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Archive for the ‘Notice of Intended Prosecution.’ Category

I Have Received A Notice of Intended Prosecution – What Should I Do?

I have received a Notice of Intended Prosecution. What do I have to do next?

 

Section 172 of the Road Traffic Act is aimed at forcing individuals (whether they are the registered keeper on the V5 document, or the driver of the vehicle on the date in question) to provide the identity of the driver at the time of an alleged road traffic offence.

 

The legislation was introduced as many traffic offences are detected by un-manned devices, or identified by officers who do not actually speak to the driver. For this reason, it was accepted that the police needed to have a way to force individuals to provide driver details, if they were able to do this. 

 

A notice of intended prosecution (known as a NIP, or a S172 notice) is served on a person, either verbally at the time if they are stopped by police, or soon after an alleged offence has been committed, to make them aware that they may be prosecuted.

 

Receiving a NIP does not mean that you will definitely (or automatically) be prosecuted, but it acts as a warning that this may happen.

 

Nominating yourself – or another person – as the driver at the time of an alleged offence is not an admission of guilt. If a person is charged, they have the right to defend the charge in the usual way. 

 

The NIP has to be served on the registered keeper of the vehicle within 14 days of the offence, otherwise the matter would not be able to proceed at court.

 

If the driver’s identity is not known, then the NIP is sent to the registered keeper. Whether the NIP is sent to the driver or the registered keeper, as long as the form is sent out within 14 days then it is valid.

 

If the registered keeper has changed their address, or not informed DVLA about a change of circumstances, etc, then as long as the NIP arrived at the address on record for the registered keeper within 14 days it is still valid. The registered keeper then has a legal obligation to do everything within their power to identify the driver.

 

The driver may receive further paperwork in due course, but this should not be confused with the NIP, which is legally required to be sent within 14 days.

 

NIPs can, as mentioned, be issued verbally to the driver at the time of the offence, or, alternatively, you could receive a court summons through the post for the alleged offence within the 14 days.

 

Small errors on the NIP do not render it invalid, unless such mistakes would mislead the potential defendant.

 

A NIP shall be deemed to have been served on a person if it was posted to her/him at their last known address, even if the NIP was returned as undelivered, or was for any other reason not received by her/him. The posted NIP is deemed to be served until the contrary is shown.

 

It is important that the NIP/S172 notice is completed and returned within the 28 day time limit, even if the form arrives outside of its own 14 day time limit. If the boxes on the form do not allow you to give an appropriate response, you should complete the form as far as you can and attach a covering letter before returning it.

 

If you were not the driver of the vehicle on the date in question, you should name the driver if you can. If there are several possible drivers, you should name them all and give contact details. If you are unable to name the driver, you should explain why (ie detail what checks you have made).

 

As many of the completed forms appear to go missing in the post, it is best to copy the completed form for your records, and then return by recorded delivery to ensure it is received.

 

You may then hear nothing more about the alleged offence or receive either a conditional offer of fixed penalty or a summons to court, depending on the nature of the alleged offence and the number of points on your driving licence at the time.

 

If you do not complete and return the NIP/S172 notice correctly within the 28 day time limit, you face a separate charge of failing to notify driver’s details, which is a 6 penalty point offence with a fine of up to £1,000.  For this reason, it is best to seek legal advice before completing a Notice of Intended Prosecution.

 

Forrest Williams offer a fixed fee service whereby we review your situation and guide you through correct completion of the Notice of Intended Prosecution.

 

If you have been charged with failing to notify driver’s details, please contact us on 01623 600645 so we can offer you free advice.  

 

 

 

 

Why Chris Hughton was Convicted of Failing to Disclose Drivers Details

I have to declare an interest before I start. I am a Birmingham City fan and a big fan of their ex manager Chris Hughton.

In a sport full of unsavoury characters with seemingly very little morals Chris Hughton has the respect of all in the game.

I was surprised to see him on trial in Solihull Magistrates Court yesterday.

He was charged with failing to disclose drivers details. The procedure for this is that when a vehicle is caught speeding the registered keeper is sent a notice of intended prosecution.

At this stage there is no evidence of who was driving, simply that a car bearing that number plate activated a speed camera.

In order to prosecute someone the police need to know who was driving the car. Hence the notice of intended prosecution and the request for drivers details. These are technically 2 different forms but are often combined in the same notice.

I came into court late whilst waiting for my case to get on so I do not know all of the facts. These are what I have been able to glean. I am pretty certain of them but apologies if anything is incorrect.

It appears that Chris wasn’t the registered keeper of the car (I would have been surprised if he was). It was probably a company car on lease from a finance company.

The request for drivers details goes to the registered keeper (probably the finance company) they then have to return the form saying who was driving. They will nominate the company (Birmingham City FC) who will then be sent a similar form. There is a 14 day time limit to serve this notice. The purpose of this is to allow drivers the chance to remember who was driving. The first notice has to be sent within 14 days. As long as the Registered Keeper gets it within 14 days the time limit has been complied with.

No doubt the Company secretary at Birmingham City will have received the notice and request, checked the records and nominated Chris Hughton. They cannot send the form to him, it has to go back to the police again who will again issue a further request. This time to Chris Hughton. By now a couple of months may have passed. Bear in mind the chain is – Police to Registered Keeper, registered keeper back to police, police to BCFC, BCFC to police, police to Chris Hughton.

Now some months later Chris Hughton is being asked who was driving the car on that day. It appears he made enquiries and discovered that he was away in Barnsley that day, it was a Tuesday night and we won 3-1 😉 So he knows it was not him, he went on the club coach. The car was at home. It appears at court he gave evidence to say that 5 people regularly drive that car but he was unable to say who was driving it that day.

The duty to disclose differs depending upon whether you are the registered keeper or a nominated person. As a nominated person Chris Hughton had to “give any information which it is in his power to give and may lead to identification of the driver.”

He no doubt asked everyone whether they were driving and no one could remember. I understand that he was in constant contact with the police and told them that he was not able to name the driver.

He was prosecuted and convicted. The Magistrates said that they believed everything he said but that he did not give all the information that was within his power. Simply put, he did not name everyone who may have been driving. If he had given the police the names of all those who may have been driving he would probably have been acquitted.

As it was he was left carrying the can for something that wasn’t his fault. He got 6 points instead of the 3 the driver would have got and a £1000 fine plus £600 costs.

If he had asked for my advice in the beginning I would have advised him to list all the people who it might have been.

It does beggar the question, when he wrote to the police saying “it definitely wasn’t me but I don’t know who it was” why the police didn’t advise him to name all possible drivers?

 

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?

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