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Prosecutions policy

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1. Purpose and Scope


CrossCountry is committed to a fair and proactive approach in preventing and
reducing the level of fare evasion on its services and offences of workplace
violence against its employees in the course of their duties.

CrossCountry may prosecute perpetrators of such offences and may share
details of convicted offenders with other transport companies for effective
enforcement against persistent offenders. CrossCountry may also publish the
names of convicted offenders to serve as deterrent to others.

This policy outlines the approach to be followed in the consideration and
discharge of CrossCountry's enforcement and prosecution powers and its
commitment to have regard to relevant legislation, regulations and guidelines.

CrossCountry 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. The system of prosecution of offences set out in
this policy seeks to be robust, effective, consistent, and, above all, fair.

This policy may be supported by procedural documents held within individual
prosecuting departments or agencies, providing guidance to Prosecutors in
reaching the decision to prosecute or to dispose of matters by alternative
means. Individual prosecuting departments or agents may also develop and
apply appropriate enforcement and prosecution strategies in accordance with
the general principles of this policy.

This policy applies to all CrossCountry activities, its passengers and any
alleged offender reported on behalf of another train operating company. The
principles of this policy will also form the basis of revenue enforcement
policies operated by concessionaires.

2. People

The people covered by this policy are:

• The Head of Business Support
• Senior and Customer Service Managers
• Train Managers & Senior Conductors
• Revenue and Support Team (including Revenue & Support Specialists and
Revenue Protection Inspectors)
• Training Team
• All Prosecutors or Agents acting on Behalf of CrossCountry

The Senior Customer Service Manager is responsible for managing and
overseeing all prosecutions and debt recovery processes within CrossCountry as
well as decision making and management of ongoing cases in partnership with
our prosecuting agents.

The Customer Service Manager is responsible for the Train Managers and
Senior Conductors on board the train and is responsible for the direct
management of Revenue & Support Team ensuring the correct policies and
procedures are adhered to by the On Board staff and manage appropriate
actions to rectify deficiencies.

Our Prosecution Agents are responsible for processing and enforcing the
recovery of fares owed to CrossCountry, they must follow the guidelines set out
in this and their own policies. The Head of Business Support will audit the
process being used and ensure they are following the agreed policies and codes
of practice to ensure we adhere to our firm but fair approach.

1. General Principles

Fare evasion on CrossCountry in contravention of the Regulation of Railways Act
1889, and the National Railways Byelaws (2005).

The Fraud Act 2006 may be applied to deal with serious and systematic fare evasion
or revenue fraud on CrossCountry services.

Assault against CrossCountry group employees is an offence contrary to the
Criminal Justice Act 1988 and the Offences against the Person Act 1861.
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."

Each case is unique and will be considered on its own facts and merits. There are
however, general principles that apply to the way in which CrossCountry
Investigators and Prosecutors and their agents will approach each case.

CrossCountry Prosecutors or agents must be fair and objective in the conduct of
their duties. They must not let personal views about ethnic origin, gender, religion,
political beliefs, sexual orientation or age of suspected offenders play any part
whatsoever in the consideration of any matter, nor must they be affected by improper
or undue influence.

CrossCountry Prosecutors or agents will endeavour to ensure the right perpetrator is
identified and prosecuted for the offence. In so doing, prosecutors must always act in
accordance with the principles set out in this policy and local procedural manuals
and not solely for the purposes of obtaining a conviction.

CrossCountry Prosecutors or agents have a duty to review, advise in and prosecute
cases where the decision to prosecute has been made. They must seek to rely on
relevant and admissible evidence having regard to matters of disclosure, in
accordance with the provisions of the Criminal Procedure and Investigations Act
1996 and the Attorney General's Guidelines on disclosure of evidential materials.

CrossCountry is bound by the provisions of the Human Rights Act 1998 and
Prosecutors or agents must have regard to the principles of the European
Convention on Human Rights in accordance with the Act.

CrossCountry 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 retention, disclosure and other processing. In particular it is to be noted that
personal data will not be disclosed to third parties except in accordance with the
provisions of the Act and / or the Freedom of Information (Scotland) Act 2002.

2. Types of Offences

2.1 CrossCountry may prosecute the following offences:

a) Fare evasion in contravention of the Regulations of Railways Act 1889.
b) Contraventions of the National Railways Byelaws 2005.
c) Assaults and threats of assault, perpetrated against CrossCountry employees
in the course of their duties.
d) Public order offences in contravention of the Public Order Act 1986 and other
public order offences perpetrated against CrossCountry employees which
breach of the National Railways Byelaws 2005.
e) Criminal damage, graffiti and other types of property mutilation perpetrated
against CrossCountry property, not prosecuted by the police.
f) Forgery and counterfeiting of travel tickets and passes contrary to the Forgery
and Counterfeiting Act 1981 and other systematic or serious revenue related
offences contrary to the Fraud Act 2006.
g) Unpaid Fares Notices and Travel Irregularity Reports issued by CrossCountry
employees as part of their duties where the offender has failed to pay the fare
due in the specified time scales with the intent to avoid payment thereof.
CrossCountry may also seek Anti-Social Behaviour Orders (ASBO's) against any
person whose behaviour is found to have caused or is likely to cause any
CrossCountry employees or passengers using services or on CrossCountry
premises, harassment, alarm or distress.
The above list is not exhaustive and CrossCountry may prosecute other offences
relevant or incidental to fare evasion, fraud, criminal damage, or assault on
employees, outside of the list of offences set out in this policy.

3. Who Will Prosecute?

Offences listed in paragraph 2.1 above will normally be prosecuted by:

a) Approved CrossCountry Prosecution Agents.
b) Cases passed to The Crown Prosecution Service by our agents or the police.
This policy is restricted to those prosecutions that are conducted by CrossCountry
and plays no part in the process of prosecution applied by the Crown Prosecution
Service, but does take heed of the crowns considerations for all cases.

4. Young Offenders

CrossCountry will not normally prosecute any person under the age of 17 ½ years
old on the day of the relevant offence. This is in line with the Home Office guidelines
of diverting youths away where possible, from the criminal justice system.

However where the offence is of a serious nature, CrossCountry may prosecute or in
appropriate cases refer such an offence to the BTP.

CrossCountry considers the following offences to be of a serious nature:

a) Assaults on staff or other Public Order offences.
b) Criminal damage to CrossCountry property.
c) Forgery and counterfeiting of CrossCountry travel tickets and passes.
d) Illegal production or sale of CrossCountry travel tickets and passes.
e) Repeat offences of any nature or offences committed after a previous
warning.
f) Breach of an Anti-Social Behaviour Order.
g) Any other offence(s) where it is in the public interest to prosecute.
CrossCountry and its agents will consider all offences objectively in deciding whether
or not to prosecute. Youth offenders will be prosecuted in accordance with the
CrossCountry prosecution criteria contained in this policy after taking all surrounding
factors into consideration including necessary Home Office guidelines.

The Head of Business Support, Senior Customer Service Manager and
CrossCountry Prosecutor will make this decision with consideration to the Evidential
test in law as well as other relevant legislation to the case and advise from other
authorised persons such as the Managing Director.

Repeat young offenders will be prosecuted in accordance with this policy and the
Home Office Final Warning Scheme.

Passengers, Staff and Contractors in receipt of free travel from CrossCountry will be
subject to the agreed Behaviour Code associated with the free travel scheme. A
breach of the Behaviour Code could lead to enforcement action taken against the
holder of the free travel pass ranging from temporary to a permanent withdrawal of
the card depending on severity.

5. Non Prosecution matters

There are many reports that are submitted that are not subject to prosecution or debt
recovery, these are identified in the following categories:

a) Commercial Issues
b) Internal Investigations
c) Rail Staff Travel matters
d) Customer Relations matters
Cases resolved through our Customer Relations Management system (CRM) as one
of the reasons listed above will not normally be forwarded for prosecution or debt
recovery.

6. Decision to Prosecute

It is recognised that the decision to prosecute a person suspected of an offence is an
important and serious one. CrossCountry 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.

The Evidential Test

In deciding whether there is a realistic prospect of conviction, the Prosecutors will
have regard to the following:

a) Relevance and Admissibility of available evidence.
b) Reliability of evidence relating to the identity of the alleged offender.
c) Reliability of evidence of any observation of the alleged offender.
d) Reliability of any admissions and confessions including comments as
recorded in Inspectors' notebooks or in the Travel Irregularity Reports form
(TIR) as the case may be.

e) Reliability of Prosecution Witnesses.

If CrossCountry or its agents considers that there is insufficient evidence upon which
to base a prosecution, no prosecution will be brought. Consideration may however
be given to other responses, such as to consider an administrative disposal or settle
the matter by way of a warning letter. The Head of Business Support, Senior
Customer Service Manager and CrossCountry Prosecutor will make this decision
with consideration to the Evidential test in law as well as other relevant legislation to
the case and advise from other authorised persons such as the Managing Director.

Public Interest and Interest of Justice

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. 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, as each case will turn on its own individual factor.

7. Anti-Social Behaviour Orders (ASBO)
CrossCountry may decide to seek an ASBO against any person in accordance with
the Crime and Disorder Act 1998 as amended by the Crime and Disorder Act 1998
(Relevant Authorities and Relevant Persons) Order 2006 and / or Antisocial
Behaviour (Scotland) Act 2004.

CrossCountry may seek an ASBO where perpetrators have acted in an anti-social
manner on or in relation to any land or vehicles used in connection with, or for the
purposes of, the provision of any relevant transport service.

For the purposes of the Crime and Disorder Act 1998 (Relevant Authorities and
Relevant Persons) Order 2006, relevant transport service includes a bus service,
replacement transport or train service provided by CrossCountry or any of its
subsidiaries or by any person pursuant to an agreement with CrossCountry.

In other cases, CrossCountry prosecutors or prosecuting agents may request a
District Judge to consider issuing a post-conviction ASBO following the conviction of
any offender for a relevant offence where in the opinion of the prosecutor the
behaviour associated with the offence occurred on a CrossCountry service and has
or is likely to cause any CrossCountry employee or passenger harassment, alarm or
distress.

8. Prosecution Criteria

1. CrossCountry will have regard to the following factors in favour of prosecution:

a) Previous conviction for a relevant offence or where the offender has
committed a similar offence on any of CrossCountry services.
b) Refusal to heed an earlier warning about a similar conduct.
c) Offender has committed any of the offences of a serious nature as set out in
paragraph 4 of this policy.
d) The offence occurred in an area or on a service known to occasion high
revenue loss to CrossCountry.
e) The offender has failed to pay for the service or failed to have sufficient smart
card credit before boarding a relevant service1
f) The offender has unlawfully used or transferred a Freedom pass, Staff Pass
or other concessionary passes or travel documents issued to named holders.

2. CrossCountry will have regard to the following factors against prosecution:

a) Insufficiency of evidence,
b) Where it appears that there has been a genuine mistake by the alleged
offender. Note: It is not an acceptable mistake to believe erroneously that
your card contains a valid ticket, or a failure/omission to validate a smart card,
when on any CrossCountry services.
c) Age of the offender.
d) Where there may be issues concerning the mental health of the alleged
offender.
e) Where, owing to circumstances beyond the offender's control, commission of
the offence was unavoidable.
f) Where there is no realistic prospect of conviction.

3. CrossCountry will have regard to the following factors in the decision to
discontinue proceedings:

a) New and compelling evidence not previously available to CrossCountry or its
Agents.
b) Insufficient evidence to proceed with the prosecution.
c) Where the continuance of proceedings is likely to lead to an abuse of the
process of the courts.
d) Where continued proceedings are likely to be deemed malicious or in fact
likely to be prejudicial to CrossCountry’s interest.
e) Where the Prosecutions Manager takes the decision to discontinue
proceedings against the offender, due to exceptional circumstances.
f) Where the withdrawal is due to above, the relevant Prosecutions Manager
may set the terms and conditions for such withdrawal.

Under no circumstances should a case be withdrawn for the purposes of seeking
compensation from the defendant, except in proceedings for compensation for
damages or recovery of costs, through the county courts in relation to staff assault
cases.

However nothing shall prevent the Senior Customer Service Manager, Head of
Business Support or the Prosecution Agents from withdrawing a case against any
person where there are exceptional reasons to do so. What constitutes exceptional
reasons will be determined on the facts of individual cases and the decision to
discontinue a case will normally be taken by the Head of Business Support or the
Prosecution Agents.

CrossCountry may also in appropriate cases dispose of a matter by way of a
Warning Letter in accordance with section 9 of this policy, or by referring a youth
offender to the YOT. Where a case is disposed of other than by prosecution,
CrossCountry or its Agents may seek to recover any administrative costs incurred in
processing the case file.

9. Verification Letters

CrossCountry authorised Prosecutors will send a Verification Letter to all those
suspected of fare evasion. The Verification Letter invites the alleged offender to give
an explanation for the alleged offence or to provide any comments about the alleged
incident.

Failure to reply a Verification Letter may result in a decision to prosecute.
Any explanation/comments given by the alleged offender will be taken into account
and reviewed before arriving at the decision to prosecute.

10. Warning Letters

Where the offence involves potential fare evasion CrossCountry may decide to
issue an offender with a Warning Letter in lieu of prosecution, where the following
conditions are met:

a) The offender admits the irregular travel and;
b) The risk of re-offending is considered minimal and;
c) The offender has provided CrossCountry with exceptional mitigation against
prosecution or in the opinion of the Head of Business Support or the
Prosecution Agents it is not in the public interest to prosecute and;
d) The offender agrees to pay the administrative costs incurred in the processing
of the case file.

Note: Depending on the circumstances of each case, CrossCountry reserve the right
to proceed to prosecution without issuing a Warning Letter.

11. Administrative Disposal of cases

On occasion the fairest means to settle a case is to apply an administrative disposal
to the matter. This is done by mutual agreement of CrossCountry and its agents via
the Head of Business Support. For an administrative disposal to be considered the
following criteria should be met:

a) There is sufficient evidence to pursue a prosecution
b) There is no evidence to suggest intention to avoid the fare
c) This is the offenders first offence and no other records are held on file
d) The matter does not meet the criteria for a Serious offence in section 4

An offer of administrative disposal should be made up of the following criteria:

a) The single fare for the journeys made
b) Any reasonable administration costs incurred
c) Any sum must be paid in full within 21 days
The offer of an administrative disposal does not stop the defendant from having the
case heard in court and if the administrative disposal is not settled within the 21 days
the case will proceed as normal to prosecution.

12. Investigations

CrossCountry Revenue Protection Inspectors will "caution" any suspect in
accordance with the Police and Criminal Evidence Act 1984 (PACE), where
questions put to the suspect are likely to result in admissions or confessions
prejudicial to the suspect's case.

Please note that questions relating to a suspect's identity, address and journey
details are unlikely to trigger a caution within the meaning of PACE.

In administering the caution to a suspect, the CrossCountry Revenue Inspector will
read out the caution and ask if the suspect understands. If the answer is 'no' the
Inspector will then explain the caution as simply as possible and then ask again if the
suspect understands. Any reply to the caution must be recorded in the Inspector's
notebook or any other recording medium used for this purpose.

13. Disclosure

CrossCountry and its authorised prosecutors will have regard to the Criminal
Procedure and Investigations Act 1996 and the associated Code of Practice in the
disclosure of prosecution materials.

CrossCountry and its authorised Prosecutors will endeavour to retain and preserve
evidence that may be relevant to a prosecution, whether or not that evidence is to
form part of the prosecution case.

CrossCountry and its Authorised Prosecutors recognise that the rules of disclosure
in Magistrates Court are less formal in comparison to disclosure rules in the Crown
Court. However in the interest of justice, CrossCountry and its Authorised
Prosecutors will endeavour in all cases to adopt a consistent approach to disclosure
by disclosing prosecution materials in advance of any hearing.

1. Overview

CrossCountry operate a firm but fair approach to revenue protection and we
empower our frontline staff to make reasonable decisions based on the evidence
presented to them on the day.

Discretion is one of the best tools of a frontline member of staff and CrossCountry
looks to resolve matters at the earliest opportunity to protect the interests of the fare
paying customer, the business and the industry. A frontline member of staff has the
ability to decide the best course of action to take based on the evidence at the time
and this message is supported through the Briefing cycle.

All front line members of staff have the following options available to them:

a) Upgrade the passenger to the nearest valid ticket is available.
b) Sell the passenger a new valid ticket without discount if applicable.
c) Issue an Unpaid fares notice giving the passenger 21 days to either pay the
fare due or appeal the notice.
d) Issue a zero fare and report the matter via the Travel Irregularity system.
In addition to the normal frontline staff, CrossCountry also deploy a national
Revenue and Support Team who are competent in the Police & Criminal Evidence
Act 1984 (PACE) and have additional training set out in the Management of
Revenue and Support Specialists XCTL-254 and Management of Revenue
Protection Inspectors XCTL-226. Along with their other duties this team will
investigate a case and question a suspect inline with PACE and the codes of
practice A to E. The Revenue and Support team will have the training and ability to
submit reports in the MG11 format if applicable based on the evidence collected in
the case.

2. Process

Once a report or unpaid fares notice has been submitted they will follow two different
processes until they have been paid, resolved, appealed or recovered via our
prosecutors.

The two processes are designed to give an open and transparent view of each case
so the matter can be resolved fairly.

Unpaid Fares

All unpaid fares notices once issued must be submitted via the Customer Service
Manager to our Agents every Friday. Our Agents at the Independent Revenue
Collection and Appeals Service (IRCAS) will process the notices upon arrival and
wait for the 21 days, from date of issue, to elapse before contacting the passenger
for payment.

If a passenger pays the notice within the 21 days then no further action will be taken
and the case is closed.

Every passenger issued a UPFN has the right to appeal the notice to IRCAS, every
appeal will be reviewed against the National Rail Conditions of Travel, the railway
byelaws 2005 and also our own guidelines agreed with our supplier.

If an appeal is successful then the case will be closed and no further action taken,
however if the appeal is not successful the passenger is required to pay the full fare
due as indicated on the notice.

If a notice has not been paid or appealed at the end of the 21 days from date of
issue, a reminder letter is sent to the passenger requesting payment of the fare due
plus an administration fee within 14 days. If this is paid, then no further action is
taken.

If the reminder letter is not responded to then a final reminder is sent warning that if
the full amount plus the increased administration fee is not paid within 14 days then
the case may be forwarded to debt recovery or prosecution.

If the full amount is paid at this stage, then no further action is taken and the case is
closed.

If the final reminder is not responded too, then the case, once post 50 days of the
date of issue, is forwarded to our prosecution agents for debt recovery or
prosecution.

These cases upon receipt at our prosecution agents are then reviewed and
Verification letters sent out giving the passenger the opportunity to respond.

If there is no response then the UPFN cases are converted to a Witness statement
and the case is processed for prosecution to recover the fares due.

TIR / MG11 Reports

All reports submitted by CrossCountry frontline staff are sent as soon as practicably
possible to the Head of Business Support for processing.

Upon receipt of the reports they are quality checked and read in detail to understand
the nature of the report and the category that they will fall into for processing.

These are:

a) No Further Action
b) Commercial Issue
c) Internal Issue
d) Customer Relations
e) Rail Staff Travel
f) Prosecution / Debt Recovery

Depending on the content and nature of the reports then the process is slightly
different.

a) No further action cases are logged and closed down
b) Commercial cases are logged, resolved and forwarded to the commercial
department to rectify the issues
c) Internal issues are logged, resolved and forwarded to the appropriate line
manager for investigation
d) Customer relations matters are logged, resolved and forwarded to the
Customer Relations department for processing
e) Rail staff travel matters are logged and reviewed, depending on the nature of
the case they may be returned to the issuing office, TOC or RSTL for
investigation. These cases are then marked as resolved in regards to
CrossCountry involvement.
f) All cases for debt recovery or prosecution are logged, reviewed and the
nature of the offence identified, these are then sent to our prosecuting agents
for processing.

Once a report has been categorised and logged the appropriate letter will be
forwarded to the passenger outlining what is happening next.

On occasion some reports require more information before we can process them
effectively and this is done by requesting the additional information from the
passenger.

If a passenger does not respond within 14 days then the matter will be reviewed and
processed accordingly.

Download the Prosecution Policy PDF

Useful infomation

National Rail Conditions of Carriage

National Railway Byelaws

Download the Passenger's Charter PDF

 

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