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FightBack Forums > Queries > Speeding and other Criminal Offences
SLOW ED
NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - July 2019
Date of the NIP: - 4 days after the offence
Date you received the NIP: - 4 days after the offence
Location of offence (exact location as it appears on the NIP: important): - A153 MAIN ROAD ANWICK, UK
Was the NIP addressed to you? - Yes
Was the NIP sent by first class post, second class or recorded delivery? - First
If your are not the Registered Keeper, what is your relationship to the vehicle? -
How many current points do you have? - 0
Provide a description of events (if you know what happened) telling us as much about the incident as possible - some things that may seem trivial to you may be important, so don't leave anything out. Please do not post personal details for obvious reasons - I have received a NIP due to an alleged automatic camera capture of my car at the stated location exceeding 30MPH. The alleged speed is 35 mph (exactly, apparently...)

NIP Wizard Responses
These were the responses used by the Wizard to arrive at its recommendation:
Have you received a NIP? - Yes
Are you the Registered Keeper of the vehicle concerned (is your name and address on the V5/V5C)? - Yes
Did the first NIP arrive within 14 days? - Yes
Although you are the Registered Keeper, were you also the keeper of the vehicle concerned (the person normally responsible for it) at the time of the alleged offence? - Yes
Were you driving? - Unsure
Do you know who was driving? - Unsure who was driving

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:

Generated by the PePiPoo NIP Wizard v3.3.2: Tue, 30 Jul 2019 15:50:52 +0000



Can I get a photo of this from Lincs Police? Two reasons - I want to know the exact record speed as the NIP states 35MPH dead and secondly, more importantly, I really cannot be sure who was driving at that precise moment. My wife and I shared the driving that day (200 miles from home on a weekend away) and the village it allegedly happened in is not at all familiar to me (I have no doubt we were there but cannot remember which stage in the journey who was driving). Last thing I want is to put my hand up and drop myself in it if they clearly have a picture of the Missus at the wheel.....
BaggieBoy
Nothing usual about the speed, it is always rounded down to the nearest whole number. That speed will see the offer of a speed awareness course.
mdann52
Looks to be recently upgraded here (link to similar), which does both sides of the road at the same time. Do you know which direction you were going through - towards or away from the camera?

Is there any other indication (phone records, texts etc) that you could use to work out the most likely driver?

You can phone the camera office and ask for "photo's to assist with the identification of the driver" (NOT evidence), however this does not stop the 28 day clock on the NIP. However, all these photo's have to do is identify the vehicle involved, so not being able to identify the driver from these is not a defence.
SLOW ED
Hmm...I initially assumed from google pics that the camera caught one way only, however if it can do both ways that's a further dilemma. We got lost around here and we swapped over because of a row about the sat-nav (which my wife was initially reading as a passenger....). Odds on it was me driving but I feel uncomfortable about the level of detail the Police might subsequently produce if I just say it was me on a probability basis. I know somebody who got prosecuted for perjury and it was very very unpleasant....

Thanks for the info, though....
The Rookie
You don’t say it was you ‘on a probability basis’ you say it was you.

Ask the police for copies of any photos to help confirm the drivers ID, if you can’t tell who it was from them, who else could?
NewJudge
Yes, after you've seen the photos, name the most likely driver. That is not an offence. It only becomes an offence when you deliberately name somebody you know was not driving.There is a sure way to turn the offer of a course (cost roughly £100 and half a day of your time) into a bill for around a £1,000, six points and increased insurance premiums for about five years. That way is to not nominate the driver at all or to provide a "possibly me" response.
andy_foster
QUOTE (NewJudge @ Tue, 30 Jul 2019 - 19:30) *
Yes, after you've seen the photos, name the most likely driver. That is not an offence. It only becomes an offence when you deliberately name somebody you know was not driving.


I disagree. The requirement is to identify the actual driver. Arguably guessing the correct driver would satisfy this requirement. Incorrectly guessing would mean failing to identify the driver - which is an offence contrary to s. 172(3) RTA 1988.

The stock advice here seems to be that if you aren't sure, to guess and hopefully you won't get found out. This might well be pragmatic - if the OP cannot determine who was driving with reasonable diligence, chances are the prosecution won't be able to disprove the nomination (assuming that the person named is happy to play along) - but I would find it very difficult to describe it as lawful.
NewJudge
Yes it is pragmatic. The OP has said three times that he is unsure who was driving. From what he says he is unlikely to be able to do so, however much diligence he exercises. If the photographs do not help the alternative to my suggestion is to run the "dunno who was driving" defence and they tend not to go very well in the main.

Whether a "best guess" is lawful is perhaps arguable. Yes, he has a duty to name the driver. If his best guess is the best he can do he must have done all he can to fulfil his obligation. So long as there is no deliberate attempt to deceive I cannot see a problem.
andy_foster
QUOTE (NewJudge @ Tue, 30 Jul 2019 - 22:24) *
Whether a "best guess" is lawful is perhaps arguable. Yes, he has a duty to name the driver. If his best guess is the best he can do he must have done all he can to fulfil his obligation. So long as there is no deliberate attempt to deceive I cannot see a problem.


If he is unable to identify the driver with reasonable diligence there is an alternative obligation to provide "any information that is in his power to give and that might lead to the identification of the driver". That would generally include as a minimum the details of all the possible drivers.
The Rookie
QUOTE (andy_foster @ Tue, 30 Jul 2019 - 21:29) *
but I would find it very difficult to describe it as lawful.

If the guess were right, in what way would/could it be unlawful?
andy_foster
Try reading what I posted.
The Rookie
I did, several times, then slept on it and did again, you haven't separated correct from incorrect nomination, just said you didn't think any guess was lawful, may not be what you intended to say, but it is what you said.
NewJudge
QUOTE (andy_foster @ Tue, 30 Jul 2019 - 23:21) *
If he is unable to identify the driver with reasonable diligence there is an alternative obligation to provide "any information that is in his power to give and that might lead to the identification of the driver". That would generally include as a minimum the details of all the possible drivers.

Where is is that stated? Assuming he is "the person keeping the vehicle" (which seems likely from what he's said) he has an obligation under S172(2)(a) to provide "...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" If he cannot his only alternative is to defend the matter under S172(4). Surely only if he is "any other person" can he take advantage of the alternative to provide the less onerous level of information. If he provides details of both (or all) possible drivers he will almost certainly face a S172 charge and he's back to the "dunno who was driving" defence.

We appear to be getting into an awful tangle here. It is generally accepted that the police are not usually eager to prosecute for anything but the signature offence and only do so as a last resort. If there is no evidence available to show that the keeper has deliberately set out to deceive I cannot see his "best guess" (even in the highly unlikely event that it is proved wrong by some means or other) to be ruled unlawful. But that, of course, is only my view.
southpaw82
I believe it was Flegg.
The Rookie
Flegg
https://www.bailii.org/ew/cases/EWHC/Admin/2006/396.html

para 25
QUOTE
Even if I were wrong about that, there is a second reason why, in this case, the claimant should be found to have failed to comply with the statutory requirement under sub-section (2) in the particular circumstances of the present case. The notice required the claimant to provide the driver's details "or give any information in your power which will lead to the driver's identification". That was either a requirement under sub-section (2)(b), which uses the language of giving information which will lead to the driver's identification, or was a further requirement imposed under sub-section (2)(a). Mr Siddle does not contend that it fell outside the power of the Chief Constable, even under sub-section (2)(a), to impose such a requirement.
NewJudge
Thanks for that.

I think (admittedly having only read it quite quickly) that Flegg is slightly different in that the defendant was certain he was not the driver but refused to provide the details of Dr Sepp - the only other person who could have been. It wasn't a case of "dunno who was driving" because he certainly did know and was therefore unable to take advantage of the "reasonable diligence" defence. In short, he could have simply named the driver but he didn't.

That is not the case here. The OP says that he is unable to say who the driver was. If he says that he will face a S172 charge. His alternative is to provide the details of both possible drivers. I would suggest that if he does that the outcome will be the same - just as it would have been if Mr Flegg had named both himself and Dr Sepp as possible drivers.

I don't think this helps establish whether providing a "best guess" that is genuinely held is lawful or not. If it is not, it seems that people in this OP's position must inevitably face a S172 charge if they are to remain on the right side of the law. It seems a bit odd that they must commit an offence and almost certainly unsuccessfully defend it in order for their behaviour to remain "lawful"! huh.gif
Logician
No one can be absolutely certain who was driving a vehicle at a particular time and place unless they were in the vehicle or standing by the side of the road. Even if an observer saw a vehicle depart from him disappear out of sight and shortly after return to him, he cannot be certain that the driver he saw was driving the entire time. Absent being there at the time, the question of who was driving can only ever be answered to the best of one's knowledge and belief, and this is the reason that the police will then ask the same question to anyone named as the driver. Answering with a best guess is not notably different to answering to the best of knowledge and belief.

But if it is an absolute standard and an incorrect answer is always illegal, however sincere the belief, than various difficulties follow. A law abiding citizen who wants to avoid offending the law can answer only if he was present at the time, relying on the defence of s.172(4) that he cannot with reasonable diligence ascertain the driver of the vehicle with total certainty, since he was not there, and leasing companies cannot simply name their corporate clients, since a corporation clearly cannot be a driver.
SLOW ED
Very interesting debate going on here.....To clarify, I am the registered keeper of the car but not the regular driver. The car is insured in my wife's name with me as named spouse. The probability is that it was myself driving but the nagging doubt remains that perhaps we swapped over around this point in the journey. I am going to put my hands up to being the driver on that basis and get the thing over and done with. I am not eligible for a course as I already completed one a couple of years ago....

Thank you for your various posts....
Logician
QUOTE (SLOW ED @ Thu, 1 Aug 2019 - 19:22) *
Very interesting debate going on here.....To clarify, I am the registered keeper of the car but not the regular driver. The car is insured in my wife's name with me as named spouse. The probability is that it was myself driving but the nagging doubt remains that perhaps we swapped over around this point in the journey. I am going to put my hands up to being the driver on that basis and get the thing over and done with. I am not eligible for a course as I already completed one a couple of years ago.... Thank you for your various posts....


You do need to ask for any available photographs first, as it may be that it is clear that the driver is female.

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