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Your not playing fair, so I'm going to tell cps on you, Young v Day
andypandy
post Tue, 3 Feb 2004 - 18:03
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Well I have received a letter from the police saying that they are to proceed with a summons because the information is unsufficient because I cannot/ will not tell them who was driving at the time the car was clocked, and therfore are going prosecute me under sec 172 for failing to notify.

my case history is

I was sent nip early Dec 03 for speeding at 38 mph .
Phoned up after finding info on this site and asked for photographs.
Sent letter requesting photos and received them two weeks later.
Sent back unable to identify letter by recorded delivery.
Received final demand letter and filled in the unable to identify section, signed and returned recorded delivery.


I thought that by giving them two possible drivers at the time of the alleged offence that they might do some good old fashioned investigating. The photos I received, do not give clear images, they have only a silhouette with no facial details.

Are they serious, or is this just another bluff to see if I crumble. I will not give a guilty plea until I have clear photo or video evidence to the contrary.

Is there anything I might be able to do, to put them off a summons


AndyPandy
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post Tue, 3 Feb 2004 - 18:03
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firefly
post Wed, 4 Feb 2004 - 09:49
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Hi AndyPandy

QUOTE (AndyPandy)
I will not give a guilty plea until I have clear photo or video evidence to the contrary.


And neither you should.

I re-read your case history and it seems that you have been thorough in your attempt to ascertain the identity of the driver. I would certainly stick to your guns wait for the court summons.

I would not regard the police's letter as B&B as such. Remember that the police cannot interpret law, they only enforce it. So as the law stands at present, you (the registered keeper) have a legal obligation to provide details as to the identity of the driver at the time of the alleged offence. The fact that you have not done so means the police have little option but to remind you of your obligation.

That being said, it is difficult to see how much more you could have done; but ultimately it will be down to the court to satisfy itself of that claim.

If I were you I would stick with it and wait for the summons, which may be inevitable by now.


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The Rookie
post Wed, 4 Feb 2004 - 12:13
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With FF, the police are obliged, although the CPS may drop on the basis of 'lack of evidence'...

Simon
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Lance
post Wed, 4 Feb 2004 - 12:55
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I agree with ff that the police can only enforce the law, but let's have a look at the law again.

QUOTE
(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.


   (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

   (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.


Subsection (4), as we all know, clearly says that you, as the registered keepr, have committed NO offence if you don't name a driver because you don't know and cannot establish who it was. Surely any action against you would therefore be

(a) a waste of the court's time and
(b) malicious prosecution.

If you weren't the RK, then it looks as though subsection (4) does not come into play, as subsection (4) only refers to paragraph (a) of subsection (2). It looks to me as though the issue there would be the actual wording of subsection (2) para (b) that mentions "information which is in his power to give". If you don't know who was driving, then you don't have much info in your power, though to fully discharge your legal obligation it might be argued that you should provide a list of all the drivers who you thought could have been driving to enable further enquires to be made that "may lead to the identity of the driver".

If I am right about this last point, it doesn't seem to require as much diligence by the "any other person" of para (b) as the RK in para (a). I suppose this makes sense if you reckon that the RK should make some enquires to find out who was driving at the date and time in question, but any other person should ony be required to say what they know. An RK would thus have more obligation than a witness, including a non-RK driver. This could be important if you were defending a S172 charge and you weren't the RK as it would surely have to be proved that you knew, not that you could have found out.

And the plot thickens further when you realise that the burden of proof is the wrong way round in subsection (4), as you have to show that you did not know and could not find out - you are guilty unless you can show that you are innocent!! But there is no such stipulation if you are not the RK, so I assume that the burden of proof would be the right way round i.e. you are innocent unless it can be shown that you knew.

This suggests that it is much easier to defend a S172 if you are not the RK.

I've only just worked this out, so let's hear some more opinions!
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andypandy
post Wed, 4 Feb 2004 - 13:24
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Hi guys

Thanks for your replies. It gives me confidence to keep up the fight.

A point which didnt dawn on me until now, was with the wording on the NIP and place of the alleged offence. It say that the offence at location ***** ST between junction A and junction B. Between points A and B there is a change in the speed limit.

Would it be worth while to get the police to say precisely where the alleged offence took place or should I keep quiet on this point.

AndyPandy
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The Rookie
post Wed, 4 Feb 2004 - 13:26
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I don't believe that is the case, they have to show that you have NOT used due dilligence (not looking at the pictures could be argued to not be showing due diligence!), but we know the Scameraship will try and B&B everyone. Its not a matter for the police to decide if you have shown due dilligence as that is a subjective not objective situation, but for the courts, however the CPS will use their normal guidelines to determine whether or not it is worth taking to court or not.

Simon
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jeffreyarcher
post Wed, 4 Feb 2004 - 15:21
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QUOTE (andypandy)
It say that the offence at location ***** ST between junction A and junction B.  Between points A and B there is a change in the speed limit.


-------------------------------------------------------------------------------------
Young v Day (DC) Divisional Court c.1959

(1959) 123 J.P. 317

Summary: The Divisional Court refused to set aside a decision by the justices that a notice of intended prosecution under the Road Traffic Act 1930 s. 21 was insufficiently particular where it stated the place of the offence of dangerous driving as "the Hothfield to Bethersden Road," which was a minor road four miles long. (Pope v. Clarke [1953] 1 W.L.R. 1060 followed).

------------------------------------------------------------------------------------

Pope v Clarke, (DC) Divisional Court, c.1953

Abstract: There is a distinction between the construction to be placed on a statute where the provisions are mandatory and where they are merely directory; thus, the object of the Road Traffic Act 1930 s. 21 which requires a notice of intended prosecution to be served on the defendant, is to bring to the defendant's mind while events are still fresh in his memory the fact that he is going to be prosecuted, so that inaccuracies in the notice served are immaterial if they are not such as to mislead the defendant. A notice of intended prosecution was sent to the defendant under the Road Traffic Act 1930 s. 21 in which the time of the alleged offence with which the defendant was going to be charged was incorrectly stated. The justices considered that this mistake invalidated the notice and dismissed the charge.
Summary: Held, there was no evidence that the defendant was misled; accordingly, the justices must proceed to hear the case. (Venn v Morgan [1949] 2 All E.R. 562 applied; and dicta of Lord Coleridge C.J. in Woodward v Sarsons (1875) L.R. 10 C.P. 733, 746 applied).

------------------------------------------------------------------------------------

So, the point being that in imprecise NIP in itself does not make it invalid; the accused has to be misled.
I would say that you have been misled as the speed limit changes between the junctions.
That said, if there is more than 4 miles between the junctions, it appears that Young v Day has already decided that that is sufficient to mislead, whether or not the limit changed.

QUOTE (andypandy)
Would it be worth while to get the police to say precisely where the alleged offence took place or should I keep quiet on this point.

It's irrelevent for the purposes of determining the driver; you can't change drivers between junctions on a motorway.
So to use this defence, you'll have to name a driver and that person can use it as a defence to the speeding charge. I wouldn't warn them before court, there's lots of case law on the subject and they may find a counter if you forewarn them.
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andypandy
post Wed, 4 Feb 2004 - 16:07
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Hi Jeffreyarcher


Lets see if i get this right

Assuming that it goes to court and, and lets say for arguments sake, I have to admit to being the driver due to evidence being produced which does clearly indicate it was me. Where can I go to find case law which would help in the defence as to being mis-lead on the nip.

Note From junction A to junction B, is about 1/2 to 3/4 mile long and the last 1/4 is the increased speed limit
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firefly
post Wed, 4 Feb 2004 - 16:44
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Hi all,

QUOTE (Lance)
If you weren't the RK, then it looks as though subsection (4) does not come into play, as subsection (4) only refers to paragraph (a) of subsection (2)


Not the case I am afraid. Look again at the wording of subsection 2(a) and it states clearly : "the person keeping the vehicle" . The keeper in this instance is not necessarily the registered keeper. All the designation "keeper" means is the person in charge of the vehicle. If the logic you are applying is to be believed then all other drivers of a vehicle except the registered keepers only have to comply with subsection 2(B) which states : "any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver". This effectively removes the paragraph 4 requirement from all non-registered keepers! If only!

Example : Man goes out to work and leaves his wife the car keys. Wife breaks speed limit and is flashed by GATSO. Man (who happens to be the registered keeper) returns from work 10 days later to find an NIP addressed to him. Returns the NIP with his wife's details on it as he knows it could not possibly have been him. Wife receives new NIP with her details on it. Wife says "no problem, I aint the registerd keeper so I shall provide any information which it is in my power to give and may lead to identification of the driver. as per subsection 2(B)."

Unfortunately this is not the case. As the recognised person in charge on that day, the wife effectively is the "keeper" and is legally bound by subsections 2 and 4.


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The Rookie
post Wed, 4 Feb 2004 - 17:07
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With FF on this one, para 4 can be used by anyone, it is a rare piece of common sense in the madness that is currently our motoring legislation, and has been used by (among others) Hampshire police when one of their CID cars got photo'd, they could trace who was the keeper at the time, but he couldn't have been driving (he was in court, so the witnesses were pretty uninpeachable!), and no-one owned up, the fact that they had NO PAPERWORK at all at the time was seen as pretty poor, when all companies are now required to have a logbook system for 'communal' cars to try and track accountability in order to show due dilligence

Simon
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cjm99
post Wed, 4 Feb 2004 - 17:13
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Surely, you must be wrong here.

If the the keeper on that day logic were good, then the CPS would need to evidence that the recipient of the NIP (not the reg. keeper) actually was the keeper on that day.. If a spouse fingerd thier other half, not signed . Then end of case!!!

But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????
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firefly
post Wed, 4 Feb 2004 - 18:01
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Hi cjm99,

QUOTE (cjm99)
If the the keeper on that day logic were good, then the CPS would need to evidence that the recipient of the NIP (not the reg. keeper) actually was the keeper on that day

Indeed you are correct. The evidence you refer to is the husband nominating his wife.

QUOTE (cjm99)
If a spouse fingerd thier other half, not signed . Then end of case!!!

Not quite that straightforward. There is no reason for a spouse NOT to sign an NIP nominating their partner. What is to be gained? Nominating someone does not mean they are automatically guilty, rather it absolves the registered keeper from blame if he was not the driver on that day.

If a registered keeper knows that only he and his wife have access to the car and he shows that IT COULD NOT POSSIBLY BE HIM that drove on that day then it leaves only one option of nominating his wife. I doubt an unsigned NIP nominating your partner would make much difference to the Scameraship. They would issue the new NIP to the nominee regardless I am sure.

If the scameraship did get picky and returned the NIP saying "you have not signed this" then that leaves the registered keeper (in theory) open to prosecution on "failing to provide".

QUOTE (cjm99)
But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????

So do you believe that paragraph 4 only applies to registered keepers? I am interested to know how you came to this conclusion.


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cjm99
post Wed, 4 Feb 2004 - 18:37
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Firefly.

I will answer your second question later . No time now


But, My wife did ID me , and unsigned. Scam office's seem to ignore this. and by the time everybody has delayed etc... They go out of time on the s172 to the Reg. Keeper. I am really tempted to press the CPS to evidence that I was the "keeper on the day"..

Chris
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jeffreyarcher
post Wed, 4 Feb 2004 - 21:37
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Sorry, andypandy, I misread your original post. I mistakenly thought that you were being prosecuted for speeding, not S172.
I don't hink Young v Day is of any help.
Even if it was speeding, it probably still wouldn't because the junctions are so close.
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Lance
post Wed, 4 Feb 2004 - 22:46
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ff et al,
Interesting points raised!

Surely there are circumstances where the driver of a car is not the keeper at the time? What if both partners are at home for the day and the non-RK nips down to the shops for 20 mins? Does that make the non-RK the keeper for those 20 mins? Surely not!
What if they are both in the car, with non-RK driving?

My understanding was that if the RK carries out his subsection (2) para (a) obligations by fingering somebody else, then another NIP will be sent out to the fingered person who then has subsection (2) para (b) obligations.

I think that the legislation has been deliberately drafted to put extra obligation on the RK, who may or may not have been in the car at the time of an alleged offence. In effect, he has to do the police detective work to find out who the driver is, and furnish the police with that info. But anyone else is only required to give information in their power. I don't like it, but I can see the logic.

Otherwise the RK could always say, "I don't know who was driving", and that would be that, unless the police have any other evidence. Which is as it ought to be - innocent unless proven guilty, without the use of self-incrimination under coercion. But Section 172 is designed to take away this fundamental right that we've had in this country for hundreds if not thousands of years, which is what I hate most about this sort of law. This right is also enshrined in the American Constitution - pleading the 5th Amendment) - and the European Human Rights law. This country is turning more and more into a police state. There are already considerable powers to lock up people without trial, which the government wants to extend, again taking away a fundamental right that was recognised in the reign of King John etc. etc.

Anyway, rant over, where was I? Ah, yes:

In any case, the thrust of my argument is not so much that if the driver was not the keeper that he cannot use the subsection (4) defence, but that he doesn't need it as there is a separate defence implicit in subsection (2) para (b) i.e. that the information is not "in his power". This should be easier than the subsection (4) defence where you would have to show that not only was the info not in your power, but you'd also gone through the motions of the detective work mentioned above to try to establish the identity of the driver with due diligence.

In order to secure a conviction under subsection (2) para (b), the CPS would surely need to show that the information was in your power, but that you didn't give it. If you'd been fingered already by the RK, then presumably this evidence would be introduced to show that the info was in your power.

Questions arising: if this last idea is right, could the court accept a completed NIP from the RK on its own to show that you had knowledge? If not, then presumably they would have to get the RK to act as a witness for the prosecution. But what if the RK was your spouse? We get into this situation again of wondering whether a spouse can be forced to testify against you. And what about a partner? Is there such a thing as a common-law spouse for this purpose? In any case, unless the RK was actually at the scene at the time of the alleged offence, can their evidence prove that you had the information beyond reasonable doubt?



To conclude, here's what I think the CPS would need to do to get a conviction under subsection (2) para (b):

1. They would need to show that they had reasonable grounds for suspecting that an offence had occured.
In the case of Gatsos that surely means doing the secondary time/distance calculation check as well as looking at the speed indicated by the radar gun - which can give a false reading. They need to do everything that the type approval for the device requires, otherwise they are surely sending out NIPs recklessly. If there is something obviously wrong e.g. your vehicle only moved 6 inches between two Gatso photos 0.5 seconds apart and 80 mph is indicated on the first frame, then I would suggest that there are not reasonable grounds for suspecting an offence has occurred, and therefore there are no Section 172 obligations arising.

2. They would need to demonstrate beyond reasonable doubt that the accused had the information in his power.
As discussed above, I'd be interested to know what level of proof would be acceptable for this.
- A signed statement from the RK? Surely not...?
- An unsigned form from the accused? Surely not again, if the CPS are saying that it does not meet the S172 requirements. (A nice Catch 22?)
- A witness appearance by the RK who was not at the scene? Maybe. Might depend on whether anyone else could have had access to the car.
- A witness appearance by somebody who was at the scene? I should think so.

3. They would need to show that the info had not been provided.


What do you reckon?

Lance
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firefly
post Wed, 4 Feb 2004 - 22:53
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Hi cjm99,

I assume that you are following the logic of subsection 4 making reference to subsection 2?

That is.....4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. whereby section 2(a) states.....2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and


I draw your attention to the postings I made above as to why paragraph 4 applies to the recipient of the NIP and not the registered keeper.

QUOTE (cjm99)
But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????


I believe you are drawing reference to subsection 2(B) which states....(B) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

"Any other person" is a more generic term which could, by definition, be any person that could identify the driver. ie. a passenger on the day.


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firefly
post Wed, 4 Feb 2004 - 23:25
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Hi Lance,

I believe you may have grasped the wrong end of the stick.

QUOTE (Lance)
Surely there are circumstances where the driver of a car is not the keeper at the time?


As far as the scameraship are concerned, the original NIP is sent out in the first instance to the registered keeper. As I have stated previously, if the registered keeper knows with certainty that it was his wife who had charge of the vehicle on the day of the alleged offence and was the only person insured to drive it, then, after discussing the situation with her, he would have little option but to nominate her as having custody of the vehicle.

This is when the registered keeper ceases to be the keeper (as defined in subsection 2(a)) of the vehicle and that title passes to his wife who has been nominated by her husband. Again, as I stated, this is not a declaration of guilt towards his wife. She now has the chance to demonstrate that it may not necessarily have been her that was driving. ie. Exercise her subsection 4 right.

It is possible that the RK's wife (without the RK's knowledge) may have let her sister (or whoever else) drive providing they had appropriate insurance. Again, this is when the RK's wife will have the chance to exercise her subsection 4 right.

As I have maintained throughout, subsection 4 applies to all people (be they registered keepers or otherwise) who have been legitimately named or identified as having custody of the vehicle at a particular time and has subsequently received their NIP.


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cjm99
post Thu, 5 Feb 2004 - 09:19
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Firefly

sec172 para 1. says :- must be allegedly guilty of a moving road traffic offence. AND have been notified of intention to prosecute. I know I have not used the actual text.


SO. A passenger, as you earlier suggest could not qualify for the above.. Indeed nobody possibly could be "any other person". And the additional legislation in this regard is therefore superfluous. As they would in your view, be either the registered keeper or a temporary keeper :?

Chris
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firefly
post Thu, 5 Feb 2004 - 10:25
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Hi cjm99

Let us break down the specific legislation :

[quote=Subsection 2](2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and[/quote]

Tell me why the legislation makes reference to "the person keeping the vehicle" and not "the registered keeper". This is because the two are not one in the same. If you look around this site you will find plenty of examples of people who have received NIPs and have subsequently named their spouses who duly receive their NIPs. Once they are in receipt of these NIPs then they are bound by all of the rules that their spouses were before they were nominated. ie subsections 2 and 4.

B)+-->
QUOTE(subsection 2(B))
(B) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.[/quote]
My reading of this piece of legislation is that it enables the "keeper" of the vehicle to use information from "any other person" in order to identify the driver and, in my opionion, is not for "any other person who is not the registered keeper".

I know where you are coming from when you say that subsection 4 does not apply to anyone but the registered keeper, but I believe that you have arrived at this conclusion because you are of the opinion that "the keeper" mentioned in the legislation is "the registered keeper", which is not the case.


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The Rookie
post Thu, 5 Feb 2004 - 11:41
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With FF, it says Keeper, not RK, the very fact that the RK and owner can be different implies to me that the Keeper is anyone who has 'posession' of the vehicle at the relevant time in the same way the the RK is assumed to be the keeper with the first NIP, and thus p4 applies.

Simon
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