The Chief Magistrate for England and Wales has handed down judgment in a test case to determine if 74,000 rail passengers were wrongly prosecuted for ‘failure to produce a ticket cases’ using an incorrect procedure known as the Single Justice Procedure.

The government became aware that over a period of several years, four rail companies, including Northern Rail and Greater Anglia rail, had been prosecuting alleged fare evasion offences using the Single Justice Procedure.

The question that the court considered was, “what is the proper legal route to remedy the unlawful prosecutions against these defendants?”

What does the law say?

To give some background, the court explained that s.5(1) of the Regulation of Railways Act 1889, is a summary offence. A summary offence means that it is minor, usually heard in the Magistrates’ Court and that no trial by jury is required. The maximum fine for a breach of s.5(1) is £500 known as a level 2 fine. The so-called Single Justice Procedure is derived from the Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016 and is a process that allows a single magistrate and a legal adviser to deal with the case behind closed doors (in contrast to the case being heard by three magistrates in open court) and is therefore a quicker way to prosecute ‘minor’ offences

Importantly, prosecution of “railway offences” are permitted through the Single Justice Procedure.

What is interesting about the decision, is that the court has explained that the 2016 Order sets out specifically who can prosecute a railway offence and what a railway offence is. The important point here is that s.5(1) and 5(3), which had been used to prosecute these cases, are not regarded as a railway offence.

The court then considered whether the error would amount to the prosecutions being void which is known as nullity.

Nullity

On the basis that s.5(1) and 5(3) offences are not “railway offences” the court considered what it calls nullity. In other words, whether the convictions were invalid.

The Court considered the Magistrates Court Act 1980, in particular s.142(1) which says that a court can only vary or rescind a sentence if it is in the interests of justice to do so:

“A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so, and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”

The court also referred to some case law which show that it is a long-standing principle of the law that there is no right to appeal a conviction based on a guilty plea and that the reason s.142 was implemented was to correct a limited number of errors.

What did the court decide in this case?

The court concluded that parliament did not envisage these offences being prosecuted through the Single Justice Procedure. Had some of the prosecutions been brought through the “normal route” then some of those prosecuted would have “undoubtedly been guilty.”

The court voided all the relevant prosecutions – which could see as many as 74,000 prosecutions quashed (the exact number is unclear but the relevant authorities and rail companies have to agree a list of all people whose prosecutions could be overturned by the end of September).

What does it mean for rail companies?

The rail companies asked the court how they should prosecute these cases in the future and the court said that the court does not have a supervisory jurisdiction to determine abstract points of law. Therefore, it will be for the rail companies to determine a way forward.

Both Northern and Anglia have publicly apologised for the errors. This decision means that rail companies have an obligation to repay the individuals who were incorrectly fined, which could cost millions of pounds.