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.

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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 edits the New Statesman's regular policy supplement, Spotlight.