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Unsigned forms - The Scottish Experience??
r11co
post Fri, 9 Jan 2004 - 12:45
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Has anyone here seen through to conclusion (either court or case dropped) the unsigned form process within a Scottish Jurisdiction?

There's precious little out there about it beyond 'Scotland is different'. It is up to a point but all the RTA's are the same ones that apply to the rest of the UK.

Help/advice/reassurance required smile.gif
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post Fri, 9 Jan 2004 - 12:45
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r11co
post Sun, 21 Mar 2004 - 11:24
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QUOTE (firefly)
QUOTE (r11co)
as Firefly pointed out in another thread and as I discovered myself when I actually visited the Strathclyde Camera Enforcement Unit, they are (or at least were) using it as 'authority' for their "b & b" letters.


I have never said that! I said that Stott v Brown is authority for the argument that you shouldn't have to sign an NIP on the grounds of self-incrimination. Stott v Brown has nothing whatsoever to do with an unsigned form and didn't rule on it (as such).

And Strathclyde were using Broomfield, not Brown v Stott. You may have mis-read my thread.


I know - Brown was a drink-driving case (which might explain why they managed to sway the 'public interest' argument). I actually heard about it first from a traffic cop friend and I did indeed not read your post carefully enough firefly. I mistakenly assumed your were backing up what the cop told me. I asked him about Broomfield and he said he'd heard of it but not the details, but had been told (correctly) by the powers that be that it was a lower-court English case and would be 'inappropriate' for a Scottish enforcement unit to use as authority. icon_eek.gif :?

Hence my (still to be answered) question. Does Francis apply in Scotland????

PS to keep asserting that Brown has nothing to do with unsigned NIPs is unhelpful if the powers that be are using it as authority. We have to consider how these laws are or might be applied, rightly or wrongly.

The facts of the case may have had nothing to do with forms, but, as we have seen, 'our' strongly held beliefs about certain case law - eg. Broomfield - is at odds with the people who unfortunately wield the power.
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jeffreyarcher
post Sun, 21 Mar 2004 - 11:46
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QUOTE (r11co)
I asked him about Broomfield and he said he'd heard of it but not the details, but had been told (correctly) by the powers that be that it was a lower-court English case

It was not a lower court, it was the High Court.
QUOTE (r11co)
PS to keep asserting that Brown has nothing to do with unsigned NIPs is unhelpful if the powers that be are using it as authority.

But you have been repeatedly asked to show that they are. You have not done so. Indeed further up this thread you appeared to concede that you were mistaken in that assertion.
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r11co
post Sun, 21 Mar 2004 - 12:38
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QUOTE (jeffreyarcher)
QUOTE (r11co)

PS to keep asserting that Brown has nothing to do with unsigned NIPs is unhelpful if the powers that be are using it as authority.

But you have been repeatedly asked to show that they are. You have not done so. Indeed further up this thread you appeared to concede that you were mistaken in that assertion.


If I appear confused it is because that is exactly what I am. Why would a Strathclyde Traffic cop refer to it and the Strathclyde Camera Enforcement Unit have copies of reports on the ruling in their office?

Why also do people in here still assert that Broomfield isn't authority that a NIP must be signed (an argument that I agreed with) yet since I joined the forum most people were being convicted on it and those who were getting off seemed to be doing so on matters of evidence or procedure??

I'm not getting at anyone here, but the picture isn't clear by any means.

The fact is I am hearing nothing from the sharp end on the subject wrt Scotland. The only thing concrete I have heard is that someone strung Strathclyde unit along long enough until speeding and then s.172 timed out.

I made the point in this and another thread that the lack of 'angry Scots' in here must mean something, but is unhelpful in establishing what approach is actually being used by the enforcement units to chase up those who wish to fight the camera system, if anything.

Sorry guys, but it's a worry when everyone can be so helpful and supportive for English cases yet shrug their shoulders and say 'dunno' or nothing at all when it's Scotland involved.
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firefly
post Mon, 22 Mar 2004 - 09:16
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QUOTE (r11co)
Why would a Strathclyde Traffic cop refer to it and the Strathclyde Camera Enforcement Unit have copies of reports on the ruling in their office?

One thing is for sure, is that it is not authority for an unsigned form and I have never heard of it being used as such. One can only assume they have it there as a general interest story.

QUOTE
Why also do people in here still assert that Broomfield isn't authority that a NIP must be signed (an argument that I agreed with) yet since I joined the forum most people were being convicted on it and those who were getting off seemed to be doing so on matters of evidence or procedure??
Broomfield is not authority for signing an NIP. Unfortunately, this does not stop the authorities from using it (selectively). I won't bother repeating it here as it has been done to death elsewhere.

QUOTE
I made the point in this and another thread that the lack of 'angry Scots' in here must mean something, but is unhelpful in establishing what approach is actually being used by the enforcement units to chase up those who wish to fight the camera system, if anything.

The question really boils down to this : Does an English high court ruling hold sway over the lower courts of Scotland? I don't know the answer. Strathclyde (as we have stated) were sending out Broomfield B&B letters for unsigned forms whether or not they were legally permitted to do so. Perhaps a scare tactic by them? I have to say that I believe a Scottish court, even though they may not use it as authority, will agree in principle with the Francis verdict. I just can't see them differing drastically from it.

If I ever receive another NIP from a Scottish force, I think I will be submitting the details in a similar manner to the PACE Witness Statement that Mika produced. It will need changing of course as PACE doesn't apply in these parts. There is still a bit of "slack" to play with in Scotland in my opinion 8) .


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r11co
post Tue, 23 Mar 2004 - 09:53
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If you mean this witness statement [forum link] then what mod's do you suggest?

Got an NIP due in first week in April.... wink.gif
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jeffreyarcher
post Tue, 23 Mar 2004 - 10:01
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QUOTE (r11co)
If you mean this witness statement [forum link] then what mod's do you suggest?

Forget it; not only does PACE not apply, neither does the Magistrates' Court Act 1980, nor obviously the rules.
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Mika
post Tue, 23 Mar 2004 - 10:21
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Chaps,

I know that everyone keeps saying that PACE does not apply in Scotland but if you read the Act it has several specific references to Scotland.

For example the first page says:

Police and Criminal Evidence Act 1984, Ch. 60, Long Title (Eng.)

Long Title


An Act to make further provision in relation to the powers and duties of the police, persons in police detention, criminal evidence, police discipline and complaints against the police; to provide for arrangements for obtaining the views of the communityon policing and for a rank of deputy chief constable; to amend the law relating to the Police Federations and Police Forces and Police Cadets in Scotland; and for connected purposes“

The following quote are also from the Act:

“120(5) The following extend to England and Wales, Scotland and Northern Ireland--
section 6(3);
[section 9(2A);]
section 83(2), so far as it relates to paragraph 7(1) of Schedule 4; and
section 114(1).”

6 Statutory undertakers etc

6(3) For the purposes of section 6 of the Public Stores Act 1875, any person appointed under the Special Constables Act 1923 to be a special constable within any premises which are in the possession or under the control of British Nuclear Fuels Limited shall be deemed to be a constable deputed by a public department and any goods and chattels belonging to or in the possession of British Nuclear Fuels Limited shall be deemed to be Her Majesty's Stores.

9 Special provisions as to access

9(2) Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches--
(a) for items subject to legal privilege; or

83 Establishment of the Police Complaints Authority

(1) . . .(2) Schedule 4 to this Act shall have effect in relation to the Authority.(3) . . .

114 Application of Act to Customs and Excise

(1) "Arrested", "arresting", "arrest" and "to arrest" shall respectively be substituted for "detained", "detaining", "detention" and "to detain" wherever in the customs and excise Acts, as defined in section 1(1) of the Customs and Excise Management Act 1979, those words are used in relation to persons.”


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firefly
post Tue, 23 Mar 2004 - 10:22
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Obviously the wording would need changing as I have mentioned, but submitting the details by way of a (signed) letter would possibly suffice.

A skeleton (Scottish) letter would be interesting. Fancy a stab jeffrey?


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r11co
post Wed, 24 Mar 2004 - 07:18
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QUOTE (Mika)
Chaps,

I know that everyone keeps saying that PACE does not apply in Scotland but if you read the Act it has several specific references to Scotland.


...and then people wonder why I get confused!!! biggrin.gif

If it is worth floating as an argument in Scotland then I am in a position to test it, so before I go and louse it up - any advice?
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r11co
post Sun, 28 Mar 2004 - 22:12
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Where's the fear guys?

Again, a confused person is left more confused by the disparity of information.

PACE DOESN'T apply in Scotland, but it might. Broomfield ISN'T authority for NIPs to be signed but it is...

No wonder rings are being run round us...

:?
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firefly
post Mon, 29 Mar 2004 - 08:25
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Hi r11co,

In the absence of any definitive answers, the process remains largely guesswork in my opinion.

A volunteer is required methinks!


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Phil
post Fri, 16 Apr 2004 - 14:25
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Hi,

I'm due in Annan District Court on 2 June for my 'intermediate diet', then on 7 July for 'Trial'.
The NIP sent to me had my name and address filled in by my wife, as I was so busy at work at the time the NIP arrived. The unsigned NIP was never challenged. An officer phone my home, spoke to my wife and asked for my DOB + driver number, as these were not requested by the NIP 'instructions', hence not filled in on the NIP. I expect the NIP has now been defaced! My wife could only give my DOB, but the officer said he would find my driver number via another route.
The alledged speeding (86 in 70) incident occured in November, during a return home from ~Glasgow to ~Birmingham, ~300 mile journey. I cannot remember who was driving, as we both took turn to drive, and frequently stopped at the services (2 young children in back + plus wife expecting 3rd 6 weeks later). Clearly it was one of us, but do not remember which one, and due to the quantity of stoppages, no easy way to tell.
I was expecting to get grief regarding the NIP, but instead got a 'Citation', which I pleaded Not Guilty. Along with my Citation, I sent the standard 'disclosure' letter.
I called on 5th April, to verify that my Not Guily plee, had been received,2 days before the Citation hearing. It had, and yes, the girl had also received my 'disclosure' request.
I have a letter at home (wife phoned me, this morning) telling me that my request for disclodure "may" not be relevant!

Hope this displays the situation...

I'd like to avoid ~200 miles going to court, but stick to my priciples that I may not have been driving and if I was, I was driving within the speed limit.
Any help???

Regards,
Phil.
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jeffreyarcher
post Fri, 16 Apr 2004 - 14:46
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What have you been charged with? Speeding, S172 or both?
'Disclosure' may not be relevent as I believe that there is no formal 'disclosure' in the English sense?
If you want to run the 'unsure of driver' defence, see the sticky of that name to start with.
As to the unsigned element, we appear to have pepipoo's first Scottish case to reach the court.
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Phil
post Fri, 16 Apr 2004 - 19:52
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Hi,

home now.
I have been charged with speeding, not with failing to sign the S172.
Whilst on the phone to the Procurator Fiscal on the 13th April (whilst following up on the 'disclosure' request) , I mentioned that the only evidence was the photographic evidence, and I was told 'the signed NIP' was also evidence, to which I replied the NIP was not signed - the tone turned to anger! Hopefully the Procurator Fiscal will eventually decide to drop the case.
For now I hope this is just "bluff + bluster".

From the letter, there are a few things quoted that contradicts the lawful info from other threads:
"I would also caution you that the law you refer to in your said letter is in fact English precedent and may not have any application in a Scottish Court of Law. The case against you is based on a speed camera and in due course documentation will be served upon you which means it may not be necessary for us to lead any evidence from police witnesses at all in court. It would not be normal for police officers in these sort of cases to require to use their notebooks so these will not be produced. As I have already said you will be given access to the police statements themselves.
In addition the police statements include reference to the accuracy of the speed camera equipment deployed so there will be no callibration certificates."
I dislike the 'may not have any application' quote, as this is unhelpful to me - the Procurator Fiscal quoted "I'm trying to help you" during my telephone conversation on 13th April.
No calibration certificates - is this a lawful requirement? Any thoughts where Scottish law would be different?
If the 'police statements inlude reference to the accuracy', I'll produce a statement, that the speedo never read over 70 on any motorway, and my wife (who may have been driving) can do the same.
Once I see the photographic evidence, I'll suggest it may not be me driving. I'll also request a description of the person in the photographic evidence:
Are they fat/ thin? tall/ small? Male/ Female? Dark/ light/ long/ short/ curly/ straight hair? Black/ white skin? Glasses? Beard? Big nose? Big ears?
I had a 10 minute chat with a friendly lawyer (the guy in Cupar, link around here). He wanted to know which angle I was looking at - speed or identity.
The fact that both require to be proven by the Procurator Fiscal. Is it a straight choice - speed or identity for me to break the case against?

Would the rest/ complete letter posted be of help???

Have a good weekend biggrin.gif

Phil.
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r11co
post Fri, 16 Apr 2004 - 23:07
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Good luck Phil, and thanks for bringing my thread to the top again. As jeffrey said, you are in uncharted waters, and the question of whether it is identity or speeding shouldn't matter IMHO - I agree it is a matter for them to prove, however - policy seems to dictate that once they have someone to pin it on it will stick until the European Court of Human Rights get to hear about it.
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jeffreyarcher
post Sat, 17 Apr 2004 - 00:54
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Now that you've told him about the unsigned NIP, I hope he doesn't charge you with S172; as far as I can see, he's still got time to do this.
Having been forewarned, he'll also be able to check up and see if he can get the form in by another route; although, presumably he doesn't know that your wife filled it in yet.

I assume that you're in Birmingham, not Glasgow. If you're in Glasgow, be ready for a visit from the local police, just in case asking you to fill in the form, or who was driving.
Do you know what sort of camera it was? Presumably you were caught on D&G's new cash seam, the A74(M).

I thought that, in Scotland, the first trial date had to be within six months of the offence. Your schedule appears to be outside this. Send firefly a pm, he knows more about this.

The General has experience of extracting a traffic video from the pf. In his case, it was a Provida (a Vascar type device).

A warning, in general, there seems to be very few lawyers in Scotland with a real understanding of motoring law.

As to the applicability of disclosure precedents, the magistrates' courts act won't apply, hence the disclosure rules under that act and hence R v Calderdale Magistrates.
R v Calderdale Magistrates says that a video is a document.

The General also has a letter from another Scottish police force confirming the requirement for a 'prior opinion of excess speed', although that may be contained in "the police statements themselves."

Provisions of all the Road Traffic Acts do apply. Whether English case law on them does, I don't know.

As to whether they'll be able to get the unsigned form in as a confession; I understand that confession evidence is essentially an exception to the inadmissiblity of hearsay evidence and is governed by case law and the common law. Hence the reason I have been unable to find anything significant about it on the HMSO site.

Did you not ask the solicitor about your form being unsigned and filled in by your wife? Remember, PACE does not apply in Scotland as far as confession evidence goes (see above Mika icon_wink.gif ).

Also, Cupar is about 130 miles from Annan.
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I've had enough
post Sun, 18 Apr 2004 - 07:04
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..sounds like the D&G PF is just not geared up for this! As jefferyarcher points out, this is the first, and I would guess the legal system is hurriedly getting ready for a real challenge on the cash till.

I am of course very interested since I have an A74M D&G Scamera Van on a bridge case, also unsigned and wife filled it in! Also in my case, they asked specifically for NAME and ADDRESS.

So if they do switch it to you s172 then it would be interesting to see if you had the same paperwork as me, because if so, I cannot see how they can legitimately icon_eek.gif get you for s172!

Consider the facts on mine:

S172 notice to hire company (they named my wife)
S172 notice to my wife (she named me)
S172 notice to me (my wife filled it out with my name and address and did not sign it)

Now the words (on my form): Form A "Notice of Intended Prosection"

"...it is intended to take proceedings against the driver of the above-mentioned motor vehicle...... for the alleged offence of failing to comply with a statutory 70mph Speed Limit at..., on.... Contrary to Section 89 of the Road Traffic Regulation Act 1984.

This allegation is supported by means of videographic evidence

You have been named as being the DRIVER of the above-mentioned vehicle. If this is correct you are REQUIRED to furnish forthwith, on the attached FORM 'B', your Full Name and Address. If you were not the driver, please give the Full Name and Address of the person who was driving at the time and location specified above.

FAILURE TO SUPPLY THESE DETAILS RENDERS YOU LIABLE TO PROSECTION....

....Please provide the information requested on the attached FORM "B" and return both Forms to....."

Now I would humbly beseech the Proc that the injunction to furnish name and address is entirely clear.

I would also submit that the last sentence about providing the information requested on the attached form must mean the information very clearly requested above. I cannot see how, given the instruction for name and address, any reasonable person could interpret this last sentence as an instruction modifying the first instruction to have the meaning of "fill out everything in the relevant section of the attached form B".

Ok Form B Part 1: does say "complete this section only if you were the driver at the time of the alleged offence. I acknowledge receipt of Form "A" and confirm that I was the driver...... Driving Licence Number.... Full Name.... Address... Tel....... Occupation (!?!1).... DOB..... Signed..... Date......"

But the form has other sections and therefore given the Form A, it seems that in this particular case we are directed to fill out just Name and Address on Form B in the appropriate section, disregarding all other elements of Form B.

At least I cannot see it any other way. Especially given the follow up phone call from Mr. Plod of the Scamera Yard who asked for DOB and DLN. And not a mention of any other datum on that form, nor a signature.

Now did you see the "statutory 70mph Speed Limit" bit above... does that affect the video evidence and/or opinion of a Police Officer? I recall reading that in English Motorway (i.e. where there only a statutory speed limit) cases, it is thought that the opinion of a Police Officer alone may be enough?

I hope you can (with advice from The General and others) extract the evidence because we can get the whole Dodgyscope thing into the media in Scotland (I have ideas.......).

Regards and Best of Luck


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firefly
post Sun, 18 Apr 2004 - 10:06
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QUOTE (firefly)
In alleged traffic offences, once the police pass the paperwork to the Procurator Fiscal, they (the Fiscal) then have 6 months from the date of the offence to start court proceedings.

Proceedings mean "first court date", that is, a pleading diet. When a citation is issued to attend court for the pleading diet, the date must be within 6 months of the alleged offence otherwise there is no case to answer.

So even though the "main event" or trial may be 9 months+, as long as the initial court date is within 6 months, then it is all above board.


I got this straight from the horse's mouth.


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jeffreyarcher
post Sun, 18 Apr 2004 - 10:15
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QUOTE (I've had enough)
Now did you see the "statutory 70mph Speed Limit" bit above... does that affect the video evidence and/or opinion of a Police Officer? I recall reading that in English Motorway (i.e. where there only a statutory speed limit) cases, it is thought that the opinion of a Police Officer alone may be enough?

1) In Scotland, the evidence of one police officer requires corroboration, just as with evidence from any member of the public. This is a general thing, nothing to do with motoring offences. Remember, ~23 years ago, special legislation had to be passed to permit one traffic warden to issue parking tickets. Whether a device can offer that corroboration (i.e. one policeman + a device), I have no idea. I suspect that it does, provided that the reg. number is recorded by the device. I.e. a calibrated speedo would not be sufficient because only one policeman saw its reading.
2) Even if it was not for the above, as you have been charged under Section 89, and not under the TSO, sub-section (2) comes into play.
(2) A person prosecuted for such an offence shall not be liable to be convicted solely on the evidence of one witness to the effect that, in the opinion of the witness, the person prosecuted was driving the vehicle at a speed exceeding a specified limit.
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I've had enough
post Sun, 18 Apr 2004 - 15:36
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Interesting. And why Road Traffic Regulation Act 1984 not the normal 1988 act as amended?

Regards, IHE


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