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Wrong offence on COFP but still speeding
Cristian B
post Sat, 9 Nov 2019 - 16:15
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Hello,

I've been on M11, unmarked car stopped me, I was over 70mph.
The officer told me that I was speeding and he have recorded the speed with his body worn camera and I will receive a fine, didn't have any objections or sign anything.
Today I've received the attached COFP.
The location is stated as M11 but the offence it's exceeding speed on dual carriageway.

Is there any chance to go to court, say something about that and don't get fine or points. No course offered as I have done one.

Thank you!
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post Sat, 9 Nov 2019 - 16:15
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NewJudge
post Sat, 9 Nov 2019 - 16:21
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The COFP plays no part in any court proceedings you may decide to allow to happen. You either accept it as it stands or decline it and the matter will go to court. What's written on the COFP will then become irrelevant.
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Jlc
post Sat, 9 Nov 2019 - 16:28
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QUOTE (Cristian B @ Sat, 9 Nov 2019 - 16:15) *
Is there any chance to go to court, say something about that and don't get fine or points.

You'd need a defence for that. If you know you were exceeding 70mph then accepting the 3 points £100 is probably the pragmatic thing to do.

If you want to take it to a contested trial you risk a large costs bill should you lose.

This post has been edited by Jlc: Sat, 9 Nov 2019 - 16:28


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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andy_foster
post Sat, 9 Nov 2019 - 17:30
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A COFP is not a requirement in the prosecution process, and defects in one do not prevent subsequent prosecution.

The offence listed on the COFP is indeed incorrect (from what you have told us). Speeding on a special road (motorway to you) is an offence under s. 17(4) RTRA 1984, whereas speeding on ordinary roads is an offence under s. 89(1) RTRA 1984. However, the fact that it is wrong on the COFP is not in itself a defence.

It seems possible that if you were to ignore (or reject) the COFP, the same mistake might find their way into the charge against you in court. However, if you were to try to rely on such a mistake as a defence in a magistrates' court, the court would simply amend the information. The only way to use the error as a defence would be to somehow get convicted in the magistrates' court without the charge being amended and then appeal to the crown court, who would re-hear the case against you, but would not have the power to amend the charge.

Obviously, the only way to play this game would be to ignore (or reject) the COFP, at which point it is likely to get a fair bit more expensive.


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Andy

"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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cp8759
post Sat, 9 Nov 2019 - 18:37
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QUOTE (andy_foster @ Sat, 9 Nov 2019 - 17:30) *
It seems possible that if you were to ignore (or reject) the COFP, the same mistake might find their way into the charge against you in court. However, if you were to try to rely on such a mistake as a defence in a magistrates' court, the court would simply amend the information. The only way to use the error as a defence would be to somehow get convicted in the magistrates' court without the charge being amended and then appeal to the crown court, who would re-hear the case against you, but would not have the power to amend the charge.

This is the only way to exploit the error, you'd be relying on the police back-office, the CPS prosecutor, the magistrates' legal adviser and the magistrates themselves all failing to spot the error. If this happens, an appeal to the Crown Court would be easy peasy as the legislation quoted does not prevent you from driving down the motorway as fast as you like. But if anyone spots it before the magistrates convict you, you're looking at a bill of maybe £1k or more. So it's a high-risk high-reward gamble at best.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Cristian B
post Sun, 10 Nov 2019 - 07:36
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Thank you all of you for the answers!
I understand now.
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The Rookie
post Sun, 10 Nov 2019 - 10:38
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You could always contact the issuing office and point out the error, could get one of three results
1/ They tell you to accept or it goes to court
2/ You get a corrected one which then is more likely to see the right endorsement code used although I doubt it makes any substantial difference to anything
3/ They may decide to cancel it due to the error.

The last I think is very unlikely, but for the price of a phone call (or stamp) it’s worth a try.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
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PPC PCN's
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cp8759
post Sun, 10 Nov 2019 - 16:03
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I think for insurance purposes SP30 is considered marginally less serious than SP50 (I'll leave it for others to comment on whether allowing this would amount to PCOJ). Of course, a slightly more devious plan might be to pay the penalty, wait for the 6 months prosecution deadline to appeal, and then contact the police to point out that there's been an error and the wrong code has been applied.

Unlike councils, the police are generally more than to correct administrative errors on fixed penalties, therefore there would be two possible outcomes:

1) The police amend the endorsement record from SP30 to SP50, assuming this is even possible, or
2) The police cancels the penalty, removes the points and issues a £100 refund.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Sun, 10 Nov 2019 - 16:16
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The general consensus (which I tend to disagree with) is that doing a deal to plead guilty to speeding in exchange for an s. 172 charge to be dropped constitutes PCoJ if the accused was not the driver.

It is not immediately obvious how it would be lawful to accept a fixed penalty for an offence you did not commit, in order to avoid liability for one that you did, but not to plead guilty to an offence you did not commit in order to avoid liability for one you did.


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Andy

"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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cp8759
post Sun, 10 Nov 2019 - 16:50
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QUOTE (andy_foster @ Sun, 10 Nov 2019 - 16:16) *
The general consensus (which I tend to disagree with) is that doing a deal to plead guilty to speeding in exchange for an s. 172 charge to be dropped constitutes PCoJ if the accused was not the driver.

It is not immediately obvious how it would be lawful to accept a fixed penalty for an offence you did not commit, in order to avoid liability for one that you did, but not to plead guilty to an offence you did not commit in order to avoid liability for one you did.

I think the key difference is that s172 and speeding are substantively different offences, while doing more than 70 on a motorway is the same mischief regardless of the fact that the police has mixed up the paperwork, it doesn't change anything about the alleged wrongdoing. The recipient is paying the penalty to deal with the fact that he was doing more than 70 on the motorway, I don't see how he could be accused of PCOJ just because the police messed up the legalese.

The only hypothetical issue is whether the increase in insurance premiums is less for SP30 than for SP50, one possible way out of that is to simply declare that the code is SP30 and the offence was on a motorway, so the insurance company has all the information and it can make its own informed decision as to what premium to charge. The fact that the insurance company's IT system might not have the capability to deal with that is not the OP's problem.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Sun, 10 Nov 2019 - 17:01
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QUOTE (cp8759 @ Sun, 10 Nov 2019 - 16:50) *
I think the key difference is that s172 and speeding are substantively different offences, while doing more than 70 on a motorway is the same mischief regardless of the fact that the police has mixed up the paperwork, it doesn't change anything about the alleged wrongdoing. The recipient is paying the penalty to deal with the fact that he was doing more than 70 on the motorway, I don't see how he could be accused of PCOJ just because the police messed up the legalese.


If the accused accepted the COFP for substantially the same offence, with no ulterior motives, then that would not constitute PCoJ. He would not be trying to avoid liability, he would be taking the same penalty.
However, the point you raised, and which I was replying to was quietly accepting a fixed penalty for the wrong offence and then trying to avoid liability altogether by pointing out the mistake and hoping that it is simply quashed.

QUOTE
The only hypothetical issue is whether the increase in insurance premiums is less for SP30 than for SP50, one possible way out of that is to simply declare that the code is SP30 and the offence was on a motorway, so the insurance company has all the information and it can make its own informed decision as to what premium to charge. The fact that the insurance company's IT system might not have the capability to deal with that is not the OP's problem.


Other than the one you suggested and I challenged.


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"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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cp8759
post Sun, 10 Nov 2019 - 19:44
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QUOTE (andy_foster @ Sun, 10 Nov 2019 - 17:01) *
If the accused accepted the COFP for substantially the same offence, with no ulterior motives, then that would not constitute PCoJ. He would not be trying to avoid liability, he would be taking the same penalty.
However, the point you raised, and which I was replying to was quietly accepting a fixed penalty for the wrong offence and then trying to avoid liability altogether by pointing out the mistake and hoping that it is simply quashed.

So arguably getting convicted in the Magistrates' Court on an incorrectly worded charge with the intention of getting it quashed on a technicality at a Crown Court appeal is also PCOJ? I'm not saying you're wrong, it just seems there are some far-reaching implications. At what point does making use of a tactical advantage in criminal proceedings become PCOJ?

At an extreme, you could argue that the defence team in Gleeson, R. v [2003] EWCA Crim 3357 were guilty of an attempted PCOJ conspiracy, and had they succeeded a guilty man would have walked free from court.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Sun, 10 Nov 2019 - 20:49
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QUOTE (cp8759 @ Sun, 10 Nov 2019 - 19:44) *
So arguably getting convicted in the Magistrates' Court on an incorrectly worded charge with the intention of getting it quashed on a technicality at a Crown Court appeal is also PCOJ?


Where is the positive act?

QUOTE
I'm not saying you're wrong, it just seems there are some far-reaching implications. At what point does making use of a tactical advantage in criminal proceedings become PCOJ?


When one does a positive act which tends of perverting the course of justice.


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"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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cp8759
post Sun, 10 Nov 2019 - 21:05
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QUOTE (andy_foster @ Sun, 10 Nov 2019 - 20:49) *
QUOTE (cp8759 @ Sun, 10 Nov 2019 - 19:44) *
So arguably getting convicted in the Magistrates' Court on an incorrectly worded charge with the intention of getting it quashed on a technicality at a Crown Court appeal is also PCOJ?


Where is the positive act?

Pleading guilty could be the positive act. In the event of a not guilty plea, the positive act could be misleading the justices' clerk as to the issues in the case, even if it were simply asserted that the defence wishes to put the prosecution to proof.

QUOTE (andy_foster @ Sun, 10 Nov 2019 - 20:49) *
QUOTE
I'm not saying you're wrong, it just seems there are some far-reaching implications. At what point does making use of a tactical advantage in criminal proceedings become PCOJ?

When one does a positive act which tends of perverting the course of justice.

So were defence lawyers in Gleeson guilty of this offence then? The formulation and execution of the technical defence would have involved several positive acts.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Sun, 10 Nov 2019 - 21:21
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QUOTE (cp8759 @ Sun, 10 Nov 2019 - 21:05) *
Pleading guilty could be the positive act.


Clearly one of us is a bit thick. Assuming that it's me, can you please explain in simple steps how the strategy of pleading guilty to the incorrect charge and then appealing against conviction to the crown court would work?

QUOTE
In the event of a not guilty plea, the positive act could be misleading the justices' clerk as to the issues in the case, even if it were simply asserted that the defence wishes to put the prosecution to proof.


Once again, clearly one of us is a bit thick. Assuming that it's me, can you explain in simple language how an omission would constitute a positive act?

QUOTE
So were defence lawyers in Gleeson guilty of this offence then? The formulation and execution of the technical defence would have involved several positive acts.


Positive acts that you are entitled to do are not positive acts that pervert the course of justice.

The question in this severely hijacked case is whether your suggestion of accepting the COFP knowing that it is for the wrong offence with the intention of avoiding liability for the offence(s) constitutes perverting the course of justice. Is there an overarching right to accept a fixed penalty, or for that matter to plead guilty, when you know that you did not commit the offence charged, in the same way that there is an overarching right to plead not guilty even if you know that you dun it?


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Cristian B
post Yesterday, 12:31
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Appreciate your input.

So, in regards to PCoJ my understanding it's that if I'll pay the fine exactly how it is right now, wait for more than 6 months and then contact the police in order to have it cancelled I'm perverting the justice.

Assuming that I didn't know and didn't have all the above information; I'll pay the fine and after 7 months I'll show the fine to one friend smarter than me when having a beer and he will point out that the paper it's wrongly mentioning the offence so then I'll contact the police to have it cancelled... I'm not perverting the justice.

Am I right or I get it wrong?

Thanks for your time and knowledge!
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cp8759
post Yesterday, 12:41
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Cristian B you are correct, but as you already have the information then if (and it's a big if) the suggested approach amounts to PCOJ, then you cannot avoid committing the offence unless there's some way we can wipe you memory.

On the other hand, I am not at all convinced an offence could be made out. In a case where PCOJ were a viable issue, you'd normally have all the regulars on here advising that the suggested course of action is clearly illegal and must not be pursued, you'd also get one of the site moderators giving a warning to that effect. The fact that apart from andy_foster nobody is even suggesting that this might be PCOJ suggests that this is far from a universally held view.

I would add that in any event the chances of proceedings being brought are remote in the extreme and is unlikely to meet the public interest test in any case. It would be tantamount to the police prosecuting you for their own mistake.

I think the far bigger risk is that the police simply amend the code from SP50 to SP30, the risk of that must be at least 50/50.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Colin_S
post Yesterday, 14:04
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Going back to the original offence, was this in a car? Just asking as the speed limit for a van on a dual carriageway is 60 which would put the OP into possible short ban territory.
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NewJudge
post Yesterday, 14:37
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QUOTE (Cristian B @ Mon, 11 Nov 2019 - 12:31) *
So, in regards to PCoJ my understanding it's that if I'll pay the fine exactly how it is right now, wait for more than 6 months and then contact the police in order to have it cancelled I'm perverting the justice.

This is becoming more and more academic. If you pay the fine right now (via the fixed penalty offer) that is the end of the matter. You've accepted the offer, paid the penalty. If you wait six or seven months and ask the police to cancel the penalty on the basis you describe I imagine they will tell you to go forth and multiply. If you then take the matter to a court, saying that seven months ago you paid a fixed penalty and only now realise you paid it for the "wrong" offence the court may tell you to do something similar.

QUOTE (Colin_S @ Mon, 11 Nov 2019 - 14:04) *
Going back to the original offence, was this in a car? Just asking as the speed limit for a van on a dual carriageway is 60 which would put the OP into possible short ban territory.

The OP was offered a Fixed Penalty which would indicate he was no more than 25mph over the prevailing limit. Only if his speed was 91-95 (if the limit was 70) or 81-85 (if the limit was 60) would he be normally eligible for a fixed penalty or be liable to 4 to 6 points or a short ban if it went to court.
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Cristian B
post Yesterday, 15:33
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The offer is 3 points and 100£ which I will take it.

BUT what about that:

In this case I will do a combination between The Rookie and cp8759 suggestions.

So, I'll write and send a letter let them know about the error, if they review the error and send me a correct one that's all.
If they gave me no answer at all or tell me to take it or leave it, I will pay and wait 6 months, then acting legally and in good will, I'll ask the police to review the codes and then court if they refuse.

Maybe it may sound childish but as little as the chance it is I have to use it.

Does this sound reasonable?

This post has been edited by Cristian B: Yesterday, 16:14
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