Lay Prosecutors, Legal Uncertainty and the GTR v Brohiri Ruling

What the rail industry has learned, what remains unresolved, and how TOCs should proceed

Introduction: why this issue matters more than it first appears

For much of the rail industry, the use of lay prosecutors has historically been viewed as a practical necessity rather than a legal risk. For decades, trained revenue protection and prosecutions staff have commenced and presented cases in Magistrates’ Courts, supporting fare enforcement at scale, controlling costs, and maintaining operational continuity.

That long-standing position changed abruptly in 2025.

A combination of evolving penalty fare rules, judicial scrutiny of reserved legal activities, and the High Court judgment in Mazur v Charles Russell Speechlys introduced a level of legal uncertainty that the industry could not ignore. The result was an unprecedented pause in the use of lay prosecutors across TOCs, prompted by direction from government and reinforced by legal advice.

The January 2026 ruling in Govia Thameslink Railway v Charles Brohiri represents the first substantive judicial consideration of how these issues apply specifically to rail prosecutions. It has been widely reported, sometimes confidently, occasionally prematurely.

This article sets out to do something more measured.

It explains how the industry arrived at this point, why the pause was unavoidable, what the Brohiri judgment actually clarifies, where uncertainty remains, and how TOCs should realistically navigate the period ahead.

1. The pre-2025 position: how lay prosecutors became embedded in rail enforcement

To understand the significance of recent events, it is important to recognise how deeply embedded lay prosecution has been within the rail sector.

Private prosecutions by TOCs are long-established and lawful. What is distinctive is that, unlike many private prosecutors, TOCs have historically relied on non-legally qualified in-house staff to carry out much of that work. This model developed organically over time, driven by several factors:

• The high volume of fare evasion cases
• The relative procedural simplicity of many prosecutions
• The cost and practicality of instructing external lawyers at scale
• The specialist operational knowledge held by revenue protection teams

Magistrates’ Courts accepted this approach for years. Lay prosecutors regularly appeared, issued summonses, presented cases, and engaged with defendants. Rights of audience were assumed as a matter of convention. The practice became normalised.

Crucially, there was no authoritative judicial ruling that said this was unlawful.

That absence of challenge allowed the model to persist, not because it was unexamined, but because it functioned without friction. That changed when wider questions about reserved legal activity began to surface.

2. The Legal Services Act 2007 and the emergence of uncertainty

The Legal Services Act 2007 created a framework for regulating reserved legal activities, including the conduct of litigation and rights of audience. In simple terms, those activities are restricted to authorised persons unless an exemption applies.

For many years, this framework existed alongside lay prosecution in the rail industry without direct conflict. That equilibrium was disrupted by litigation outside rail.

The Mazur case did not concern TOCs, fare evasion, or transport. However, its interpretation of what constitutes the conduct of litigation, and who may lawfully carry it out, sent ripples far beyond its immediate facts.

The High Court’s approach was widely read as restrictive. The idea that litigation could only be conducted by authorised persons, regardless of supervision, raised an obvious and uncomfortable question for rail operators.

If issuing summonses and progressing prosecutions amounted to the conduct of litigation, and if no exemption applied, then the historic use of lay prosecutors might be unlawful.

That question was not theoretical.

3. The pause: why TOCs had no realistic choice

In August 2025, the Department for Transport issued guidance instructing TOCs to pause the use of lay prosecutors pending legal clarification.

This intervention was not made lightly. It reflected a recognition that the legal risk had become systemic. Once the issue had been identified, continuing as before was no longer defensible.

From a governance perspective, TOCs faced an unenviable position:

• Continue with lay prosecutors and risk allegations of unauthorised legal activity
• Pause and absorb the cost, disruption and backlog associated with alternative arrangements

Most operators chose the latter, and rightly so.

The impact was immediate and wide-ranging:

• Increased reliance on external solicitors and counsel
• Rising prosecution costs
• Slower case throughput
• Reprioritisation of enforcement activity
• Operational strain on revenue protection teams

This was not simply a legal issue. It affected staffing models, budgets, case pipelines, and public confidence in fare enforcement.

Importantly, the pause was not an admission that previous practice had been unlawful. It was an acknowledgement that legal certainty had eroded.

4. Industry-wide uncertainty and the risk of over-correction

The months that followed were marked by uncertainty.

Some stakeholders interpreted the Mazur judgment as effectively ending lay prosecution. Others argued that rail was different, pointing to Criminal Procedure Rules and historic court practice.

What was missing was judicial clarity in a rail-specific context.

Without that clarity, the risk was not just legal exposure but over-correction. The danger of abandoning workable enforcement models permanently, before the courts had properly tested the issue, was real.

It is against this backdrop that the Brohiri case became so significant.

5. The GTR v Brohiri case: what was actually tested

The Brohiri case did not arise as a theoretical test case. It emerged from a serial fare evasion prosecution involving over 80 offences.

The defence challenged a subset of charges on the basis that they had been commenced by lay prosecutors and were therefore invalid.

The arguments raised went to the heart of the industry’s concern:

• Whether applying for a summons constituted the conduct of litigation
• Whether lay prosecutors were exempt persons under the Legal Services Act
• Whether any breach rendered proceedings void
• Whether historic prosecutions amounted to criminal conduct

The court addressed each of these points directly.

6. What the court decided and why it matters

District Judge Nina Tempia’s judgment provides the clearest judicial guidance to date on these issues in a rail context.

The court found that:

• Criminal Procedure Rule 46.1 permits a prosecutor’s employee to apply for a summons
• The Criminal Procedure Rules constitute an enactment for the purposes of the Legal Services Act
• Lay prosecutors therefore fall within an exemption
• Even if technical non-compliance existed, it did not invalidate proceedings
• No abuse of process was established

Perhaps most importantly, the court rejected the notion that historic lay prosecution amounted to criminal conduct.

This finding matters for two reasons.

First, it provides reassurance that past cases are not at risk of wholesale collapse.

Second, it confirms that long-standing industry practice was not reckless or unlawful, but grounded in a reasonable interpretation of the rules as they stood.

7. What the judgment does not do

It is just as important to understand what the Brohiri judgment does not do.

It does not:

• Create binding precedent at appellate level
• Override the pending Mazur appeal
• Mandate a return to lay prosecutors
• Remove all legal risk going forward

The judgment is persuasive and well-reasoned, but it exists within a wider legal landscape that is still in flux.

8. The Mazur appeal: why it remains pivotal

The forthcoming appeal in Mazur v Charles Russell Speechlys, scheduled for February 2026, remains the most important unresolved element.

Unlike Brohiri, the appeal will be heard at a higher level and will directly address the interpretation of the Legal Services Act.

The outcome may:

• Reinforce the availability of exemptions
• Clarify the interaction between court rules and reserved activities
• Or entrench a more restrictive approach

Until that decision is handed down, any claim that the issue is settled would be premature.

9. ITAL’s position: encouraged, but deliberately cautious

Following the Brohiri judgment and legal advice received, ITAL’s position is clear.

We are encouraged by the direction of travel. The judgment provides clarity where there was confusion and reassurance where there was anxiety.

However, we do not believe it is appropriate to recommend an immediate return to lay prosecutors.

The risk is not theoretical. A premature shift, followed by an adverse appellate ruling, would place TOCs in a difficult position operationally and reputationally.

Our advice to clients reflects that balance.

10. How TOCs should realistically proceed

In practical terms, TOCs should consider the following principles:

• Maintain current compliant prosecution arrangements for now
• Use the Brohiri judgment as reassurance, not authorisation
• Prepare for multiple outcomes from the Mazur appeal
• Avoid binary thinking about enforcement models
• Invest in systems and processes that support flexibility

This is not a period for dramatic change, but for controlled preparedness.

11. The wider industry implication: enforcement confidence matters

Fare enforcement relies not just on legal authority, but on confidence.

Confidence that cases are lawful. Confidence that processes are robust. Confidence that decisions will stand up to scrutiny.

The Brohiri judgment restores some of that confidence. It does not remove the need for caution, but it does remove the fear that the past was fundamentally flawed.

That distinction matters.

Conclusion: a step forward, not the final destination

The rail industry is navigating a complex intersection of law, operations and public accountability.

The GTR v Brohiri ruling is a positive development. It clarifies, reassures and stabilises. But it does not close the chapter.

The next phase will be shaped by appellate decisions, regulatory response, and how pragmatically the industry adapts.

At ITAL, we will continue to support TOCs with evidence-based guidance, grounded in legal advice and operational reality.

Encouraging progress, yes. Final resolution, not yet.