Burns v First Capital Connect [2012] EWHC 1305 (Admin)

Case No CO/10194/2011

[2012] EWHC 1305 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 1 May 2012

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE GROSS

MR JUSTICE SUPPERSTONE

Between

BURNSClaimant

Between

FIRST CAPITAL CONNECTDefendant

Computer-Aided Transcript of the Stenograph Notes of

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Mr S Fuller (instructed by Hodkin & Co) appeared for Claimant

for The Defendant did not appear and was not represented

J U D G M E N T

LORD JUSTICE GROSS:

[1]The appellant, Mr Burns, was convicted by the City of London Magistrates on 22 July 2011 for an offence under Byelaw 18(2) of the Railway Byelaws. Byelaw 18(2) provides as follows:

"A person shall hand over his ticket for inspection and verification of validity when asked to do so by an authorised person."

[2]This is an appeal by way of case stated. The questions posed by the case were these:

"A. Can a person be guilty of an offence under Byelaw 18 (2) and 24 of the Railway Byelaws if they did not hand over their ticket for inspection and verification of validity and were not asked to do so by an authorised person but where the ticket was found to be invalid because it was an Oyster card with insufficient funds on it? B. Were the magistrates wrong in law or did they act in excess of their jurisdiction in convicting the appellant of an offence under Bylaws 18(2) and 24 of the Railway Byelaws when they found, (a) that the appellant had not failed to hand over his ticket for information and verification of validity, (b) that the appellant had not been asked to hand over his ticket by an authorised person, and (c) that the appellant had insufficient funds on his Oyster card ticket and it was therefore an invalid ticket?"

[3]The appeal is unopposed. Upon reflection, the respondent has not sought to uphold the decision of the magistrates. The reason is quite straightforward: as is apparent from the wording of the two questions posed by the magistrates, no offences was committed under Byelaw 18(2). In effect, as Mr Fuller has submitted today, the very wording of the question reveals that no offence was, on those facts, capable of being committed under Byelaw 18(2). The appellant had indeed handed over his Oyster card, albeit there were insufficient funds on it. Accordingly, the two questions posed, to which I have already drawn attention, must be answered: in respect of question A: no; and question B: yes. Whatever may have been the appellant's fate, had he been prosecuted under Byelaws 17(1) or 18(1), which focus on valid tickets, those were not the Byelaws under which he was prosecuted. A prosecution under Byelaw 18(2) was, whatever the underlying merits, doomed to fail. It follows that the appeal must be allowed.

MR JUSTICE SUPPERSTONE: I agree.

[5]MR FULLER: I would ask that your Lordships quash the conviction in the Magistrates' Court and the associated orders and costs order and substitute the defendant's costs order hearing below.

LORD JUSTICE GROSS: We will quash the conviction. Should the appellant be entitled to costs? You say he is entitled to a costs order.

[7]MR FULLER: My Lord, yes.

LORD JUSTICE GROSS: Because he has won.

[9]MR FULLER: Indeed.

LORD JUSTICE GROSS: It could be said, Mr Fuller, that he rather brought this on himself. What do you say to that? It is quite clear he shouldn't pay anyone's costs. It's quite clear the conviction must be quashed. Do you think he should get his costs?

[11]MR FULLER: My Lord, that wasn't the offence for which he was prosecuted and that wasn't properly investigated in the Magistrates' Court. I would submit that, on that basis, he is entitled to his costs.

LORD JUSTICE GROSS: Just, with a measure of reluctance.

[13]MR FULLER: So, a defendant's costs order.

LORD JUSTICE GROSS: Yes. The moral of the story for Mr Burns is to top up his Oyster card. It is a much cheaper way of doing it.

[15]MR FULLER: Thank you.