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Notice of Intended Prosecution? - The Scottish View
firefly
post Thu, 2 Sep 2004 - 22:37
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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,

Lately there have been more and more instances of what to do in Scotland should a registered keeper receive an NIP. In England the situation is a lot clearer (relatively speaking). We know that the "un-signed" (that is, filling out the NIP/s.172 form which requests the details of the person driving the vehicle at the time of the alleged offence and returning it un-signed) approach to the NIP/s172 form is a dead duck as per the Idris Francis High Court case.

So where do we stand in Scotland with regards to this approach?

When going "un-signed", it would appear that, to date, no-one that we have ever heard of has been prosecuted under s172 in Scotland (s172 = failure to provide driver's identity). This could be in part due to the fact that English High Court judgments are not legally binding in Scotland. The JP (equivelant of a magistrate) may find the argument "persuasive", but is not bound by it. Certainly we have heard of English case law being presented at court.

So it would appear that going un-signed is still an option in Scotland, although you should beware that there is a very good chance the Procurator Fiscal may try and introduce English case law to try and secure a conviction. It will be at the JP's discretion whether he finds it persuasive enough.

With regards to the PACE witness statement (which is what we recommend for our English cousins), well that (in its present form) is a no-no. Without going into the legal reasons why it can't be used, it is sufficient to say the rules are different north of Hadrian's Wall. Section 12(4) Road Traffic Offenders Act 1988 states that :

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(4)In summary proceedings in Scotland for an offence to which section 20(2) of the [1988 c. 52.] Road Traffic Act 1988 applies, where

(a) it is proved to the satisfaction of the court that a requirement under section 172(2) of the Road Traffic Act 1988 to give information as to the identity of a driver on a particular occasion to which the complaint relates has been served on the accused by post, and
( B) a statement in writing is produced to the court, purporting to be signed by the accused, that the accused was the driver of that vehicle on that occasion,

that statement shall be sufficient evidence that the accused was the driver of the vehicle on that occasion.

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So if a driver submits a signed statement in writing then "the court shall accept that statement as evidence that the accused was the driver of that vehicle on that occasion". It would be very difficult (in my opinion) for the Procurator Fiscal to argue that you have not complied with your s172 obligations if you submitted one of these. Whilst the Francis v DPP could be used against you with regards to an un-signed NIP, it can also be your ally in this instance as per Jones v DPP.

So in summary :

SEND ALL CORRESPONDENCE BY SPECIAL DELIVERY FROM THE POST OFFICE

i) Un-signed - Unknown, as we don't know the lie of the land with regards to English case law. That being said, there are instances on these boards where people have had cases dropped by going unsigned (see below).
NOTE* - Get someone to fill in the s.172 form on your behalf (wife/partner/solicitor etc) and get them to make a note of this fact. Keep the note for future reference. DO NOT SEND IT WITH YOUR UNSIGNED NIP

NOTE - Please read this post and thread for a warning of what may happen if this route is followed. It may and possibly won't, but it is something that everyone should bear in mind.

ii) Signed Statement - Theoretically fulfills your obligation as set out in the Road Traffic Offenders Act 1988, though the lack of caution may not be fatal to the prosecution's case. It will, though, certainly add confusion into the mix.

If I were to get an NIP tomorrow, I would go for i).

KNOWN SCOTTISH UNSIGNED CASES

Lothian & Borders
cuddlyewok - Timed out. Police didn't follow up.
chmac - as above.
ascender - Timed out/
ipod - Timed out.
budgie - Timed out
fast boy - Timed out.
ricalnic - Timed out.
bigstoop - Timed out.
ultrahaggis - Timed out.
skyblue - Going through the motions (28/9/06)
Paul759 - Timed out.
SA2006 - Timed out.
jacko - Going through the motions (14/12/06)

Strathclyde
Tubby - Strathclyde scammers. Submitted an unsigned letter to nominate the driver. Ongoing (19/4/06).
granville - Going through the motions (5/1/07)

Grampian
garethturner - Grampian scammers - timed out.
hicabuffy2 - Grampian scammers. Timed out.
chainguy - Grampian scammers. Timed out? (though we haven't heard for sure).
Laughingboy - Timed out.
bar - Going through the motions (5/1/07).
opel - Going through the motions (5/1/07).

Central
pandlg - Central Scotland. Going through the motions (1/8/06)
Ahl - Timed out.
CelticLhad - Going through the motions (24/11/06).
geordielad - Going through the motions (9/1/07).
Not Another NIP? - Going through the motions (2/4/07).

Northern Constabulary
NeilR - Northern Constabulary - Timed out.
Fight it - Timed out.

Dumfries & Galloway
cutthroat jake - Timed out.
zippy777 - Going through the motions (18/9/06) Dumfries & Galloway.
the_ginger_ninja - Going through the motions (24/11/06)
kjm6 - Wimped out and took the hit!
pauliejxr - Going through the motions (31/5/06)
atlantic - Going through the motions (31/5/06)
BikerPaul - Timed out.
popdog28 (members only) - Going through the motions (24/11/06)
CBRrider - Going through the motions (24/11/06)
surfnode - Timed out.
atlantic - Going through the motions (5/1/07).
minimadmotorman - Going through the motions (2/4/07)
Oscar21 - Going through the motions (2/4/07)

Tayside
ejb - Tayside - Personal visit from police just inside 6 months, verbal S172 made, accused 'fessed up, COFP issued, ignored - Timed out.
miffedscot - Timed out.
jonno - Timed out.
Rev-head - Going through the motions (2/4/07)
Fabian - Going through the motions (2/4/07)

Fife
flyin flea - Timed out.
Ted28 - Personal visit from police, verbal S172 made, accused 'fessed up, no speeding summons materialised, now timed out.
Cakelover - Timed out.
grillbill - Going through the motions (2/4/07)
Rs malky - Going through the motions (2/4/07)

This post has been edited by firefly: Mon, 10 Sep 2007 - 11:49


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post Thu, 2 Sep 2004 - 22:37
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Mika
post Fri, 3 Sep 2004 - 09:18
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ff,

A few points on your very thorough post:

1) In my opinion, the Y&M and Francis judgements could be very useful to the defendant in Scotland. icon_idea.gif

2) PACE and the caution are both linked to International law. icon_wink.gif

3) I only personally prefer the right to silence, because I don’t think ‘they’ understand the argument and a defendant has an automatic right of audience in every court.

Incidentally, I have never received a NIP so, “another one”, will be my first – just like a lamb to the slaughter then…. rolleyes.gif


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firefly
post Fri, 3 Sep 2004 - 13:10
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QUOTE (Mika)
Incidentally, I have never received a NIP so, “another one”, will be my first – just like a lamb to the slaughter then…. rolleyes.gif

Ha! I stand corrected. icon_wink.gif How about I go out and get one and nominate you? Think how much fun you could have......... icon_eek.gif icon_wink.gif 8)


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cjm99
post Fri, 3 Sep 2004 - 13:43
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Hey, there are over 1500 members now, How many NIP's would you like?

Chris


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I've had enough
post Thu, 9 Sep 2004 - 04:30
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Latest on my D&G Scottish NIP

I just realised that I am Scot-Free!

So going unsigned and hinting that I could be somewhat Yorke compliant seems to have either dissuaded them or created such an administrative confusion that they've given up.

The alleged incident was late Dec. The fixed penalty ticket (which I ignored) that they sent once they thought they had S172 info from me was the last I heard from them.


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mondeoman
post Thu, 9 Sep 2004 - 08:24
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So what did you do - I've got an ongoing case with D&G and I'd like to know what to do having had the PACE witness statement thrown back at me ...
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Bob_Sprocket
post Thu, 9 Sep 2004 - 08:43
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Hi Mondeoman,

I think that the reaction that you got was because PACE does not apply to Scotland, ff will tell you more no doubt but if you follow this link Link to Scottish statement there is an alternative because you still have a right to silence.

What exactly did you get back and what does it say on the NIP reply with regard to instructions for completion?

I still strongly believe that if you are told to tick a box and sign then you are being forced to confess using the words drafted by someone under the direction of the Chief Constable, and this is just plain wrong. If none of the selections that are offered fit what you want to say then It is eminently reasonable for you to write what you do want to say on a different piece of paper and include the other required information, sign and date it with a disclaimer as laid out in the witness stement which you will find by following the link above.

If you do this, while we all know that it is right, that does not mean that you will not have to (possibly) defend it and maybe appeal when the JP or Sherriff or whoever makes the wrong decision.

Good luck

Bob
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NAP6W
post Thu, 28 Oct 2004 - 09:52
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Hi Folks - I wondered if I could get some assistance. I was convicted of 101.3 on the M74 last April and got 6 points and £200 fine. I was the caught on camera doing 70 in a 50 and got 3 points and £60. I then got caught doing 50 in a 40 and signed the NIP but told them my licence was at DVLA and bumped them for a few months and it went away. On 23rd Aug I was caught on camera at 100 in a 70. I did not return NIP and then when sent another filled it in but did not sign. I have had another one through with the signature bit highlighted. What should I do ? This would be a ban for definite unless I pled exeptional hardship (wife does not work and have 2 kids) I need my licence for my job. Any ideas ?
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Clear Skies
post Thu, 28 Oct 2004 - 10:56
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QUOTE (NAP6W)
Hi Folks -. Any ideas ?



sure slow down !

Are you really keeping your eyes open to be caught so often and at such speeds ?

If u can't see a speed cam, perhaps u should slow down.

I know I travel faster than the speed limit, most of the time. However , I am capable of hitting the brakes, much to the alarm of all behind me, but then that's another story .


rgds
bill


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eddie1234567
post Thu, 24 Mar 2005 - 19:46
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Boss just got a flashed, time for some smarty points I think. Is the statement still an option in Scotland as well as trying the unsigned
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agbrowne
post Fri, 25 Mar 2005 - 02:15
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QUOTE (I've had enough)
Latest on my D&G Scottish NIP
I just realised that I am Scot-Free!

Don't bank on it!
QUOTE
The alleged incident was late Dec.  The fixed penalty ticket (which I ignored) that they sent once they thought they had S172 info from me was the last I heard from them.

They have six months to get you to court. According to my calculations, late December is only at most three months hence!
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Insider
post Fri, 25 Mar 2005 - 18:46
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rolleyes.gif

does ANYONE check the dates/times on posts....

the poster is referring to december 2003!  :oops:


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