Legal expert recommends changes after Northern Railcard ‘scandal’

The issue? The terms and conditions of the 16-25 and 26-30 Railcards – which give the holder a one-third discount on tickets – say that they are not valid to be used on flexible fares below the value of £12 before 10am on most weekdays.

However, when purchasing a ticket – such as through Northern’s app – this information is not readily apparent.

Indeed, the app itself describes such tickets as "anytime", with the small print describing them as a "flexible ticket with no time restrictions on when you can travel’ with ‘normal railcard and child discounts available".

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Dónal Loftus is a senior lecturer at the University of Salford law department.

Speaking to The Bolton News, Dónal said he seemed the prosecutions – which are brought privately by Northern for savings as little as £1.60 – seemed out of proportion.

Dónal Loftus is a senior lecturer at Salford University (Image: Salford University)

Asked if the public prosecutor – the Crown Prosecution Service – would bring the same cases, he said: “I can’t speak for the CPS, but it certainly seems disproportionate.

“If you were a lawyer in the CPS and that was put in front of you you’d probably think ‘well, that appears to be disproportionate’.

“I guess that will be something they would have to think twice about – it appears disproportionate.

“That’s why the private prosecution, in terms of implications for consumers, is quite controversial.”

Dónal said rail apps, such as Northern’s own, should provide "reasonable notice" and highlight any "onerous clauses" in their contract that might be unexpected.

He added: “We don’t all read our terms and conditions like we should, you might be expecting certain things to be there or not be there, and we just take it for granted.

“If there’s something very unusual, that would be highlighted.”

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According to the Regulation of Railways Act 1889 – which passengers have been prosecuted under – those who have not previously paid their fare must have "intent to avoid payment thereof" to be liable for conviction.

Asked about this, Dónal said: “The intent at the time your purchased the ticket – the argument will be there is that attempting to avoid the full payment at the time.

“After the event, if they try to repair the issue, I suspect where that’s where the magistrates are looking at the previous, where the was an event to avoid.

“The private prosecution itself is quite onerous, it’s a mechanism that allows the whole notion that businesses are getting justice for offences that they allege are committed against them.

“You could argue you don’t have the protection of CPS that would look at that and say ‘let’s define intent’.

“There is a legal basis, it allows Northern rail the authority to pursue those kinds of prosecutions for alleged ticketing infractions – that legal framework gives them the ability to enforce their rights and protect their revenue streams.

“They would argue that there was an intent originally to evade, avoid, or reduce, or perhaps allegedly use a Railcard when it shouldn’t be used at a particular time.

“That’s probably where that notion of intent is interpreted. But again, it’s all a matter of interpretation. Somebody else could counter that and say ‘well there was a desire to pay the fine’ or whatever it might have been, and then whoever the judge is might look at that and apply discretion.

“What’s interesting here is Northern Rail mentioned 96 per cent of passengers complied – what’s interesting about this is, whatever about the interpretation of the legislation in terms of the intent element, that suggested to me: why take the heavy-handed approach rather than accept paying the difference of the fare?

“I, myself, found myself on a train the other week and somebody behind me had a ticket for a specific train journey that was half-an-hour later, and I remember a conversation between the conductor and the person that had already bought the ticket for the journey that was happening half-an-hour later, the conductor advised them the ticket wasn’t for that journey.

“The person apologised, and the guard said, ‘I should be fining you but I will allow you to pay for a new ticket’, and that was it.

“So, where do they get the discretion to do that? From my law point of view. I’m just wondering: is there a training issue, what’s the notion behind these prosecutions?”

If you have a story, I cover the whole borough of Bolton. Please get in touch at jack.fifield@newsquest.co.uk.