Roger Pearson looks at an Appeal Court ruling which makes the passing of unexpired underground tickets a criminal offence
A recent Appeal Court ruling for London Underground has been greeted as one of the best legal developments for years. The company now has a potent legal weapon with which to fight the widespread practice of "ticket touting" which it estimates costs around £3m to £5m a year in lost ticket revenue.
However, the decision of Lord Justice Mantell, Mrs Justice Ebsworth and Judge Martin Stephens QC could have the spin-off effect of local authorities cracking down on motorists who pass on unexpired car park tickets as they drive out of car parks to the drivers of incoming vehicles.
Counsel Jonathan Simpson of Verulam Chambers, who co-masterminded the appeal, says: "The decision of the court renders rail ticket touting a theft, but it could also do the same as far as the well-intentioned generosity of motorists who pass on unexpired parking tickets."
The appeal involved three men who pleaded guilty to theft after being prosecuted for selling discarded, but unexpired travel cards at a reduced price to new travellers.
The men received sentences varying from probation to community service. They pleaded guilty after a signpost ruling stated that all the components of theft, save for the question of dishonesty which he considered was a matter for a jury, were present in the ticket scam.
In reaching a decision the court rejected arguments that travel tickets, once sold, were no longer the property of London Underground under the Theft Act 1968.
He also held that the use of a ticket in the way that had taken place was to the detriment of London Underground, was inconsistent with their rights and amounted to an appropriation in law.
Those findings were unchallenged in the Court of Appeal. The appeal was based on the judge's finding that, in the light of what had happened there was evidence of an intention to permanently deprive London Underground.
It was argued that there could be no intention on the part of the appellants to deprive London Underground of the ticket, particularly as the re-sold ticket would, on expiry, be returned to London Underground.
However, the court rejected that argument. Lord Justice Mantell said London Underground had a right to insist that a ticket was used by no-one other than the purchaser. It was this right which was disregarded when a ticket was acquired and sold on by a tout.
Simpson believes the ruling will put friends and relatives in potential breach of the Theft Act.
"Many people pass on unexpired tickets at the end of the day to friends and relatives," he says. "In the light of this ruling that practice could also amount to theft."
However, he stresses that for the Theft Act provisions to be effective in the way they have here, it will be essential for any such as rail authorities or local authorities with car parks to make it abundantly clear that tickets are not transferable.
"This ruling is a landmark one, but it can only be used to level theft charges against people if they have been warned that they are doing something wrong and are therefore acting dishonestly. If they have not then it is unlikely they will be charged with theft.
"However generous passing on a ticket might seem, the new ruling will require the public to be re-educated on what amounts to criminal behaviour."
Simpson represented one of the appellants in the action. The others were represented by Nigel Taylor of New Court Chambers.