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S172 Single Justice Procedure Notice - Speeding and Failure to Identify Driver
gp123
post Thu, 9 Nov 2017 - 14:21
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Hi All,

I received a speeding ticket back in May and could not identify the driver definitively as I was completing the Three Peaks challenge with two friends and therefore we were swapping drivers regularly and none of us are certain who it was driving at the time of the offence but on the balance of probability having reviewed the timeline, we’re 75% sure of who it probably was.

We have fully accepted that we are responsible for the speeding ticket and the individual who we think it might be is happy to take the points/fine but I understood the law was that you should only state the driver if you’re 100% certain of who was responsible. I’ve explained this to the police and they advised me to put this in writing, which I have.

I’ve subsequently been served a Single Justice Procedure Notice that I’ve received for a S172 offence and I have 21 days to respond. I was really hoping that someone with some legal knowledge would be able to give some answers on the following points:

1. We had hired a car in my name, but my two friends were both named drivers as well. Will they also receive ‘SJPN’ or as the hirer, am I solely responsible and therefore it is only me that will end up getting fined/penalty points?

2. I’m not sure whether to plead guilty or not guilty, as I’m confident that it was not me driving the car and I’ve tried to be totally transparent with the police so I’ve not willingly withheld the driver’s identity – I just honestly can’t be 100% certain who it was even if I have a good inclination.

3. I don’t want to get points on my licence and/or pay a huge fine so on the balance of probabilities, if my friend is most likely to be responsible and willing to accept it, can I ask the court to accept him as the responsible party? If so, how would I go about taking this action please?

4. My friend who we think is most likely responsible is prepared to plead guilty and accept the consequences however he is currently living in New Zealand and therefore returning to the UK for a court case is not an easy option. Is there any chance that he will be called to court?

5. At this stage, is there any way to avoid this going to court now or is my only option to appear in court and explain the situation and hope that they sympathise with the circumstances and/or accept that on the balance of probabilities, my friend is the most likely driver?




This post has been edited by gp123: Sun, 12 Nov 2017 - 20:52
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post Thu, 9 Nov 2017 - 14:21
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peterguk
post Thu, 9 Nov 2017 - 14:25
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QUOTE (gp123 @ Thu, 9 Nov 2017 - 14:21) *
my two friends were both named drivers as well. Will they also receive ‘SJPN’ or as the hirer, am I solely responsible and therefore it is only me that will end up getting fined/penalty points?


Did you name them as possible drivers?


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AntonyMMM
post Thu, 9 Nov 2017 - 14:46
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Telling the police that you're 75% sure and the person is willing to take the points is not enough to satisfy the legal requirement. As already asked - did you at least give names and addresses for the other possible drivers ?

If you plead guilty you will get 6 points, a large fine and raised insurance premiums for the next few years.

The way to have dealt with this was to sit down with the other possible drivers, agree who it was and then unequivocally name them, but too late for that now. Deliberately naming the wrong driver would not be OK but the pragmatic approach in such cases is to just name the most likely driver, with no ifs/buts/maybes or % probability mentioned. Had you been the driver, then you could attend court and do a plea bargain where you plead guilty to a charge of speeding, and they will drop the (much more serious) s172 offence. But with the driver being unavailable, that can't really happen.

You option now is to plead not guilty - and defend the case in court. You will have to show why "you did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was". Courts can be sceptical and the bar they set for this is very high, so you may not succeed. Being able to show you co-operated fully and gave all the information you could possibly give will help a lot, but the costs of losing, in addition to the fine, will be substantial.

The case will be held in the court local to the offence, not where you live.

This post has been edited by AntonyMMM: Thu, 9 Nov 2017 - 14:54
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southpaw82
post Thu, 9 Nov 2017 - 14:51
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QUOTE (gp123 @ Thu, 9 Nov 2017 - 14:21) *
I was really hoping that someone with some legal knowledge would be able to give some answers on the following points:


Ok. For future reference though it's usually better and easier to seek legal advice before there's a problem.

QUOTE
1. We had hired a car in my name, but my two friends were both named drivers as well. Will they also receive ‘SJPN’ or as the hirer, am I solely responsible and therefore it is only me that will end up getting fined/penalty points?


It's very likely that you'll be the only one facing criminal charges.

QUOTE
2. I’m not sure whether to plead guilty or not guilty, as I’m confident that it was not me driving the car and I’ve tried to be totally transparent with the police so I’ve not willingly withheld the driver’s identity – I just honestly can’t be 100% certain who it was even if I have a good inclination.


Unfortunately your understanding of the law was incorrect (in practice). Naming the most likely driver is often the easiest way to deal with these matters. It's difficult to advice whether you have a defence yet, as we have insufficient details.

QUOTE
3. I don’t want to get points on my licence and/or pay a huge fine so on the balance of probabilities, if my friend is most likely to be responsible and willing to accept it, can I ask the court to accept him as the responsible party? If so, how would I go about taking this action please?


No, that ship has sailed.

QUOTE
4. My friend who we think is most likely responsible is prepared to plead guilty and accept the consequences however he is currently living in New Zealand and therefore returning to the UK for a court case is not an easy option. Is there any chance that he will be called to court?


Probably not relevant.

QUOTE
5. At this stage, is there any way to avoid this going to court now or is my only option to appear in court and explain the situation and hope that they sympathise with the circumstances and/or accept that on the balance of probabilities, my friend is the most likely driver?


You're almost certainly going to have to appear in court.

QUOTE
6. If I’m called to court and the offence took place in Cumbria then will I likely be called to a court near there or will the case be scheduled near my place of residence which is in London?


Cumbria.

Did you name the other possible drivers?


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gp123
post Thu, 9 Nov 2017 - 17:50
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Hi All,

Thank you for all your replies. On the first note, I can confirm that I've co-operated with Cumbria Police at every turn and have provided the details of both of the other drivers. In addition; I requested both of the other drivers to write to Cumbria Police confirming that we accepted the charge but could not definitively confirm who was driving at the time.

In terms of my defence, I've requested pictures which did not help us identify the driver and we were swapping drivers on a regular basis due to the Three Peaks challenge - I can evidence that we were taking part in this. I've also produced a document showing that we've attempted to look at phone records and the distance of the offence from the 'setoff' point (Scafell Pike) to see if that would help ascertain who was driving as we were swapping every hour or so.

In hindsight, I note that naming the driver who we expected was most likely to have committed the offence would have the best port of call, but I was concerned that effectively that would also be lying as we could not be certain. To some extent, it feels that you're dammed if you do and dammed if you don't in this case but I recognize the point that you've all raised.

So if I got a signed statement from the driver we expected committed the offence then could I use that at this stage or without him attending, will that not be possible?

Would there be any way that I could request the case to be heard nearer London as otherwise it's a 6-7 hour journey for me either way? I appreciate the courts are not always flexible to these sort of issues but is there anything that could be done? Failing that, is there any way that I could settle this out of court?

Thank you again for all of your help!

This post has been edited by gp123: Thu, 9 Nov 2017 - 17:58
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peterguk
post Thu, 9 Nov 2017 - 18:15
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QUOTE (gp123 @ Thu, 9 Nov 2017 - 17:50) *
So if I got a signed statement from the driver we expected committed the offence then could I use that at this stage or without him attending, will that not be possible?


As SP stated above, no. Too late. The offence was committed 28 days after service of S.172.

QUOTE (gp123 @ Thu, 9 Nov 2017 - 17:50) *
Would there be any way that I could request the case to be heard nearer London as otherwise it's a 6-7 hour journey for me either way? I appreciate the courts are not always flexible to these sort of issues but is there anything that could be done? Failing that, is there any way that I could settle this out of court?


No on all counts. Trial will be close to where offence was committed.

This post has been edited by peterguk: Thu, 9 Nov 2017 - 18:17


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Jlc
post Thu, 9 Nov 2017 - 18:46
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Would providing the driver identity now potentially compromise a reasonable diligence defence? (On the basis the driver could be identified). It begs the question why the driver couldn't be identified in the original timeframe.

There's no out of court settlement -other than a guilty plea for 6 points.

This post has been edited by Jlc: Thu, 9 Nov 2017 - 18:51


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

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gp123
post Thu, 9 Nov 2017 - 19:17
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QUOTE (Jlc @ Thu, 9 Nov 2017 - 18:46) *
Would providing the driver identity now potentially compromise a reasonable diligence defence? (On the basis the driver could be identified). It begs the question why the driver couldn't be identified in the original timeframe.

There's no out of court settlement -other than a guilty plea for 6 points.


That’s a concern of mine as I don’t want to think we lied originally. Based on the leg of the journey that we were on, we have an inclination of who is most likely to have been driving but it’s far from a 100% definitive answer but at this stage, I wondered if that would be beneficial to the case or hinder the case further?

This post has been edited by gp123: Sun, 12 Nov 2017 - 20:56
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southpaw82
post Thu, 9 Nov 2017 - 19:20
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QUOTE (Jlc @ Thu, 9 Nov 2017 - 18:46) *
Would providing the driver identity now potentially compromise a reasonable diligence defence? (On the basis the driver could be identified). It begs the question why the driver couldn't be identified in the original timeframe.

I don't think it would be particularly helpful. The defence is that the defendant did not know and could not be exercising reasonable diligence find out who the driver was. The OP has the makings of a reasonable diligence defence. Any admission that he was "75% sure" who the driver was, or that they now accept it was them driving (particularly if they're conveniently out of the country) isn't helpful.


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Churchmouse
post Thu, 9 Nov 2017 - 23:29
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What offense(s) have you been charged with? Unless the police believed your story, they ordinarily would have dual-charged you with the s172 as well as the underlying speeding offense.

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NewJudge
post Thu, 9 Nov 2017 - 23:52
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QUOTE (Churchmouse @ Thu, 9 Nov 2017 - 23:29) *
What offense(s) have you been charged with? Unless the police believed your story, they ordinarily would have dual-charged you with the s172 as well as the underlying speeding offense.

--Churchmouse


Speeding and S172 (Question title).


You face two allegations: speeding and failing to provide the driver’s details.

If you were not driving you cannot be convicted of speeding. However, the second charge is more serious (it carries six points, a hefty fine and insurance grief for up to five years). Presumably the hire company received the first request for driver’s details and nominated you (as the hirer). Now your problems begin.

If you were driving there is a tried and tested method which involves doing a deal with the prosecution. You would plead not guilty to both charges. The matter will be taken out of the SJ procedure and listed in the normal Magistrates’ Court (in Cumbria). You can attend the hearing, seek out the prosecutor and offer to plead guilty to the speeding matter if the “Fail to Furnish” charge is dropped. This is almost always accepted. However, if you were not driving you will have to defend the “Fail to Furnish” charge. (The speeding matter will be dropped as there is no evidence as to who was driving). There is a statutory defence to the charge which says this:

“A person shall not be guilty of an offence….if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.”

As has been said, unfortunately you are not in a strong position to take advantage of this defence because, having exercised your reasonable diligence you have (almost certainly) discovered who was driving. The trouble is you’ve exercised your diligence a little too late.
However you deal with this a trip to court up North will be necessary. You cannot do the “deal” or defend the FtF allegation without attending. If you defend the FtF matter I think you should concentrate on what you did in terms of “diligence” before you replied saying you could not be sure who the driver was. If you mention your recent success in discovering who was driving your defence may well sink because the court will consider that you could have achieved that end somewhat earlier and in time to avoid committing the offence.
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Logician
post Fri, 10 Nov 2017 - 00:33
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Your defence case is not strong and somewhat undermined by the fact that you now know who was driving. If you are found guilty after pleading not guilty the guideline for costs is £620, you will receive 6 points, a fine of 150% of your net weekly income plus a surcharge of 10% of that (minimum £40).

You should consider pleading guilty to the s.172 and not guilty to the speeding, provided you do not already have 6 or more points. That will still bring 6 points but will avoid having to travel up to Cumbria as you can plead guilty by post, the costs will be £85 and the fine will be discounted by 33%.


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gp123
post Fri, 10 Nov 2017 - 03:56
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Thanks for all of your support on this. Honestly I just want to be clear though, I’ve not definitively identified who was driving however based on all evidence, I could probably give an idea of who I think it probably was but it would be an educated guess rather than a clear identification. Obviously in hindsight, it sounds like that would have been enough and should have been the action that I took but I naively thought that I had to be 100% certain of the driver otherwise I should take the action I have.

This post has been edited by gp123: Sun, 12 Nov 2017 - 20:57
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The Rookie
post Fri, 10 Nov 2017 - 05:46
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Maybe, but you would be carrying the can for the offence YOU did commit, not the one someone else committed which is a separate offence.

You have a potential defence of claiming to not have been the keeper of the car at the time in question, but having hired it in your name that would almost certainly be a very uphill battle, if you claimed you were not the keeper the prosecution would have to prove on balance of probabilities that you were, being the person named on the hire agreement would strongly count against you and you would need something compelling to counter that.

The Keeper has to perform reasonable diligence in order to identify the driver (or to the actual wording show they couldn't identify the driver despite exercising RD), a person other than the keeper only has to provide information in their power to give.


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IanJohnsonWS14
post Fri, 10 Nov 2017 - 07:38
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The problem with defending a NG plea is that you have to demonstrate that you did what you could and still could not identify the driver.

Your posts in this thread indicate that you could have identified the driver if you had tried.



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Kickaha
post Fri, 10 Nov 2017 - 08:20
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QUOTE (IanJohnsonWS14 @ Fri, 10 Nov 2017 - 08:38) *
The problem with defending a NG plea is that you have to demonstrate that you did what you could and still could not identify the driver.

Your posts in this thread indicate that you could have identified the driver if you had tried.

That is some leap you are making there.

As I read it, the OP is no clearer now than he was when he filled in the form as to the identity of the driver (and that being about 75%). What he is clearer on is that the 75% certainty was enough for him to name the driver on - he previously thought that he needed to be 100%.

I think all the OP can do is to explain everything to the magistrates and hope he gets them on a good day.

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Logician
post Fri, 10 Nov 2017 - 08:53
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QUOTE (gp123 @ Fri, 10 Nov 2017 - 03:56) *
Even more annoyingly, it’s frustrating that this has ended up at my door as I definitely was not speeding and was only one of three named drivers yet I’m going to have to carry the can for this!


The speeding is not the current issue, it is failing to name the driver, which you were required to do, although it sounds as though you all talked together and could not be sure who that was and were arguably equally guilty. My suggestion would be to plead guilty, as I suspect you would be found guilty and a guilty plea removes the travel costs and time, and minimises the costs and fine. Then come to an arrangement over splitting the fine and costs between you, either three ways, or since you will be left with the points which will cost you increased insurance premiums in the future, it would not be unreasonable to ask your friends to split the money between them.



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southpaw82
post Fri, 10 Nov 2017 - 10:57
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QUOTE (The Rookie @ Fri, 10 Nov 2017 - 05:46) *
if you claimed you were not the keeper the prosecution would have to prove on balance of probabilities that you were

Beyond a reasonable doubt, surely?


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gp123
post Fri, 10 Nov 2017 - 11:19
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QUOTE (Kickaha @ Fri, 10 Nov 2017 - 08:20) *
QUOTE (IanJohnsonWS14 @ Fri, 10 Nov 2017 - 08:38) *
The problem with defending a NG plea is that you have to demonstrate that you did what you could and still could not identify the driver.

Your posts in this thread indicate that you could have identified the driver if you had tried.

That is some leap you are making there.

As I read it, the OP is no clearer now than he was when he filled in the form as to the identity of the driver (and that being about 75%). What he is clearer on is that the 75% certainty was enough for him to name the driver on - he previously thought that he needed to be 100%.

I think all the OP can do is to explain everything to the magistrates and hope he gets them on a good day.


Thank you - you’ve hit the nail on the head as this is an accurate summary. I’ve tried to do everything in my power to identify the driver and have co-operated with the police at every turn so I don’t see that I should plead guilty as I really have done everything I can so I’m going to plead not guilty and hope the magistrates are sympathetic.

My question would be - should I tell the magistrates that I’m 75% certain who did it (and get a signed statement by the individual to that effect which I can show on the day) but I thought I had to be 100% certain of the driver hence I took the action I did or am I better to just explain that I’ve tried to identify the driver and show the steps I’ve taken and that I cannot conclusively confirm who was driving at the time.

I don’t want to lie either way but ironically it seems the ‘pragmatic approach’ encouraged just that so I don’t want to put myself in a worse situation by not taking the right action in court.

Thanks again for your help!
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Jlc
post Fri, 10 Nov 2017 - 11:33
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The defence is that you did not know who was driving and could not identify the driver after using reasonable diligence after receiving the s172 request.

You need to primarily concentrate on the diligence you performed. If the bench agree that the diligence was sufficient and the driver could not be identified then you'll be acquitted. A 'plea bargain' does not seem applicable here - although, there's an argument that this could still be performed if you subsequently believe you were more than likely driving.

Many fall foul thinking that anything less than 100% is going to cause them issues - but its the deliberate naming of the wrong driver that is serious. The bar of success is quite high for these cases and your credibility will be called into question - but we have seen some successful cases but the majority anecdotally seem to fail. After all, they have to distinguish the genuine cases from those who simply believe such a response will see them discontinue ('pub talk' in some cases).

Providing the other driver details doesn't necessarily assist because of the personal diligence you were expected to perform. So what did you do? (The bench may find it hard to believe that 3 adults between them cannot recreate the events of the day, arguably not a routine journey and should be memorable - you perhaps need to counter this conception)

How long after the event was the NIP received? (It would have been to 1 or 2 other places first)

Do you know what sort of camera it was? Was a photo requested?

This post has been edited by Jlc: Fri, 10 Nov 2017 - 11:38


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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