Help - Search - Members - Calendar
Full Version: 39 in a 30 on a demonstrator motorcycle
FightBack Forums > Queries > Speeding and other Criminal Offences
andrew s
Hi all. I got caught on camera apparently whilst testing a m/c. The m/c I rode would be used by a lot of people. Dates and times could be incorrect, I am not even sure of the reg no of the m/c I rode.
Anyone have experiance of asimilar situation to this? Any advice on how to proceed greatly appreciated.

date of offence: 30/6/07
Date of the NIP: 11/7/07
Date you received the NIP: 12/7/07
Location of offence: A386 Horrabridge, Devon
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? Test riding a demonstrator motorcycle
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:

Test rode a demonstrator m/c from Ocean BMW, Plymouth. Apparently, I got caught doing 39 in a 30 by a fixed camera. Ocean BMW named me as the rider at the time.Being a demonstrator many people use this m/c. It was raining at the time of the alledged offence
Teufel
first step is to ask now to see photos to help identify driver

phot should show definitley you (prob best to fess up), not you (return nip with not me and dont know who)
or not sure (come back here for more help)


start now making notes of what/wjhen you did that day so you have them for later
nemo
What makes you think that the dates and times could be incorrect ?

You have 28 days from receipt of the NIP / s.172 to provide a response. I would suggest that you use the time wisely and research the site..wink.gif

In particular, search for cases which involve 'Mohindra' and see how it defines the statutory responsibilities (of s.172 RTA 1988) of the 'person keeping the vehicle' as opposed to those of a 'person other than keeper'.

Post back here with any questions and before you respond to the s.172 notice..
andrew s
Hi again, Further to recieving the NIP for the 39mph in a 30 zone. I faxed Devon & Cornwall Constabulary with a request for the photographic evidence. I went on holiday the 19th July and had hoped to view the evidence yesterday (2nd August) upon my return home.
I have not received the photo evidence, only a letter stating:

Further to your correspondence dated 17th July 2007 in relation to the above alledged traffic offence detected by camera tecnology and supported by photographic evidence.

I advise that I must comply with the terms of the data protection act 1998, that only the registered keeper can request the photographic evidence. The registered keeper's permission for this evidence must be obtained and forwarded to this office before we can release the photographs to you.

all requests must be made in writing and signed by the registered keeper.

I hope I have clarified the matter and await their reply.


BMW at Plymouth would be the registered keeper of the m/c I guess. Could an individual authorise the release of the photos on the company's behalf?
The woman (working at the camera unit) who advised me to fax the request for photo evidence when I phoned never mentioned a written permission from BMW.
My 28 day time limit expires 8th August. Any idea how I should respond? Should I request more time from Devon & Cornwall Constabulary so BMW Plymouth can give written authorisation for the release of the pictures to me? Should I complete the PACE form with the request? Any advice gratefully received.
andy_foster
You are clearly not the person keeping the vehicle - so for the purposes of s. 172 RTA 1988 you fall into the category of any other person, and as such, your only obligation under s. 172(2)(b) is to provide any information that is in your power to give that might lead to the identification of the driver.

I cannot offer further advice until you answer nemo's question.
andrew s
QUOTE (nemo @ Mon, 16 Jul 2007 - 20:31) *
What makes you think that the dates and times could be incorrect ?


The fact that the m/c is a demo and I have to rely BMWs records that the m/c is the one I was riding.
Gaza
QUOTE (andrew s @ Fri, 3 Aug 2007 - 16:48) *
QUOTE (nemo @ Mon, 16 Jul 2007 - 20:31) *
What makes you think that the dates and times could be incorrect ?


The fact that the m/c is a demo and I have to rely BMWs records that the m/c is the one I was riding.


Correct. Most dealers are shit hot on this as they don't want the liability. I've been test driving new cars recently and have had to complete paperwork that has then been timed and dated by the sales people.
andy_foster
QUOTE (andrew s @ Fri, 3 Aug 2007 - 16:48) *
QUOTE (nemo @ Mon, 16 Jul 2007 - 20:31) *
What makes you think that the dates and times could be incorrect ?


The fact that the m/c is a demo and I have to rely BMWs records that the m/c is the one I was riding.


And that relates to the dates and times how?
Regardless (for the time being) of which motorcycle you were riding, are you totally reliant on BMW's records for the time and date. What information do you have that is in your power to give?

Basically, your obligation is to tell them everything (relevant) that you know, but you are not obliged to tell them any more than you know (which isn't as obvious as it might seem).
The Rookie
I agree 100% with AF, further to what he's saying you do not have to take any 'proactive' steps such as asking for photo's or even visiting the dealership to look at paperwork, the law is clear that all you have to tell them is what you know, right here and now. As such it could perhaps be argued that it's not in your interest to do either of those things (or any other).

Simon
andrew s
Thank's for the advice so far everyone.
It looks like I have 3 choices:

1, plead guilty despite being shown no evidence of the alledged speeding offence

2, send the PACE form off.

3, return the NIP stating that I do not know who was riding the m/c.
As I have not seen the photographic evidence and I only have the dealers word that I was the rider, this is a true statement. If I take this route and it eventually ends up in court, would I be liable to a much heavier penalty if found guilty? I have attempted to see the photographic evidence but it has been withheld, would a court take this into consideration? I do not want to get into a fight with the police that I have little chance of winning, butI am happy to devote time and effort to fighting this if there is a good chance of winning.
I have to return the form tomorrow (monday 6th august). Any advice on which action to take gratefully received.
nimh999
QUOTE (andrew s @ Sun, 5 Aug 2007 - 07:56) *
1, plead guilty despite being shown no evidence of the alledged speeding offence
You are not entitled to any evidence until you plead not guilty.

Am not sufficiently knowledgable to understand the consequences if you follow AF's and The Rookies advice but I can see this ending in court if you say "I test drove the vehicle on the day but I don't know if the person who committed the offence was me" assuming that you don't know it was you.
andrew s
QUOTE (nimh999 @ Sun, 5 Aug 2007 - 08:19) *
QUOTE (andrew s @ Sun, 5 Aug 2007 - 07:56) *
1, plead guilty despite being shown no evidence of the alledged speeding offence
You are not entitled to any evidence until you plead not guilty.

Am not sufficiently knowledgable to understand the consequences if you follow AF's and The Rookies advice but I can see this ending in court if you say "I test drove the vehicle on the day but I don't know if the person who committed the offence was me" assuming that you don't know it was you.




Hi nimh999
I guess there is a good chance that it was me on the m/c at the time of the offence. But as I have not seen the evidence I can't be sure. I presume if I simply return the NIP stating I don't know (for certain) who the rider is, the police would have to prove it was me, with a witness statement from the dealer and the photo evedence from the camera? My concern is when it eventually gets to court, the judge could deal out a pretty harsh penalty if found guilty?
I would hope that the Photo evidence is poor (due to the heavy rain at the time) so as not to be able to identify the rider.
I would be interested to know how competant Devon & Cornwall Constabulary are at taking these cases to Court? Is there a chance they would give up pursuing me via the courts?
Again, any advice gratefully received.
The Rookie
Returning the form signed as they want is not admitting guilt at all, its merely confirming you are driving!

The law is quite clear that as a none keeper you only have to tell them information in your power to give, as it stands that would appear to be the fact that it MAY have been you, that you are not sure, that you rode that m/c at about that time. That would satisfy your liability under S172 under S172, if they wish to take further action to try and make a positive ID such that they have evidence you were driving that is upto them, this is how Mohindra won at appeal.

Simon
andrew s
QUOTE (The Rookie @ Sun, 5 Aug 2007 - 08:57) *
Returning the form signed as they want is not admitting guilt at all, its merely confirming you are driving!

The law is quite clear that as a none keeper you only have to tell them information in your power to give, as it stands that would appear to be the fact that it MAY have been you, that you are not sure, that you rode that m/c at about that time. That would satisfy your liability under S172 under S172, if they wish to take further action to try and make a positive ID such that they have evidence you were driving that is upto them, this is how Mohindra won at appeal.

Simon


Thank's Simon.
So it looks like I should return the S172 and state (quite truthfully) that it MAY be me on the m/c and await the police' response?
The Rookie
That is what I would do, don't use the NIP form, write a letter include all your information as would be on the NIP and explain fully whay you can only commit to a may, remember that should it get to court the letter will be evidence so it needs to show good intent but at the same time being clear.

Personally I would also point out that you are NOT the person keeping the vehicle, and that you legal liability is only information in your power to give, others may want to chip in as this obviously shows a little of your hand, its more likley to get it dropped without going to court, on the oher hand if it does go to court an alert CPS parasite (there must be some you could call alert!) may realise he needs a more comprehensive case than he would prepare (some must prepare!) for a keeper.

Simon
andrew s
Thank's again Simon and everyone else for their imput. I have worded a letter that I intend to send and would value any opinions on its content.
Here is the letter:

Dear Sir/Madam,

It is alleged that I was riding a BMW motorcycle as described in the Notice of Intended Prosecution: Ref as above.

The motorcycle in question is a demonstrator and as such is part of a fleet of motorcycle used as demonstrators for use by members of the public and the Staff of Ocean BMW Plymouth.

I have requested the photographic evidence from you regarding the alleged offence, but unfortunately this is not available to me as I am not the registered Keeper of the motorcycle. Apparently, my request for photographic evidence does not comply with the terms of the Data Protection Act 1998 (ref. your letter dated 18-07-2007).

Whilst it is possible that I may be the rider of the motorcycle in the alleged speeding offence (I was riding a BMW motorcycle at the time of the alleged offence) I have no way of being certain.

I am not the Keeper of the vehicle and my legal liability is to provide information that it is in my power to give.

I therefore enclosed my details, separately from the S172 form, as follows: (details exactly as requested on S172)

The Rookie
Have you requested photo's, you don't want to (or have to) do that, BAD move, and have they said they are not avaialbale to you? This highlites the importance of keeping your thread upto date as you don't mention it! OOps thanks JA I see it now, not sure what went wrong with my eyes there!

If they have told you you can't have them, all to the good, its worth elaborating on the may a bit more I think, all the info in your power to give.

Simon
jeffreyarcher
QUOTE (The Rookie @ Mon, 6 Aug 2007 - 01:42) *
as you don't mention it!

Post #4.
andrew s
Hi Again,
well things are progressing and again I would appreciate people's views on how I should deal with this.

I have received a letter dated 16-08-07 stating:

I have today received confirmation from the registered keeper of the vehicle that you would have been in charge of the vehicle on the date of the alleged offence. They have provided a photocopy of a diary entry that refers to this, and also a photocopy of a loan form, signed by you, for the vehicle.

I therefore enclose a copy Notice of Intended Prosecution

Completing the notice is a statutory requirement and the information MUST be forwarded to this office within the specified time.

you have 10 days from the date of this letter to respond.

Should this information remain outstanding, it is procedure for the matter to be referred for possible court proceedings, where the question of the issue of a summons will be considered.

The letter includes a copy (and marked as such) of the original NIP dated 11-JULY-2007

I intend to return a copy of my last response within the time limit (10 days) they have set.

Anything else I should or should not do? I presume the next step will be a court summons for the offence will they will be obliged to produce the evidence they say they have against me?

Thank's in advance for any help offered.
Barking Mad
I would give them the same sort of answer that you gave before: Namely that it might but it might NOT have been you riding the motorcycle on the day and time in question. Tell them that you cannot give them any more information because you don't have it to hand! Specifically point out to them that they are asking you to accept - without question or any evidence in support - that it was you riding the bike at that time on that day!

You have given the information you have - you can't be guilty of 172 IMHO
andrew s
QUOTE (Barking Mad @ Mon, 20 Aug 2007 - 21:17) *
I would give them the same sort of answer that you gave before: Namely that it might but it might NOT have been you riding the motorcycle on the day and time in question. Tell them that you cannot give them any more information because you don't have it to hand! Specifically point out to them that they are asking you to accept - without question or any evidence in support - that it was you riding the bike at that time on that day!

You have given the information you have - you can't be guilty of 172 IMHO


Thank's, I guess the next step will be for them to take me to court? My thinking is, once I have seen the evidence against myself, I can decide if I should plead guilty or not in court. My hope being the photographic evidence is not conclusive (I have yet to see it) or they scamera crew trip up in the court procedure?
The Rookie
You are under no obligation at all to see the 'evidence' you only have to give that info that it is in your power to give, they could send you the photo, but I wouldn't have asked!

Simon
andrew s
Hi All, So things are moving along and I have now recieved the court summons to appear at Plymouth magistrates court on the 17th December at 10am.The summons is postmarked 5th Dec. I recieved it the 6th Dec.

I am charged with:

1 Driving a motor car at 39 in a 30

2 Failing to give information as to the driver of the vehicle

Quick summary:
Re: charge 1. I have been charged with driving a motor car on the court papers but the original charge was for driving a m/c with the same reg. no. Does anyone have a view on the court's probable attitude to being wrongly charged? I intend to argue in my defence that D&CC have been inept in bringing this charge against me and the rest of the evidence might be just as unreliable. I was sent the S172 twice with the first one's traffic ref ending in NIC and the second one's traffic reference ending in NIX: a bit confusing and not very proffessional of D&CC.

Re: charge 2, I twice sent a seperate letter instead of the S172 stating that I was unable to give the name of the person driving the m/c as it was a demonstrator and, as I was not the owner, I could not be sure who was riding the m/c. I did not request any information from the m/c owners (Ocean BMW) as I was not legally obliged to.


D&CC have now enclosed the photo evidence but the pictures are very poor quality, the m/c reg. no. is just about visible but, arguable, not very clear. The pictures were taken in very heavy rain so it is difficult to see the rider of the m/c. Can I expect the one sent to the court to be better quality?

I guess I will argue that I did all I could legally do to comply with the S172 and I was not driving a motor car as in charge 1, the poor quality of the photo evidence means I cannot be sure still if it is me on the m/c alledgedly shown. Add the poor procedure of D&CC and I will argue the evidence against me is unreliable.

Anyone any thoughts on how I should proceed?
The Rookie
Slip rule will correct the car to m;/c error (quite correctly), so forget that....

They can't find you guilty of speeding if they don't have evidence of the driver/rider....

The photo's are irrelevant, they will unliley be good enough to ID the rider, and as you did not have to look at them (no legal obligation) its irrelevant anyway.

You need to take a copy (well 5) of Mohindra and emphasis you were not the keeper and gave all the information in you power to give...

Simon
andrew s
QUOTE (The Rookie @ Mon, 10 Dec 2007 - 11:32) *
Slip rule will correct the car to m;/c error (quite correctly), so forget that....

They can't find you guilty of speeding if they don't have evidence of the driver/rider....

The photo's are irrelevant, they will unliley be good enough to ID the rider, and as you did not have to look at them (no legal obligation) its irrelevant anyway.

You need to take a copy (well 5) of Mohindra and emphasis you were not the keeper and gave all the information in you power to give...

Simon


Thank's Simon,
I have just found the Mahindra case. I will try to wrap my head around the details.
So in summary, I ansewed the S172 with a seperate letter as that was the only way I was able to respond with the infomation available. and stick with that?
Thank's in advance for any further help.
Andy
andrew s
Hello again, super fast advice needed if anyone can help? I am in court at 2pm today. having consulted a solicitor who charged me £98 and advised I plead guilty to the speeding ohmy.gif

Anyhow, going through the evidence against me again I note that the Picture identifying the m/c number plate has been enhanced and does not include the information box present in the top corner of the other 2 photos (which do not show the m/c reg. no.). I have information that only the pictures from the camera are admissable in court, not enhanced pictures excluding speed and date information, is this still correct?
Here is the information:

Section 20 of the Road Traffic Offenders Act 1988 as amended by section 23 of the Road Traffic Act 1991 specifies that only evidence produced by the speed camera is admissible. As a matter of standard procedure, the CDO unit produces video prints and in my case even manipulated one, enlarging the rear view of the car only, but not showing any speed information. They were unable or unwilling to provide the negatives produced by the camera. Going from film to video prints to manipulated video prints clearly breaks the continuity of evidence.

Is this still correct?
Thanks in advance for any help.
davepoth
IMO pleading guilty leaves you open to the S.172 charge in this case, since it will be easy for the CPS to say that you cannot plead guilty to speeding unless you were sure it was you who was riding the bike, therefore you clearly haven't given all the information that it was in your power to give. Have you seen a copy of the photocopied list of riders from the BMW garage?
andrew s
QUOTE (davepoth @ Thu, 17 Jan 2008 - 09:09) *
IMO pleading guilty leaves you open to the S.172 charge in this case, since it will be easy for the CPS to say that you cannot plead guilty to speeding unless you were sure it was you who was riding the bike, therefore you clearly haven't given all the information that it was in your power to give. Have you seen a copy of the photocopied list of riders from the BMW garage?


Sorry I have have made myself clearer. I am pleading not guilty to both charges, I cannot see how I am guilty of failing to identify the driver as I gave all tha information that was available to me at the time.
As far as the Gatso pictures go they do not identify the m/c registration. There is a third picture that has been enhanced but with no speed or date info in the picture, this barely shows the m/c reg ( the pictures are taken in heavy rain and bad light)
The witness statement from the m/c dealer clearly shows the m/c reg as WG06OMX but the diary copy shows the reg as WG07OMX
Therefore I also intend to argue the dealers evidence of which m/c I rode is unreliable. Factor in the poor quality of the gatso pictures and the fact I am denied a chance to prove I am innocent and was not speeding (the camera's reference markers on the road are not visible).

Would anyone like to hazard a guess how this will stand up in court?

I consulted the 'specialist' solicitor but she only seemed interested in getting her fee and not my case. She also informed me Mahindra was no longer a defence and in truth, Mahindra seemed a bit to 'legalese' and difficult for me to follow, yet alone argue in court.
davepoth
Well that's a material error in the witness statement and I think you could argue it's outside the slip rule. It's not impossible that the dealership could have been in posession of bikes with both of those registration numbers (I guess they would have about 50-100 bikes at a time?) so I would be inclined to dispute the statement and ask for them to come to court.

You can ask for the camera technician to come in as well to measure the speed from the corroborating lines on the road in the photos if they are unable to give you any better quality photos.
andrew s
Ok, so I had my day in court thursday and still got nailed. I'll give a brief summary of the scamera offence and what happened as someone might find it useful.

June 30th last year I tried a 1200GSA from Ocean BMW, Plymouth and was caught on camera supposedly doing 39 in a 30.
Devon & Cornwall constabulary (DCC) sent a NIP (S172) to Ocean BMW who notified them I had the m/c at the time.

DCC sent me two S172s, about a month apart, requesting that I confirm I was the rider of the m/c or, if not me, who was?

I refused to complete the S172s and sent a seperate letter each time stating Ocean BMW had 30 odd m/cs and I couldn't be sure that their confirmation that I was the rider was correct. I did ask for the photographic evidence against me, which DCC refused to forward as 'it's against the freedom of information act' as I wasn't the registered keeper of the m/c.
I made no effort to confirm Oceans paperwork was in order as I am a builder, not a part time detective for DCC. Also, the S172 required all the information that is it was in 'my power' to give: not go and find out.

I eventually received a summons to appear before Plymouth magistates 17th Dec and received the Photos and evidence against me about 10th Dec.
I was charged with Failing to identify the driver and doing 39 in a 30.

I booked 30 minutes with a specialist solicitor to look over the evidence against me. My defence was that the scamera pictures were so bad they did not show the camera road marker points. This meant I was denied the opportunity measure the distance travelled over the time shown and prove the m/c was not travelling at 39mph (with scameras, the onus is on the accused to prove they were not speeding).
The pictures were also so bad, one had to be enhanced to reveal the m/c number plate but the enhanced picture did not sure the speed of the m/c.
Also, the witness statement from the Ocean salesman stated he had loaned ma a 1200 GSA, reg no WG 06 OMX whilst the diary copy for the day stated the reg no as WG 07 OMX. I therfore intended to argue Ocean could not be sure of which of their m/cs they had loaned me.
The solicitor looked at the evidence and advised I would probably be better to plead Guilty to the speeding but I would probably be not guilty of failing to identify the driver. She gave me a less than 1 in 10 chance of being found not guilty for the speeding.
She informed me courts had pretty well heard it all before and that 30 minutes of her time would be £94.00, Thank You very much.

The first court appearance was adjourned, due to the over run of other trials before mine. A new date was set for 17th Jan.

In court the solicitor got it right. I argued my case, pointed out that as a motorcyclist for over 30 years, I was certain I was not speeding (but the poor quality pictures denied me a chance to prove it): hence I had taken the day off work and had come to court
I was found not guilty of failing to identify the driver but guilty of speeding. £60.00 and 3 points for the speeding £50.00 costs and a further statuatory £15.00 towards 'victim support'

The magistrates were the usual well meaning muppets and at least I got the minimum they could hand out.

It appears that many people escape scamera prosecutions by simply binning the NIPS(S172), deny the NIP had been recieved, and rely on the scamera-outfit/police being to busy to pursue them.

I understand some police forces put the camera pictures on the internet with the web address, and rely on people to log in and view the pictures, thus proving they have recieved the NIP.

Thank's to all the people who have replied to this thread.
saracengb
Bad luck Andrew sad.gif I suppose the only positive point to come out of this is they did drop the failure to identify which meant only three points - which is all you'd have got if you bent over at the NIP stage and took a COFP.

However it's apparent that courts are still running roughshod over the average motorist and that's disheartening.

Sorry you didn't get the result you expected

On the solicitor point - I had a quote from a specialist solicitor the other day offering to take on my case at NIP stage and offered an 80% success rate as an incentive to take up the offer -quote for services? £1500! With a guarantee that if it did end up going to court it wouldn't cost me more than an extra £500.

Take care

Phil
The Rookie
To be clear, you plead guilty to speeding - personally I think that was the wrong way to go, if you plead guilty its then irrelevant that you can't measure the speed, as a non keeper you had a strong defence to the S172 IMHO, especially given the error over the reg number.

Simon
This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.
Invision Power Board © 2001-2019 Invision Power Services, Inc.