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Archive for the ‘Fail To Disclose Driver’s Details’ Category

West Mercia Police Get it Wrong in Fail to Disclose Drivers Details Case.

 

Had a very interesting case in court this week.

My client, a man of good character with no speeding convictions in the last 25 years, was sent a Notice of Intended Prosecution for speeding.

At the time, he wasn’t sure who was driving so asked for a photograph. The photo, as normal, did not help.

My client returned the Notice of Intended Prosecution, correctly filling in the part that was headed “I WAS THE DRIVER OF THE VEHICLE AT THE TIME OF THE ALLEGED OFFENCE AND I WISH TO ACCEPT THE CONDITIONAL OFFER” (their capitals not mine) and signed it. He also sent his licence and a cheque for £60 to pay the fixed penalty.

He then added a covering letter stating words to the effect of  ‘I have little choice but to accept the fine even though I may not have been driving. I feel I am being punished for failing to provide the driver’s details rather than speeding.’

He then went on to enquire whether they would allow him to take the speed awareness course instead.

The police returned it effectively saying it was an equivocal plea and prosecuted him for failing to provide the driver’s details, which carries 6 points as opposed to the 3 for speeding.

We pleaded not guilty. Our defence was that the signed S172 was definitive proof that he was the driver and the letter accompanying it carried no weight.

We relied on the cases of Michael Mawdesley, Dwight Yorke v Chief Constable of Cheshire Constabulary [2003] EWHC 1586 (ADMIN) and also Hatton v Chief Constable of Devon and Cornwall Constabulary [2008] EWHC 209 (ADMIN).

The first case was different from ours but there was a useful comment from the Judge that “the form used by (the police)… enables it to be used under s12 of the RTOA as definitive proof that the accused was the driver on the relevant occasion

Hatton V CC of Devon and Cornwall was similar to our case. Here the driver returned the form correctly filled in and signed with a note stating that it was not to be used in criminal proceedings. The court stated – “It seems to me quite clear that the statement of the claimant in his reply to the Chief Constable gave the necessary information, stating that he was indeed the driver at the material time. It is true that he purported to include in it an indication that it could not be used for any purpose. I am afraid that that indication was not worth the paper it was written on.”

They referred to s12 of the RTOA –

(1) Where on the summary trial in England and Wales of an information for an offence to which this subsection applies [it applies to speeding] —

(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules … that a requirement under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and

(b) a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion,

the court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion.”

I addressed the court and explained that my client had confirmed on oath that his intention was that he would accept the fixed penalty but hoped we would be offered the speed awareness course. If the police had simply cashed the cheque and put points on his licence then he would not have complained.

I further added that if  he was taken to court for the speeding rather than being given a fixed penalty (for example, if he had been so far over the limit that a fixed penalty was not appropriate) he would not be able to argue that he was not the driver. If he tried, the CPS would jump up and wave this document and say “you admitted you were the driver, this is a legal document signed by you confirming you were driving”

The court accepted our defence and found him not guilty. He was never prosecuted for speeding, his cheque was returned uncashed and his licence remains clean.

They do say a bird in the hand is worth 2 in the bush?

Failing to Disclose Drivers Details

I came across a website this week that frankly scared me.

A client has been charged with failing to disclose the drivers details following a speeding allegation.

He sent me this from a website run by a non solicitor –

Take the matter to court. Plead not guilty. The prosecution will outline its case and state that contrary to Section so and so of the Road Traffic Act 1988 you failed to supply such information etc. etc. After they have confirmed with their witness that you did not complete the form they will rest their case. You defence is simple. You state that supplying the required information is tantamount to a confession, and you are not obliged to confess to anything under the rule of Self incrimination. Threatening you with penalties if you do not confess is coercion and is therefore illegal. You can then rest your defence. If you are convicted of failing to supply the information inform the court you intend to appeal.

I wouldn’t bother with a solicitor, they will only cost you money.

This is so wrong and dangerous. It is talking about a situation that was changed over 5 years ago. It was thought for a very short period of time that you could refuse to give your name in response to a request attached to a Notice of Intended Prosecution. This was cleared up by the court and it is now law that if you do not give the name of the driver without reasonable cause (i.e. you do not know and cannot find out who was driving) then you are guilty of an offence of failing to disclose. This carries 6 points not the 3 for speeding.

I don’t know how many drivers have followed this advice and got themselves into a big mess.

Let me make it clear. The words above in red are WRONG, WRONG, WRONG and dangerous. They highlight why you should not trust non lawyers to give legal advice, it’s like letting your mate down the pub operate on your kidneys.

For proper legal advice call us anytime on 0800 1933 999

Speed ticket loophole for notice of intended prosecutions caught in postal strike

A recent court case – Gidden v Chief Constable of Humberside, has effectively changed the law in relation to notice of intended prosecutions.

The law is that for most motoring offences, including speeding, the motorist should be warned that he or she is going to be prosecuted. This warning, called a notice of intended prosecution must arrive within 14 days of the offence.

Until last week provided that the notice was sent in time for it to NORMALLY arrive within 14 days that was enough. So if the police post a notice on 8th June in relation to a speeding offence that happened on 1st June then that would count as good notice, even if it arrived on 16th June.

The recent case, which arose out of the last round of postal strikes has now changed the law. If the motorist can show that the notice arrived after the 14 day period then the police are out of time and cannot prosecute the driver for speeding.

The Judge, Lord Justice Elias said “This case raises an issue of some topicality given the current postal strike and is of no mere small interest,”

“I appreciate that this construction of the legislation may create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the inevitable delays in delivery.

“The authorities must then adopt other means of warning, if they are to avoid the risk of late delivery.”

No doubt specialist motoring solicitors will receive many calls relating to this. The advice is that you will need to return the Notice of intended prosecution saying you were the driver but that it was received out of time. You will then need to be able to convince the court at a later date that it arrived late.

This may make a huge difference to the way the police deal with Notice of intended prosecutions. Only last week I had a case where someone had been asked to tell the police who was driving. the problem was that the first Notice of intended prosecution did not arrive so she was sent a reminder and was then asked to remember who was driving some 6 weeks earlier. A simple recorded delivery would have prevented this problem.

Will the police now be forced to use recorded delivery?

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