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Acceptable defence for MS90 charge
Snowgoose
post Tue, 27 Feb 2018 - 19:45
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Evening,
This is my first post so I'm not sure what I'm really doing.
Any advice would be really appreciated.

I am due at a case management hearing tomorrow, 2 hour's drive away just as the country is covered in snow, having already made a statutory declaration at my local magistrate's.
I have pleaded not guilty to failing to provide driver details after my car was snapped speeding July 2017 (58 in temporary 50 zone on motorway at 7.30am on a Sunday morning)
My husband was driving and I didn't receive the NIP because we'd moved house (April 2016) and I hadn't updated my address as registered keeper. It was the only, and seemingly most important, thing I hadn't updated.
I made a statutory declaration to say that I was not guilty because I thought I might be able to show there were mitigating circumstances for my not updating my address for so long.
I'm panicking because having trawled the net all day, I keep reading that 'not updating home address' is not an acceptable defence for failing to provide driver details.
I think I have misunderstood what might be valid mitigation, thinking mitigation might explain why I didn't update the address, whereas it would appear that mitigation actually refers to very specific case scenarios, such as not being able to reliably identify driver etc.
Also, I've only just realised the statutory declaration I made only made reference to the MS90 charge, not the initial speeding which at the time I felt I had to point out I was not guilty of. Now I've just realised I wasn't charged with the speeding, I think I should maybe have pleaded guilty to the MS90 charge.

Can you advise as I think I might need to change my plea before tomorrow's case management hearing.

To that end, would anyone know if this is something I could do by email first thing, or whether I'll still have to attend in person?

Thank you for your time.
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post Tue, 27 Feb 2018 - 19:45
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Jlc
post Tue, 27 Feb 2018 - 19:56
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Was there a particular reason the v5 wasn't updated?

Mitigation is to attempt to lessen the sentence. (But the s172 offence has a minimum endorsement of 6 points and the guideline fine is around 150% of weekly relevant earnings) True mitigation is quite hard and what you think is mitigating may actually aggravate.

A guilty plea sees a 33% reduction in fine and costs of £85. There's also a surcharge on the fine of 10% (min £30). Going to trial could see costs shooting up to the guideline £620.

Contributing to the failure of the delivery of the NIP by committing a separate offence (not usually pursued mind) often doesn't sit well at court.

This post has been edited by Jlc: Tue, 27 Feb 2018 - 20:11


--------------------
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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Logician
post Tue, 27 Feb 2018 - 20:08
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Had you been driving you could have done a very common deal with the prosecutor under which you offer to plead guilty to the speeding if they drop the more serious s.172 charge. We have never known this refused. A long shot if your husband is available is to both go to the hearing and he offers to accept a speeding charge out of time and plead guilty to it, if the s.172 charge against you is dropped. As I say, it is a very long shot.

On your original question, Magistrates Courts are pretty bad at passing messages about, an email might get through, a phone call might, but attending in person would be better if you could, but not much is lost if the message does not get through and you do not attend, write afterwards and apologise owing to weather and say you are changing your plea anyway.


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Jlc
post Tue, 27 Feb 2018 - 20:10
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QUOTE (Logician @ Tue, 27 Feb 2018 - 20:08) *
As I say, it is a very long shot.

Given it's well over the 6 months too I'd say it was next to impossible.


--------------------
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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Logician
post Tue, 27 Feb 2018 - 20:13
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QUOTE (Jlc @ Tue, 27 Feb 2018 - 20:10) *
QUOTE (Logician @ Tue, 27 Feb 2018 - 20:08) *
As I say, it is a very long shot.
Given it's well over the 6 months too I'd say it was next to impossible.


If there is co-operation all round, out of time charges have been accepted under the provisions of The Ways and Means Act.



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Snowgoose
post Tue, 27 Feb 2018 - 20:31
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Hi, thanks for replying.
I don't suppose it will hold any weight but we were about to move into a renovation project when our house sold. We moved us and three children in with family while the conveyancing went ahead on the new place. At valuation, the bank would lend becaus it was so derelict.
We had to embark on a renovation mortgage application that took a staggering, and stressful, 8 months to complete and so we were nvere sure where our next address was going to be for certain. During this time, I set up two mail redirections and knew the person I'd sold my house to who passed on the odd bit of residual mail.
During this time living with my mum and sister, my sister's cancer was taking a hold. She died within weeks of us finally buying the renovation project, just before her 29th birthday.
We move out to give my mother some space and we were all shellshocked for the months that followed.
Then around Easter, the new dream home turned out to have a serious problem with drug dealers. We've been assisting the police for nearly a year and have just received a letter from my MP outlining the 'invaluable' evidence we've provided and how it's enable the police to make arrests where modern day slavery was being employed to sell hard drugs outside out home.
It's been a fairly horrendous two years.
I'm not sure any of this will count as mitigation though.

QUOTE (Jlc @ Tue, 27 Feb 2018 - 19:56) *
Was there a particular reason the v5 wasn't updated?

Mitigation is to attempt to lessen the sentence. (But the s172 offence has a minimum endorsement of 6 points and the guideline fine is around 150% of weekly relevant earnings) True mitigation is quite hard and what you think is mitigating may actually aggravate.

A guilty plea sees a 33% reduction in fine and costs of £85. There's also a surcharge on the fine of 10% (min £30). Going to trial could see costs shooting up to the guideline £620.

Contributing to the failure of the delivery of the NIP by committing a separate offence (not usually pursued mind) often doesn't sit well at court.



Hi, thanks for replying.
I don't suppose it will hold any weight but we were about to move into a renovation project when our house sold. We moved us and three children in with family while the conveyancing went ahead on the new place. At valuation, the bank would lend becaus it was so derelict.
We had to embark on a renovation mortgage application that took a staggering, and stressful, 8 months to complete and so we were nvere sure where our next address was going to be for certain. During this time, I set up two mail redirections and knew the person I'd sold my house to who passed on the odd bit of residual mail.
During this time living with my mum and sister, my sister's cancer was taking a hold. She died within weeks of us finally buying the renovation project, just before her 29th birthday.
We move out to give my mother some space and we were all shellshocked for the months that followed.
Then around Easter, the new dream home turned out to have a serious problem with drug dealers. We've been assisting the police for nearly a year and have just received a letter from my MP outlining the 'invaluable' evidence we've provided and how it's enable the police to make arrests where modern day slavery was being employed to sell hard drugs outside out home.
It's been a fairly horrendous two years.
I'm not sure any of this will count as mitigation though.

QUOTE (Logician @ Tue, 27 Feb 2018 - 20:08) *
Had you been driving you could have done a very common deal with the prosecutor under which you offer to plead guilty to the speeding if they drop the more serious s.172 charge. We have never known this refused. A long shot if your husband is available is to both go to the hearing and he offers to accept a speeding charge out of time and plead guilty to it, if the s.172 charge against you is dropped. As I say, it is a very long shot.

On your original question, Magistrates Courts are pretty bad at passing messages about, an email might get through, a phone call might, but attending in person would be better if you could, but not much is lost if the message does not get through and you do not attend, write afterwards and apologise owing to weather and say you are changing your plea anyway.


I know, I've read that. So I'd be facing potentially lesser consequences had I have actually committed the speeding offence.
Thanks for your reply.
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BaggieBoy
post Tue, 27 Feb 2018 - 21:07
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QUOTE (Snowgoose @ Tue, 27 Feb 2018 - 20:31) *
I'm not sure any of this will count as mitigation though.

Nope.
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notmeatloaf
post Tue, 27 Feb 2018 - 21:22
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Just to explain an important point as well.

Mitigation are factors the court can decide that reduce your culpability and thus warrant a lesser sentence. The minimum number of points for failure to furnish is six so you will only be mitigating to reduce the fine. Bearing in mind, bluntly, your mitigation is fairly weak you may be better saving your petrol and being convicted in your absence unless you want to try the long shot of your husband trying to plead instead.

Unless your mitigation amounts to a defence you will still be found guilty and receive six points.

There are defences to a failure to furnish but not updating your V5C, even allowing for understandably chaotic circumstances, isn't one.

Also if you are making the journey tomorrow be sure that the prosecutor and magistrates are all going to get there, it is not unheard of for someone to trek hours only to be told their case is adjourned.

This post has been edited by notmeatloaf: Tue, 27 Feb 2018 - 21:24
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southpaw82
post Tue, 27 Feb 2018 - 21:29
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The OP appears to have two choices: plead guilty to the s 172 charge or not guilty.

Guilty means:
- a fine of about 150% of weekly income, less 1/3 for an early guilty plea
- costs of £85
- victim surcharge of 10% of the fine, subject to a minimum of £30
- six penalty points
- increased insurance premiums for 5 years

Not guilty means either no conviction (you win) or, on conviction, as above but:
- no 1/3 off the fine
- costs of up to £620

Only the OP can decide whether they want to gamble with a not guilty plea, knowing what they will get for a guilty plea and what they might get for a guilty verdict after trial.

Whiteside v DPP makes a defence difficult but not impossible. It said that the defendant doesn’t have to have actual knowledge of the s 172 notice in order for the obligation to respond to be effective. However, it did leave open the possibility of the defence of it not being reasonably practicable to respond open. The OP's circumstances are not particularly attractive - the court will be mindful that anyone could move house, deliberately not update their details with the DVLA and try to escape liability altogether. However, a court might be minded to give the OP the benefit of the doubt and say it wasn’t reasonably practicable for them to reply.



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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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Snowgoose
post Tue, 27 Feb 2018 - 21:43
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QUOTE (notmeatloaf @ Tue, 27 Feb 2018 - 21:22) *
Just to explain an important point as well.

Mitigation are factors the court can decide that reduce your culpability and thus warrant a lesser sentence. The minimum number of points for failure to furnish is six so you will only be mitigating to reduce the fine. Bearing in mind, bluntly, your mitigation is fairly weak you may be better saving your petrol and being convicted in your absence unless you want to try the long shot of your husband trying to plead instead.

Unless your mitigation amounts to a defence you will still be found guilty and receive six points.

There are defences to a failure to furnish but not updating your V5C, even allowing for understandably chaotic circumstances, isn't one.

Also if you are making the journey tomorrow be sure that the prosecutor and magistrates are all going to get there, it is not unheard of for someone to trek hours only to be told their case is adjourned.



Thank you for this. I did speak to someone at the magistrates' today by phone, asking what I should do should the weather be impossible to overcome. I'll do the same tomorrow on your advice re. them adjourning their end.

QUOTE (southpaw82 @ Tue, 27 Feb 2018 - 21:29) *
The OP appears to have two choices: plead guilty to the s 172 charge or not guilty.

Guilty means:
- a fine of about 150% of weekly income, less 1/3 for an early guilty plea
- costs of £85
- victim surcharge of 10% of the fine, subject to a minimum of £30
- six penalty points
- increased insurance premiums for 5 years

Not guilty means either no conviction (you win) or, on conviction, as above but:
- no 1/3 off the fine
- costs of up to £620

Only the OP can decide whether they want to gamble with a not guilty plea, knowing what they will get for a guilty plea and what they might get for a guilty verdict after trial.

Whiteside v DPP makes a defence difficult but not impossible. It said that the defendant doesn’t have to have actual knowledge of the s 172 notice in order for the obligation to respond to be effective. However, it did leave open the possibility of the defence of it not being reasonably practicable to respond open. The OP's circumstances are not particularly attractive - the court will be mindful that anyone could move house, deliberately not update their details with the DVLA and try to escape liability altogether. However, a court might be minded to give the OP the benefit of the doubt and say it wasn’t reasonably practicable for them to reply.



Hi there,
Thank you for taking the time to reply...

I had updated my husband's driving license with the DVLA in Sep '17, but not my own for some inexplicable reason. I can only put it down to not thinking straight.
I think to be honest, it's not worth the stress that's being added to an already stressful time.
Might I ask, do you know if I would be able to discuss everything at tomorrow's case management hearing in hopes of them issuing my husband with the initial speeding charge, and if that's not possible ask to change my plea to guilty so that I can just be done with the stress of it all?
If so, could tomorrow potentially be the end of it?

Thanks so much.
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Jlc
post Tue, 27 Feb 2018 - 21:47
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Addresses on driving licences are not the issue. It's registered keeper (v5) details that are required to be updated too. (Although anecdotally it seems some people think updating the licence also updates the v5 but it does not)

Has a statement of means (MC100) been submitted already?


--------------------
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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southpaw82
post Tue, 27 Feb 2018 - 21:47
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QUOTE (Snowgoose @ Tue, 27 Feb 2018 - 21:43) *
I had updated my husband's driving license with the DVLA in Sep '17, but not my own for some inexplicable reason. I can only put it down to not thinking straight.


Driving licences are irrelevant to this. What matters is the registered keeper of the vehicle being updated, which won’t happen automatically when you update your driving licence.

QUOTE
Might I ask, do you know if I would be able to discuss everything at tomorrow's case management hearing in hopes of them issuing my husband with the initial speeding charge


I think that is very unlikely to happen, as there is no lawful basis for doing so.

QUOTE
and if that's not possible ask to change my plea to guilty so that I can just be done with the stress of it all?


You can change your plea to guilty at any time.

QUOTE
If so, could tomorrow potentially be the end of it?

Potentially.


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NewJudge
post Tue, 27 Feb 2018 - 21:52
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Yes you should be able to change your plea tomorrow and be sentenced there and then.

Incidentally, for future reference (heaven forbid!) it is the failure to update the Registered Keeper's details that has led to this problem.

You should be aware that, apart from the fine and points, a "Fail to Furnish" conviction is likely to cause you insurance grief for a number of years so you should carefully consider whether or not you'd prefer to try one of the other avenues suggested here before caving in.
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Snowgoose
post Tue, 27 Feb 2018 - 22:08
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QUOTE (NewJudge @ Tue, 27 Feb 2018 - 21:52) *
Yes you should be able to change your plea tomorrow and be sentenced there and then.

Incidentally, for future reference (heaven forbid!) it is the failure to update the Registered Keeper's details that has led to this problem.

You should be aware that, apart from the fine and points, a "Fail to Furnish" conviction is likely to cause you insurance grief for a number of years so you should carefully consider whether or not you'd prefer to try one of the other avenues suggested here before caving in.




Yep, this was my thinking when I first became aware I could make the statutory dec. But on reflection, there doesn't seem to be much confidence in the likelihood of my being dealt with all that sympathetically. Also, I just don't have the stomach for feeling sick all day about something like this when there are far bigger issues to cry over.
It's my fault at the end of the day. I'm not a deviant, I just didn't update my address with one, albeit important, body.
It's certainly not something I'll ever be doing again. Lesson learnt.
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Snowgoose
post Tue, 27 Feb 2018 - 22:20
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QUOTE (Jlc @ Tue, 27 Feb 2018 - 21:47) *
Addresses on driving licences are not the issue. It's registered keeper (v5) details that are required to be updated too. (Although anecdotally it seems some people think updating the licence also updates the v5 but it does not)

Has a statement of means (MC100) been submitted already?



No, I haven't been asked for one.
I'm not overly confident I've been given all the information I probably should have.
The first thing I ever did receive was notice that I'd been convicted in my absence and the demand for payment of £826 before bailiff's were instructed. This was posted through my letterbox by the new owner of my old house.
There were no charge details of this and the woman who took payment of the fine over the phone couldn't access the system to tell me what I'd been convicted of.

The first time I saw any information regarding charges was at my local magistrate's when I went to make stat dec, but there was nothing in there about the original NIP/request for driver id.

The paperwork the magistrates' sent out afterwards with the fine refund was sent to a strangely garbled version my new address but half of it was completely wrong, wrong post code etc, so I wondered whether anything else might have gotten lost en route.

I sent an email to magistrates checking they had my correct address.

The first time I saw the original NIP and request for driver id was two weeks ago when I contacted the appropriate police force and asked for a copy.
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