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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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Lance
post Thu, 5 Feb 2004 - 12:27
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QUOTE
Tell me why the legislation makes reference to "the person keeping the vehicle" and not "the registered keeper".


Perhaps it is to put the onus on the actual keeper, even if the register has not been updated. E.g. Your grandmother ceases driving through ill-health, and you start using her car instead of replacing your own. A reasonable judgement would be that you were now the keeper of the car, not your aged relative. Thus you would have the higher burden of subsection (2) para (a), relieved only by subsection (4). If you named a friend, who used the car perhaps briefly for an errand, then he would have to comply with para (b), which has a lesser burden and doesn't need the subsection (4) defence as ignorance is acceptable under para (b).

I've been looking for a definition for keeper in the law, but could only find "the person who keeps the vehicle". I don't think that it changes with every driver though. For a start, isn't there a requirement to keep the register up to date? You'd have to contact the DVLA each time you changed drivers!

We need an expert to say whether ff is right!!

Lance
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firefly
post Thu, 5 Feb 2004 - 13:43
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Hi Lance,

QUOTE (Lance)
E.g. Your grandmother ceases driving through ill-health, and you start using her car instead of replacing your own. A reasonable judgement would be that you were now the keeper of the car, not your aged relative.

I could not agree more, although the burden of responsibilty to prove you are the keeper (or driver) would still fall to the registered keeper, in your case, your grandmother. Until she nominates you as the driver (or keeper), she is bound by subsections 2 and 4.

Once she nominates you as the driver (or keeper), she is then absolved from blame as a new NIP is sent out to your good self. Until she does this, the burden is on her as the registered keeper to "provide such information as to the identity of the driver". The Scameraship don't know that she was not driving and that you were the keeper on that day. They rely on the registered keeper telling them this. In this case, your granny singles you out and your receive the NIP. And as I have stated, you then become bound by both subsections 2 and 4.


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cjm99
post Thu, 5 Feb 2004 - 14:10
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OK.. Granny sends back NIP unsigned. You get NIP. You send back unsigned. Six months pass, due to fairly normal delays.. Granny now off the hook for a s172.

How does the prosecution evidence that you were the keeper on the day??. They do not have a 'statement of witness' from Granny do they??

Equally the same scenario with spouse, and even the option for CPS to call spouse as a witness dissapears. This is increadably close to my situation.

Chris
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firefly
post Thu, 5 Feb 2004 - 15:01
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Hi Chris

QUOTE (cjm99)
How does the prosecution evidence that you were the keeper on the day??. They do not have a 'statement of witness' from Granny do they??


They do have evidence to say you were the keeper that day because granny's returned NIP fingers you. If the Scameraship were unhappy with the fact it was unsigned they would have sent her a letter to that effect asking her to sign it.

The fact that they issued the NIP signals they are happy that the information provided is satisfactory. The burden of responsibility now falls onto you as the nominee. You will have to argue in court that there is no witness statement to say you were the keeper. I think you are on a hiding to nothing with that one though.

Broomfield anyone........???


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Lance
post Thu, 5 Feb 2004 - 15:19
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ff,
The difference between our understandings seems to be this:

You believe that: [list]The RK is bound by subsection (2) para (a)
Anyone who the RK nominates then becomes the keeper.
The keeper then is also bound be subsection (2) para (a).[list]
I believe that: [list]The keeper is bound by subsection (2) para (a).
Subsection (4) ONLY applies to subsection (2) para (a).
Anyone else nominated is bound by subsection (2) para (b).
Subsection (2) para (b) has an easier "info not in my power" defence.[list]
If the RK is not in fact the keeper, then I would suggest that they are not bound by subsection (2) para (a), though they may have to demonstrate that they are not to get the police to leave them alone. In fact, isn't there usually a place on the form to put "I was not the keeper" and nominate a new keeper? All this means is that the name on the keeper is out of date, which is potentially a different offence.

I do not believe that if you and I went on a trip in my car, and I let you take the wheel, then you would become the keeper of my car!

But I'd be the first to admit I'm no expert, so I'd love to see a professional view.


On the matter of whether Granny's NIP naming you is enough to give evidence that you had knowledge, I'm sure that I saw somewhere (JJ?) that the NIP nominating someone else was not suitable as a witness statement. It's not designed to be a witness statement, it's designed to be info for the police to follow up their normal enquiries. I shouldn't think that it is important whether it is signed or not. They would need a separate witness statement, and if Granny was not at the scene, how could she provide this?

This is quite different from a signed form nominating yourself. That is a confession that you were driving at the time - in effect you are acting as the witness at the scene against yourself, as a result of very nasty law.
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firefly
post Thu, 5 Feb 2004 - 15:47
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QUOTE (Lance)
ff,
The difference between our understandings seems to be this:

You believe that: The RK is bound by subsection (2) para (a)
Anyone who the RK nominates then becomes the keeper.
The keeper then is also bound be subsection (2) para (a).


Correct

QUOTE (Lance)
I believe that:  
The keeper is bound by subsection (2) para (a).  
Subsection (4) ONLY applies to subsection (2) para (a).  
Anyone else nominated is bound by subsection (2) para (B).  
Subsection (2) para (B) has an easier "info not in my power" defence.


I believe you are incorrect for reasons I have already outlined. Quite why a non-registered keeper driver should have any less responsibility with regards to section 172 is beyond me. It makes absolutely no sense for someone to have the far easier option of only having to provide "information in his power to give", if he is guilty of the same offence as the registered keeper.


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Lance
post Thu, 5 Feb 2004 - 16:05
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ff,
I didn't say that the law was sensible! I just said that, in my opinion, that is what the law seems to say.

I think that the law puts extra obligations on the keeper to give the police a starting point for their enquiries. The keeper may have nothing to do with the offence and may know nothing, so without any obligation on him to make investigations to find out who the driver is, the system would be dead in the water. Once the police have that starting point, there is no additional responsibility on anyone else to say anything more than they know. They are not required to make any investigations. And why would they need to, if the keeper has discharged his job? It becomes a simple question to the nominated person as to whether he was driving or not. Hence 2(b) and not (a).

If we can't persuade each other then it's really useful that we have had this debate to distil the different points of view so that we can pose a coherent question to a professional. After all, we are on the same side, aren't we? Perhaps we could ask Mika to take this on when he gets back?

Lance
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cjm99
post Thu, 5 Feb 2004 - 16:07
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FF

There are times, when a non registered keeper is the keeper
EG. when you take out a lease/hire of a vehicle, you sign to accept responsibility as a temorary keeper..

Earlier, you said you believed that the 'any other person' applied to a reg keeper obtaining info from other eg other potential drivers.. But this can not be the case.. As rk you can not invoke s172 and ask the CPS to prosecute..

I really don't think you can find a logical plausible example of 'any other person' other than everybody other than the reg.keeper qualifying

Chris
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cjm99
post Thu, 5 Feb 2004 - 16:49
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FF
Just have a read at this post under 'speeding' heading


Section 172....Non speeding offences

This is a company car driver, case dropped because of lack of evidence. His company returned NIP unsigned, Plod tried to get it signed very late . approx 7 months

The CPS in this case seem to agree with my interpretation??

What do you think?
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jeffreyarcher
post Thu, 5 Feb 2004 - 17:19
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QUOTE (cjm99)
What do you think?

There were three things wrong with that case, none of which was your point.
1) The original NIP was out of time (assuming that the company was the keeper).
2) The summons was out of time.
3) There was no evidence, Banger appears not to have had his own form; he appears to have filled in the company's one, as a director of the company.
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firefly
post Thu, 5 Feb 2004 - 17:54
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I think we will just have to differ on this chaps. rolleyes.gif

I shall make a phone call to a "friend" in the business to get his slant on it.

Watch this space.


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Observer
post Thu, 5 Feb 2004 - 21:06
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FWIW, I agree with Lance and think FF's interpretation is wrong. I seem to remember reading somewhere (in statute) that the "person keeping the vehicle" means the "registered keeper" but I can't find the reference now so may be mistaken. However, there is some (circumstantial) evidence supporting this contention to be found in the wording of the summons on s.172 charges. Where the accused is not the RK, this (in cases I have seen) states "failed to give information it was in his power to give" or sometimes "person other than keeper failed to provide information". This indicates that the authorities issuing the summons (police) do draw the line between ss.2(a) and 2(B) at the registered keeper. In any event, I think it is for practical purposes impossible to argue that the "keeper" can be different persons on different days (or even at different times).

The question to be answered is:

is the obligation on the keeper (registered or otherwise) in ss.2(a) more onerous than that on "any other person" in 2(B)?

It seems clear that the draftsman must have intended there should be a different obligation otherwise reference to "any other person" could have been included in ss.2(a). I think Lance's explanation is persuasive. The RK is obliged (impliedly) to make enquiries (in order to kickstart the investigative chain) whilst others are obliged to give information "which it is in their power to give" (whatever that means).

The perverse effect of the distinction is that the law will have a different effect on people whose circumstances are, in substance, identical. For example, employee A who has a compamy car which only he and his spouse/partner drives is, in substance, in an identical position to employee B who owns the car which only he and his spouse/partner drives. But the law treats them differently.

I'm not sure whether the law, in application, will treat the RK and others differently. Even if (and I'm not sure how easy it is to argue the point)there is a lesser obligation on "any other person", if I was in the position of defending a s.172 charge where I couldn't identify the driver, I would prefer to have the ss.4 defence available than defend solely on the grounds "it was not in my power".
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firefly
post Thu, 5 Feb 2004 - 21:50
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Hi all,

QUOTE (Observer)
However, there is some (circumstantial) evidence supporting this contention to be found in the wording of the summons on s.172 charges. Where the accused is not the RK, this (in cases I have seen) states "failed to give information it was in his power to give" or sometimes "person other than keeper failed to provide information"

I have never seen a s172 summons so will have to accept that interpretation. By the same token, I should very much like to see a s172 summons for a registered keeper to see exactly what the wording of the charge is.

If it follows the lines of "....failed to give such information as to the identity of the driver as was required to give..." (as per subsection 2a) then I shall doff my cap and accept the reasoning of all who disagreed with me icon_wink.gif .

I am not so sure however.....I am not at all convinced that the s172 summons wording is not just plucked out of legislation. By that I mean if a section 172 summons turned up at a registered keeper's address and said "...failed to give information that was in his power to give..." (as per subsection 2b). The two are remarkably similar and it would not surprise me in the least if the two had ever been used for either interpretation.

The question must be asked why there should be any difference in application to identical offences. This is what makes no sense. I don't know if I buy into the idea of the RK giving information so as to "kick start" the investigation chain. Investigation chain? Scameraships? If we have learned one thing it is that (as far as the scameraships are concerned) they are not interested in an investigation chain. That being said I do see the logic behind the argument in theory, but not in practice.

QUOTE (Observer)
I'm not sure whether the law, in application, will treat the RK and others differently

This is the nub of the argument really. In practical terms I feel a magistrate will be oblivious to the subtle art of road traffic legislation.

QUOTE (Observer)
if I was in the position of defending a s.172 charge where I couldn't identify the driver, I would prefer to have the ss.4 defence available than defend solely on the grounds "it was not in my power".

Could not agree more so why on earth would we have such bizarre legislation that differs on whether or not you were the registered keeper or not. It puts (in theory) the registered keeper at an advantage in court should he have to answer a "failure to provide summons". Wouldn't you agree?

I would like very much to see this confirmed one way or t'other, so if anyone can find the statute that defines what Observer has set out then please post it. Until then I remain sceptical, for the simple reason that it seems like a manifestly unfair and biased piece of legislation.

As a final thought, if subsection 2(B) does apply to all non-registered keeper drivers, where is the get out clause? Subsection 2(a) has a "safety net" for the RK in that ss4 can bail them out. Giving information "that is in your power to give" (as per ss2(B)) is one of the most ambiguous pieces of legislation that I have yet come accross and has no such safety net. Certainly none that I can interpret. You could be as diligent as you like with giving information that is in your power to give and it could matter not a jot. Surely something is amiss here?


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firefly
post Fri, 6 Feb 2004 - 09:40
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Observer,

The plot thickens somewhat........

Below is a paragraph taken directly from my own NIP from Kent Police :

QUOTE (Kent Police NIP)
IF YOU WERE NOT THE DRIVER :
YOU MUST NOT PASS THIS DOCUMENT TO THE DRIVER TO COMPLETE, WE WILL WRITE TO THEM DIRECT
. YOU ARE REQUIRED TO GIVE ANY INFORMATION IN YOUR POWER WHICH MAY LEAD TO THE IDENTIFICATION OF THE DRIVER BY COMPLETING THE APPROPRIATE PART OF THE STATEMENT ON PAGE 4. RETURN PAGE 4 TO US AT THE ADDRESS BELOW
(Their bold and capitals).

This is at odds with what has been said. As I understand you, the registered keeper (myself), should be legally bound by subsection 2(a) in that "...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...".

It appears that the information I have been asked to provide has it's authority in subsection 2(B), which is now removing my subsection 4 defence, even though I am the registered keeper.

What are we to make of this? Kent Police have the wording of their NIPs wrong? Someone in Kent Police has mis-interpreted the law? Kent Police do not actually care about such things?! rolleyes.gif

The rear of the NIP seems to back this up when it states as option B :

QUOTE (Kent NIP)
If you were NOT the driver of the vehicle at the time of the alleged offence you MUST give any information in your power which may lead to the identification of the driver. FAILURE TO SUPPLY THESE DETAILS MAY RENDER YOU LIABLE TO PROSECUTION. You must give the name and address of the driver of the vehicle by completing and signing part 2 on page 4 and returning it to the Central Ticket Office, using Address B on page1. (Their capitals throughout)


So what information is in my power to give? Who knows? What is for sure is that I will not bother trying to exercise reasonable diligence in finding out as that is not an option that is open to me. icon_eek.gif


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cjm99
post Fri, 6 Feb 2004 - 10:09
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Hi..

The point I have tried to make, is does the prosecution carry a burden of proof in regard to "in your power to give"

This is an extract from my summons :- "failed to give information which it was in your power to give and which might have led to the identification of the driver of a vehicle, etc.."

Surely to prove this offence, there has to be evidence to support that you did indeed have some knowledge??

Chris
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Observer
post Fri, 6 Feb 2004 - 10:17
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FF,

I don't think you can or should treat the wording of the NIP/s.172 notice as a definitive statement of law. Whatever is contained in the NIP cannot remove a statutory defence to which you are entitled by law.

The NIP/s.172 notice (TVP) in my wife's case makes alternative requests which correspond exactly with s.172:

"You are the RK and you are required to prode full name and address of the driver..." (this is exactly in accordance with law; the COP is stating the information required).

"OR"

"You have been named as the driver...If this is so you are required to provide your full name and address....If you were not the driver you are required to give any information in your power..."

It is hard to argue that the wording in your NIP changes the validity of the request (whether under ss.2(a) or 2(B). I see no help in defending a s.172 charge on the grounds that you were required to "provide information it was in your power to give" when you should have simply been required to provide "information as to the identity of the driver".

There is some uncertainty as to the meaning of "in [your] power to give". If you have the knowledge, it is clearly in your power to give it. If you do not have the knowledge, are you obliged to make enquiry? As the ss.4 defence appears to be unavailable to a "any other person", it could be argued that there is no obligation to "use reasonable didligence" (i.e. make enquiry). On the other hand, if it is "within your power" to make enquiry and, as a result of such enquiry, provide information which "may lead to identification of the driver", perhaps there is an obligation to do so.
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firefly
post Fri, 6 Feb 2004 - 10:58
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Observer,

QUOTE (Observer)
Whatever is contained in the NIP cannot remove a statutory defence to which you are entitled by law

No problem with that.

QUOTE (Observer)
I see no help in defending a s.172 charge on the grounds that you were required to "provide information it was in your power to give" when you should have simply been required to provide "information as to the identity of the driver".

Someone somewhere dreamed up this ambiguous legislation for a reason. And whilst it cannot be argued that the two (ss 2(a) & (B)) ask for largely the same thing, there is enough of a difference between them to warrant separate legislation. So perhaps in theory you could defend a s172 charge on those grounds. I am not even going to speculate as to what those grounds may be.

Quite why subsection 4 omits subsection 2(B) is, in my opinion, a bit odd to say the least.


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Observer
post Fri, 6 Feb 2004 - 11:16
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QUOTE (firefly)
Quite why subsection 4 omits subsection 2(B) is, in my opinion, a bit odd to say the least.


Agreed. The only explanation I can offer, for now, is that ss.2(B) does not constitute an obligation to make enquiry so the defence of "reasonable diligence" (which implies enquiry) is unnecessary.

But, as noted previously, a "any other person" could be, substantially, in identical circumstances as a RK. That's the law for you. It's sometimes (often) irrational and has unintended consequences.
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r11co
post Fri, 6 Feb 2004 - 11:30
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Part of the reason I was worried about passing on my own 'unsure of driver' situation (see http://forums.pepipoo.com/index.php?showtopic=927) was the loss of the defence (or at least a change in how it worked).

So I or someone I know may be in a position to test this in the not too distant future!!

rolleyes.gif
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Lance
post Fri, 6 Feb 2004 - 11:57
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The reason I think that subsection 4 omits subsection 2(b) is because paras (a) and (b) are different.

Para (a) says that the keeper must name the driver. It is an absolute requirement. Without section 4, if he didn't know and couldn't find out and give a name he would be commiting an offence. He would be damned if he did, and damned if he didn't.

Para (b) just requires any other person to give information in his power. If you don't don't have any information in your power, and you don't give a name, you would not therefore be commiting an offence. So you don't need any other subsections to give you a get-out-of-jail-free card.

If para (a) said that the keeper must name the driver if the information is in his power or he can find out with due diligence who it is (obviously worded a bit better!) then subsection 4 would not be required.

In summary, para (a) implies that the keeper would automatically commit an offence if he did not name the driver, but para (b) does not imply that any other person would commit an offence by not naming the driver. That is why sbusection 4 only needs to apply to para (a).

So subsection (2) para (a) and subsection (4) together define the obligations of the keeper.
Subsection (2) para (b) alone defines the obligations of any other person.
Thus it can be seen that the obligations on the keeper are much more onerus, and therefore harder to defend.

I think that the obligations on the keeper have been split between subsection (2) para (a) and subsection (4) to make (2)(a) shorter and more scary. "You SHALL comply!" instead of "You shall comply unless you can come up with an excuse".
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