Deduction of Earnings Order, but they have the wrong individual

[ldsfit]

Hi All,

I'm in need of some advice.

My employer recently sent me an email stating that HM Courts had ordered them to dock my salary for over £1000 due to unpaid train fares in 2008 and 2010. They have the wrong individual. The train journey's were made in East London at stations i have never been to. At the time, i was also a resident of Leicester. I queried the case with the court and i was informed by London Collections CC that letters of these fines were sent to "my address", which is an address in London i have never lived in. However, I am currently a Londoner now.

So the money has been deducted from my employer, leaving me short on cash. I have to pay my MSc university fee's (which i'm now unable to do) and now, despite informing the court of my innocence in this matter, i have been summoned to represent myself. Another annoyance is that my attendance in court is needed on the 27th April 2018, 6 days after i have abdominal surgery. My surgeon has instructed me to stay indoors for at least two weeks, but i have to attend this court hearing as it is in my "best interest" - so i'm told by a lady who works at the court.

I have obtained my bank statements from 2010 (that's as far as the mobile app is letting me go back) and i was working for a company at that time, in Leicester. However, i made no card payments in Leicester on that day. I am going in to the bank tomorrow to get my bank statements around 2008.

My credit rating is also in the mid 900's with no mention of this or any CCJ's (although i imagine they would have disappeared due to being more than 6 years old if i was "summoned to court in 2010").

Does anybody have any further advice for me on proving that this isn't me? I have spoken to Action Fraud who have said that if my credit rating isn't affected, it's a case of mistaken identity rather than a fraudulent one.

Any advice would be greatly appreciated.

Thanks!

[jaguarsuk]

Hi All,

I'm in need of some advice.

My employer recently sent me an email stating that HM Courts had ordered them to dock my salary for over £1000 due to unpaid train fares in 2008 and 2010. They have the wrong individual. The train journey's were made in East London at stations i have never been to. At the time, i was also a resident of Leicester. I queried the case with the court and i was informed by London Collections CC that letters of these fines were sent to "my address", which is an address in London i have never lived in. However, I am currently a Londoner now.

So the money has been deducted from my employer, leaving me short on cash. I have to pay my MSc university fee's (which i'm now unable to do) and now, despite informing the court of my innocence in this matter, i have been summoned to represent myself. Another annoyance is that my attendance in court is needed on the 27th April 2018, 6 days after i have abdominal surgery. My surgeon has instructed me to stay indoors for at least two weeks, but i have to attend this court hearing as it is in my "best interest" - so i'm told by a lady who works at the court.

I have obtained my bank statements from 2010 (that's as far as the mobile app is letting me go back) and i was working for a company at that time, in Leicester. However, i made no card payments in Leicester on that day. I am going in to the bank tomorrow to get my bank statements around 2008.

My credit rating is also in the mid 900's with no mention of this or any CCJ's (although i imagine they would have disappeared due to being more than 6 years old if i was "summoned to court in 2010").

Does anybody have any further advice for me on proving that this isn't me? I have spoken to Action Fraud who have said that if my credit rating isn't affected, it's a case of mistaken identity rather than a fraudulent one.

Any advice would be greatly appreciated.

Thanks!

Unpaid rail fares are prosecuted through Criminal not Civil proceedings under the Regulation of Railways Act 1889, s.5(3) (travelling on railway without paying fare, with intent to avoid payment); s.5(1) (failing to produce ticket). The is why there is no CCJ and your credit file is unaffected.

However, sorry to be the bearer of bad news you now have a Criminal Record (until this gets corrected) and have been fined it seems the maximum penalty for the offence. Max penalty is £1,000 or a 3 month custodial sentence per offence. Further, it is not only in your interest to attend court and actually if you don't the Magistrate may issue a Warrant for your Arrest if you fail to attend.

However, you have a good reason not to attend and if your doctor has advised of your requirement to stay indoors to recuperate then if you can get that in writing you should ask for an adjournment until after the period for you to recover. You can do this by writing to the court.

It is very much advisable that you are represented due to the risk the a criminal record remaining in place if you are not successful and you supply a solicitor with the documents you have to proved your whereabouts at the time.

Unlike Civil Proceedings, the Criminal Courts afford you representation by the duty solicitor on the day if you wish.

[Amethyst]

Have you obtained a copy of the notification of the hearing letter ( and any other documentation) from the courts ?

Also Statutory Declaration information may be useful - I don't know if you have already done that? Part 24 Trial and sentence in a magistrates’ court

• Statutory declaration of ignorance of proceedings, CrimPR 24.17 (Word 57kb, 2 pages) [tsm001-eng.doc]
• Statutory declaration of ignorance of proceedings, CrimPR 24.17 (PDF 41kb, 2 pages) [tsm001-eng.pdf]

[jaguarsuk]

You could send an SAR to the train operator asking for all information they have on you, including CCTV footage at the date and times of the alleged offence as on stations or trains.

It might yield nothing, but for £10 it might also show up something. Here's a guide: https://legalbeagles.info/library/gu...ccess-request/

The current operators data transfers with franchise changes, therefor you just send it to the current operator and don't worry if the operator at the time are no longer the company.

[jaguarsuk]

Potentially S127 of the Magistrates Courts Act 1980 could apply, but that would depend on what the court determines as the date from when the complaint arose.

Was that date the date of the offence, the date you didn't respond to their first letter demanding payment or the date of the last letter demanding payment?

A solicitor will know better than me on that front.

[ldsfit]

Have you obtained a copy of the notification of the hearing letter ( and any other documentation) from the courts ?

Also Statutory Declaration information may be useful - I don't know if you have already done that? Part 24 Trial and sentence in a magistrates’ court

• Statutory declaration of ignorance of proceedings, CrimPR 24.17 (Word 57kb, 2 pages) [tsm001-eng.doc]
• Statutory declaration of ignorance of proceedings, CrimPR 24.17 (PDF 41kb, 2 pages) [tsm001-eng.pdf]

I've not received any letters from the court, despite giving them my address. I have received emails regarding the time of this statutory declaration.

You could send an SAR to the train operator asking for all information they have on you, including CCTV footage at the date and times of the alleged offence as on stations or trains.

It might yield nothing, but for £10 it might also show up something. Here's a guide: https://legalbeagles.info/library/gu...ccess-request/

The current operators data transfers with franchise changes, therefor you just send it to the current operator and don't worry if the operator at the time are no longer the company.

I've emailed the court getting the exact times of these alleged offenses. So far they have only given me the date and station at which these skipped fares were apparently carried out.

Potentially S127 of the Magistrates Courts Act 1980 could apply, but that would depend on what the court determines as the date from when the complaint arose.

Was that date the date of the offence, the date you didn't respond to their first letter demanding payment or the date of the last letter demanding payment?

A solicitor will know better than me on that front.

I've never had a letter demanding payment. The first i heard of this was from my employer. The only dates i have been given are the dates of the alleged crime and the dates it originally went to court (a few months after the original dates of said alleged crime).

So once i know the exact times i can request CCTV from the train operator of this incident? Or will i have to sift through CCTV of the station. I've been told two of the three offenses was carried out at a specific station and the other one was on the Charing Cross South Eastern Line.

Thank you for your help! It's much appreciated.

[jaguarsuk]

a few months after the original dates of said alleged crime

s127 of the Magistrates Courts Act 1980 is not relevant then as the limit in it is 6 months.

Or will i have to sift through CCTV of the station.

All you need are the dates, they will know the time of offense from their records and it's up to them to sift through to find the clip you require. The standard response time is 40 days, so get it off ASAP as with an adjournment you may get it back in time. You also want a record of any dates of searches they did on the electoral roll for you or any logged calls from their employees in their systems about you.

Ask for these specifics, but caveat it with "and all other information you hold." The reason I say ask for specifics is that if they confirm they do not have this information, that no searches took place or no calls in writing to you it will be helpful.

I would advise that you find out via the edited electoral roll who was registered at the address in question on the dates of the offence and show where you were registered.

The problem is that even if you can prove your residence and electoral roll status at the time, the train operator could say that you gave a false address to avoid the fare and that is an offence under Regulation of Railways Act 1889.

Your solicitor or you if you choose to self represent will need to challenge how they identified you at the scene of the alleged offence as it may be due to time that they no longer hold the CCTV from the stations. Challenging how they identified you throws doubt into whether you committed the offence as well as that the address not being your residence or you using it to avoid the fare. In the criminal court the burden of proof is beyond all reasonable doubt, even a little bit of doubt and you win.

I actually used to work in this field, I left in the year of your alleged first offence and so albeit for a different operator than yours I know from experience what was industry practice at the time. If your solicitor or you need a witness statement to the effect of below I'm happy to provide one.

The process for stopping an alleged fare evader was to first observe them committing the offence. Challenge them for the proper travel documents for their journey. If they were unable to provide them or the documents had some deficiency to explain this to them and issue a notice to pay the fare (sometimes with the addition of a penalty).

I did not have the power under PACE to caution the individual, so on issuing the notice I would ask them to complete their personal information on the notice as then any deficiency in this information is evidenced in writing. Those inspectors with PACE powers are able to caution the alleged evader and receive their details verbally as the court will accept the inspectors evidence due to the PACE powers they hold.

Before signing and issuing the notice the alleged evader is identified to ensure correct details have been given, preference is given to them producing Photo ID and failing that if they have a bank card bearing the name or other document this is accepted as name verification. If a photo driving license is produced with corresponding name plus address of that given the inspector signs and issues the notice. In all other instances of ID the inspector contacts his/her designated point via telephone to verify the address.

The designated point would usually conduct an electoral roll search often returning the result of address correct and surname present on the electoral roll.

However occasionally the address is return as address correct, no name match on name. In that instance it was practice for inspectors to judge what to do next. Unless accompanied by British Transport Police as part of a specific campaign whom can conduct further checks on your behalf, I had little choice other than to be happy that they had proved their name and given me a house number along with post code that were correct then issue the notice.

Some inspectors may choose to contact British Transport Police to attend, but this was very rare and usually only for fares of significant value. I personally for example would not have contacted them for any fare under a value of £100.

The inspector at the end of their shift will go on to complete a witness statement, usually a fill in the blanks pre formatted one and file it with their recovery unit.

The argument being dependant on whether they did address verification that:

A They electoral roll searched you, but you were not on the electoral roll at the address at the time and therefore the inspector did not properly identify the individual committing the offence. He took on face value the identity of the individual due to the value of the fare, a person whom by virtue of the offence they are committing cannot be trusted to be honest and that individual was not you. Prove how you identified me categorically to be that individual at the time?

B Assert that the inspector failed in their duty to do any identity checks at the time, they didn't even do the basic check on address that was industry practice at the time. Assert that the inspector just took on face value what he was told at the time by someone who by virtue of the offence cannot be trusted to be honest. Prove how you identified me categorically to be that individual at the time?

C: What was the photo drivers license number given and ask the court adjourn these proceedings making an order that the DVLA disclose a copy of the license including photograph to the court.

I very much doubt in the circumstance that C will be applicable unless you are the victim of a particularly sophisticated identity theft and if you were I think your credit file would have been horrendous by now, so you'd know about it already.

[ldsfit]

s127 of the Magistrates Courts Act 1980 is not relevant then as the limit in it is 6 months.



All you need are the dates, they will know the time of offense from their records and it's up to them to sift through to find the clip you require. The standard response time is 40 days, so get it off ASAP as with an adjournment you may get it back in time. You also want a record of any dates of searches they did on the electoral roll for you or any logged calls from their employees in their systems about you.

Ask for these specifics, but caveat it with "and all other information you hold." The reason I say ask for specifics is that if they confirm they do not have this information, that no searches took place or no calls in writing to you it will be helpful.

I would advise that you find out via the edited electoral roll who was registered at the address in question on the dates of the offence and show where you were registered.

The problem is that even if you can prove your residence and electoral roll status at the time, the train operator could say that you gave a false address to avoid the fare and that is an offence under Regulation of Railways Act 1889.

Your solicitor or you if you choose to self represent will need to challenge how they identified you at the scene of the alleged offence as it may be due to time that they no longer hold the CCTV from the stations. Challenging how they identified you throws doubt into whether you committed the offence as well as that the address not being your residence or you using it to avoid the fare. In the criminal court the burden of proof is beyond all reasonable doubt, even a little bit of doubt and you win.

I actually used to work in this field, I left in the year of your alleged first offence and so albeit for a different operator than yours I know from experience what was industry practice at the time. If your solicitor or you need a witness statement to the effect of below I'm happy to provide one.



The argument being dependant on whether they did address verification that:

A They electoral roll searched you, but you were not on the electoral roll at the address at the time and therefore the inspector did not properly identify the individual committing the offence. He took on face value the identity of the individual due to the value of the fare, a person whom by virtue of the offence they are committing cannot be trusted to be honest and that individual was not you. Prove how you identified me categorically to be that individual at the time?

B Assert that the inspector failed in their duty to do any identity checks at the time, they didn't even do the basic check on address that was industry practice at the time. Assert that the inspector just took on face value what he was told at the time by someone who by virtue of the offence cannot be trusted to be honest. Prove how you identified me categorically to be that individual at the time?

C: What was the photo drivers license number given and ask the court adjourn these proceedings making an order that the DVLA disclose a copy of the license including photograph to the court.

I very much doubt in the circumstance that C will be applicable unless you are the victim of a particularly sophisticated identity theft and if you were I think your credit file would have been horrendous by now, so you'd know about it already.

Wow, what a fantastic response. Thank you.

I contacted the Rail Service on the email provided by the court, to which the respondent has informed me that these incidents are so old, they do not have the files anymore. Does this now mean that they have no evidence against this individual? I need as much info as i can so i can piece my REAL whereabouts at the time that this individual (who is believed to be me) committed the crime, but i'm really struggling to get more info. They're really not playing ball. This is giving me a lot of stress.

[ldsfit]

The train operator has informed me that they will be withdrawing from the cases in question. They've said they have insufficient evidence. Awesome.

That leaves me with two questions:

1) How do i get my money that has been taken from me back?

2) Can i pursue a compensation claim for the courts/train operator taking the money, stress this has caused etc?

[jaguarsuk]

Wow, what a fantastic response. Thank you.

I contacted the Rail Service on the email provided by the court, to which the respondent has informed me that these incidents are so old, they do not have the files anymore. Does this now mean that they have no evidence against this individual? I need as much info as i can so i can piece my REAL whereabouts at the time that this individual (who is believed to be me) committed the crime, but i'm really struggling to get more info. They're really not playing ball. This is giving me a lot of stress.

This really plays into your favour. You say you contacted the court and they have set a hearing, I assume they have granted you an appeal?

Regarding the bold, do an official Subject Access to Information request under the Data Protection Act 1998 as suggested with £10 Statutory Fee. If you do and get the same response then you know they genuinely have nothing, you don't want to get there and then them produce all sorts of evidence to counter your defence. In addition to the other specifics add "All Files relating to court case number XXX in the X Magistrates Court."

If you have been granted an appeal they are required to send you the evidence before the hearing as you can't form a defence without knowing the evidence against you, this is why you need to get a copy of the notification of the hearing letter as Amethyst suggested because this will determine the dates such as this that are important.

If they fail to disclose evidence it could be fatal to their case:

In CPS v. LR [2010] EWCA Crim 924, Judge LCJ giving the judgment in the Court of Appeal stated that a fundamental principle of fairness is that the defendant is entitled to private and confidential communications with his legal team “unsupervised and unobserved by police officers or representatives of the CPS”. In order for the legal team to properly advise, take instructions and effectively prepare the defence in readiness for trial, the defence needs to have access to all the material intended to be relied on

Whilst it is a private prosecution you are involved in the principles applying to the Police and CPS still applies to them in regard their duty to you.

It's not over until the judge overturns the original decision and makes an order for restitution of the monies you have paid. Therefore plug away at gettng all the information you need to build your defence to what they offence they are prosecuting you for under Regulation of Railways Act 1889, s.5.

Equally keep a track of any hardship you suffer, any charges by the bank if you miss payments or interest you accrue for if you're successful.

[ldsfit]

Thank you again for your response. It's much appreciated, it really is.

The train operator has dropped the case because of insufficient evidence from deleting the files. How do i go about claiming my money back? Can i file for something compensatory?

[jaguarsuk]

Thank you again for your response. It's much appreciated, it really is.

The train operator has dropped the case because of insufficient evidence from deleting the files. How do i go about claiming my money back? Can i file for something compensatory?

Great news, has this information come from the court?

Recovery of the funds you paid will come from the court as that is whom your employer has been paying. Enquire with them how to proceed.

The bold is the funny bit, remember how I said "keep a track of any hardship you suffer, any charges by the bank if you miss payments or interest you accrue for if you're successful."

That's because as a result of their negligent actions in falsely accusing you of this offence and falsely prosecuting you then you have suffered losses and potentially damage in terms of reputation, successful prosecutions are published in the newspapers and your employer got letters the AOE from HM Courts and Tribunals service.

Oh the stress, the distress, the anxiety and sleepless nights you suffered as a result

You can't just commence a claim you have to write to the operator and give them a chance to remedy the situation first, but you should be aware that personal injury claims carry a heavy risk of costs. A No Win No Fee PI firm might take it on though.

I’d try writing to them, can help with a draft tomorrow if you like and seeing what they cough up. If nothing you can asses things from there.

[ldsfit]

Great news, has this information come from the court?

Recovery of the funds you paid will come from the court as that is whom your employer has been paying. Enquire with them how to proceed.

The bold is the funny bit, remember how I said "keep a track of any hardship you suffer, any charges by the bank if you miss payments or interest you accrue for if you're successful."

That's because as a result of their negligent actions in falsely accusing you of this offence and falsely prosecuting you then you have suffered losses and potentially damage in terms of reputation, successful prosecutions are published in the newspapers and your employer got letters the AOE from HM Courts and Tribunals service.

Oh the stress, the distress, the anxiety and sleepless nights you suffered as a result

You can't just commence a claim you have to write to the operator and give them a chance to remedy the situation first, but you should be aware that personal injury claims carry a heavy risk of costs. A No Win No Fee PI firm might take it on though.

I’d try writing to them, can help with a draft tomorrow if you like and seeing what they cough up. If nothing you can asses things from there.

I see! Well i really have been stressed from this incident, especially as i'm due for surgery in a couple of weeks and the courts wanted me to attend 6 days in to my recovery. I've recently been trying to get a promotion with my employer, and when they came through with the email saying i was being prosecuted, well, that's probably not put me in a good light now.

A draft letter would be amazing! Thank you so much!

[ldsfit]

UPDATE:

The court have just informed me that i still need to attend court on the 27th April and that the train operator shouldn't have said to me that they'll be dropping the case. Great. This still isn't over. I said you have no evidence of of me doing this, and she said all the info i'll need is the date of the incidents and that's it. But i'm like, no, i need the times so i can see if i made a card transaction around that time in my hometown, which will solidify that i'm not in London at that time. My old bank statements are with another bank so i'll have to get in touch with them to get my info. FFS.

[jaguarsuk]

UPDATE:

The court have just informed me that i still need to attend court on the 27th April and that the train operator shouldn't have said to me that they'll be dropping the case. Great. This still isn't over. I said you have no evidence of of me doing this, and she said all the info i'll need is the date of the incidents and that's it. But i'm like, no, i need the times so i can see if i made a card transaction around that time in my hometown, which will solidify that i'm not in London at that time. My old bank statements are with another bank so i'll have to get in touch with them to get my info. FFS.

Okay, so she can't provide you anymore information that she has and that'll be a basic outline of what the prosecution is with the Act breached to form the offence.

In criminal proceedings it is the duty of both sides to conduct disclosure of evidence and essentially you have been told by the prosecution (train operator) they cannot disclose as they have destroyed their evidence.

You have the dates, so just get the bank statements using the date. You don't have to show the specific time of a transaction, if all your payments that day are in Leicester or around the midlands then you weren't in London were you?

You need to get the notification of the hearing letter as a matter of urgency, it has very important dates you will have to adhere to on it regarding your defence statement which you will have to send to court and the train operator.

Keep the email from them saying they are dropping the case and you need to do nothing further for later.