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unsigned NIP summons
ROBB3IE
post Sun, 25 Jan 2004 - 18:11
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In June I returned my NIP unsigned and then received another letter telling me to sign and return the enclosed copy of the original form in order to comply with the case of DPP v BROOMFIELD (2002).


I wrote back asking them to clarify where in the law it states that I have to sign the form. Their reply was:

''in the event that you fail or refuse to sign the document, the case will proceed against you for an offence contrary to Section 172 of the Road Traffic Act, 1988 (viz 'failing to give identity of driver'). The case of DPP v BROOMFIELD, 2002 indicates the High Courts decision regarding the return of the signed notices. Without that evidence the speed limit offence cannot proceed, leaving the other option of a Section 172 prosecution. You should be aware that a conviction for that offence at court would inevitably lead to a greater penalty the driver of the vehicle would achieve through fixed penalty procedures.''


I replied using the letter requesting clarification. http://www.pepipoo.com/Section_172_loophole.htm.


Yesterday I received a summons from North Hampshire Magistrates' Court stating that i ''failed to give such information as to the identity of the driver as you were required to give by or on behalf of the chief officer of police for Hampshire. Contrary to Section 172 (3) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.''

Could you please advise me on which plea I should submit and the likely consequences of such a plea.
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post Sun, 25 Jan 2004 - 18:11
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Mika
post Mon, 26 Jan 2004 - 08:34
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Rob,

I have been informed that Hampshire are delaying all of their not guilty plea unsigned Form cases, until after Idris’ appeal.

Don’t forget that Idris was convicted in Hampshire - Aldershot Magistrates' Court.


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ROBB3IE
post Tue, 27 Jan 2004 - 12:33
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My case is also being dealt with at Aldershot Magistrates' Court!

Should I plead not guilty and wait for the result of the Idris appeal?
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Observer
post Tue, 27 Jan 2004 - 17:05
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QUOTE (ROBB3IE)
My case is also being dealt with at Aldershot Magistrates' Court!

Should I plead not guilty and wait for the result of the Idris appeal?


If you ask for adjournment pending Idris appeal:

- if his appeal succeeds, you're almost certain to be acquitted/have charges dropped
- if his appeal fails, you probably have to please guilty unless your case can be distinguished. However, you will need to go to court anyway to minimise the fine/points as defendants who plead guilty and don't attend tend to be dealt with more harshly than those who do attend (I may be wrong on this)

If you go to trial sooner (assuming the other side doesn't request adjournment):

- there is a chance (maybe slim) you are acquitted or charges dropped (maybe on some technicality). Then it doesn't matter to you which way Idris' appeal goes
- if you're found guilty, you apply for leave to appeal depending on outcome of Idris' case. If his appeal is successful, your appeal is almost certain to succeed. If it fails, you've lost nothing and possibly received a lesser penalty because the law had not been decided when you were convicted.

In summary, imo, you give yourself a little bit of an advantage if you go to trial sooner rather than later - but it's a close call. As you're at Aldershot, you may not have a chioce anyway.
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Beemer
post Tue, 27 Jan 2004 - 17:23
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QUOTE (Observer)
... imo, you give yourself a little bit of an advantage if you go to trial sooner rather than later ...

I agree. Discount nothing, when entering the twilight zone that is the Magistrates' Court -- conviction is still not guaranteed. Don't throw away an opportunity for an early result.
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ROBB3IE
post Wed, 28 Jan 2004 - 22:28
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Thanks for the advice.

I am right in thinking that that I should plead not guilty without mentioning the Idris appeal and let them arrange a date for my hearing?
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Observer
post Thu, 29 Jan 2004 - 09:40
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QUOTE (ROBB3IE)
Thanks for the advice.  

I am right in thinking that that I should plead not guilty without mentioning the Idris appeal and let them arrange a date for my hearing?


Yes. It may be set after Idris' appeal anyway, of course.
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ROBB3IE
post Thu, 12 Feb 2004 - 04:31
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I got a letter today advising me that my case has been adjourned and will be heard on the basis of a 'not guilty' plea on 25/03/04 at Basingstoke.

OFFENCE: VEH/KEEPER FAIL SUPPLY IDENTITY - DRIVER.

I cannot afford a solicitor so would be very grateful for some advice on how to defend myself.

Do I need to call any witnesses? or have any documents?

The identity of the person who completed the unsigned form has not yet been established. Will the identity of this person affect the outcome?

Should I sign and return the acknowledgement slip?

Finally (clutching at straws), could someone confirm that they acted within the legal time-frame:

Alleged offence: 15/06/03
NIP to previous owner of vehicle dated 20/06/03
NIP to me dated 01/07/03
Summons received on 24/01/04
Hearing on 04/02/04
Adjourned to 25/03/04
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jimmy ferrari
post Thu, 12 Feb 2004 - 00:39
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The dates seem to be within the time limits, and you may find this link useful, if you plan to defend yourself :?
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The Rookie
post Thu, 12 Feb 2004 - 12:22
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Dates add up yes, they had 6 months + 28 days from serving you with your NIP to charge you for S172, they are not obliged to postpone until after the appeal is held, but I guess their view (sensibly) is that whichever way the appeal goes will resolve your case catagorically and mean less work for them!

Simon
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ROBB3IE
post Thu, 12 Feb 2004 - 23:04
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Shame.

I'd still be very grateful for some advice on how to defend myself.

Do I need to call any witnesses? or have any documents?

The identity of the person who completed the unsigned form has not yet been established. Will the identity of this person affect the outcome?

Should I sign and return the acknowledgement slip?
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jimmy ferrari
post Fri, 13 Feb 2004 - 22:17
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ROBB3IE, did you check the link on my post which came out 'before' yours, due to some techno time stuff?
and you may gleen something of procedures if you read my post on Travesty in Port Talbot and When I get round to it, guilty as charged in Camarthen.
Disorder in court should help too :!:
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ROBB3IE
post Sun, 15 Feb 2004 - 23:03
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Thanks Jimmy. Looking forward to your Guilty as Charged in Camarthen.
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ROBB3IE
post Sun, 22 Feb 2004 - 23:05
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I am intending to use the following defence (as posted by Observer in another thread):

1. It is clear that s.172 does not contain an express obligation for information to be provided in writing (acknowledged in para. 16 of Broomfield) nor that the person required to provide information must provide a signed witness statement (that being the effect of signing the s.172 notice). Therefore, an obligation to provide information in writing and to sign the written statement can only arise following a judicial ruling to that effect made by a competent court.

2. If Broomfield is authority for any matter concerning s.172 (which, for the reasons stated in paragraph 5 below, is not certain), it is, at best, authority for the proposition that information must be provided in writing (if that is what the CC reasonably requires). Judge Wilkie followed the ruling in Boss v Measures that the requesting authority should have the power to include reasonable instructions "as to the manner in which the information requested is to be provided". However, Judge Wilkie was not asked to consider the question of a signature, only whether "the provision of ... information ... in the course of a telephone conversation" was sufficient to meet the requirements of s.172. The ONLY relevant reference in the Broomfield judgement to a signature (in para. 24) is, in effect, a cross-reference to s.12 RTOA.

3. There is a conceptual gulf between the provision of written information and the provision of a signed witness statement. This is clear from s.12 RTOA which provides that for a written statement of the identity of the driver to be accepted as evidence, it must be "signed or purported to be signed by the accused". The crucial significance of the signature is confirmed by Judge Owen in his judgement in Mawdesley & Yorke.

4. The addition of the driver's signature to the s.172 statement is not an essential element of the enforcement process. If a s.172 notice is addressed to a person other than the driver, it makes no difference to the investigation process whether the s.172 notice is signed or not because the police will send a further s.172 notice to the driver named in any event. The investigating authority is free to make enquiries and gather admissible evidence as to the identity of the driver by other means. Further, the prosecuting authority can seek to introduce the unsigned form as a confession following Judge Owen's ruling in Mawdesley & Yorke.

5. With respect to the court, a magistrates' court is not competent to find there is an implied obligation on a person to sign, or an implied right of a CC to require a signature, where there is no judicial authority specifically to that effect. The authority of Broomfield cannot be extended to the provision of a signature for the reasons mentioned above. In any event, Broomfield was a one-sided case and practice directions issued by the Lord Chief Justice in 2001 stipulate that an "application attended by only one party" should not be cited as authority.

6. It is clear that there is uncertainty on this matter. If the court acquits on the grounds that there is no obligation to sign, it is open to the prosecuting authority to appeal the verdict and bring about a clarification of law through a ruling by a higher court. All the resources of the state are available to support such steps. If, on the other hand, the defendant is found guilty, it bears unreasonably on the resources of a single individual, and does not serve the interests of justice, if he is obliged to finance the costs of the appeal process in to bring about the same clarification.

Does anyone disagree with this defence???

I am also planning to point out that since there is currently such confusion over the matter, I could not be expected to incriminate myself by signing the form. Is this a valid argument???

According to Observer, I should take 5 copies of all relevant legislation (s.172 RTA, s.12 RTOA, s,35 CJPO) and authorities (Broomfield, Y&M and Pickford). Apparently these are on Safespeed, but I cannot find them - can anyone direct me to them????

Have I missed anything that would help my case????????
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49mph
post Mon, 23 Feb 2004 - 10:23
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OFFENCE: VEH/KEEPER FAIL SUPPLY IDENTITY - DRIVER

Is this the normal offence when you don't sign the NIP? It just seems strange because surely if the NIP is filled out correctly but not signed then you have provided the identity of the driver?

Am I missing something here?
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arthurdent
post Mon, 23 Feb 2004 - 10:51
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You can find some of what you are looking for at

http://www.safespeed.org.uk/unsigned.html (follow links on this page)
http://www.lawreports.co.uk/qbaugb0.3.htm
http://www.legislation.hmso.gov.uk/acts/ac..._en_2.htm#mdiv1

There must be more out there, if anyone knows please add to the list.
Rgds


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Observer
post Mon, 23 Feb 2004 - 12:40
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QUOTE (ROBB3IE)
I am intending to use the following defence (as posted by Observer in another thread):


I have updated the s.172 defence arguments to use Jones v DPP as best I can. Comments welcomed.

1. It is clear that s.172 RTA does not contain an express obligation for information to be provided in writing (acknowledged in para. 16 of Broomfield) nor that the person required to provide information must provide a signed witness statement (that being the effect of signing the s.172 notice). If Parliament intended that a person suspected of an offence should be compelled, under threat of a prosecution of separate offence, to provide a witness statement that would be capable of being used in evidence against him then, it is submitted, Parliament would have expressly so provided in statute.

2. Broomfield is authority for the proposition that information must be provided in writing (if that is what the CC reasonably requires) and follows the ruling in Boss v Measures, concerning s.112 RTRA 1984, that the requesting authority should have the power to include reasonable instructions "as to the manner in which the information requested is to be provided". Both Boss v Measures and Broomfield were cases in which the defendant provided information orally, by telephone. In Boss v Measures, the absence in s.112 of a specific timescale within which the information should be provided was an additional issue which was not relevant in Broomfield because of the statutory 28 day period provided in s.172. Therefore, Judge Wilkie was not asked to, and did not, break new ground in Broomfield but simply extended the ruling made in Boss v Measures concerning s.112 to cover s.172.

3. Judge Wilkie was not asked to consider the question of a signature, only whether "the provision of ... information ... in the course of a telephone conversation" was sufficient to meet the requirements of s.172. Paragraph 24 of Broomfield states "the requirement in the Notice of Intended Prosecution that the information should be given in written form and signed by the accused is not merely a whim of those who produce the form, but is specifically directed at enabling that document to be accepted as evidence that the accused was the driver of the vehicle on that occasion". It is contended by the prosecution that this remark by Judge Wilkie (which, the defence submits, is "obiter dictum") is authority for the proposition that the CC has the power to to stipulate the precise means - a witness statement - by which information is to be provided, including power to require, under threat of prosecution, the person providing the information to sign the statement. However, in Jones v DPP, the Divisional Court ruled that "a person who answered in writing without completing the form provided would be acting in substance in accordance with the statutory requirement". This later ruling negates the assumption on which the prosecution seeks to rely - namely that the ruling in Broomfield should be interpreted to mean that the CC has power to require information to be provided in a specific form - namely a signed witness statement.

4. If Jones v DPP was capable of being distinguished on the point of a response made "in writing without completing the form provided", then, it is submitted, the present case must be distinguished on the far more substantial grounds of signature. There is a conceptual gulf between the provision of written information and the provision of a signed witness statement. This is clear from s.12 RTOA which provides that for a written statement of the identity of the driver to be accepted as evidence, it must be "signed or purported to be signed by the accused". The crucial significance of the signature is confirmed by Judge Owen in his judgement in Mawdesley & Yorke.

5. The addition of the driver's signature to the s.172 statement is not an essential element of the enforcement process. If a s.172 notice is addressed to a person other than the driver, it makes no difference to the investigation process whether the s.172 notice is signed or not because the police will send a further s.172 notice to the driver named in any event. The investigating authority is free to make enquiries and gather admissible evidence as to the identity of the driver by other means. Further, the prosecuting authority can seek to introduce the unsigned form as a confession following Judge Owen's ruling in Mawdesley & Yorke.

6. With respect to the court, it is submitted that a magistrates' court cannot safely find that there is an implied obligation on a person to sign, or an implied right of a CC to require a signature, where there is no judicial authority specifically to that effect. The authority of Broomfield cannot be extended to the provision of a signature for the reasons mentioned above.

7. It is clear that there is uncertainty on this matter. If the court acquits on the grounds that there is no obligation to sign, it is open to the prosecuting authority to appeal the verdict and bring about a clarification in law through a ruling by a higher court. All the resources of the state are available to support such steps. If, on the other hand, the defendant is found guilty, it bears unreasonably on the resources of a single individual, and does not serve the interests of justice, if he is obliged to finance the costs of the appeal process to bring about the same clarification.
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lgdshares
post Mon, 23 Feb 2004 - 14:27
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Brilliant piece of writing, Observer - technically excellent and reads like prose - thanks.
I offer the following comments/additions, using your paragraph numbers:-

1. Agreed - I have drawn the comparison between s172 of RTA 1991 and s12 of RTOA 1998 - different acts, and different wording so different intent. (s12 signed statement - s172 information) If the legislators had intended to demand a signed statement then they would not have written "information"

2 & 3 & 4 & 5 & 6. excellent - no comment/addition

7. Yes , there is uncertainty - I added:-
"Enclosed is an example, a copy of a letter dated November 2003 (after Broomfield) from Derbyshire Constabulary, which clearly states “You are correct in that you need not legally sign the Notice of Intended Prosecution”."

In addition, you have not mentioned Pickford. I included:-
"After the “Broomfield” Judgment, Mr. Pickford's appeal to the Bristol Crown Court was upheld by Judge Ticehurst.
In giving judgment, HH Judge Ticehurst confirmed that there was a "lacuna" in the law in that there was no requirement to sign the S172 form (thus making it an admissible "statement"), and however unpalatable that result might be it was up to Parliament, not the Courts to remedy defective legislation."

On Broomfield (after your para 3?) I included:-
"The case was undefended and Judge Wilkie sat alone. The case is therefore weaker. In some circumstances (though not the Broomfield Case) this would automatically preclude the conclusion becoming “case law”. Although that is not the case here, this argument remains persuasive."

Also:-
"There is clear evidence in the transcript that Judge Wilkie mistakenly thought that Para S12 of RTOA 1988 was part of the same legislation as Para 172 of RTA 1991. This may have been the reason for him mentioning a signature."

I hope these are constructive additions/comments. I welcome all input to "honing" this logic - my s172 has just been postponed awaiting 16/3/04, but it helps if we all get our thinking straight.
Any comments on my input are welcome.
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Observer
post Mon, 23 Feb 2004 - 15:20
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Thanks lgdshares. I'd just finished drafting a new paragraph mentioning Pickford (5 below) when I saw your response. I have slightly mixed feelings because Ticehurst's remarks in Pickford were more "obiter" than Wilkie's paragraph 24 in Broomfield. However, it serves as a lead-in to what I think is a more telling argument about the failure in Y&M and Jones v DPP to clarify the law. I believe I'm correct in stating that it is not uncommon for senior judges to pass comment on a particular point of law even where the case at hand doesn't turn on it. The fact that these courts did not do so looks to me like a deliberate missed opportunity.

I think reference to ticket office letters stating "no reqirement in law to sign" will not count for anything likewise the reference to Wilkie's apparent mis-statement in Broomfield. Mentioning the one-sided nature of Broomfield is surely not helpful because the LCJ advice specifically excludes criminal cases from the general guidance on citing authorities.

I'm reposting the entire text for completeness.


1. It is clear that s.172 RTA does not contain an express obligation for information to be provided in writing (acknowledged in para. 16 of Broomfield) nor that the person required to provide information must provide a signed witness statement (that being the effect of signing the s.172 notice). If Parliament intended that a person suspected of an offence should be compelled, under threat of a prosecution of separate offence, to provide a witness statement that would be capable of being used in evidence against him then, it is submitted, Parliament would have expressly so provided in statute.

2. Broomfield is authority for the proposition that information must be provided in writing (if that is what the CC reasonably requires) and follows the ruling in Boss v Measures, concerning s.112 RTRA 1984, that the requesting authority should have the power to include reasonable instructions "as to the manner in which the information requested is to be provided". Both Boss v Measures and Broomfield were cases in which the defendant provided information orally, by telephone. In Boss v Measures, the absence in s.112 of a specific timescale within which the information should be provided was an additional issue which was not relevant in Broomfield because of the statutory 28 day period provided in s.172. Therefore, Judge Wilkie was not asked to, and did not, break new ground in Broomfield but simply extended the ruling made in Boss v Measures concerning s.112 to cover s.172.

3. Judge Wilkie was not asked to consider the question of a signature, only whether "the provision of ... information ... in the course of a telephone conversation" was sufficient to meet the requirements of s.172. Paragraph 24 of Broomfield states "the requirement in the Notice of Intended Prosecution that the information should be given in written form and signed by the accused is not merely a whim of those who produce the form, but is specifically directed at enabling that document to be accepted as evidence that the accused was the driver of the vehicle on that occasion". It is contended by the prosecution that this remark by Judge Wilkie (which, the defence submits, is "obiter dictum") is authority for the proposition that the CC has the power to to stipulate the precise means - a witness statement - by which information is to be provided, including power to require, under threat of prosecution, the person providing the information to sign the statement. However, in Jones v DPP, the Divisional Court ruled that "a person who answered in writing without completing the form provided would be acting in substance in accordance with the statutory requirement". This later ruling negates the assumption on which the prosecution seeks to rely - namely that the ruling in Broomfield should be interpreted to mean that the CC has power to require information to be provided in a specific form - namely a signed witness statement.

4. If Jones v DPP was capable of being distinguished on the point of a response made "in writing without completing the form provided", then, it is submitted, the present case must be distinguished on the far more substantial grounds of signature. There is a conceptual gulf between the provision of written information and the provision of a signed witness statement. This is clear from s.12 RTOA which provides that for a written statement of the identity of the driver to be accepted as evidence, it must be "signed or purported to be signed by the accused". The crucial significance of the signature is confirmed by Judge Owen in his judgement in Mawdesley & Yorke.

5. In the case of Pickford v. The Crown, heard in Bristol Crown Court on 13 December 2002, HH Judge Ticehurst “accepted that there was a lacuna in the law in that although the registered keeper is under a duty to identify the driver he is not required to make a witness statement to that effect. While this might be an unattractive finding it was not the Court’s function to fill in or remedy defective legislation. This was the function of Parliament”. Although this is not authority, it demonstrates that there is no judicial consensus on this point of law. Further, it is notable that in both Mawdesley & Yorke and Jones v DPP, the court did not take the opportunity presented to clarify the law with regard to the issue of signature and so dispel the present uncertainty.

6. The addition of the driver's signature to the s.172 statement is not an essential element of the enforcement process. If a s.172 notice is addressed to a person other than the driver, it makes no difference to the investigation process whether the s.172 notice is signed or not because the police will send a further s.172 notice to the driver named in any event. The investigating authority is free to make enquiries and gather admissible evidence as to the identity of the driver by other means. Further, the prosecuting authority can seek to introduce the unsigned form as a confession following Judge Owen's ruling in Mawdesley & Yorke.

7. With respect to the court, it is submitted that a magistrates' court cannot safely find that there is an implied obligation on a person to sign, or an implied right of a CC to require a signature, where there is no judicial authority specifically to that effect. The authority of Broomfield cannot be extended to the provision of a signature for the reasons mentioned above.

8. It is clear that there is uncertainty on this matter. If the court acquits on the grounds that there is no obligation to sign, it is open to the prosecuting authority to appeal the verdict and bring about a clarification in law through a ruling by a higher court. All the resources of the state are available to support such steps. If, on the other hand, the defendant is found guilty, it bears unreasonably on the resources of a single individual, and does not serve the interests of justice, if he is obliged to finance the costs of the appeal process to bring about the same clarification.
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mikeh2000
post Mon, 23 Feb 2004 - 15:32
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surely I've got a good defence because after sending back my unsigned NIP I had a fpn by return saying I had admitted to the offence.The next thing I had was a letter saying I was being summonsed for speeding,then a summons for s172 not identifying the drivr.If they'e trying to do me for this then surely they should have warned me and not just send a summons out after telling me I had admitted the offence?

Can't tell them this though as my speeding isn't out of time yet.
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