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andy_foster
Posted on: Fri, 21 Sep 2018 - 20:23


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'Authority' appears to be somewhat of a moveable feast at the moment, with some judges considering themselves bound by obiter comments and at the same time at liberty to utterly disregard the ratios of properly argued cases which run contrary to their agendas.

Not that I'm at all cynical...
  Forum: The Flame Pit · Post Preview: #1418727 · Replies: 32 · Views: 896

andy_foster
Posted on: Fri, 21 Sep 2018 - 19:33


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Presumably someone somewhere had a meeting and decided that "right of way" meant an absolute right to proceed, which has never existed, and is completely different to "priority" which is effectively a qualified right to proceed? Or has "right of way" as understood by rational people (basically the same as "priority" been abolished, and all road signs and lines are merely decorations?
  Forum: The Flame Pit · Post Preview: #1418712 · Replies: 26 · Views: 519

andy_foster
Posted on: Fri, 21 Sep 2018 - 19:25


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The argument for prior opinion is pretty much that actively operated devices are generally only approved to corroborate the opinion of the operator, which would be "as tested". There is no stipulated requirement that the opinion *must* be prior, but if the operator is simply pinging everything in sight and then claiming that whatever the reading is is what he thought the vehicle was doing, then I would say that his "opinion" is worthless.
  Forum: The Flame Pit · Post Preview: #1418710 · Replies: 32 · Views: 896

andy_foster
Posted on: Thu, 20 Sep 2018 - 21:45


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QUOTE (seank @ Tue, 18 Sep 2018 - 11:08) *
I meant Volkswagen Audi Group's NIP.


Did you mean Volkswagen AG's NIP?
  Forum: The Flame Pit · Post Preview: #1418474 · Replies: 44 · Views: 2,032

andy_foster
Posted on: Thu, 20 Sep 2018 - 21:42


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QUOTE (DancingDad @ Thu, 20 Sep 2018 - 21:50) *
For some reason, the cold callers asking about my accident get all confused when I tell them it killed me.


They usually hang up when I ask them what they are wearing. If not, they always hang up when I ask them if they enjoy certain sexual positions.
  Forum: The Flame Pit · Post Preview: #1418472 · Replies: 11 · Views: 267

andy_foster
Posted on: Wed, 19 Sep 2018 - 20:47


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QUOTE (NewJudge @ Wed, 19 Sep 2018 - 12:50) *
It's quite straightforward. If your reply is not received in time to accommodate the offer of a course or a fixed penalty (if appropriate) you won't get such an offer. The matter will go straight to prosecution .


We have seen plenty of cases where COFPs have been offered or extended after the 6 months to prosecute have expired, so I would suggest that your statement that the OP "won't get" a COFP is incorrect.
  Forum: Speeding and other Criminal Offences · Post Preview: #1418172 · Replies: 24 · Views: 969

andy_foster
Posted on: Wed, 19 Sep 2018 - 20:41


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QUOTE (Redivi @ Wed, 19 Sep 2018 - 21:28) *
He's pleading guilty to a speeding offence and taking the points for another driver

Vicky Pryce got 8 months for it



Are you saying that Vicky Pryce got 8 months for pleading guilty to speeding?

Also, are you saying that by pleading guilty to speeding the OP would be stopping that actual driver getting points, that he would somehow otherwise get if the OP did not plead guilty?
  Forum: Speeding and other Criminal Offences · Post Preview: #1418170 · Replies: 19 · Views: 722

andy_foster
Posted on: Wed, 19 Sep 2018 - 19:42


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QUOTE (Redivi @ Wed, 19 Sep 2018 - 18:33) *
If he pleads guilty,<...>
He is, however, committing a PCJ


How exactly would that constitute PCoJ? What course of justice would be perverted by the OP pleading guilty?
  Forum: Speeding and other Criminal Offences · Post Preview: #1418156 · Replies: 19 · Views: 722

andy_foster
Posted on: Wed, 19 Sep 2018 - 19:27


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QUOTE (Hooli @ Tue, 18 Sep 2018 - 20:51) *
I assume the 28 days to respond starts on the date of the S172 notice & it has to be with them by the 28th day?


Don't assume - it does not appear to be something that you are particularly adept at.

The 28 days begins with the date of service (that day is day 1). Service is assumed to have been performed 2 working days after posting for first class post (unless proven otherwise).
The required information must be served on them (delivered) by day 28.

Whilst a slightly late response is unlikely to result in prosecution for failing to provide the information, sticking 2 fingers up at them by leaving it as late as possible will either have absolutely no effect whatsoever, or end up causing you more grief. To paraphrase Sun Tsu - pick your battles.
  Forum: Speeding and other Criminal Offences · Post Preview: #1418150 · Replies: 23 · Views: 911

andy_foster
Posted on: Tue, 18 Sep 2018 - 19:03


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QUOTE (Hooli @ Tue, 18 Sep 2018 - 19:59) *
The guide I've been finding in other places suggests COFP is only upto 57mph.


What places would that be?
  Forum: Speeding and other Criminal Offences · Post Preview: #1417806 · Replies: 23 · Views: 911

andy_foster
Posted on: Tue, 18 Sep 2018 - 18:41


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In response to your question (cunningly hidden in the thread title for those not paying attention) - "Can I admit guilt to a lower speed?"

Technically, yes but not at this stage. If you allow the speeding allegation to go to court, you can enter a 'Newton Plea', which admits the offence (exceeding the speed limit), but disputes the alleged material facts.

However, for 60mph in a 40mph limit, you would receive the same offer of a fixed penalty as you would for 50mph in a 40mph limit (ignoring the fact that the police would have invited you to bribe them to drop it if the allegation was 50mph). The penalty for 50mph in a 40mph limit in court would almost certainly be greater than the fixed penalty.
  Forum: Speeding and other Criminal Offences · Post Preview: #1417793 · Replies: 23 · Views: 911

andy_foster
Posted on: Mon, 17 Sep 2018 - 19:26


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The OP is not alone in noticing a seemingly default position of advising OPs to simply roll over and take it, without bothering to explore whether their posts have disclosed any potentially viable defences.

On several occasions I have pointed out potential or actual defences that the usual suspects have either overlooked, or simply didn't bother to look for. However, on the face of it at least there are fewer viable defences becoming apparent than there were several years ago.

There are still a number of potential/possible general 'loopholes' - simply putting the prosecution to proof on certain matters could defeat them if they are too busy/incompetent/whatever to adduce the necessary evidence. Some police forces still use VASCAR - which was prescribed in 2008 but has never been approved by the Secretary of State. The problems with relying on such 'defences' are that the cost of losing can be considerable, and the courts don't always apply the law correctly when it goes against their skewed perception of justice.
  Forum: The Flame Pit · Post Preview: #1417394 · Replies: 32 · Views: 896

andy_foster
Posted on: Thu, 13 Sep 2018 - 20:06


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QUOTE (Machio26 @ Thu, 13 Sep 2018 - 17:41) *
I'm scared to death of pleading not guilty to the speeding offence then if found guilty I would also be charged with perjury.


Complete and utter twaddle! You have a constitutional right to plead not guilty regardless of whether or not you are actually guilty, or how much evidence they have. It is for the prosecution to prove their case, not for you to prove your innocence. If you were to subsequently deliberately give materially false evidence under oath/affirmation, that would be perjury.

The 'tactical' issue is that you can later change a 'not guilty' plea to guilty (ideally after doing a deal with the prosecutor), but if you plead guilty you will be convicted and cannot do a deal with the prosecutor to somehow be 'unconvicted'.
  Forum: Speeding and other Criminal Offences · Post Preview: #1416386 · Replies: 18 · Views: 780

andy_foster
Posted on: Tue, 11 Sep 2018 - 22:12


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What is the charge(s) on the SJPN?
  Forum: Speeding and other Criminal Offences · Post Preview: #1415800 · Replies: 21 · Views: 1,256

andy_foster
Posted on: Tue, 11 Sep 2018 - 21:53


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How many points do you have (for offences committed after 02/02/2015)?

If you received a COFP, and had no more than 8 current points (see above) and complied with the requirements (paying the penalty in the manner stipulated and your licence was delivered to the address stipulated within the time stipulated), they cannot lawfully prosecute you. Most such cases we see here, are the result of either the motorist not sending off their licence, or it apparently not being delivered. As they have returned yours, it would seem that that was not the case here.
  Forum: Speeding and other Criminal Offences · Post Preview: #1415794 · Replies: 21 · Views: 1,256

andy_foster
Posted on: Tue, 4 Sep 2018 - 18:08


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The statutory maximum fine for an offence contrary to s. 172 RTA 1988 is £1000. If the company were to to fail to name the driver and enter a guilty plea at the earliest opportunity (in response to the eventual SJPN), it should receive a 1/3 discount off whatever fine the court imposed - so a maximum of £667 (+ costs and surcharge).

If you are minded to try to comply with the requirement to name the driver, I would suggest writing and asking for 'copies of any photos to help to identify the driver' asap.
  Forum: Speeding and other Criminal Offences · Post Preview: #1413869 · Replies: 18 · Views: 1,026

andy_foster
Posted on: Sun, 2 Sep 2018 - 19:04


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QUOTE (veedee @ Sun, 2 Sep 2018 - 19:39) *
Okay, but am i right in saying that the HA cannot legally tow away/remove my vehicle?


Primarily it depends on whether or not you are entitled to park it there.

There is no law against removing other people's property from your land if they have no legal right to keep it there. There is a law against immobilising vehicles without lawful authority, but that is not necessarily the same thing.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1413296 · Replies: 42 · Views: 1,139

andy_foster
Posted on: Sun, 2 Sep 2018 - 18:22


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You do not own the freehold on the communal parking areas. For the purposes of parking, you are somebody's tenant.

The notice from the HA appears to be even more bollox than the one AR drafted for you.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1413279 · Replies: 42 · Views: 1,139

andy_foster
Posted on: Sun, 2 Sep 2018 - 18:14


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QUOTE (chribby @ Sun, 2 Sep 2018 - 17:27) *
Getting both seems quite absurd since a guilty plea to speeding contradicts the s172. Or should it remain not guilty to both and what happens then?

am I thinking that through properly?


I think that you are thinking it through reasonably well, but expressing it poorly.

Being convicted of both would generally be absurd, not because of some legal contradiction, but because it would generally rely on the accused pleading guilty to an offence that the prosecution could not otherwise prove, and getting nothing in return.

Contrary to what has been said, we have heard of a single case where the accused was both dual charged and the driver and the prosecutor refused to do a deal. In that case, the accused clearly had an attitude problem and decided to tell the prosecutor what was what. The prosecutor quite understandably decided not to play nice.

It is easy to be glib/confident sat behind a keyboard, when it is not you or your loved one who is facing a daunting court hearing. That said, it is almost certain that the prosecutor will do a deal if asked politely.
However, if you feel the perhaps understandable need to be prepared for an eventuality that we are all glibly confident will not arise, I shall explain the thinking behind the deal.

As it stands, it would be very difficult for the prosecution to prove the speeding charge as they have no evidence that she was the driver.
It would seem to be pretty easy for them to prove the more serious s. 172 charge. The offence is complete when the information has not been provided at the expiry of a period of 28 days beginning with the date of service of the requirement. Subsequently providing the information does not change that (with the arguable exception of when a 'reminder' has specifically allowed extra time), nor does pleading guilty to the speeding offence.

Realistically, the only way that they could convict her of the speeding charge is if she pleads guilty to it. The only reason for her to do that would be if the prosecutor will drop the s. 172 charge in return. In some cases, the prosecutor would do that in response to a guilty plea to the speeding charge, without previously doing a deal - and in others he would simply continue to prosecute the s. 172, resulting in a conviction for both.

If for whatever reason the prosecutor will not do a deal, she will be facing a speeding charge that the prosecution realistically cannot prove, and an s. 172 charge that she would have great difficulty in defending. Pleading guilty to the speeding charge would seem to be absurd - she should plead not guilty to speeding (or maintain such a plea). The appropriate plea for the s. 172 charge would seem to depend on how viable any defence she might have is, and what the implications of going to trial might be.
  Forum: Speeding and other Criminal Offences · Post Preview: #1413274 · Replies: 17 · Views: 747

andy_foster
Posted on: Fri, 31 Aug 2018 - 20:30


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QUOTE (MFM @ Fri, 31 Aug 2018 - 10:37) *
What do we think about this?


I think that you're trying to make a statement by pretending to ask a question. Whatever the merits or otherwise of whoever's argument you've attached yourself to, such behaviour makes me somewhat disinclined to give a proverbial f**k.
  Forum: The Flame Pit · Post Preview: #1412839 · Replies: 31 · Views: 1,026

andy_foster
Posted on: Fri, 31 Aug 2018 - 20:19


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QUOTE (asrman @ Fri, 31 Aug 2018 - 10:38) *
Out.of interest what's the bad consequences of replying to someone elses s172 request?


In addition to the possibility of confusion and muddle (often to some of our more 'gifted' regulars, as well as similarly 'gifted' CTO staff), the driver might decide when he receives his own NIP/s. 172 that he does not have to respond as he has already provided the information in response to someone else's notice. He would then find out that he was wrong when summoned and convicted for failing to provide the information.
  Forum: Speeding and other Criminal Offences · Post Preview: #1412836 · Replies: 11 · Views: 597

andy_foster
Posted on: Fri, 31 Aug 2018 - 20:09


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QUOTE (andy_foster @ Tue, 28 Aug 2018 - 23:05) *
From what little you have told us, you failed to provide information that was in your power to give and that might have lead to the identification of the driver. Regardless of whether or not you know who was driving, you appear to be guilty of the s. 172 offence.



QUOTE (jroz @ Fri, 31 Aug 2018 - 00:06) *
I explained upon my initial reply when they sent me the letter to identify the driver and with my not being able to definitely highlight who the driver was that there is another named driver on the car, gave their details and confirmed I'm more than happy to provide any necessary details to identify them.


I had assumed that you had failed to provide the minimum information that was in your power to give, etc. - the details of the other possible driver(s). If that was the case, you would have no defence to the s. 172 charge, regardless of how much diligence you could otherwise show.

Whether you have a viable defence depends on whether you can persuade the court, on the balance of probabilities, both that you do not know who was driving, and could not with reasonable diligence determine who was driving.

Without knowing much more about the circumstances and what you did to try to determine who was driving, it is generally difficult to advise on the likelihood of successfully defending the charge, but little that you have posted so far suggests (to me at least) that you are likely to have a viable defence.
  Forum: Speeding and other Criminal Offences · Post Preview: #1412832 · Replies: 18 · Views: 1,050

andy_foster
Posted on: Tue, 28 Aug 2018 - 22:05


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QUOTE (jroz @ Tue, 28 Aug 2018 - 21:30) *
So long story short I received a penalty for speeding over 100 mph a while back on a 70mph motorway.


No you didn't.

QUOTE
In being asked to identify the driver I merely used the I'm not sure who was driving defence quoting Detective Superintendent Adrian Roberts' case where he said the same, I requested photographic evidence as a result and was not sent this but instead sent a document/checklist which only allowed me to identify who was driving. I wrote on the front of the page you haven't given me any options here but to say who was driving which I can't answer, I'm not aware who was driving at the time. That borough's police then said they would recommend the case to be considered by court etc.


From what little you have told us, you failed to provide information that was in your power to give and that might have lead to the identification of the driver. Regardless of whether or not you know who was driving, you appear to be guilty of the s. 172 offence.

QUOTE
They held court in my absence(I was living away from home for a few months at the time so was not aware) and i've come back to see a notice of fine and collection order for 6 points and a fine of over £800.

I'm not sure what to do in this instance, the letter was dated 15 days ago so I assume I still have some time for an appeal or SD(?) but I need to know the best course of action, if anybody could help please


Despite what you have told us, it is clear that you were convicted of the s. 172 offence (failing to provide information regarding the driver's identity) not the speeding offence. If dual charged (and you haven't told us whether or not you were) it is often fairly easy to do a deal with the prosecutor to drop the s. 172 charge in return for pleading guilty to the usually less serious speeding charge. However, as the alleged speed was over 100mph (once again, you have not told us by how much), the speeding offence is potentially the more serious one, and you would be facing either 6 points or a ban.

Depending on how old you are, what you drive and many other factors, an s. 172 conviction may or may not substantially increase your insurance premiums - but so might a ban for speeding.

You have 21 days from becoming aware of court proceedings to make/serve a statutory declaration, which would then require the court to set aside your conviction and sentence. You would then be facing the charge(s) again, but either have the opportunity to try to defend yourself, or receive a discount for an early guilty plea and have the fine assessed according to your income, rather than a default assumed weekly income of IIRC £440.

To be blunt, you appear to have no defence to the s. 172 charge, so the question would seem to be whether you would benefit from either doing a deal with the prosecution and/or receiving a discount for a guilty plea and providing details of your weekly income.
  Forum: Speeding and other Criminal Offences · Post Preview: #1411926 · Replies: 18 · Views: 1,050

andy_foster
Posted on: Tue, 28 Aug 2018 - 19:25


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The law does not generally concern itself with what somebody might do, it concerns itself with what they have done.

A driver who uses his phone whilst stationary at a set of traffic lights might put his phone down in good time to make sufficient observation before pulling away with the flow of traffic, he might hold up traffic behind him for a few seconds if he is too distracted to notice the lights change, he might drop his phone suddenly and pull away without making adequate observations, he might continue to use his phone while subsequently actively driving, or he might go home and murder his wife.

Has the first driver committed a serious motoring offence which deserves 6 points? Has the second? Have any of them while the lights are still red?
  Forum: The Flame Pit · Post Preview: #1411872 · Replies: 48 · Views: 1,478

andy_foster
Posted on: Tue, 28 Aug 2018 - 17:37


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QUOTE (Charlie1010 @ Tue, 28 Aug 2018 - 18:20) *
Could it be compared to reading a newspaper, playing sudoku, reading the agony page in Jackie magazine or anything else that is distracting and results in poor driving?
Like moving off through a red light.


So, using a hand-held mobile phone whilst stopped at a red light is comparable to jumping a red light? It is often useful to ascertain how rational a poster is before deciding to ignore their insane ramblings.
  Forum: The Flame Pit · Post Preview: #1411845 · Replies: 48 · Views: 1,478

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