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Is Govia Thameslink right to accuse its passengers of “theft”?

The train operator's marketing points to a deeper problem in the way some passengers are treated.

Since last year, passengers at stations served by Thameslink and Great Northern Rail – both operated by Govia Thameslink Railway - have noticed posters stating that “fare evasion is theft”.

Is this true?

Adrian O’Brien is a solicitor and expert on railway law, particularly fare evasion. At his firm, Gray Hooper Holt, he has spent over a decade working on fare evasion cases. “No, strictly speaking it's not theft,” he answers.

O’Brien explains that there are different types of fare evasion – but none of them constitute theft or are prosecuted as such. The standard offence is that “if I board a train at a station with ticket-selling facilities and I fail to purchase a ticket for my journey, I am committing an offence breaching the railway byelaw 18(1). It's a strict liability offence, so it's no use me saying that I intended to buy a ticket or I forgot to buy a ticket, it's my responsibility as a passenger.”

But no fare evader has ever been prosecuted under this law for theft? "No. They're prosecuted for violating Railway Byelaw 18(1). Not theft."

Theft is a serious business in the eyes of the law, constituting what’s known as an offence of dishonesty that reflects on the character of the offender. Fare evasion, O’Brien explains, is “not an offence of dishonesty. It's a minor ticketing offence of a kind similar to, say, being summonsed for having no insurance on your motor car.”

But while fare evasion is not prosecuted as theft, it is sometimes prosecuted in a way that can seriously affect people’s lives. O’Brien’s clients tend to be people who have been charged, more seriously, under the 1889 Regulation of Railways Act. “That is a more serious offence. It's a statutory offence as opposed to a byelaw offence, and in theory you can go to prison for up to three months for breaking the law under 5(3)a, although that's very rare. It's much more likely you'll be fined.”

Most seriously, though, fare evaders prosecuted under the 1889 Act can end up with a criminal record. For O’Brien’s clients, “getting a criminal record is by far and away the biggest punishment. They can pay a fine and forget about it, but a criminal record, for an accountant, a police officer, a lawyer, a teacher, an actuary - for any of these people, it could cost them their job, or their career.”

“The fragmentation of the railway industry,” O’Brien continues, “has led to a kaleidoscope of response from the different train operating companies. Each has its own prosecutions department, and they've all got their own ways of approaching things. Some of them are quite flexible, some are very prosecution-minded. You can be stopped by one TOC and be dealt with in one way, and you can go a short distance down the line and be dealt with differently.”

Anecdotal evidence suggests that the more aggressive activity occurs where a TOC outsources its prosecutions. Last year Andrew RT Davis, the leader of the Welsh Conservatives, wrote to Arriva Trains Wales after large numbers of customers complained that they had been fined and threatened with criminal prosecution for travelling without tickets that they were unable to purchase. One passenger told Radio 4's You and Yours that he had been told, after travelling without his £2.30 ticket, that if he didn't pay a fine of over £600 " they were going to send bailiffs to my house, they would have put a CCJ against my mortgage, and I could have ended up in prison". The threats were issued not by Arriva but by Transport Investigations, an external company that pursues prosecutions on Arriva's behalf. Transport Investigations’ website lists Serco DLR, Chiltern Railways, Virgin Trains and Arriva Cross Country among its other clients. “Using TIL”, the website states, can allow this activity to be separated from the client’s brand.”

While it is wholly inaccurate for GTR to describe fare evaders as thieves, then, it may be revealing of the way in which some TOCs view their customers, and the varied and lucrative process in which some passengers find themselves ensnared.

Will Dunn is the New Statesman's Special Projects Editor. England
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Chris Grayling says scrapping rail electrification has saved passengers “years of delays”

The Transport Secretary suggested taxpayers’ money could be better spent on upgrading diesel trains to run on hydrogen instead.

Chris Grayling has defended his decision not to proceed with three major rail electrification projects.

Appearing before the Transport Select Committee for a second time to explain his judgment to drop plans to modernise the Great Western line from Cardiff to Swansea, the Midland Main Line and tracks in the Lake District last summer, he said: “Spending £500m to enable the same trains to travel on the same track, at the same speed, isn’t a terribly good use of taxpayers’ money.”

Network Rail’s electrification programmes around the United Kingdom, most notably on the Great Western main line from London to Swansea, which started in 2014, had been described as a crucial development that would bring cleaner, faster and more reliable services for passengers.

The committee’s chair, Lilian Greenwood, said that scrapping electrification projects represented bad news for passengers and raised “serious questions about the government’s willingness to invest in the long-term future of our railways and their commitment to the decarbonisation of transport”.

The Transport Secretary, however, insisted that passengers could benefit from “modern bi-mode trains” instead, and would no longer have to put up with engineering works, potentially causing “years of disruption”.

Grayling repeatedly told the committee it was better to focus efforts on boosting capacity rather than electrification. He also said that already available bi-mode trains, which can operate using both electric and diesel power depending on whether overhead cables are installed, could be modernised further in the future to be battery or hydrogen-powered. 

The Member of Parliament for Epsom and Ewell added: “My job is to try to maximise the value to passengers of the investments that we make. With bi-mode trains you're getting all the passenger benefits without any of the disruption, no passenger’s travel experience is going to be worse by using bi-mode trains.

“I’ve talked to senior people in the industry who believe there will only be one generation of diesel engines on the bi-modes and the second generation will be hydrogen engines. We’re looking now to try and get the first hydrogen trains on our network…Battery trains now are becoming a real possibility.”

Committee member Daniel Ziechner, though, was unconvinced, labelling the bi-mode concept as the “worst of both worlds” and pointing out that maintenance of these trains is twice as expensive. Bi-mode trains are heavier, he explained, which increases a risk of damage to the tracks.  

And Roger Ford, the industry and technology editor of Modern Railway, submitted written evidence to the committee ahead of Grayling’s hearing. He said: “To be blunt, the claim that bi-mode trains will provide passengers with the same quality of service is a face-saving attempt to justify cancellation of the onward electrification from Cardiff to Swansea.”

Ford argued that electric trains offered better “operating costs, environmental impact, energy efficiency, reliability and passenger comfort.” He said bi-mode trains would have to carry “up to 10 tonnes of diesel power pack and fuel under 60 per cent of its coaches” and that “performance is thus degraded in both modes by either excessive weight or lack of power”.

Rohan Banerjee is a Special Projects Writer at the New Statesman. He co-hosts the No Country For Brown Men podcast.