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Ohmigod
Morning

On Wednesday I received in the post a Summons to appear before a court in 10 days in relation to two offences:

1. Speeding (43 in a 30)
2. Failure to identify driver under S.172

This document is the first information I've received about either of the alleged offences.

The vehicle was a rental car and the details are as follows (I didn't use the NIPWizard as I've not seen the NIP):

Constabulary: Hampshire
Date of Offence: 30/6/15
Current points on licence: 3
Description of events: The Witness Statement says that:

    The vehicle was travelling at a speed of 43mph in a 30mph limit
    A NIP was sent to the registered owner on 7/7/15
    Respone received nominating vehicle rental company on 16/7/15
    A NIP was sent to the vehicle rental company on 23/7/15
    Response received nominating me on 3/8/15
    A NIP was sent to me on 7/8/15
    A reminder letter was sent to me on 28/8/15
    No response received
    Defendant has therefore failed to provide information to identify the driver


I would greatly appreciate some advice as to how to respond to or proceed with this.

Please let me know if there is additional information I should provide in seeking help.

Many thanks.
Gan
Check with the rental company what address they provided for you

Does it match both your home address and driving licence ?

The usual way these are dealt with is to do a deal with the prosecution on the morning of the hearing that you will plead Guilty to the speeding if the drop the S172
BaggieBoy
Two choices...

1) Plead not guilty to both charges. Since they have no evidence you were the driver, they should drop the speeding charge. You would then have to defend the failing to furnish charge based on non receipt of documents. If you fail to convince the court, expect 6 points, large fine and costs, plus a MS90 conviction that will impact future insurance costs.

2) Turn up on the day and find the prosecutor and agree to plead guilty to the speeding offence ONLY IF they drop the FtF charge. You could then ask the court to a only the fixed penalty charge (3 points and £100), as you would have accepted a fixed penalty if you had received one.
Jlc
QUOTE (BaggieBoy @ Fri, 13 Nov 2015 - 13:26) *
You could then ask the court to a only the fixed penalty charge (3 points and £100), as you would have accepted a fixed penalty if you had received one.

As per this:

QUOTE
where a penalty notice was not offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in these circumstances


However, certain mandatory court costs may still come into play, e.g. £150 criminal court charge.

QUOTE (Gan @ Fri, 13 Nov 2015 - 13:19) *
Check with the rental company what address they provided for you

Does it match both your home address and driving licence ?

This should be checked first to see whether there's a good defence to the s172 charge.

If the correct details were used then the notice will have been presumed delivered and is your presumption to rebut. (Which is why it's often 'safer' to perform the 'plea bargain' - but only if you were driving)

The s172 itself can be defended:

QUOTE
(7)(b) the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it.


Obviously you cannot respond to something not received...
Ohmigod
Thank you Gan, BBoy and Jlc

To clarify, since my position is that I am not guilty of one or more of these charges, will I be required to attend court or is there a process to plea bargain without appearing (if that's a dumb question I apologise but the whole thing makes me a little anxious), on the same subject, is it advisable to get a solicitor?
Jlc
It is something you can do yourself but it will require court attendance. (But you haven't indicated which route you want to take...)
Ohmigod
In an ideal world I'd argue an abuse of process in that it's not possible to have committed both of the alleged offences - is this a lame argument? In reality, I would accept the speeding charge and fight the Failure to Furnish on the grounds of non-receipt.

Two questions however:

1. Is it worth requesting a copy of the NIP now or has the opportunity to challenge that on its own merits passed?

2. How do you establish non-receipt of a document (or in this case two documents)?
Jlc
It's perfectly possible to commit both offences as they are completely separate. We have seen people end up with 9 points.

Generally, they are dealt with by the courts as mutually exclusive - and the penalty for the speeding is generally far less than the s172 offence which is why the 'plea bargain' is often attractive depending on the circumstances.

Proving non-receipt is difficult - obviously easier if the address was significantly wrong or you have an issue with mail delivery for example. I'm not sure what you mean about challenging the NIP? Are you saying you weren't speeding? One presumes the address on the summons is correct? (Which wouldn't assist in the argument that previous letters didn't arrive)

...but the point being is you don't have to fight the s172 charge if you accept the speeding charge - that is the 'plea bargain'. Alternatively, fight the s172 charge under the basis they cannot secure the speeding charge unless you plead guilty to it. The latter potentially have more risk and cost should it fail.
nosferatu1001
Think about it:

Yo urespond to the S172, but after the 28 days

You commit both offences.
Ohmigod
I'm edging closer to a decision to enter a 'not guilty' plea to both charges. My argument will be as follows, can someone point out any glaring errors/difficulties:

    The decision to bring the speeding charge to court with no evidence to support it should see it dropped; moreover it was almost certainly my wife who was driving at the time of the alleged offence (I had no reason to be near the location on that day whereas my wife was working nearby).

    I will then swear under oath to not having received the NIP nor the reminder. My wife will sign a statement to the same effect. I will produce evidence of a NIP received 18 months ago at the same address (though from a different constabulary) that was properly dealt with, resulting in 3 points and £100 fine.

I am unwilling to stump up the £1000+ to engage a solicitor, nor do I think it fair that I should face excessive penalties for committing no crime.

Jlc could you advise as to where this is from:
QUOTE
where a penalty notice was not offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in these circumstances

Is this part of a judgement?
Jlc
QUOTE (Ohmigod @ Tue, 17 Nov 2015 - 09:30) *
Jlc could you advise as to where this is from:
Is this part of a judgement?

No, simply the Magistrate's Sentencing Guidelines (p189) - here.

But not something relevant to your case - as only for speeding where you were driving.
AntonyMMM
If your wife was driving, then as they have no evidence that you were driving you cannot be found guilty of speeding, and that charge will probably be dropped before the case starts. It is included on the summons to allow an easy option for you & the CPS, but if you were not driving that also takes away the opportunity to do a bargain, leaving you with little option but to defend the FtF charge.

Ahead of the NG trial you will be sent an evidence pack (if you haven't got it already) that should include copies of the relevant NIPs - the prosecution will be able to show that these were sent to you and service is therefore presumed. You have to rebut this.

Key question, asked above a couple of times, is did the hire company give your correct details ?

Just saying "I didn't get it " under oath is not likely to be anywhere near sufficient. Ideally you need to show why you may not have received it ( wrongly addressed, previously reported problems with your postal service etc.) That they sent a NIP and then a reminder which you didn't receive, but then a summons which you conveniently did will make them hard to convince. The fact you previously received a NIP is not going to help your case in any way(it would tend to harm it if anything).

Courts take a lot of convincing on this type of defence - but very occasionally we hear of success, a lot comes down to how you present yourself in court and your credibility as a witness. The price of failure will be very high indeed.
Jlc
Indeed, the chances of 2 pieces (correctly addressed?) of post disappearing are slim, but not impossible.

But as you cannot perform a 'plea bargain' defending may your only option unless you want to cop 6 points. (And £85 costs, £150 criminal court charge, surcharge and fine)

Just for reference an unsuccessful trial will see costs of £620, criminal court charge of £520 on top of the fine and surcharge.
The Rookie
Plus S172 is 6 points, for that speed you would get 4 points (3 if they agree to levy the FP tariff).

If your wife was driving you obviously can't plea bargain!
Jlc
But OP wasn't driving?
The Rookie
Not "wasn't", but "almost certainly" from what he has written, that depends on how certainly he considers that is.
Jlc
True post #10 seems fairly certain though.
Ohmigod
So the implication would be that in order to minimise our financial liability in relation to this matter, I need to accept responsibility for the speeding charge (regardless of the likelihood of the truth of this) and then attempt a plea bargain. Is this a fair assessment?

I come to this conclusion as it seems from this forum anecdotally difficult to rebut service of an S172.

(N.B. I know it may seem like a 'convenient' argument to have not received the previous two documents but I don't know what else to say as this is exactly what has happened - though I appreciate that this is as good as useless to the court).
Jlc
You can only 'accept' the speeding charge if you were driving. If your wife was driving then you cannot do this.

In the circumstances it doesn't appear you have a lot of choice but to defend the s172 charge. (A guilty plea will stick in your craw but be aware of the fine and costs) Given that a MS90 endorsement code is likely to impact your insurance noticeably it is generally worth defending caveat costs etc.
StuartBu
QUOTE (Ohmigod @ Tue, 17 Nov 2015 - 14:27) *
So the implication would be that in order to minimise our financial liability in relation to this matter, I need to accept responsibility for the speeding charge (regardless of the likelihood of the truth of this) and then attempt a plea bargain. Is this a fair assessment?

I come to this conclusion as it seems from this forum anecdotally difficult to rebut service of an S172.

(N.B. I know it may seem like a 'convenient' argument to have not received the previous two documents but I don't know what else to say as this is exactly what has happened - though I appreciate that this is as good as useless to the court).


Can you deal with the requests asking what address details the Rental Company provided for you ( to see if this assists in why the pieces of mail were not received by you ) . Could anyone else in the house have received and opened the mail?
Irksome
Also, if you were considering trying the plea bargain route due to a sudden 'recollection' that you were indeed the driver at the time of the alleged speeding incident, don't forget that there maybe a photograph that indicates who the driver was ... it would be inconvenient to say the least for this to turn into a PCoJ case.
Ohmigod
The witness statement contains a photograph showing a kind of fuzzy image taken of the rear of the vehicle (from a manned device), that doesn't really help with identification.

N.B. It turns out that it was a courtesy car from a repair garage and not a rental car (it was quite a while ago) and yes, they have the correct address details; though the person who actually forwarded the information to the police works part-time so I haven't had a definitive response on the specific communication sent - I will pursue this although I doubt there'll be any surprises there..
Kickaha
QUOTE (Ohmigod @ Tue, 17 Nov 2015 - 20:55) *
The witness statement contains a photograph showing a kind of fuzzy image taken of the rear of the vehicle (from a manned device), that doesn't really help with identification.

N.B. It turns out that it was a courtesy car from a repair garage and not a rental car (it was quite a while ago) and yes, they have the correct address details; though the person who actually forwarded the information to the police works part-time so I haven't had a definitive response on the specific communication sent - I will pursue this although I doubt there'll be any surprises there..

Does that clarify if it was you or the wife driving?

If it was you then try to do the deal as outlined.

If it was your wife you are between a rock and a hard place to be honest.

Given your new info re the car, hopefully it clarifies matters for you re the driver.

I often use double spacing but there is nothing between the lines in the writing.
Chris1207
In a case like this, I'd be tempted to plead NG (by post) to both, and see what is in the evidence pack. It should, i would think, contain a copy of the NIPs and possibly the nomination from the hire/courtesy car co. With these you can check for certain whether the address given to them (and, indeed, to where the NIPs were actually sent) was correct. If it wasn't, you have a defence to the FTF charge, and they have no evidence of the driver for a speeding prosecution.

If the address is correct, then you can still (assuming you were indeed driving), do the plea-deal on the day.

As noted earlier, whilst there is cost to pleading NG, then changing it to guilty - AIUI, it's not a huge cost.
Ohmigod
Chris, thanks, your post has crystallised the matter for me. I'll plead NG and change it if it becomes necessary once I've seen the evidence..

Thanks everyone, will post any developments.

icon_salut.gif
StuartBu
QUOTE (Ohmigod @ Tue, 17 Nov 2015 - 19:55) *
The witness statement contains a photograph showing a kind of fuzzy image taken of the rear of the vehicle (from a manned device), that doesn't really help with identification.

N.B. It turns out that it was a courtesy car from a repair garage and not a rental car (it was quite a while ago) and yes, they have the correct address details; though the person who actually forwarded the information to the police works part-time so I haven't had a definitive response on the specific communication sent - I will pursue this although I doubt there'll be any surprises there..

So first you tell us it was a rental car and you are not sure who was driving and it turns out it was a courtesy car from a repair shop.. was this your own car that was being repaired.. How could you forget that? As for it being " A while ago" it was only in June...FIVE months back.
The Rookie
Ignore
Ohmigod
QUOTE
So first you tell us it was a rental car and you are not sure who was driving and it turns out it was a courtesy car from a repair shop.. was this your own car that was being repaired.. How could you forget that? As for it being " A while ago" it was only in June...FIVE months back.


Yes, I did say it was a rental car; sometimes the garage supply a rental car if they're out of courtesy cars, not in this case, my bad.
Yes, I did say I'm not sure who was driving; this remains an accurate statement.
Yes, my car was in for repair; I didn't forget that - it just doesn't seem relevant to the case.
I think that June falls within the general definition of "a while ago"

ohmy.gif
I've just had a call from the police case officer. I'll post the details shortly...

So the case officer called just now in response to my request for a copy of the NIP.

They sent the NIP and the reminder to the wrong house number.

He floundered a little when he realised his mistake and is going to call back later, how do I handle this?
Jlc
QUOTE (Ohmigod @ Wed, 18 Nov 2015 - 11:21) *
They sent the NIP and the reminder to the wrong house number.

There you go. Sounds like a rock solid defence to me.

I suspect they may drop the proceedings...
Ohmigod
Is it worth pursuing the case with a NG plea with a view to a claim for costs, or would a dropping of charges effectively end the process. I don't see why it should be that easy to bring court proceedings with no consequences for the police in the case of an administrative balls up.
southpaw82
You can't force the case to proceed if the prosecution apply to withdraw it and the court agrees.
peterguk
QUOTE (Ohmigod @ Wed, 18 Nov 2015 - 12:12) *
with a view to a claim for costs


Errrr, you haven't incurred any costs.
Ohmigod
QUOTE (southpaw82 @ Wed, 18 Nov 2015 - 12:55) *
You can't force the case to proceed if the prosecution apply to withdraw it and the court agrees.

Right, thanks.
ford poplar
If they drop the cas, in writing, say 'Thank You' and exit stage left.
It sounds like if the delivery address had been correct, you prob would have qualified for FTF by
1 not discussing with wife who may have been the driver, checking receipts/tel calls around the time to jog memory. You received fuzzy photos of driver from rear, yet did not not later view either poss driver from similar position to check to check driving height/hairstyle to reach a reasonable decision, so
2 your in time response would prob be equivoval "Don't know, might have been wife or me" which would have still resulted in FTF charge. IMO.
Forget any compo claim and breathe a sigh of relief case has been dropped (hopefully).
Jlc
Technically there's still time to pursue the speeding charge by sending the s172 to the correct address. (But would only work if the addressee was driving as a further nomination wouldn't given them time to start proceedings)

I suspect they wouldn't start this chain of events under the circumstances.
StuartBu
QUOTE (Ohmigod @ Wed, 18 Nov 2015 - 11:21) *
They sent the NIP and the reminder to the wrong house number.

He floundered a little when he realised his mistake and is going to call back later, how do I handle this?


Sent to the address provided ( which was wrong) or he made a mistake by sending to an address different from that provided?
Ohmigod
Both charges have been dropped by the case officer, I asked whether I'd receive written confirmation and he said: no, you won't hear anything further about the whole thing..
Jlc
QUOTE (Ohmigod @ Wed, 18 Nov 2015 - 14:43) *
I asked whether I'd receive written confirmation and he said: no, you won't hear anything further about the whole thing..

Because they couldn't guarantee the address would be right? ninja.gif
Irksome
QUOTE (Ohmigod @ Wed, 18 Nov 2015 - 15:43) *
Both charges have been dropped by the case officer, I asked whether I'd receive written confirmation and he said: no, you won't hear anything further about the whole thing..


Think I'd want a written confirmation before I relaxed!
ford poplar
I agree. One reason not to communicate by tel, only by email or letter.
OP should email back to confirm his understanding of telephone conversation with <name> on <date>.
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