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[NIP Wizard] NIP for a Vehicle Loaned to me, but driven by a friend from the USA
Polyphasic
post Wed, 14 Sep 2011 - 18:04
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NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - May 2011
Date of the NIP: - 118 days after the offence
Date you received the NIP: - 119 days after the offence
Location of offence (exact location as it appears on the NIP: important): - A1033, Withernsea
Was the NIP addressed to you? - Yes
Was the NIP sent by first class post, second class or recorded delivery? - Second
If your are not the Registered Keeper, what is your relationship to the vehicle? - It was a loan vehicle provided by Nationwide Crash Repair
How many current points do you have? - 0
Provide a description of events (if you know what happened) telling us as much about the incident as possible - some things that may seem trivial to you may be important, so don't leave anything out. Please do not post personal details for obvious reasons -
I had to undergo emergancy dentisty work and due to distraction from the pain didn't consider myself fit to drive. A friend from the USA was visiting at the time and offered to drive. I provided his details on the initial NIP and have now recieved a form with some further questions.

Although I did question him at the time regarding insurance and he stated his own policy would cover him I didn't ask to see any proof. I have no reason to doubt that he wasnt covered Im just concerned as to why they are specifically asking me if I requested to see the policy and it's number. I wasn't aware of any requirement to see documentation before allowing him to drive.


NIP Wizard Responses
These were the responses used by the Wizard to arrive at its recommendation:
Have you received a NIP? - Yes
Are you the Registered Keeper of the vehicle concerned (is your name and address on the V5/V5C)? - No
Is the NIP addressed to you personally? - Yes
Although you are not the Registered Keeper, were you the keeper of the vehicle concerned (the person normally responsible for it) at the time of the alleged offence? - No
As you were not responsible for the vehicle, somebody else has named you as the driver. Were you driving? - Yes
Which country did the alleged offence take place in? - England

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:
  • The law requires you to provide the information requested in the Section 172 notice within the 28 day period, naming yourself as the driver. If you are considering obtaining formal legal advice, do so before returning the notice.

    You should note that there is nothing to be gained by responding any earlier than you have to at any stage of the process. You are likely to receive a Conditional Offer of a Fixed Penalty (COFP) and further reminder(s). If you want to continue the fight, you should ignore all correspondence from the police until you receive a summons. You need to understand from the outset that while you will receive much help and support from members on the forums, you will need to put time and effort into fighting your case and ultimately be prepared to stand up in court to defend yourself.

Generated by the PePiPoo NIP Wizard v3.3.2: Wed, 14 Sep 2011 18:04:50 +0000
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post Wed, 14 Sep 2011 - 18:04
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The Rookie
post Wed, 14 Sep 2011 - 20:51
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QUOTE (CuriousOrange @ Wed, 14 Sep 2011 - 21:41) *
The 'he only had my permission if he was insured' magic bullet gets put forward often here, but has it ever actually worked?

Yes it has, but in that case it was a long term loan (not a short drive) and the defendant had a witness to the conditional nature of the loan. It comes down to a matter of fact, do the mags accept that the loan was conditional or not an that they'll decide on a balance of probabilities.

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BB Law
post Wed, 14 Sep 2011 - 20:53
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QUOTE (CuriousOrange @ Wed, 14 Sep 2011 - 21:41) *
QUOTE (BB Law @ Wed, 14 Sep 2011 - 21:10) *
...an alternative approach, which would be to try and encourage the police to summon you for failing to furnish...Do the police currently have any evidence that you caused or permitted the driver to drive the vehicle in question?


The OP said in their opener that they'd provided the friend's details in reply to the first S172, which is why they've got this shiny new questionnaire now.



Curious, I think you may have mis-interpreted my question - I appreciate the OP has given his American friend's details, what I am interested to know, is whether the OP has told the police that he PERMITTED the American friend to drive the vehicle or indeed anything else about the circumstances of the American friend coming to be behind the wheel of this vehicle.

BB Law


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BB Law's posts are for general information only and are based on general principles of the law, they do not constitute specific legal advice and should not be relied upon as such. BB Law does not accept instructions via this forum and does not enter into a solicitor-client relationship via this forum.
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TheGeek
post Wed, 14 Sep 2011 - 21:50
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QUOTE (AFCNEAL @ Wed, 14 Sep 2011 - 21:02) *
so was he insured on your Golf? It is immaterial what policy he had of his own as permisison from the OWNER (or keeper) was conditional upon the driver being isured on the car being repaired. So if he's on yours - problem solved, but if not he was driving without permission..........


If the OP was the keeper then he could give permission, so driving the car without permission is not an issue (though insurance might still be)

If the OP was not the keeper then he was in no position to give permission and therefore cannot be done for not doing so

Or am I missing something?

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CuriousOrange
post Wed, 14 Sep 2011 - 22:22
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QUOTE (BB Law @ Wed, 14 Sep 2011 - 21:10) *
...an alternative approach, which would be to try and encourage the police to summon you for failing to furnish...Do the police currently have any evidence that you caused or permitted the driver to drive the vehicle in question?
QUOTE (BB Law @ Wed, 14 Sep 2011 - 21:53) *
Curious, I think you may have mis-interpreted my question - I appreciate the OP has given his American friend's details, what I am interested to know, is whether the OP has told the police that he PERMITTED the American friend to drive the vehicle or indeed anything else about the circumstances of the American friend coming to be behind the wheel of this vehicle.



I guess I have, since:

- I can't see how the OP can possibly get from having named the American friend to failing to furnish, and

- the OP's apparently clear as day sat next to the driver, from which most people would reasonably infer that the driver is driving with permission.

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BB Law
post Wed, 14 Sep 2011 - 22:41
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Curious

At the moment the police seem to suspect the person named doesn't exist, hence the reason for the further correspondence, it is entirely possible that they will choose to pursue a FTF in such circumstances.

How do the police know it is the OP that is in the passenger seat? How do the police know the OP was in a position to grant permission to use the vehicle? How do the police know the OP granted permission?

The police will issue a summons for whichever offence they think will be easier to prove, the OP may wish to consider responding in a way that could encourage a summons for the FTF offence on the basis he may have better chance of defending that one!

You are assuming the police know what we know.

BB Law


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CuriousOrange
post Thu, 15 Sep 2011 - 08:01
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The easier offence to prove will be the no-insurance one. Why would the police ever think that the FtF would have a chance without any evidence that the friend doesn't exist (not least because he does)?

The very fact that it's so difficult to prove that a named foreign driver doesn't exist is the reason they go down this insurance route in the first place, seeing any hole as a goal. When they think they can prove a named driver is non-existent they tend to go for PCoJ instead, I believe. The possibility of them going to FtF just because they're suspicious is somewhere close to zero.

As for the permission matter, it's got nothing to do with what the police currently know; in the absence of a reported TWOC they'll assume that permission was given unless told otherwise, ditto for the court (otherwise no permitting-offence of this type could be successfully prosecuted without an open admission that permission was given). The OP can't tell either otherwise without lying, and in court that would probably include denying it was him in the photo unless you think he can give evidence from behind a curtain, even metaphorically.

Your original advice made far more sense.

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BB Law
post Thu, 15 Sep 2011 - 08:47
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Curious

My posts are not advice, I simply observed two potential alternative ways in which it would be possible to approach this situation. There is no right or wrong answer as to which (if any) of these routes should be taken. However, if this was me I would probably choose my second option, the Police/CPS don't like hard work and I think in these circumstances it would be more difficult than usual to prove that the OP caused or permitted the American friend to use this vehicle. The fact the OP has identified his American friend as the driver (in the absence of any other information) does not in my view go very far in terms of proving it was the OP who permitted him to drive that vehicle.

I don't think the fact the OP hasn't reported the vehicle as TWOC, necessarily proves he permitted the American friend to use it.

Perhaps we can agree to disagree!

BB Law


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BB Law's posts are for general information only and are based on general principles of the law, they do not constitute specific legal advice and should not be relied upon as such. BB Law does not accept instructions via this forum and does not enter into a solicitor-client relationship via this forum.
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jobo
post Thu, 15 Sep 2011 - 11:56
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QUOTE (CuriousOrange @ Thu, 15 Sep 2011 - 09:01) *
The easier offence to prove will be the no-insurance one. Why would the police ever think that the FtF would have a chance without any evidence that the friend doesn't exist (not least because he does)?

The very fact that it's so difficult to prove that a named foreign driver doesn't exist is the reason they go down this insurance route in the first place, seeing any hole as a goal. When they think they can prove a named driver is non-existent they tend to go for PCoJ instead, I believe. The possibility of them going to FtF just because they're suspicious is somewhere close to zero.

As for the permission matter, it's got nothing to do with what the police currently know; in the absence of a reported TWOC they'll assume that permission was given unless told otherwise, ditto for the court (otherwise no permitting-offence of this type could be successfully prosecuted without an open admission that permission was given). The OP can't tell either otherwise without lying, and in court that would probably include denying it was him in the photo unless you think he can give evidence from behind a curtain, even metaphorically.

Your original advice made far more sense.


cc i think intrinsically honest, literal people like your good self sometimes miss the option of ''unintentionally'' misleading others or allowing them to miss lead themselves, there is an option for any reply sent by the op to appear to qualify or with draw the nomination, with out actually doing so, or altering the fact that a legal nomination has already taken place. this MAY provoke the not very bright recipient of the letter to charge for FtF, for which the op would have a bolt on defence, if they went for permitting, its far from clear if the op did permit if he was empowered to permit the driving of the car by the yank

we dont know who insurance he was driving the car on, his own or the loan companies insurance, it may be that if its the companies insurance, his friend was covered any way

but we are getting ahead of ourselves, we need to f9ind is the friend was insured in his own right before we ger a lot deeper into this

in retrospect, i dont trhink the scammers letter is badly written, more an attempt to get him to incriminate himself re permitting and should therefore be answered with extreme caution if at all

This post has been edited by jobo: Thu, 15 Sep 2011 - 13:55


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sgtdixie
post Thu, 15 Sep 2011 - 17:27
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Just to clarify what the Police do in these circumstances. The OP nominates a foreign national. Provided there is sufficient detail for the Police to fully identify the nominated person then basic checks are done. That is UKBA will be asked to provide information confirming that person was in the country and the vehicle insurance checked to see if the nominated person is covered.

If the person nominated is contactable they will be written to and a s172 served on them if possible. If they deny being the driver or refuse to reply the Police can go down various routes from FTF to PCOJ. If the nominated person exists and is traced and admits driving then the issue of insurance arises.

If the OP is sat in the passenger seat it would be unlikley that they could deny giving permission for the driver to drive given the OP is clear that they needed someone else to drive. This raises the issue of TWOC.

If the OP states they didn't permit the driver to drive and the lease company agreement is restrictive as to who can drive TWOC can be considered.

As for the thought that the Police/CPS don't like hard work; curious as this is exactly the sort of enquiry that we used to love especially as some people end up with PCOJ charges. You should also be aware that what you have done is done numerous times and the Police are quite used to investigating it.

You may also find that if the Police believe you they may well ask for a statement in order to prosecute your friend. You cannot be compelled to give one, (but even if you don't you can be compelled to give evidence at court) but if you decline it will almost certainly give rise to the belief (whether right or wrong) you have lied.

You have done the honest thing in naming the real driver, i suggest if he is really a friend he would not want to put you at risk of prosecution for a relatively minor matter.

If you are mistaken in who you named I suggest trying to salvage the situation by contacting the Police before it spirals out of hand.
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AFCNEAL
post Fri, 16 Sep 2011 - 07:46
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QUOTE (TheGeek @ Wed, 14 Sep 2011 - 22:50) *
QUOTE (AFCNEAL @ Wed, 14 Sep 2011 - 21:02) *
so was he insured on your Golf? It is immaterial what policy he had of his own as permisison from the OWNER (or keeper) was conditional upon the driver being isured on the car being repaired. So if he's on yours - problem solved, but if not he was driving without permission..........


If the OP was the keeper then he could give permission, so driving the car without permission is not an issue (though insurance might still be)

If the OP was not the keeper then he was in no position to give permission and therefore cannot be done for not doing so

Or am I missing something?




It may be in fact that's missing something. If I lend you my car, I do not, expressly or by implication, give you the option to lend it on to someone else. It seems the garage loaned a car to the OP on the basis that s/he plus any driver at the time insured on the OP's own car was permitted and insured. If the U.S, friend wa sone of those people - the Plod don't have a leg to stand on. If not, the American friend is gulity of TWOC and uninsured, the OP of permitting?


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jobo
post Fri, 16 Sep 2011 - 17:24
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I( see SD has played the ''old'' false dicotamy, you were either permitting or it was TWOCed card, much beloved by the police, ignoring as ussual the stat defence to a TWOC charge that you BELIEVED you had or would be given permision


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Greek God
post Wed, 21 Sep 2011 - 23:35
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Not wishing to hijack anything but what is the law with regard to letting your vehicle be driven by someone else? Where does it say one has to physically see a friends policy, surely if the question "do you have insurance?"has been asked and answered in the affirmative then the onus is on the friend to provide proof? IE at what lengths must you go to be deemed to have fulfilled your obligation not to allow your car to driven without insurance?
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jobo
post Thu, 22 Sep 2011 - 02:44
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the law doesn't say you have to see the policy,, which is unfortunate, as even if you did see the policy you could still find your self in bother if the cert wasn't valid

its a strict liability offence, it happens and your guilty, unless you have a duress of circumstances case to present,it may be that you would get an AD, or special reason not to endorse or even not in the public interest if you were deliberately mislead with a fake policy, but thats in the lap of the gods

the only way to protect yourself is to make the existence of insurance an explicit condition of the loan, pref in writing, meaning that it is now being driven with out your permission, and at least theoretically the car is TWOCed

in my time here no one has ever come on and said, ''''I lent my car on the express condition that valid insurance is in place, its always seeking an assurance with;; ''you are insured, arnt you ?'' which would seem not to be sufficient

This post has been edited by jobo: Thu, 22 Sep 2011 - 02:47


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jimster
post Thu, 22 Sep 2011 - 07:18
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QUOTE (sgtdixie @ Thu, 15 Sep 2011 - 18:27) *
If the OP states they didn't permit the driver to drive and the lease company agreement is restrictive as to who can drive TWOC can be considered.


Road Traffic Act 1988 Section 178


QUOTE
Unless a court is satisfied that the accused acted in the reasonable belief that he had lawful authority, or in the reasonable belief that the owner would, in the circumstances of the case, have given consent if he had been asked for it, the accused shall not be liable to be convicted of the offence.


I think that there would be a strong defence to any charge of driving without consent in this case. The OP did not or could not give authority, and the friend had reasonable belief that under the circumstances, consent would have been given.



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southpaw82
post Thu, 22 Sep 2011 - 18:07
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QUOTE (jimster @ Thu, 22 Sep 2011 - 08:18) *
Road Traffic Act 1988 Section 178


QUOTE
Unless a court is satisfied that the accused acted in the reasonable belief that he had lawful authority, or in the reasonable belief that the owner would, in the circumstances of the case, have given consent if he had been asked for it, the accused shall not be liable to be convicted of the offence.


I think that there would be a strong defence to any charge of driving without consent in this case. The OP did not or could not give authority, and the friend had reasonable belief that under the circumstances, consent would have been given.


Except the offence wasn't in Scotland. You want s. 12(6) of the Theft Act 1968

QUOTE
A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owner’s consent if the owner knew of his doing it and the circumstances of it.



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jimster
post Thu, 22 Sep 2011 - 20:11
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QUOTE (southpaw82 @ Thu, 22 Sep 2011 - 19:07) *
Except the offence wasn't in Scotland. You want s. 12(6) of the Theft Act 1968

QUOTE
A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owner’s consent if the owner knew of his doing it and the circumstances of it.





Ooops blush.gif

Thanks Southpaw
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