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Paragraph 4 (Unsure of Driver) Defence
firefly
post Fri, 19 Dec 2003 - 13:49
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**NOTE** - Section 172 now carries a 6-point penalty, as opposed to 3. This raises the stakes against anyone running this defence. Please be aware of this before deciding on any course of action.

Hi All,

It is becoming obvious that a lot of the questions being asked on this forum relate to "unsure who was driving at the time". It is with this in mind that anyone who has this predicament should read on.....

If you have received an NIP (Notice of Intended Prosecution) through the post and are unsure as to the driver at that time then you (the registered keeper) have a legal obligation to provide the details of the driver at that time.

QUOTE
Road Traffic Act 1988; section 172(2(a))] (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

QUESTION A REGISTERED KEEPER MIGHT ASK: "That seems really unfair, it could have been any number of people on that given day as it is not just me that can (or is insured to) drive my car".

However............ icon_eek.gif
QUOTE
(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.

This is taken from Section 172 (paragraph 4) and is basically a line of defence if you were genuinely unsure as to who was driving on the day. Basically, you have to prove "reasonable diligence" in trying to ascertain the identity of the driver.

"What is reasonable diligence" I hear you ask and what do I have to do to fulfill this requirement?

Well ultimately it is a matter for the courts, although a great many do not reach that stage.

Seeking evidence is paramount here. Writing to the ticket office in question and asking for photographic ID will usually be no problem although some forces are a bit sticky about this. Remember that there is no legal requirement for the ticket office to do this, although you will find that most will be helpful.

QUOTE
Date

Address of Camera Office

Dear Sir/Madam

NOTICE OF INTENDED PROSECUTION NO : ********
With reference to the above notice number, I would be grateful if you could supply me with any photographic evidence of the alleged offence so that I may identify the driver.

On the day specified, there was more than one driver of the vehicle and unfortunately we are unable to come to any definitive conclusions as to who the driver was.

I look forward to receiving the photographs at your earliest convenience and should there be any problem with this I would appreciate your prompt response.

Yours

You could also check your credit/debit/bank statements to see if you purchased any fuel at/about that time. You could request maps/map references to "back track" your movements if you are unsure as to where the camera was. The trick is to be as diligent as possible.

In a lot of cases, you will find that when any photographic ID does arrive at your address it will be a rear view of the car and is unlikely to give any clues as to who was actually driving. If the ID you receive is from a Truvelo or such like and is forward facing then the chance of positive ID is greatly increased. In light of recent (March 2004) correspondence, it appears that there is nothing to stop the police using photographic evidence in court to identify you as the driver should ambiguity exist.

Any honest citizen that can identify themselves as the driver would do so after being satisfied that this was indeed themselves driving.

If the photographic ID was ambiguous or unclear then there are good grounds to NOT sign the NIP, then a friendly covering letter such as the one written below would be sent....

QUOTE
Re: Notice of Intended Prosecution - *******

Dear

I have done everything in my power to help identify who the driver was at the time of the alleged offence but to no avail. That said, I can confirm that the people who drove the vehicle on or about that time were the following:

· Name and address of driver number 1; and
· Name and address of driver number 2, etc.

Each of the drivers listed above have seen the photographic evidence but none of them are able to be clear as to who it actually is. I acknowledge my responsibilities under section 172 of the Road Traffic Act 1988, but as is required by subsection 172(4) I believe that I have done as much as I possibly can to identify the driver, but that I have not been able, having exercised at the very least “reasonable diligence”, to ascertain who it was.

So other than reiterate what I have said in my previous letters, and having provided the details of the individuals above, there is nothing else I can do. I very much hope that this matter can be avoided from going to court.

Yours sincerely,


One of two things will happen at this juncture :

(i) You will be hounded (bluff and bluster letters) to provide the identity of the driver
(ii) The case will be dropped, as happened in my case.

It would be difficult to see how any reasonable magistrate could reasonably convict a registered keeper after this chain of events. Short of keeping a log book to note the specific times and dates of each journey and who made them (which is not a legal requirement), then it is virtually impossible for the keeper to know who was driving. Much less the magistrate.

For a cracking account of how to defend oneself in court (and for further methods of being 'diligent'), read this excellent post by welshy. Result: not guilty.

This post has been edited by nemo: Mon, 31 Dec 2007 - 22:04


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post Fri, 19 Dec 2003 - 13:49
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firefly
post Fri, 26 Mar 2004 - 15:14
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Spookily quiet here this afternoon.

Could it be, that like me, everyone is tuning into Mark & Lard's final Radio 1 show and are feeling a little dewy-eyed!!

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immy
post Fri, 16 Apr 2004 - 11:41
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Ive had my charge for section 172 dropped by Cumbria CPS.
I wrote to them detailing my case, and pointing out the poor photo evidence and stating id be using a para 4 defence.

24/03/04 - Initial Court date, pleaded not guilty
05/04/04 - Wrote to CPS asking for my case to be reviewed.
07/04/04 - Revised court date to set trial date
07/04/04 - Trial date set for 24/05/04
16/04/04 - Discontinuance letter dated 14/04/04 received from the CPS


Good luck for anyone else in the same boat as I was. Stick in there, and as in my case, it might be beneficial to bring your case to the attention of the CPS before trial via written letter.
From what ive noticed on reading the forum, in most cases, the first time the CPS reads the file is morning of the trial date.
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Fireblade
post Mon, 19 Apr 2004 - 20:42
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So whatever has happened to the PACE argument ???
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joker2004
post Fri, 7 May 2004 - 10:20
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Looking at Immy's post above, I can't help but feel I've been conned.

We got caught back in December and, as we weren't sure who was driving, wrote back with the "driver not known" defence. We then didn't hear anything til getting back from our Honeymoon in April, when a court notice found us guilty of "failing to provide information" and fining us £485. We hadn't even received a summons! I wrote back saying it was outrageous and Wiltshire Safety Camera Partnership have agreed to waive the original adjudication and get a new court date for the end of June.

They originally withheld the photo, but have now sent it through and unfortunately it looks like the passenger seat is empty (one of us must have been bent over looking at the map at the time). We genuinely don't know who was driving but I'm thinking I might just have to take the rap.

Any thoughts welcome.
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firefly
post Fri, 7 May 2004 - 10:25
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Hi joker2004,

Start at the beginning.

It may be a pain, but post every detail including dates and any correspondence sent to/from you. These sequence of events are very important to any potential defence.


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joker2004
post Fri, 7 May 2004 - 10:35
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Thanks Firefly.

We were driving down to Bournemouth in early December and, as I knew the way and my wife didn't, we swapped over the driving. This was around the area of the alleged offence.

A week later we received the NIP and we replied, saying that we couldn't establish the identity of the driver at the time of the offence and could we see the photo. We received a reply saying that the photo was inconclusive and reminded us of our legal obligations under the RTA etc etc.

I wrote back again, stating the names of the possible drivers (mine and my wife's) and left it to them.

4 months later, on 7th April, we returned from our Honeymoon to receive a Wiltshire Magistrates Notification of Fines for £485 and statement that the Court's case of "failing to provide information" was proved. I replied to this letter stating that it was bordering on harrassment and reiterating our defence.

We then received a reply, stating that obviously we hadn't received the Summons(!) and that the original adjucation would be set aside and a fresh court date for 24/6/04 arranged. A copy of the photo was included (which doesn't look like there are 2 people in the car!) and a confirmation that it was up to the court to confirm that we hadn't taken reasonable diligence.

Not really sure what to do now, seems like we'll have to make up which of us was driving and take the rap.

Thanks for any help.
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firefly
post Fri, 7 May 2004 - 10:50
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Hi joker2004,

More like it icon_wink.gif .

Just to be a pain again though, your post is still a bit vague on specifics.

Any chance you can give me all the details in this format?

QUOTE
1 Car flashed in Canterbury (50mph in a 40mph zone) 27/7/03

2 NIP arrives 6/8/03

3 Write a letter to Kent Police asking for photographic evidence to show identity of driver as was unsure.

4 Photocopy of picture arrives 22/8/03, shows only vague outline of car with registration plate, no driver discernable

5 Write letter no. 2 thanking Kent Police for picture but no further forward in identifying driver. Asking have I been "reasonably diligent" in finding out the driver.

6 Kent Police send letter 19/9/03 saying "I have to provide evidence as to who was driving", basically they don't want to know

7 I send a letter on 24/9/03 asking for the position of the camera on a road map in order to "retrace my steps" as the driver and I are sure we can work back the way to find out who was driving.

8 A letter arrives from Kent Police saying "It is not possible for us to supply a map"

9 I send letter to Kent Police on 10/10/03 asking "..how diligent does one have to be to ascertain the identity of the driver.."

10 Phone call from Kent Police saying "..we have examined the photographic evidence and it is a male that is driving and a female on the passenger seat.." (!)

11 I send a (Special Delivery) letter on 24/10/03 to the Chief Constable of Kent Police asking him that, if I am to give a signed NIP, could he arrange for one of his officers to explain my rights under PACE.


It will make your life and mine much easier in terms of posting.


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joker2004
post Fri, 7 May 2004 - 12:13
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absolutely ff

05/12/03 - flashed by mobile camera

11/12/03 - received NIP.

13/12/03 - I wrote back (special delivery) saying unable to ascertain who was driving and could they provide photographic evidence to help us identify driver

19/12/03 - Safety camera unit write back to say they've checked the photo and there isn't a clear view of the driver, advising us of our rights under the RTA

23/12/03 - I wrote back saying we can't, with reasonable diligence, ascertain the driver and provided names of the 2 possible drivers at the time

03/01/04 - I wrote back saying I'd not heard from them and explained that it could have been either of us because we swapped drivers nearby to the point of the alleged offence

07/04/04 - the wiltshire magistrates court wrote with a notification of fine to the tune of £485 (£450 fine and £35 costs) and advising us that non-payment within 28 days would lead to arrest.

24/04/04 - I wrote back saying that I'd not heard from them for 4 months and that it was totally unreasonable and an infringement of my rights to demand this extortionate sum now.

30/04/04 - they wrote back saying they'd not received my letter of 03/01/04 and that I'd obviously not received the summons they sent on 20/03/04 (I hadn't) and that they would request the court re-opens the case and sets the original adjudication aside. They enclosed the photo (which unfortunately looks like only 1 person in the car) and have requested that Devizes Magistrates Court re-hears the case on 24/06/04, to allow us time to enter a plea and any mitigation.

I'm at the end of my tether with this one and certainly can't afford a fine of nearly £500.

Cheers,

joker
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joker2004
post Fri, 7 May 2004 - 12:16
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ff

One thing I forgot to mention is that we are being charged with "failing to provide information" rather than the speeding offence which, as I explained to them, we have done (albeit narrowing down the possible drivers to 2)

ta
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DW190
post Fri, 7 May 2004 - 12:26
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[quote]10 Phone call from Kent Police saying "..we have examined the photographic evidence and it is a male that is driving and a female on the passenger seat.."

[quote]19/12/03 - Safety camera unit write back to say they've checked the photo and there isn't a clear view of the driver

[quote]We then received a reply, stating that obviously we hadn't received the Summons(!) and that the original adjucation would be set aside and a fresh court date for 24/6/04 arranged. A copy of the photo was included (which doesn't look like there are 2 people in the car!)

Its got me confused

FF, would a combination of Mohindra and Jones be any good?


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joker2004
post Fri, 7 May 2004 - 12:42
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dw190

The Kent Police quote was an example I think.

We were near Bournemouth, my wife and I were in the car, and because one of us was leaning down at the time of the photo, it looks like there's only 1 person in the car. I only mention it because I'm wondering if the Police think that only 1 person was in the car.
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firefly
post Fri, 7 May 2004 - 13:02
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Hi joker2004,

Right. So far so good.

For what it's worth, I think you have played this absolutely correctly. I shall work on the assumption that you haven't returned the NIP? This is also correct. Let us deal with this one thing at a time.........

As per DW190, I am confused by this :

[quote]10 Phone call from Kent Police saying "..we have examined the photographic evidence and it is a male that is driving and a female on the passenger seat
[quote]19/12/03 - Safety camera unit write back to say they've checked the photo and there isn't a clear view of the driver
[quote]We then received a reply, stating that obviously we hadn't received the Summons(!) and that the original adjucation would be set aside and a fresh court date for 24/6/04 arranged. A copy of the photo was included (which doesn't look like there are 2 people in the car

Your case mirrors mine in as much as I too received a phone call stating the exact same thing, that a male was driving etc. Oh really? The police are "trying it on" and are in no position to offer such advice and expect you to accept it. Legally, there is no entitlement for you to actually receive a copy of the photographs although most will.

DW190, I don't know if Mohindra is of much use in this scenario as the "keeper" is not really in question. I get your drift with regards to joker being bound by subsection 2(B) as the "any other person" until the keeper is identified. In this instance though, I think it is futile to argue against joker being the keeper as (i) the NIP was addressed to him and (ii) he was present at the time. In such a scenario, Mohindra may not really be an issue and will probably be destructive if argued in court as it will quickly become obvious the joker is the keeper. You could argue that he is only required to give "information which is in his power to give", but that is only the case (on further reflection) when the "keeper" is not known. I say best to stick to the "tried and tested" formula in this instance.

Sorry for the "now for the science bit" joker, but it is an important point. I am assuming that the picture shows nothing? It also sounds like the summons have gone missing for some reason.

If I were you, I would stick to your guns as you have done nothing wrong. I will PM you with some further info as there are certain things that will need explaining on a one-to-one basis as it is too long to type out!


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joker2004
post Fri, 7 May 2004 - 13:47
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Many thanks ff

There was myself and my wife in the car and whilst the photo isn't clear (apart from the reg!), it does look like only 1 person in the car.

My wife is the RK and all correspondence has come to her. The NIP was sent back uncompleted.

I will try and action your PM this afternoon.

Thanks for all your help.

Joker
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seylectric
post Mon, 17 May 2004 - 00:01
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I'm at a loss to understand how a still photograph can be considered proof of the speed of a vehicle anyway! How can you tell the speed of a car from a still photograph?

The speed camera "records a speed" but so what? The photograph proves nothing and without that surely there is no evidence anyway? I can't understand how ANY speeding case can be valid, there simply is no proof, not by photographic evidence, that's for sure!

I am also ill at ease with the law stating that you must name the driver. Surely this ruling must be challenged in a higher court? I know it's all been said before, but if you witness a murderer there is no legal requirement for you to name the murderer. But for an "alleged" speeding offence you MUST name the driver. Surely this must be a Human Rights issue if ever there was one.

Sorry, just a few thoughts, I know it doesn't help much...
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joker2004
post Mon, 17 May 2004 - 13:51
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You're absolutely right of course. Unfortunately, the courts seem to think that just because a photo was taken with the speed in the bottom corner that you are guilty. I suppose the camera calibration then comes into play.

I thought that 2 photos were taken to establish the speed (your basic "distance over time") so I wonder why they only show you one?

I've gone through all our credit card bills to see if we bought petrol near the scene of the alleged offence and am racking my brains to think what else I can do to establish reasonable diligence. It seems that you're guilty until proven innocent with speeding offences and how can you you prove diligence? If they want to find you guilty they will and there's nothing you can do about it.
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firefly
post Mon, 17 May 2004 - 14:12
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Hi joker,

QUOTE (joker2004)
If they want to find you guilty they will and there's nothing you can do about it.


To a certain extent you are correct. Don't be too hasty however, you would be amazed at how little "paragraph 4" cases have come to court in this forum! icon_wink.gif


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joker2004
post Mon, 17 May 2004 - 14:18
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Hi firefly

QUOTE (firefly)
Don't be too hasty however, you would be amazed at how little "paragraph 4" cases have come to court in this forum! icon_wink.gif


I'm sure you're right...and thanks for your advice the other day - much appreciated! I've written back to the court asking them what else I can do to show reasonable diligence - the court date is 24th June so they've got plenty of time to come up with something.

Cheers

j
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seylectric
post Mon, 17 May 2004 - 15:45
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QUOTE
I thought that 2 photos were taken to establish the speed (your basic "distance over time") so I wonder why they only show you one?


That's something that has bothered me for some time, as does the proviso that they have no legal obligation to provide you with a copy of the evidence pre-court. Without sight of the evidence that they are going to use in court I would have thought that it is obstructing the legal process or the course of justice (or whatever they call it, you see what I mean) as it is not possible to prepare a defence properly without knowing totally just exactly what it is that you are defending yourself against in the first place!
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dave99
post Mon, 17 May 2004 - 20:54
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and it costs you to see the evidence against you too - the fine will usually be higher if you go to court to see the evidence against you and are then found or plead guilty. Surely it is also an offence to admit to a crime you didnt commit - so how can you avoid this situation unless you are convinced you commited the crime in the first place?
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seylectric
post Wed, 19 May 2004 - 09:56
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QUOTE
Surely it is also an offence to admit to a crime you didn't commit


Actually that's an interesting point. How can "failing to name the driver" be a punisable offence? There has to be some argument here. There is no legal requirement for you to keep a record of the name of the driver of your car at any given time (though I suspect the rules for company cars may be different) so how can it be right to prosecute you when you simply can't remember who the driver was at the time? The only offence is "failing to name the driver" but how can it be an offence, or at least not a valid defence, simply to say that you can't remember?
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