, as recognised by the prosecutor this court does not have the power to give a binding rulings, I am a court of first instance, such precedent would require the High Court, at the very least, to provide a ruling, however the need for clarification as to how prosecutions should be brought and whether concluded cases require intervention necessitates a ruling from this this court with an undertaking that all DfT Operating Company “TOCs” will follow the guidance given by the court and no future prosecutions will be brought that contravene this court’s determination.
2. Penalty Fare Appeals – The Issue
2.1 The issue can be set out simply, even if the answer is less so.
2.2 As a matter of trite law, the issue of a penalty fare is not generally a bar to prosecution.
2.3 However, if a person appeals against a penalty fare, criminal proceedings can only be brought for certain offences if the operator notifies the appeal panel that the penalty fare has been cancelled within 21 days of the lodging of the appeal or before the appeal is determined, whichever is sooner. The offences include some byelaw offences which can be prosecuted in the single justice procedure.
2.4 If the fare is not cancelled, it is ambiguous whether this means that a prosecution cannot be brought once the appeal process has been completed (even if the appeal was dismissed), or it cannot be brought during the appeals process.
2.5 South Eastern trains provided a skeleton argument setting out the two alternative propositions as to the correct interpretation of the relevant legislation, I cannot and do not attempt to improve on that analysis, it is reproduced below, it was agreed in submissions that my task is settle which alternative interpretation is correct and what the remedy should be thereafter, if any.
3. The Legal Framework
3.1 Upon a passenger travelling without a valid ticket TOCs can, in certain circumstances, issue a penalty fare under regulation 5 [R(PF)R 2018] .
3.2 A penalty fare is an enhanced fare to reflect that the passenger was travelling without a valid ticket.
3.3 Under the rules of the penalty fare regulations, and upon receipt of a penalty fare, a passenger may either:
(v) pay the penalty fare within 21 days for a discounted rate,
(vi) pay the penalty fare after 21 days, but before a prosecution is commenced,
(vii) appeal the penalty fare within 21 days, or
(viii) some passengers do not comply with these requirements and simply ignore the penalty fare.
3.4 The issues in these cases concern those passengers that have appealed a penalty fare. There are three appeal stages, but it is only the stage one appeal that this court is concerned with.
3.5 In the event that a passenger appeals the penalty fare, the stage one appeal process is governed by Reg 15 and 16 of the R(PF)R 2018:
(ix) the time to pay the penalty fare is paused until the appeal is decided.
(x) An independent appeal panel determines the appeal.
3.6 In the event the appeal is refused, as a matter of practice, where the passenger then does not pay the penalty fare, SET has chosen to bring a criminal prosecution and not civilly enforce the penalty fare.
3.7 The issue is whether it had the power to prosecute where an appeal had been decided and where SET had not cancelled the penalty fare and notified the Appeals Panel of the cancellation within 21 days of the appeal being lodged.
3.8 Reg 11 R(PF)R 2018 governs when a prosecution can be brought in relation to the same failure to produce a valid travel ticket that gave rise to the penalty fare being issued:
Penalty fares and criminal offences
11.—(1) A person who has been charged a penalty fare under regulation 5(1) is not liable to pay where proceedings for any of the offences specified in paragraph (4) are also brought against that person in relation to the same failure to produce a platform ticket or a valid travel ticket which gave rise to that penalty fare.
(2) Subject to paragraph (2A),] If a person to whom paragraph (1) applies has paid the penalty fare, or part of it, the operator on whose behalf the penalty fare was charged must refund that person the amount paid within the period of 10 working days, beginning with the day on which proceedings are brought.
(2A) If a person to whom paragraph (1) applies has paid a penalty fare calculated in accordance with regulation 9(1A) or (4A), or part of such penalty fare, the operator on whose behalf the penalty fare was charged must refund the person any amount paid that exceeds the amount of the full single fare applicable for their journey within the period of 10 working days, beginning with the day on which proceedings are brought.]
(3) Where a person falling within paragraph (1)(a) has appealed against the penalty fare under regulation 16, proceedings for any of the offences specified in paragraph (4) may only be brought against that person for the same failure to produce a platform ticket or a valid travel ticket if the operator, on whose behalf the penalty fare was charged, notifies the relevant Appeal Panel that the penalty fare is cancelled before—
(a) the relevant Appeal Panel has decided the outcome of the appeal under regulation 16; or
(b) the time period mentioned in paragraph 6 of Schedule 2 expires, whichever is sooner.
(4) The offences referred to in paragraphs (1) and (3) are the offences under—
(a) section 5(3)(a) or (b) of the Regulation of the Railways Act 1889(12);
(b) any byelaw made under—
(i) section 67 of the Transport Act 1962(13);
(ii) section 129 of the Railways Act 1993(14);
(iii) section 219 of the Transport Act 2000(15);
(iv) section 46 of the Railways Act 2005(16).
(c) in respect of England, section 11 of the Fraud Act 2006.] . [Emphasis added]
3.9 In particular Reg 11(3) states when a prosecution can, be brought if a passenger has appealed the penalty fare. Reg 11(3) (above) does refer to a person falling within paragraph (1)(a), yet there is no paragraph (1)(a) within this provision.
3.10 Ignoring that issue, under Reg 11(3), where a person has appealed the penalty fare, a TOC is required to cancel the penalty fare and notify the appeal panel of that cancellation within 21 days of the appeal being lodged or before the appeal is decided, whichever is sooner, before a prosecution for a byelaw, s5(3)(a) or s5(3)(b) offence is brought.
The alternative meanings
3.11 One possible interpretation of Regulation 11(3) is that it creates a complete bar to bringing a prosecution for either a s.5(3)(a) or (b), or a Byelaw 18 offence, (but not an offence under s.5(1), or s.5(3)(c)) once the appeal process has been completed, save as permitted by notification and cancellation.
3.12 In order to bring a criminal prosecution against the unsuccessful appellant in civil proceedings, it is arguable that compliance with that regulation is required, otherwise the defendant would be facing the double jeopardy of civil proceedings and a criminal prosecution in respect of the same allegation of fare evasion.
3.13 Arguably, this interpretation is supported by the legislator’s explanatory memoranda which accompanied both the R(PF)R 2018 and The Railways (Penalty Fares) (Amendment) Regulations 2022 that amended the original regulations.
3.14 The explanatory memorandum of the R(PF)R 2018 can be found on Legislation – GOV.UK (PDF).
3.15 Paragraph 7.1 of that memorandum reads:
7. Policy background
What is being done and why
7.1 Train operators charge penalty fares to deter people from travelling on railway passenger services without first purchasing a valid ticket for their journey. A penalty fare is a type of fare, as opposed to being a fine, and it is enforceable as a civil debt if it is not paid. A train operator cannot both charge a person a penalty fare and bring a criminal prosecution against them in respect of the same incident of ticketless travel. [Emphasis added].
This is repeated in the memorandum to The Railways (Penalty Fares) (Amendment) Regulations 2022. The explanatory memorandum to that statutory instrument is available on Legislation – GOV.UK (PDF).
At paragraph 7.6 the memorandum reads:
7.6 In general, train operators operate penalty fare schemes to deter people from travelling on railway passenger services without first purchasing a valid ticket for their journey. A penalty fare is a type of fare, as opposed to being a fine, and it is enforceable as a civil debt if it is not paid. A train operator cannot both charge a person a penalty fare and bring a criminal prosecution against them in respect of the same incident of ticketless travel. [Emphasis added]
3.16 The alternative interpretation of Regulation 11(3) is that the qualified prohibition on bringing criminal proceedings against an individual who has appealed a penalty fare applies only during the period of the appeals process, not after its conclusion.
3.17 Put shortly, the rationale for this interpretation is as follows:
(i) Regulation 11 does not prevent a train operating company prosecuting an offence where a penalty fare has previously been issued.
(ii) Rather Regulations 11(1) and (2) direct certain outcomes with respect to penalty fares if criminal proceedings of the type specified are brought.
i. Regulation 11(1) absolves the individual of liability for an unpaid penalty fare.
ii. Regulation 11(2) requires the penalty fare to be repaid if it has already been paid.
(iii) If Regulation 11(3) was interpreted such that the qualified prohibition applies only during the period of the appeals process, then unsuccessful appellants would be in exactly the same position as non-appellants, i.e. they could be prosecuted so long as they have the benefit of Regulations 11(1) and (2).
3.18 This alternative argument is a purposive approach to the construction of the regulation. The rationale of that approach is the drafters cannot have intended unsuccessful appellants to have an advantage over non-appellants. If this purposive approach applied then there is no issue with this category of prosecutions.
3.19 By contrast if Regulation 11(3) was interpreted as being a bar to prosecution, then the effect would be to provide immunity from prosecution for unsuccessful appellants whereas none would exist for those who had not appealed. That would have the effect of introducing a strict time limit (of no more than 21 days after an appeal) on prosecutions only in respect of unsuccessful appellants and prosecutions brought in breach of this provision would need to be nullified.
4. Discussion
4.1 The lower courts rarely enter the realms of statutory interpretation of a particular piece of legislation for the first time, that is the preserve of the supervisory courts, for the purposes of this ruling it is neither appropriate to hand down a thesis(nor is in fact) on the rules of statutory interpretation, that said, a short explanation of the way I should approach the task is necessary. The basic position can be shortly put.
The rules of statutory interpretation
4.2 When a judge encounters an Act of Parliament that has no definite meaning then they must make a decision as to the approach that they are going to take when interpreting the words or phrase. The judge can choose which rule to use unless precedent dictates otherwise.
4.3 There are four rules of interpretation along with a number of other aids to interpretation. The four main rules are:
4.4 The literal rule requires courts to interpret statutes in their plain, literal, and ordinary sense. The courts will not examine the intention of Parliament. This rule is based on the principle that judges are not authorised to make laws and by following the statute to the letter judges cannot be accused of making law.
4.5 This rule does not question Parliament therefore upholds the law made even where it seems illogical, thus preserving the separation of powers. In limiting the role of the judge; decisions are based on facts not opinion or prejudice but it can create loopholes where discrepancies in interpretation of the literal meaning occur, as it is ineffective in identifying limitations and complexities in English language. Occasionally use of this rule has defeated the original intention of parliament; an example would be Whiteley v. Chappell (1868).
4.6 The Golden Rule is used where the literal rule would result in an absurdity or an obnoxious result. The court investigates whether the statute wording conveys Parliament’s intention. See Sigsworth [1935] Ch 89
4.7 The Mischief rule, used to interpret gaps (ultra vires) Parliament intended to cover and apply a ruling that remedies the problem in ambiguous statutes. This rule is illustrated in Corkery V Carpenter [1951] 1 KB 102. The defendant rode a bicycle under the influence of alcohol. Under s12 of the Licensing Act 1872 it was offence to be drunk in charge of a carriage. The defendant was charged as the intention of the Act was to prevent persons being in charge of transportation on a public highway whilst intoxicated. This rule allows for the adaption of statutes in a progressive society and closes loopholes.
4.8 The purposive approach is implemented to ensure the law is effective as Parliament would have intended.
4.9 Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve.
4.10 In Pickstone v Freemans plc [1989] AC 66. A number women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were paid £1.22 per week more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under the Equal Pay Act 1970 Section 1(2)(c) for work of equal value. This was a literal interpretation of the Equal Pay Act 1970. The House of Lords decided that the literal approach would have left the United Kingdom in breach of its Treaty obligations to give effect to an EU directive. It therefore used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her for the same pay.
4.11 The appropriateness of applying the “purposive” rule was further addressed by their Lordships in Pepper v Hart [1992] 3 WLR 1032 House of Lords
4.12 The House of Lords had to decide whether a teacher at a private school had to pay tax on the perk he received in the form of reduced school fees. The teacher sought to rely upon a statement in Hansard made at the time the Finance Act was passed in which the minister gave his exact circumstance as being where tax would not be payable. Previously the courts were not allowed to refer to Hansard (See Davis v Johnson).
4.13 The House of Lords departed from the historic approach which forbade reference to extraneous material such as Hansard and took a purposive approach to interpretation holding that Hansard may be referred to and the teacher was not required to pay tax on the perk he received.
4.14 Lord Griffiths on the purposive approach:
“The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”
4.15 Lord Brown Wilkinson on reference to Hansard:
“My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.”
5. DECISION
5.1 The analysis provided by the prosecutor demonstrates the problem with adopting the Literal, golden or mischief rule, the support that interpreting in this way the explanatory notes appear to provide simply muddies already unclear waters further and in my view is a drafting error, where the words and explanation fail to achieve the purpose of parliament , It is clearly irrational that a person who brought an unmeritorious appeal could not be prosecuted, whereas someone who did not appeal could be.
5.2 I cannot accept parliament intended such an obviously unfair outcome and I am adopting a purposive interpretation that the bar on prosecution applies only during the currency of the appeal procedure with the intention to avoid two tribunals deciding the same issue, but with potentially differently outcomes.
5.3 Thus, adopting that approach above I am satisfied the correct interpretation of the legislation is as follows
(i) Regulation 11 does not prevent a train operating company prosecuting an offence where a penalty fare has previously been issued.
(ii) Rather Regulations 11(1) and (2) direct certain outcomes with respect to penalty fares if criminal proceedings of the type specified are brought.
i. Regulation 11(1) absolves the individual of liability for an unpaid penalty fare.
ii. Regulation 11(2) requires the penalty fare to be repaid if it has already been paid.
6. Implications for live cases
6.1 The only penalty fare offences which cannot be prosecuted are those listed in 11(3) where an appeal has been lodged. The majority can be.
6.2 Thus, the only SJP cases restricted by Reg 11(3) are those where an appeal has been lodged and has not yet been determined.
6.3 If there has been an appeal and the penalty fare has been cancelled, the case can be prosecuted.
6.4 The prosecutor obviously should not bring a prosecution if it is excluded by regulation 11(3). However, if they do, it is a defence which is an exception, exemption, proviso, excuse, or qualification, and therefore under section 101 MCA 1980, the burden is on the defendant to raise and prove it. There is no obligation on the court to investigate whether the defendant has a defence.
7. Implications for concluded cases
7.1 The vast majority of convictions for ticket offences, including those which are prosecuted through the single justice procedure are unaffected.
7.2 None of the convictions are bad on their face. Nor are they void. Even if a case fits the exception in para 11(3), it is for one of the parties to raise it and if they did not, and the evidence otherwise proved the offence the conviction was proper and an acquittal would have been perverse.
7.3 It follows that there are no grounds for the court to take any proactive action – it has no grounds to do so.
7.4 The remedy for the defendants is an appeal and rehearing at the Crown Court which would be possessed of facts denied to the magistrates’ court. Conceivably they could also apply for a judicial review of the decision to prosecute.
7.5 Thus, in the cases before me the prosecution is permitted and no action is required by the prosecutor or indeed the court.
8. Conclusion
8.1 Therefore, I rule that criminal prosecutions can be brought following a penalty fare appeal being dismissed notwithstanding the cancellation and notification requirements of Reg 11(3) have not been complied with.
20 February 2025
Corrected 21 February 2025