Protection, enforcement and prosecutions policy

Transcription

1 Protection, enforcement and prosecutions policy northernrail.org

2 Index page 1. Introduction 3 2. General Principles 3 3. Penalty 4 4. Category of Offences Who Prosecutes 5 6. Juvenile Offenders Decision to Prosecute 6 8. Full Code Test 6 9. Public Interest & Interest of Justice Private Prosecutions Means of Disposal Banning Orders Prosecution Criteria Investigations Formal Warnings PACE (Police and Criminal Evidence Act) Disclosure Appeals and Disputes Policy Owner Policy Review 10

3 1. Introduction Northern Rail is committed to a firm but fair approach in preventing and reducing the level of fare evasion on its services and offences of anti-social-behaviour. Additionally Northern Rail protects its Car Parks; Penalty Parking Notices are issued by dedicated Officers to vehicles failing to comply with the rules posted at Northern s managed Car Parks. Via the offices of our Debt Recovery and Prosecutions Unit (DRPU), Northern Rail will actively pursue and challenge those who choose to disregard the rules and regulations that govern our industry, thus pleasing the majority of our customers who are not happy when people break the rules. If engaged by the DRPU, Northern Rail customers can be assured that an extensive communication network will result in the correct decision being taken. The attention and investigation by the DRPU demonstrates to the customer Northern s commitment and the importance of their loyalty to our business. The effectiveness of the Northern Rail protection and enforcement work results in our customers and colleagues feeling protected by our activities and those who don t respect Northern services are held accountable for their actions. Our mission statement is built around this ability; to provide protection and comfort for the honest fare paying customer and staff alike without fear or favour. This policy outlines the Northern Rail approach to enforcement and prosecution with regard to relevant legislation, regulations and guidelines. Where applicable, intelligence on about convicted offenders is shared with other transport companies and the British Transport Police. Northern Rail recognises that the decision to prosecute is a serious one and will ensure all relevant mitigating factors are taken into consideration before any such decision is taken. It has never been the rule of the DRPU, nor will it ever be, that suspected offenders must automatically be the subject of a prosecution. 2. General Principles 2.1 Northern Rail prosecutes in the Magistrates' Court cases involving summary offences in relation to fare evasion and Railway Byelaws. 2.2 Offences reported have been commissioned within the company s charge, on train and at company premises. Robust systems enable the effective pursuant and prosecution of offenders. 2.3 Fare evasion on Northern Rail is contrary to the Regulation of Railways Act 1889, and the Railway Byelaws. 2.4 Parking Offences commissioned at Northern Rail managed Car Parks are contrary to Railway Byelaws. 2.5 Threatening, abusive, obscene, offensive language or disorderly, indecent, offensive behaviour is an offence contrary to Railway Byelaws. 2.6 Assaults on rail staff are considered as being assaults against a person serving the public and thus not suitable for disposal by simple caution. 2.7 Northern Rail actively supports the Crown Prosecution Service (CPS) who represents the British Transport Police and Civil Forces in prosecuting matters relating to both physical assault and verbal assault. These offences are contrary to the Criminal Justice Act 1988 and the Offences against the Person Act In addition to the statutory definition, assault can also include any incident in which persons are abused, threatened or assaulted in circumstances relating to their work and which constitutes an explicit or implicit threat to their safety and general wellbeing. 3

4 3. Penalty 3.1 Every case is unique and will be considered on its own facts and merits. The full code test will be applied during and throughout its investigations. 3.2 Northern Rail Prosecutors will be fair and objective in the conduct of their duties. Neither discrimination nor personal views about ethnic origin, gender, religion, political beliefs, sexual orientation or age of suspected offenders have any impact on a final decision. Similarly they not be affected by improper or undue influence. 3.3 Northern Rail Prosecutors will use all available resources to ensure the correct person is identified and prosecuted for their associated offence(s). Prosecutors will act in accordance with this policy and not just for the purposes of obtaining a conviction. 3.4 Northern Rail Prosecutors in their duty will review and advise on cases where the decision to prosecute has been made. Prosecutors will operate in accordance with HMCS rules and guidelines. 3.5 Northern Rail is bound by the Human Rights Act 1998 and Prosecutors must adhere to the principles of the act. 3.6 Northern Rail will comply with the Data Protection Act 1998 in relation to all aspects of investigations and prosecutions. This includes the collection of personal data and its storage, disclosure and processing. Personal data will not be disclosed to third parties except in accordance with the provisions of the Act. 4. Category of Offences 4.1 Northern Rail will prosecute the following offences: Fares Avoiding fare Over distance travel Short faring Altering documents Forged tickets Transferring tickets Receiving tickets False details Refusing details Refused Inspection Anti-social Disorderly conduct Abuse Threatening Obscene Spitting Littering/Fouling Intoxicated Smoking Feet on seats Trespass Penalty Parking Not displaying Non Rail user Causing obstruction Disabled Bay Non Designated Overstayed 4.2 The above list is not exhaustive and Northern Rail may prosecute other offences relevant or incidental to the contravention of railway rules and regulations. 4.3 All offences are in contravention of the Regulations of Railways Act 1889 and Railway Byelaws and not prosecuted by the police. Regulation of Railways Act offences: 5(3) if any person - a) travels or attempts to travel on a railway without having previously paid his fare and with intent to avoid payment thereof; or b) having paid his fare for a certain distance, knowingly and wilfully proceeds by train beyond that distance without previously paying the additional fare for the additional distance, and with intent to avoid payment thereof; or c) having failed to pay his fare, gives in reply to a request by an officer of a railway company a false name or address. 4

5 Any person who breaches any of these Regulations, commits an offence and he shall be liable on a summary conviction to a fine not exceeding level 3 ( 1,000) on the standard scale, or in the discretion of the court to imprisonment for a term not exceeding three months. Railway Byelaw offences: Any person who breaches any of these Byelaws, commits an offence and Shall be liable on a summary conviction to a fine not exceeding level 3 ( 1,000) on the standard scale. 4.4 Anti-social offences perpetrated against Northern Rail assets and not prosecuted by the Police. 4.5 Anti-social offences perpetrated against Northern Rail employees in the course of their duties and not prosecuted by the Police. 4.6 Penalty Parking offences and our authority for enforcement at car parks comes from Railway Byelaws, issued under the Railways Act Any incident suitable for CPS assessment will be forwarded to the Police authority for their attention. Any decision by the CPS not to take any action does not affect our right to instigate a private prosecution. 4.8 Northern Rail may also impose its own private Banning Orders against any person whose behaviour is found to have caused or is likely to cause any Northern employees or passengers using Northern services or on Northern premise, harassment, alarm or distress. 4.9 Northern Rail provides evidence and schedule recommendations to Police authorities for Criminal Anti-Social Behaviour Orders (CRASBOs) applications. 5. Who Prosecutes 5.1 Offences listed in paragraph 4.1 above will normally be prosecuted by: (a) Approved Northern Rail Prosecutors. (b) Approved Northern Rail Prosecutors acting alone or jointly with CPS Prosecutors. (c) Counsel directed by approved Northern Rail Prosecutors. 6. Juvenile Offenders 6.1 Northern Rail will deal with every reported offence appertaining to any person under the age of 18 on the day the offence is commissioned. We will not normally prosecute in line with the Home Office guidelines of diverting youths away from the criminal justice system. 6.2 Northern will refer the following serious cases to the BTP: (a) Assaults on staff or other anti-social offences against employees. (b) Criminal damage to Northern property. (c) Forgery and counterfeiting of travel tickets and passes. (d) Illegal production or sale of travel tickets and passes. (e) Repeat offenders. (f) Breach of a Northern Banning Order. (g) Offence(s) where it is in the public interest to prosecute. 5

6 6.3 Northern Rail will consider all offences objectively in deciding whether or not to pursue or report to Police Authorities. 6.4 Northern Rail when requested will attend Referral Order Panel hearings with Youth Offending Teams. Northern Rail will address young offenders and their guardians to the consequence and impact the offender s actions have on Northern Rail as a business and the industry in general. 7. Decision to prosecute 7.1 The DRPU is subject to the same requirements of the CPS in respect of the conduct of any proceedings. The Code sets out the general principles that should be followed when they make decisions on cases. If a case does not pass the evidential stage it must not go ahead no matter how important or serious it may be. 7.2 It is recognised that the decision to prosecute a person suspected of an offence is an important and serious one. Northern Rail will therefore only prosecute if: (a) The evidence shows that there is a realistic prospect of conviction; and (b) It would be in the public interest and in the interest of justice to prosecute. 8. Full Code Test 8.1 Stage 1 Evidential (consideration of the evidence) 1. Is there enough evidence against the defendant? 2. Does the evidence raise a realistic prospect of conviction? 3. Can the evidence be used in court and is it reliable. 4. Are the Magistrates when properly directed in accordance with the law more likely than not to convict the defendant? If so, the case does pass the Evidential stage. 8.2 Stage 2 - Decide if a prosecution is needed in public interest. 1. Is it in the public interest for the Northern to bring the case to court? 2. Is the commission of the offence as a result of a genuine mistake? 3. Is the court likely to impose a nominal penalty? 8.3 A prosecution will usually take place unless the public interest factors against prosecution clearly outweigh those in favour of prosecution. The decision whether or not a charge or a case should go ahead rests with the Principle Prosecution Manager and their decision will not be affected by improper or undue pressure from any source. 8.4 If Northern Rail considers that there is insufficient evidence to instigate a prosecution, no prosecution will be brought. Consideration may however be given to other responses, such as to issue a Fixed Penalty or dispose of the matter by way of Formal Warning. 6

7 9. Public Interest and the Interest of Justice 9.1 Even where the evidential test has been satisfied, the prosecution of an alleged offence must be in public interest and in the interests of justice, i.e. must be seen to be appropriate, fair and properly brought. 9.2 There can be no definitive guidance as to when it may not be in public interest or in the interest of justice to prosecute an alleged offence; each case is assessed on its own merits. 10. Private Prosecutions 10.1 The Northern Rail franchise demands revenue protection measures and so dictates that the public interest is to protect revenue from fraud and fare evasion Whilst Northern Rail adheres to the general rules and principles of the full code test the general assumption is that the rules affecting CPS prosecutions are the same rules that apply to private prosecutions. The same rules do not apply, where some may feel that an abuse of process has taken place Northern Rail has a statutory obligation to protect revenue. That revenue is likely to be made up of a large volume of small amounts. Those small amounts are the revenue that must be protected. A relatively small amount is in fact the norm and so the actual amount is irrelevant. The public interest test is met In protecting our Car Parks the British Parking Association (BPA) recognises our unique position as an enforcement body utilising the provisions of the railways act, and when their requirements for operators working on private land, we were made exempt from the use of terms Penalty Parking Notices, as the Railways Act provisions exceed those of the BPA Approved Operators Scheme The management of the Northern Rail car park estate is not through the requirements laid down in relation to private land, but as Railway Assets as defined in the Railway Byelaws. Northern Rail meet the requirements of Regulation 27 of the Road Vehicle (Registration and Licensing) Regulations 2002, which enables Northern Rail to obtain registered keepers details from the Driver and Vehicle Licensing Agency (DVLA), for pursuit of non-payment of Penalty Parking Notices or other road vehicle offences committed on the Railway Asset. Northern Rail has a legal right to criminally pursue any offence committed on Railway Assets if not pursued by the British Transport Police. 11. Means of Disposal 11.1 The Police/CPS may offer cautions or conditional cautions, these lead to a criminal record; there is no obligation on Private Prosecutors to replicate these alternatives Northern Rail may deem an offence suitable for disposal by way of Formal Warning or Fixed Penalty, these are internal procedures only and there is no criminal record The Fixed Penalty scheme is an alternative to prosecution, not to be confused with Penalty Fares (as Northern Rail does not currently operate a Penalty Fare Scheme). In short, the payment of the Fixed Penalty will mean that the offender will not be taken before a court as long as the offender has no history with the DRPU and committed no additional offence(s) during the act. 7

8 12. Banning Orders 12.1 Northern Rail imposes its own private Banning Orders against any person whose behaviour is found to have caused or is likely to cause any Northern employees or passengers using Northern services or on Northern premises, harassment, alarm or distress Northern Rail provides evidence and schedule recommendations to Police authorities for Criminal Anti-Social Behaviour Orders (CRASBOs) applications. 13. Prosecution Criteria 13.1 Northern Rail will consider the following factors in favour of prosecution: (a) Previous conviction by Northern Rail. (b) Refusal to comply with a previous warning from Northern Rail. (c) Any offender who has committed any of the offences set out in paragraph 4.1 of this policy. (d) Any offender who has failed or refused an offer by Northern Rail of disposal by way of Fixed Penalty Northern Rail will consider the following factors against prosecution: (a) Vulnerability of the offender. (b) Where there may be issues concerning the mental health of the alleged offender. (c) The commission of an offence was unavoidable due to circumstances beyond the offender s control. (d) Where it is determined that there has been a genuine mistake by the alleged offender. (e) Insufficient evidence. (f) Where there is no realistic prospect of conviction Northern Rail will consider the following factors in the decision to discontinue proceedings: a) The presentation of new evidence not previously available or provided to Northern Rail. b) Insufficient evidence in order to proceed with the prosecution. c) When continued proceedings are likely to amount to an abuse of HMCS process. d) Where proceedings are seen to be malicious or are likely to be prejudicial to the Northern Rail interest. e) Where the Head of Prosecutions takes the decision to discontinue proceedings and instigate terms and conditions for an alternative disposal. 8

9 13.4 No case will be withdrawn for the purposes of seeking compensation from the defendant, with the exception of compensation for damages or the recovery of costs Nothing shall prevent the withdrawing of a case against any person where there are exceptional reasons. What constitutes exceptional reasons will be determined on the facts and merits of an individual case and the decision to discontinue a case will only be taken by the Head of Prosecutions Northern Rail may also dispose of a matter by way of Formal Warning in accordance with section 10.2 of this policy, or by referring a matter for the attention of the British Transport Police Where a case is disposed of other than by prosecution, Northern Rail reserves the right to apply administrative costs that reflect the work undertaken in processing the case file. 14. Investigations 14.1 Northern Rail may request an explanation from a suspected offender by way of a Varlet Letter. This invites the alleged offender to give an explanation and comment on the alleged incident Failure to reply to a Northern Rail request for information concerning an alleged incident may result in a decision to prosecute Any explanation or mitigation provided by an alleged offender will be taken into consideration prior to any decision to prosecute Subject to the circumstances of a case, Northern Rail reserves the right to proceed to prosecution without issuing a Warning Letter. 15. Formal Warnings 15.1 Northern Rail may decide to issue an offender with a Formal Warning as an alternative to prosecution, giving consideration to the following conditions: 16. PACE (a) The offender admits to the offence. (b) The likelihood of re-offending is minimal. (c) The offender provides acceptable mitigation against prosecution. (d) In the opinion of the Head of Prosecutions it is not in the public interest to prosecute. (e) The offender agrees to pay the appropriate costs incurred in the processing of the case file In certain circumstances Northern Rail Revenue Inspectors may caution any suspect in accordance with the 1984 Police and Criminal Evidence Act (PACE) When administering a caution under PACE to a suspected offender, the Northern Rail Revenue Inspector will read out the caution and confirm that it has been understood. If a suspect fails to comprehend the Revenue Inspector will explain the caution in more simple terms, until the caution is understood Any reply to the caution and subsequent questions must be recorded verbatim by the Revenue Inspector. 9

10 17. Disclosure 17.1 Northern Rail Prosecutors will comply with the Criminal Procedure and Investigations Act 1996 and the associated Code of Practice in the disclosure of prosecution documents Northern Rail Prosecutors will retain any evidence that may be used or determined unused material relevant to evidence in a prosecution case Northern Rail in the interest of justice will in all cases adopt a consistent approach to the rules of disclosure in the Magistrates Court and Crown Court by disclosing prosecution documents in advance of any hearing. 18. Appeals and Disputes 18.1 Northern Rail operates a robust independent appeals service that covers all alleged offences. Northern Rail will consider any dispute or appeal from the commission of any alleged offence up to and including the day of a court hearing. 19. Policy Owner 19.1 This policy is owned by the Head of Northern Rail Debt Recovery and Prosecutions The following Northern Rail employees will be responsible for responding to policy related queries: 1) Head of Northern Rail Debt Recovery and Prosecutions. 2) Debt Recovery and Prosecutions Manager. 3) Head of Northern Rail Service Quality. 4) Northern Rail Customer Relations Manager. 20. Policy Review 20.1 Northern Rail reserves the right to update and amend this policy in the event of any changes in the laws that govern the Railway Industry or in the practices undertaken by the Debt Recovery and Prosecutions Unit Northern Rail will publish a copy of this policy on its official website and will provide a copy on request to interested parties, in accordance with ATOC guidelines. PM Cook Northern Rail Head of Debt Recovery & Prosecutions. 10