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BristolSteve
I have a colleague at work who has 6 points on his licence, he got caught jumping a red light. He only told me after he his summons.

The aim was points avoidance for obvious reasons. I outlined a argument based upon the statement of fact is unable to identify the driver. This week he was fined £375 , no points. The endorsement codes can be found here http://www.safescam.org.uk/endorsecode.htm

I have now asked my colleage to bring his S9 statement in (as Leicester) to appeal against the the fine. If he decides that is the route he wants to go down I will keep the forum informed as to the outcome.

I wonder if what the opportunities are to deal with NIP now that the unsigned route is closed. Here is my view.

Caught speeding. Recieve NIP. Fill out the portion "I was not the driver" the onus is on the prosecution to prove you were. What would they charge you with? Speeding or failing to provide? Speeding carries points, failing to provide does not as far as I can see.

Steve
DW190
MS90
Failure to give information as to identity of driver etc.......... 3 Points
DVLA Website.
http://www.dvla.gov.uk/drivers/endorsem.htm#7.%20misc

Offence codes/ miscelaneous MS90

If your mate got off without points good luck to him.
BristolSteve
I am aware of MS90 "Failure to provide" carries 3 points. How did my colleague avoid this?

Here a view, the speed camera partnership said their evidence could no identify the driver. The RK could not identify the driver. What does the law do when the the only evidence is a VPN (vehicle plate number)? Or maybe he was lucky?
DW190
With a bit of due diligence he may have got away without the fine as well.

Good to use if speed was excessive. just the luck of the draw with the Muppets
BristolSteve
If you don't know who the driver is? The Magistrates cannot just prosecute you for "failing to provide" they would have to prove that you knew who the driver was at the time of the offence. If you acknowledge that you are a driver of the vehicle but wasn't a driver at the time. They cannot turn round an say "your guilty" They have to make judgements based on the facts and burden of proof lays with the CPS

As to the fine, he may be appealing depends what the S9 says.

Steve
cjm99
QUOTE
If you don't know who the driver is? The Magistrates cannot just prosecute you for "failing to provide" they would have to prove that you knew who the driver was at the time of the offence


I dissagree, If you are the Reg. Keeper, then you have a duty to exercise due diligence, and therefore know who has access to you r vehicle at any time. Burden of proof with the RK
If, you are 'any other person' , Then yes. The prosecution would need to proove, that you had 'information in your power to give'. Now the burden is with the crown.

Chris
Odd Job
QUOTE (cjm99)
QUOTE
If you don't know who the driver is? The Magistrates cannot just prosecute you for "failing to provide" they would have to prove that you knew who the driver was at the time of the offence


I dissagree, If you are the Reg. Keeper, then you have a duty to exercise due diligence, and therefore know who has access to you r vehicle at any time. Burden of proof with the RK
If, you are 'any other person' , Then yes. The prosecution would need to proove, that you had 'information in your power to give'. Now the burden is with the crown.

Chris


Does that still apply when the RK is a lease or hire company. They can nominate the person "in charge" of the vehicle, but they will have no idea who was driving at the time.
cjm99
Odd Job

QUOTE
Does that still apply when the RK is a lease or hire company. They can nominate the person "in charge" of the vehicle, but they will have no idea who was driving at the time.


This is a tricky point. A lease car is then placed with a vehicle keeper (not reg keeper). A hire car is signed for as accepting responsibility as keeper. A student who has a car owned and reg. to a parent is a temporary keeper.
BUT, at some point, there has to be an 'any other person'

Now my contention in a court case would be, that the summons would usually refer to a person other than the keeper failed etc. Thus removing the need for a definition. Therefore, the prosecution have to proove as per s172 B 'information in your power to give'.


Chris
BristolSteve
QUOTE
I dissagree, If you are the Reg. Keeper, then you have a duty to exercise due diligence, and therefore know who has access to you r vehicle at any time. Burden of proof with the RK


Where exactly in the law does it say that a private car owner to exercise this degree of control over a vehicle? Family car, Father, Mother, son and daughter are allowed to drive and covered by the insurance company.

There is Corporate responsibility under S172.

Steve
cjm99
QUOTE
private car owner to exercise this degree of control over a vehicle?
It does not. The owner, is almost insignificant. The reg keeper has a duty to exercice due dilligence. S172....

QUOTE
(3) A person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle or, as the case may be, the rider of the cycle was.


Chris
firefly
Hi all,

The issue of registered keepers and non-registered keepers and "any other persons" has come up before. Some of you might not be aware of it.

If you are interested, then there is an excellent post by jeffreyarcher here, followed by some interesting debate.
cjm99
Firefly

I remember this thread well.

But, since I have given it a more pragmatic reassesment.

My summons reads

"PERSON OTHER THAN KEEPER FAIL TO GIVE DRIVER IDENTITY".......
"failed to give information which it was in your power to give and which might have led" etc

My point being, The CPS have removed the ambiguity as to whether a driver is at that time the keeper, albeit not the registered keeper.By detailing the alledged offence in this way. Now, the burden of proof just fell full weight onto the Crown. Would you not agree?


Chris
firefly
Hi Chris,

QUOTE (cjm99)
My summons reads

"PERSON OTHER THAN KEEPER FAIL TO GIVE DRIVER IDENTITY".......
"failed to give information which it was in your power to give and which might have led" etc

My point being, The CPS have removed the ambiguity as to whether a driver is at that time the keeper, albeit not the registered keeper.By detailing the alledged offence in this way. Now, the burden of proof just fell full weight onto the Crown. Would you not agree?


Firstly, I am not 100% familiar with your case so forgive me if any of the below is not correct. I will deal with the summons heading in an "unsure of driver" context.

In theoretical terms, the burden of proof "fell full weight onto the Crown" as you state. In practical terms, however, I believe that "any other person" would still be required to display "reasonable diligence" as per subsection 4, even though they are not legally bound by it. Such is the crazy nature of section 172 :

QUOTE (Section 172)
2(B) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.


I have doubts whether a magistrate will be sufficiently "up to speed" to even notice the subtle distinction between subsections 2(a) and (B). I believe saying, "I am not the keeper but "any other person" and it is not in my power to give information as required by subsection 2(B), therefore the onus of responsibilty to prove who was driving falls onto yourselves (CPS)" will not cut any ice in my opinion. A magistrate will undoubtedly say, "What have you done to ascertain the driver's identity?", to which you might say, "Nothing sir, as I am not legally obliged to do anything, save give information that is in my power. The information is not in my power to give so I deemed that the end of the matter and waited for the court summons."

You can see where I am heading with this. Again, to quote jeffreyarcher :

QUOTE (jeffreyarcher)
Speed cameras were not introduced until 1991 and they relied on the existing 1988 S172 in the main; there were changes to s172 in 1991, but they were primarily to do with corporate liability.
If you consider s172 in that light, it's all quite logical. Even the 2(a)/2(B) distinction.
Consider the case where the police were investigating an accident. They may ask someone who may have had knowledge of the events, however he may not. It is obviously unreasonable to ask such a person to expend due diligence to fend off an S172 prosecution. Where would you stop, all 81 people on a bus next to the vehicles involved?


I believe that whether you are the keeper or any other person, you should be as diligent as possible in ascertaining the driver's identity, whether you are legally required to do so or not.
cjm99
FF
In essence, I agree with what you are saying. However, in the prosecution presentation of thier case in chief, there has to be 'continuity'
They must open by prooving that the CoP actually requested the info. usually a witness statement from a postal clerk in the scam office. Then in the case of a keeper, another statement from a scam clerk stating no info or inadequate info. recieved etc.. Now my point is, that "an other person" places a further requirement viz. show info in power to give.

Of course, if the bench consists of the cast from the muppets, then thier comprehension abilities will be stretched beyond thier limits


Chris
firefly
Can you give me the specifics of your case, or can you point me to a thread which details it?
cjm99
]http://pepipoo.com/NewForums2/viewtopic.ph...ghlight=
QUOTE
As requested

Chris
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