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andy_foster
Posted on: Thu, 13 Dec 2018 - 20:36


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QUOTE (Redivi @ Thu, 13 Dec 2018 - 12:28) *
Never, ever plead Guilty to an S172 if there's the slightest chance of Not Guilty

The trivial reduction in the fine is nothing compared to the increased insurance problems for the next five years


That is a very broad statement. In many cases it will be true, but in many more, it would not be - if you include the not so trivial increase in the prosecution costs,

QUOTE
It's a bit of a lottery whether the court will regard the failure to update the V5 as a valid reason that he couldn't reply


Case law provides that non-receipt of the s. 172 notice does not in itself make out the defence - so absent any good reason for not updating the details, the reference to a lottery is perhaps only appropriate to describe the OP's chances if relying solely on that argument.

QUOTE
In this case he can possibly argue that the failure made no difference


Depending on the precise facts of the case, that could well be an interesting argument to run. N.B. there are several flaws in your attempts to determine the relevant dates. It would seem prudent to wait for the OP to receive the evidence. If this were the sole defence argument, then I would not presume the court to have a great deal of sympathy with the OP who has failed to comply with a legal requirement which in most similar cases would be a sole cause of the failure to respond.

QUOTE
He obviously needs to stress that the car was never there and he had nothing to gain from a failure to reply.
It would be grossly unfair to convict him for an error that prevented him responding to an S172 request that should never have been sent


Whilst as a legal argument this is "a bit thin", assuming that the evidence shows a clear misread (and subject to the usual caveat regarding assuming), the moral argument would seem to be very strong.
  Forum: Speeding and other Criminal Offences · Post Preview: #1442241 · Replies: 15 · Views: 941

andy_foster
Posted on: Wed, 12 Dec 2018 - 20:36


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If the OP as a witness produces a letter from his Canadian friend, which is for whatever reason not admissible in its own right under s. 9, then that would be hearsay evidence - which would be subject to whatever current rules are regarding hearsay evidence. If he simply turns up with it on the day, I would expect the bench to be somewhat sceptical, unless they found him to be a very compelling witness.

However, if a compliant statement is served on the prosecution and they do not object to it, then I understand that they are not entitled to question its truthfulness, beyond commenting on any inconsistencies.
  Forum: Speeding and other Criminal Offences · Post Preview: #1441859 · Replies: 84 · Views: 8,069

andy_foster
Posted on: Wed, 12 Dec 2018 - 20:20


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The builk of our 'experience' with the pleading process following an SD is from posters who we have advised and have come back to tell us how they got on.

The somewhat conservative 'stock' advice given by many regulars used to be that you could only do a deal with the prosecutor to drop the s. 172 (MS90) in return for pleading guilty to the underlying speeding offence on the morning of the eventual trial. It seems that sometimes this is correct, but other times the court seem to be happy to do the deal themselves at the SD hearing. We have had one case where the prosecutor refused to do a deal because of the accused's attitude problem, and at least one where an accused plead guilty to the speeding (which could never have been proven) in the unsolicited expectation that the s. 172 would be dropped and ended up with 9 points.

Dropping the s. 172 for the underlying (usually speeding) offence is very common, and most people involved in the system pretty much expect it to happen, so it would seem prudent to ask at every stage (if there ends up being more than a single stage).

After making the SD, you will almost certainly be asked to enter a plea. I would suggest respectfully broaching the subject - along the lines of "Erm, your worships (or Sir/Madam if there is a single judge), I understand that it is quite common for people who find themselves in the position that I find myself in to have the more onerous s. 172 charge dropped in return for pleading guilty to the underlying speeding offence. Is that something that you would be able to facilitate, or would I need to speak to the prosecutor further down the line?". I would be mildly surprised if they did not answer you one way or the other before you finished addressing them.

The general advice is that unless/until someone agrees to drop the s. 172 in return for pleading guilty to the speeding, plead not guilty to both.
  Forum: Speeding and other Criminal Offences · Post Preview: #1441855 · Replies: 11 · Views: 477

andy_foster
Posted on: Wed, 12 Dec 2018 - 20:03


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Personally, I would be minded to argue that you were not driving for the purposes of the relevant legislation. The offence, which in the context of motoring offences is a relatively serious one, carrying an obligatory endorsement of 6 points, is clearly intended to address the clear and obvious danger caused by those actively controlling a moving vehicle whilst using a hand-held mobile phone.

There is a qualified right to communicate without interference by public authority under Article 10 of the ECHR. It is qualified by measures prescribed by law and which are necessary to achieve certain objectives, such as protecting the safety and rights of others. In short, if giving you 6 points for checking notifications is necessary (proportionate) to the potential danger caused, then the qualification wins and the ECHR does not protect you from interference with your right to communicate. However, if giving you 6 points for at worst risking holding up traffic behind you for a few seconds is held not to be proportionate, no offence was committed as the ECHR/HRA would require the definition of "driving" to be read sufficiently narrowly to exclude sitting at the lights.

If you were to fight this and lose, you would get the same 6 points, a fine based on your income (fine capped at £1000 IIRC) and prosecution costs of up to £620.
  Forum: Speeding and other Criminal Offences · Post Preview: #1441850 · Replies: 13 · Views: 920

andy_foster
Posted on: Tue, 11 Dec 2018 - 21:13


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Assuming that the statement is complaint with the requirements of s. 9 Criminal Justice Act 1967, it is admissible if it is served on the other party and they do not object within 7 days, although the court have the power to require the attendance of the witness.
  Forum: Speeding and other Criminal Offences · Post Preview: #1441565 · Replies: 84 · Views: 8,069

andy_foster
Posted on: Mon, 10 Dec 2018 - 22:33


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QUOTE (stamfordman @ Mon, 10 Dec 2018 - 21:37) *
QUOTE (andy_foster @ Mon, 10 Dec 2018 - 21:19) *
Yes. It's called democracy. No matter how flawed our democracy is (and it is very flawed), it is far better than a fundamentally corrupt bureaucracy.


?

What makes you think we don't have our own 'corrupt bureaucracy'?


I never said that we don't. However, our own corrupt bureaucracy is, in principle at least, answerable to and subordinate to our democratically elected Parliament. An unaccountable bureaucracy will invariably be substantially more corrupt.
  Forum: The Flame Pit · Post Preview: #1441232 · Replies: 57 · Views: 1,537

andy_foster
Posted on: Mon, 10 Dec 2018 - 22:26


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QUOTE (666 @ Mon, 10 Dec 2018 - 17:49) *
Failure to produce documents is a separate offence, so I guess you need to go to the station.


I didn't realise that Midvale had a law school...

Can you explain the relevance of going to the station to not produce an insurance certificate, as opposed to not going to the station and similarly not producing it?

I'm pretty sure that the OP can't be prosecuted for both driving without insurance and failing to produce - as that would in effect be double jeopardy.
  Forum: Speeding and other Criminal Offences · Post Preview: #1441229 · Replies: 20 · Views: 1,189

andy_foster
Posted on: Mon, 10 Dec 2018 - 21:19


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QUOTE (Redivi @ Mon, 10 Dec 2018 - 20:24) *
If "restore sovereignty" means that the present imbeciles will be in full control with no guidance or oversight, does anyone seriously think it's a good idea ?


Yes. It's called democracy. No matter how flawed our democracy is (and it is very flawed), it is far better than a fundamentally corrupt bureaucracy.
  Forum: The Flame Pit · Post Preview: #1441218 · Replies: 57 · Views: 1,537

andy_foster
Posted on: Wed, 5 Dec 2018 - 20:44


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QUOTE (patsy123 @ Wed, 5 Dec 2018 - 12:48) *
Wonder if anyone can give me any advice for my nephew


Yes. Get him to post here with a first hand account.

QUOTE
not got full details


See above.
  Forum: Speeding and other Criminal Offences · Post Preview: #1439925 · Replies: 4 · Views: 585

andy_foster
Posted on: Tue, 4 Dec 2018 - 23:08


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What 'notice' have you received?
  Forum: Speeding and other Criminal Offences · Post Preview: #1439685 · Replies: 6 · Views: 541

andy_foster
Posted on: Mon, 3 Dec 2018 - 21:08


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QUOTE (Mysilvercar @ Wed, 31 Oct 2018 - 21:16) *
I am certainly not guilty of failure to give information.


That is far from certain, and possibly even far from likely.

A requirement under s. 172 RTA 1988 to provide information applies from when it is served, which is done when it is delivered to your last known address. At the expiration of the period of 28 days beginning with the date of service, subject to any applicable defences the offence is committed if the required information is not provided.
Previously, it was widely assumed that not being aware of the requirement to provide information under s. 172 RT 1988, regardless of why you were not aware, meant that it was not reasonably practicable to provide the information (which is a statutory defence). However, case law has decided that reasonable practicability can (and pretty much therefore does) include actions you ought to have taken before the notice was even issued - such as updating the V5C when you moved.
  Forum: Speeding and other Criminal Offences · Post Preview: #1439275 · Replies: 60 · Views: 3,887

andy_foster
Posted on: Mon, 3 Dec 2018 - 20:29


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QUOTE (stamfordman @ Sun, 2 Dec 2018 - 20:59) *
As I said, the police know who they are and arrest at lot of them at home. As you probably know, young males do not have fully developed brains and ending their lives early is a societal failure.


In many cases, the police may well have a fair idea who the scrotes are, but most judges don't treat what the police simply believe to be the case to be compelling evidence. Also, they might want to search said scrotes before they have had chance to dispose of the evidence of their crimes.
  Forum: The Flame Pit · Post Preview: #1439263 · Replies: 144 · Views: 4,517

andy_foster
Posted on: Sun, 2 Dec 2018 - 16:05


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In principle, the new policy is a long overdue step in the right direction. Bike crime is 'out of control', due in large part to the police's previous policy of not being aloud to chase them them if they remove their crash helmets and risk seriously injuring themselves.

However, if they can find a way to monetise the new policy, based on past experience, objectivity and proportionality are likely to go out the window.
  Forum: The Flame Pit · Post Preview: #1438958 · Replies: 144 · Views: 4,517

andy_foster
Posted on: Sun, 2 Dec 2018 - 10:57


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There is an exception to the requirement to serve a NIP within 14 days if "neither the name and address of the accused nor the name and address of the registered keeper, if any, could with reasonable diligence have been ascertained in time for a summons or, as the case may be, a complaint to be served or for a notice to be served or sent in compliance with the requirement".

If the DVLA database was updated the day before the NIP was issued, then on the face of it the police could easily have ascertained your details if they had obtained the RK details directly from the DVLA rather than choosing to rely on the PNC which is apparently about a day behind. The question would seem to be whether doing so would be beyond what could be considered "reasonable diligence". Some might prefer the question of whether the police's actions were reasonable, but that does not reflect the language of the statute.

IMHO the police have chosen to use a system which they know will be out of date for a small proportion of enquiries because it is more efficient for them (both in time and cost). If they have balanced their preference for efficiency against the risk of a small proportion of motorists not receiving a timely NIP, then it would be somewhat perverse to say that the reasonable diligence exception should be applied against those motorists. In other words that it's not the police's fault that the slightly flawed system that they chose to use, fully aware of the flaws, was flawed on this occasion.

The counter argument would seem to be that the extra time and money required to obtain all RK details (for NIPs at least) directly from the DVLA would be disproportionate to the risk of a small proportion of late NIPs being served.

  Forum: Speeding and other Criminal Offences · Post Preview: #1438910 · Replies: 3 · Views: 541

andy_foster
Posted on: Sun, 2 Dec 2018 - 10:35


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QUOTE (Logician @ Sat, 1 Dec 2018 - 22:46) *
I think if you readily admit your mistake and correct it, you are likely to just have the original offence considered.


Please note that "admit" in this context does not mean admitting to the police that you perverted the course of justice. That would be a bad idea.
  Forum: Speeding and other Criminal Offences · Post Preview: #1438909 · Replies: 5 · Views: 740

andy_foster
Posted on: Sat, 1 Dec 2018 - 21:23


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QUOTE (Howard Uno @ Fri, 30 Nov 2018 - 17:44) *
If it's just the time that was wrong then that's not enough to cancel the offence. It's easily explained away.


I'm not entirely sure what you think you mean by "cancel the offence", but there does appear to be a live issue as to whether or not the apparent failure to specify the time of the alleged offence means that no valid NIP has been served.
  Forum: Speeding and other Criminal Offences · Post Preview: #1438836 · Replies: 15 · Views: 1,104

andy_foster
Posted on: Tue, 27 Nov 2018 - 21:34


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We all know that MS90 is the DVLA endorsement code for an offence contrary to s. 172(3) RTA 1988. This means that we know what you mean when you incorrectly state that you have been "charged with ms90". However, the devil is in the detail, and so far you have told us next to nothing, half of which is inaccurate.
  Forum: Speeding and other Criminal Offences · Post Preview: #1437763 · Replies: 3 · Views: 389

andy_foster
Posted on: Tue, 27 Nov 2018 - 21:30


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QUOTE (bill w @ Tue, 27 Nov 2018 - 12:16) *
I do accept that this still will be taken some time after the actual ping. Does anyone know how long after it's likely to be?


I used to know the answer to this many years ago.

The speed and distance data are overlaid at the end of the 'ping' (which lasts about 1/3 sec unless it was a poor initial reading). This data is displayed without a 'timeout' message for a short period of time - IIRC it is somewhere in the region of 1/4 sec - and then the 'timeout' message is added.

The idea is that the 'timeout' message is displayed shortly enough after the end of the 'ping' that if the operator pans onto another vehicle, the 'timeout message will already be displayed, so the speed and distance calculations will not be attributed to that vehicle, but the data will be displayed long enough (with the 'timeout' message) for whoever is processing the session recording to be able to read the data.
  Forum: Speeding and other Criminal Offences · Post Preview: #1437762 · Replies: 19 · Views: 1,571

andy_foster
Posted on: Mon, 26 Nov 2018 - 21:25


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Costs?
  Forum: Speeding and other Criminal Offences · Post Preview: #1437447 · Replies: 10 · Views: 444

andy_foster
Posted on: Mon, 26 Nov 2018 - 18:46


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QUOTE (cp8759 @ Mon, 26 Nov 2018 - 17:18) *
QUOTE (Earl Purple @ Mon, 26 Nov 2018 - 16:47) *
From my immediate view of that the car with the dashcam is mostly at fault. The bus lane is not restricted at this time but he's using it to undertake at speed and can see the car indicating to turn left and yet proceeds to undertake it anyway.

Slight fault of the car that moves across not looking but the car clearly should not be undertaking that way.

The car on the left was entitled to drive forward in that lane, unless you want to suggest that when there's a lane of queuing traffic on the right, you have to sit behind the back of the queue even if your lane on the left is free. This would make it impossible to proceed straight ahead on a road where there's a turn right lane, as you wouldn't be able to undertake any of the traffic in the turn right lane. It might also amount to an offence of obstructing the highway.


Nobody is suggesting that you cannot pass slower moving traffic on the left, if it is done safely. What is clearly being suggested is that it is not on to undertake traffic which is indicating an intention to 'return' to the inside lane.
  Forum: The Flame Pit · Post Preview: #1437392 · Replies: 136 · Views: 4,334

andy_foster
Posted on: Mon, 26 Nov 2018 - 16:38


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The purpose of the 10% +2mph guidelines is to ensure sufficient confidence that those prosecuted were actually exceeding the speed limit. If they prosecuted those recorded as doing 71mph and the margin of error was +/-2mph, then there is no certainty that they were actually speeding.
  Forum: Speeding and other Criminal Offences · Post Preview: #1437332 · Replies: 7 · Views: 521

andy_foster
Posted on: Mon, 26 Nov 2018 - 14:44


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QUOTE (cp8759 @ Mon, 26 Nov 2018 - 13:44) *
Signalling doesn't give priority


If the OP was overtaking in the outside lane and a driver in the inside lane wanted to change lanes, then you would be correct that merely warning other drivers that you were going to do so does not afford you any kind of priority. However, the vehicle being undertaken was in the outside lane and therefore had priority to 'return' to the inside lane.

However, neither driver's actions are justified by the other driver also being an idiot.
  Forum: The Flame Pit · Post Preview: #1437274 · Replies: 136 · Views: 4,334

andy_foster
Posted on: Mon, 26 Nov 2018 - 14:33


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QUOTE (Korting @ Sun, 25 Nov 2018 - 23:53) *
I was in Cambridge today, main road with street lights but a posted speed limit of 40Mph. about a mile later it changes to 30, but NO terminal signs just one unlit repeater sign.


How do you know that it changes there?

QUOTE
So can we have a definitive answer to the 30Mph street light laws.


There are essentially 3 issues - the actual legal limit, speed limit signage, and speed limit enforceability.

As has been said, for special roads (motorways to normal people) the default speed limit is 70mph (for cars and some other classes of vehicles).
For other roads (not motorways) with a compliant system of street lighting the default speed limit is 30mph.
For roads without a compliant system of street lighting, the default speed limit is 60mph for single carriageways and 70mph for dual carriageways.
Any of these default speed limits can be changed by a TRO.

For roads without a complaint system of street lighting, you cannot be convicted unless the speed limit is properly signed (the requirements for which are somewhat woolly).
For roads with a compliant system of street lighting, the statutory defence of lack of proper speed limit signage does not strictly apply, however there are other remedies available where it would be unjust to punish the 'offender'.
  Forum: The Flame Pit · Post Preview: #1437269 · Replies: 6 · Views: 328

andy_foster
Posted on: Mon, 26 Nov 2018 - 14:18


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QUOTE (cp8759 @ Mon, 26 Nov 2018 - 13:22) *
Having said that, the police don't tend to harass you if you avoid having a "public disagreement" with a public servant of any description. If there is a genuine complaint, a written complaint to the relevant organisation is far more effective.


You forgot to add that if you've got nothing to hide, you've got nothing to fear.
  Forum: The Flame Pit · Post Preview: #1437263 · Replies: 14 · Views: 882

andy_foster
Posted on: Mon, 26 Nov 2018 - 14:10


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QUOTE (Zazaa @ Sun, 25 Nov 2018 - 23:04) *
who is at fault?


Both
  Forum: The Flame Pit · Post Preview: #1437254 · Replies: 136 · Views: 4,334

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