20.10.04

Case details

Location: A308 Staines bypass (Surrey police)
Offence date: 13.10.04
Speed: 68 (50 limit, formerly NSL, dual carriageway)
Speed measurement: Mobile unit; exact type not yet known
NIP date: 19.10.2004
Photographs: inconclusive as to driver identity (it was me)
Response sent: 15.11.04

Having read many threads on these forums (including the 'members only' forum, which has much additional useful info), I have decided to respond to the NIP with a modified 'PACE statement'.  The letter/statement I have sent is reproduced below.  The 'statement' section of the letter mirrors the s.172 response form in my case.


[FORM OF LETTER ATTACHED TO S.172 RESPONSE NOTICE MARKED "INSUFFICIENT SPACE - SEE ATTACHED LETTER"]

[starts]

Camera Enforcement Unit
[address]

Dear Sirs

I refer to your Notice of Intended Prosecution ref. [] ("NIP").

You have requested that I provide information as to the identity of the driver of the vehicle identified in the NIP, at the time referred to in the NIP, in accordance with section 172 Road Traffic Act 1988. I note that I am compelled to provide the information requested under threat of criminal prosecution.

I also note the provisions of paragraph 10.1 of the Police and Criminal Evidence Act 1984 Code C: "A person whom there are grounds to suspect of an offence .... must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution". I note that I have not received a caution with respect to the questions put to me concerning the alleged offence.

I also note the judgment of the European Court of Human Rights in the case Kansal v. The United Kingdom (21413/02) ECHR 179 (27 April 2004) in which the use of statements obtained from the applicant under compulsion, subsequently used as prosecution evidence in criminal proceedings, was found by the Court to be an infringement of the applicant's right not to incriminate himself and that the use of the said statements deprived the applicant of a fair hearing in violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Convention").

I further note, under section 6(1) Human Rights Act 1998: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right" and, under sub-section 6(3)(B) of the same Act: "'public authority' includes .... any person certain of whose functions are functions of a public nature". In view of the judgment of the European Court of Human Rights in the 'Kansal' case mentioned above (and others), I therefore conclude that the proposed use by any public prosecution authority, in connection with any criminal proceedings brought against me, of the statement provided below: (i) shall infringe my right not to incriminate myself and my right to a fair hearing, in violation of Article 6 § 1 of the Convention; and (ii) shall be unlawful by reason of section 6(1) Human Rights Act 1998.

Accordingly, the statement appearing below is made on condition that it will not be given in evidence against me in any prosecution.

Finally, I note from section 7(1) Human Rights Act 1998: "A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(B) rely on the Convention right or rights concerned in any legal proceedings.

_____________________________________________________________

Reference [] Vehicle Reg. No. []
Make [] Date [] Time []
Location []

INFORMATION PROVIDED UNDER SECTION 172 ROAD TRAFFIC ACT 1988

I WAS THE DRIVER AT THE TIME OF THE ALLEGED OFFENCE.

Full name: []
Full address: []
Date of birth: []
Driving licence driver number: []

[signed]
[full name]
[date]

[ends]


I will post developments as they occur.


18.11.04

Received Conditional Offer of Fixed Penalty. Usual terms. 28 days to respond.

20.2.05

Well I have received a summons.  No NIP or PACE statement in the bundle.  Just two statements by the police laser operator, which appear to be in order except the video tape and video prints mentioned as exhibits were not enclosed.

10.3.05

I have sent the following letter.

Clerk to Justices

Dear Sir,

Case number xxxx

I enclose notice of ‘not guilty' plea in relation to the above case.  I note that the preliminary hearing scheduled for [] March will be adjourned and that my attendance at court on that day is not required.

I refer to the Attorney General's disclosure guidelines dated 29 November 2000 and in particular paragraph 43, as follows:

SUMMARY TRIAL
43. The prosecutor should, in addition to complying with the obligations under the CPIA, provide to the defence all evidence upon which the Crown proposes to rely in a summary trial. Such provision should allow the accused or their legal advisers sufficient time properly to consider the evidence before it is called. Exceptionally, statements may be withheld for the protection of witnesses or to avoid interference with the course of justice.

and from the first paragraph of the Commentary on the Guidelines:

"The guidelines are applicable to all investigations and prosecutions undertaken by the Crown, and therefore relate to prosecutions by government departments as well as prosecutions by the Crown Prosecution Service. The guidelines are binding on all public prosecutors...".

I give notice that I have not received copies of prosecution exhibit xxx, mentioned in the witness statement dated [] of PC[] [] nor prosecution exhibits [] mentioned in the witness statement dated [] of the aforesaid [] (both statements enclosed with the summons).

Therefore, I require full disclosure of the said exhibits in accordance with the disclosure guidelines referenced above.

22.3.05

Initial hearing adjourned on not guilty plea.  PTR set for 18.4.05 which I am requested to attend.

Today I received a letter enclosing one of the missing exhibits (a still from the video) and explaining that "the video exhibit [] cannot be supplied to you under the Data Protection Act as it would show vehicles that do not relate to your alleged offence.  The video will however be shown in court."

18.4.05

Attended court for PTR.  Held in a small meeting room with a clerk, the prosecutor nominated for my case, and me.

Prosecutor gave me a CPIA section 3 notice stating no unused material.  The schedule attached lists one item - the police officer operator's pocket book entry stating static distance checks etc carried out.  This not disclosed because it "does not undermine prosecution case".

The prosecutor then waved a video tape at me and said "Do you want to see the video".  I said "Not right now but I would like a copy of it".  He said I can't have a copy because he's not obliged to give me a copy under "advance disclosure rules" but it will be played in court and I could see it now if I wanted to.   I said it's not possioble for me to examine it properly without notice and an expert present and said I believe he is required to provide a copy.  I also said the police had given a spurious reason for not providing a copy (Data Protection Act).  I handed over a copy of the letter I'd had from police to that effect.   He agreed that DPA is not applicable and offered to let me view the tape again.  I said there's no point me just viewing it I need to examine it.  He refused again to let me have a copy and asked the court to note on the file that I had been offered and refused the opportunity to view it.  I asked the clerk to note on the file that I disagreed that I am not entitled to a copy.  I asked the prosecutor again why he refused to provide a copy.  He said "Because I don't have to".  I said "In that case we'll have to test this argument at trial.

The clerk then asked the prosecutor to say whether he will call any witnesses.  He said he would call one - the police operator, and would need 30 minutes for examination.  I was asked to confirm my plea and any witnesses I intended to call.  I confirmed not guilty and that I would not be calling witnesses.  The clerk asked if I would give evidence myself - I said I would be available to do so, if called.  The clerk asked what was the rough basis of my defence.  I said that I intended to make legal submissions as to the admissibility of evidence and I expected these submissions to take approx. 1 hour.

The prosecutor jumped straight back in and said "In that case we require a skeleton argument".  The clerk said "It would assist the court if you could provide a skeleton argument".  I said I was unwilling to do so because I was under no obligation to provided a defence statement under CPIA.  The prosecutor agreed but still insisted I should provide a skeleton.  The clerk said again it would assist the court.  I said again I was unwilling to do so.  So the prosecutor asked the clerk to request a direction from magistrates that I should provide a skeleton.

So the PTR finished but I a little later I was called into a proper court.  The clerk there said that because I was a layman, he would advise the magistrates that they did not need to issue a direction compelling me to provide a skeleton.

After a while, the magistrates came in and the clerk explained the purpose of the hearing and asked me to explain a rough idea of what my legal arguments would be.  I said that I intended to challenge the admissibility of evidence on various counts including the Human Rights Act and judgments of the ECHR and confirmed that I would provide a list and copies of ECHR judgments I intended to use.  The clerk gave his view that a skeleton should not be required, principally because I am a layman.  The prosecutor (different one) submitted that I should provide a skeleton because I had indicated that I would be presenting detailed legal arguments and the prosecution should not be ambushed by my legal submissions and needed to know my arguments in order to prepare.

I asked to speak and submitted that the prosecutor's point about ambush is irrelevant because that only applies where the defence challenges admissibility after the prosecution has closed its case.  In any event, I was not obliged and was unwilling to provide a defence statement under CPIA and I was concerned of prejudice under CPIA if I was compelled to provide a skeleton.  Finally I questioned whether the prosecution really considered that their professional expertise would not be up to the job of dealing with the legal submissions of a humble layman.

The magistrates conferred for a while and then announced that they would not give a direction compelling me to provide a skeleton.

So - a small victory.  Full trial set for 10 June with two and a half hours allowed.

13.7.05
Trial 10.6.05 adjourned and will resume 22.7.05.  See later posts.

Obs,
Although i tend to agree with your letter, reading it 'the way the devil reads the bible' I might say to myself;
'hmm, he clearly knows he cannot in law be compelled, therefore he should stay silent and fight the point he knows in law, hence this is a VOLUNTARY confession; eg admissible!!!!!

Pace doesn't make this inconsistency, it knows the law and complies with the results consistently.

You cant say; I know i dont have to but i will anyhow.

Well, according to 'Brown' I can be compelled (or face the alternative s.172 charge). Anyway, the use of a 'PACE statement' as a "confession" is possible with the 'PACE statement' in its 'standard' form and even (courtesy of JO in Y&M) without a signature. The language I've added doesn't add to or detract from its admissibility (or otherwise).

What I have done (I hope) is add to the 'befuddlement factor'.

Tim,

The reasons I prefer the standard PACE witness statement are as follows:

1) It doesn’t give them any “rabbit holes” for the enemy to run down – there is only one simple question for the International Court of Justice to answer.

2) It doesn’t reveal details of the argument.

In a war, one should concentrate on the enemy’s weakness and I have looked into their eyes when PACE has been mentioned in court. Furthermore, during Idris Francis’ High Court appeal, watching a couple of High Court judges “playing dull” when PACE was mentioned, was not very convincing.

Are you intending to accept the Conditional Offer, when it arrives?

Mika,
In the long run, for the greater good, etc., I agree.
However, for individual cases, many people want the best chance of them winning in a mags court.
The empire deal with a huge number of victims every day, and don't have the resources to deal with individual cases they don't understand. A standard PACE witness statement gives them one thing to focus on, but variations can cause befuddlement which I think will give Observer a better chance.

The risk is that Kansal gets demolished by Brown and Observer is then struggling with a loss of credibility with his other arguments.

But on the other hand, it gives a nice variation on the theme, which could lead to some more fun. The Brown judgement is a bad one, and good on Observer of giving it a go.

You are assuming that I would use the same material when my construction is 'out of the ground' as I used to lay the foundations.

Observer, nice to see you back, although it would seem because you have been naughty! again
I think it is good for people to try differing defences as knowledge can be gained from the responses, and one of them may open the door to Justice a bit sooner than another :!:

18.11.04

Received Conditional Offer of Fixed Penalty. Usual terms. 28 days to respond.

Ho hum. I was hoping for a rejection of my PACE statement, but there you go....

What to do? Yawn........ go to sleep for a few months, I think.

Surely this is a rejection of your PACE statement. Is this not better than receiving a bluff and bluster letter from them? You ignore the COFP and either hear nothing else (result) or receive a summons.

Hi Tamara,

Not the way I read it.

1. As I see it, my statement has been accepted as sufficient evidence of driver identity so they've issued FPN. I now have to wait. If summons received - plead NG; wait to see if it goes to court; then (if it does) succeed in having statement excluded. There is some uncertainty there because I would have to overcome Brown or win on the ECHR argument. (Of course CPS may bottle it as they have in other cases. I have no way of knowing whether my PACE statement has had any effect or not.).

2. On t'other hand, if my statement had been rejected as insufficient or unsatisfactory for s.172, I could put my feet up for a few months, confident that Jones would let me defend a s.172 charge if I did receive a summons.

Looks like I'll be putting my feet up anyway, but I'd be more confident in scenario 2 than I am in 1.

FWIW, I don't think it's indicative of anything (other than that the scammers want your money).
Even during the height of the unsigned forms debacle, of those ares whose practice was to issue a FPN straightaway (i.e. without waiting for a returned completed S172), most didn't actually do anything about it until the FPN had timed out.
Also, many of those whose practice was to wait until a returned S172 was received, still issued the FPN even although the S172 was unsigned. Only when the FPN timed out was action taken.

if you are done for speeding, can you not take the disclosure route as well? 8)

You're right. I'm not at all discouraged but a part of me wants an easy ride while another part wants to 'stick it up 'em'.

Reporting - nothing.  Had a reminder COFP in December.  Offence date 13.10.04 so approaching 4 months.

I have to admit I like your letter.....

Good Luck

Hi
If your going to get a summons, it seems to arrive near to the 6 month deadline.

This is interesting, as I got caught on the same stretch 2 months before and sent the standard PACE letter. I haven't heard anything. 6 months up this weekend I think(date was 05/08/2004 I believe).

All they sent me were 2/3 reminder NIPs, interesting to see they went straight to a conditional offer for you.

I'm touching wood here that my luck holds out.......and yours.

I got "done" on the same stretch of road  in December.

Replied with pace letter in mid January

Not heard a peep back yet

I am crossing my fingers

Well I have received a summons.  No NIP or PACE statement in the bundle.  Just two statements by the police laser operator, which appear to be in order except the video tape and video prints mentioned as exhibits were not enclosed.

Watch this space.


Oooohh - forgot to mention that the speed measurig equipment was ....... LTI 20:20

Observer

What date is your case, and where? My son was done on the same stretch of road in December and replied via PACE and has received a FPN due up at the end of this week. My Case

I was just wondering what the timescales were like ?

Do you mean the hearing?  It's 21 March but it will be adjourned when my NG plea goes in.

Following some discussion here about how to respond to the summons, I have sent the following letter.



I have decided that I have more to lose than gain in forcing disclosure of the video tape (to force the issue, I may have to produce a defence statement and I prefer not to disclose my substantive defence) but I want to make as much as I can out of the fact of non-disclosure.  Therefore, this request for disclosure (which I suspect will be ignored) will (I hope) allow me to emphasise the prosecution's "failure to disclose despite my specific request".

Why restrict your request for disclosure to those specific items ? Surely it would be better to demand disclosure of '...these and any other documents on which the Crown proposes to rely...'

That is a wider net and can be construed, if you so wish, to include the video.

One of the exhibits mentioned is the video tape.  I'm not asking for unused material.  I'm reminding CPS of its obligation to disclose evidence intended to be used at trial and, as the videotape is mentioned in the statement, I assume it's intended to be used.

Observer,

You say

I did not make a defence statement when asked on the first letter which included the witness statement of the LTI 20/20 operator. I sent a letter off later requesting disclosures but never received any. The only reply I had was stating I was not entitled to them.

When I appeared in court I was shot down in flames every time I quoted different Acts, guidelines etc stating I had not been given disclosures as presribed by every Act quoted on this site and information from CPS own literature.

When they ask you for a defence statement they do so under the Investigations and Procedures Act.

Failure to give a statement within their specified time apparently deprives you the right from getting disclosures at a later date. The only way to get disclosures there after is to get the court to instruct the CPS to supply them to you and adjourn the case. For this to happen you will have to have exceptional circumstances and will probably be denied because the CPS complied with the Law to begin with and with such trivial matters as minor motoring offences this is very unlikely to happen.

Their arguement is that the Investigations and Procedures Act is the first step in the judicial process. Only if this Act has been complied with then the other Acts, guidelines etc take effect.

The only thing I can suggest, from information later obtained, is to give a defence statement when asked for one and simply enter something like the following suggested script. " I believe I was not exceeding the speed limit and believe the equipment used or method of operation was defective"

By giving a defence statement similar to the above you will have complied with the Act and then your request for disclosures can not be denied and if they are not supplied to you then the evidence can not be used as prescribed by the other relevant laws.

The saying that comes to mind is ... If I knew then what I know now.

Hi Sathya
This is IMO a very important point. At my trial the Crown used 'you have not requested correctly' ...'you have not requested through the correct paperwork channels'.... which of course was easily disproved ... then 'you have not stated why you needed the evidence'. My disclosure letters all included a sentence along the lines of 'I do not believe the alleged speed' or 'I believe the alleged speed to be incorrect'....... check mate  :D

Regards

Hi Blackbird.

The point of my posting was to get the point over that people should make a defence statement similar to what both of us suggested.

When this has been done they should THEN REQUEST DISCLOSURE OF DOCUMENTS using the Pepipoo suggested script or similar.

Also a point people should note that there is no need to ask for, or even mention the video because a video is a document according to law as we all know.

If the disclosures are then withheld from us or supplied without a copy of the video or whatever people can then hit them for non disclosure of evidence under the RTA etc using the useful information supplied by this site. Non disclosed evidence can then be kicked out of court because the CPS did not comply with the Law as prescribed.

I was going to appeal against my fine but my solicitor friend asked a local judge about the chances of winning a case stated appeal for the non disclosures aspect and he was told that it would be unsucessful because the CPS acted according to the Evidence and Procedures Act and we had not by failing to give a defence statement within the prescribed time.

As I have said before, this Act is the first step in the judicial process and if we fail to give a defence statement at that point we become entitled to nothing unless the court allows it due to exceptional circumstances and we all know that will not happen for minor RTA offences.

Can the defence statement be amended to 'I do not admit to exceeding the speed limit and believe..........................'

?

I'm just an honest chap - does it show too much?

I don't care if you have spoken with 'Bingham the duplicitous' himself, you are wrong. If the Crown lead it, it must have been disclosed or it is 'out'.

There are four distinct areas here :-
1) Evidence on which the prosecution will rely at trial.
2) Evidence which is unused
3) Evidence which may assist the defence or undermine the prosecution.
4) Evidence that the defence feel may realistically exist, and would support thier arguement.
=======================================
1) There is a 'common law' requirement to disclose ALL such evidence in adequate time for the defence to properly prepare. Failure so to do, will render it inadmissible at trial.

2) A list of unused evidence should be issued to the defence. Seldom done in traffic cases, and not fatal.

3) There is an ongoing duty for 'crown prosecutors' to continuously review this before and even throughout the trial it's self. And make disclosure if any evidence in thier possesion could qualify.

4) Now, to obtain evidence either 'unused' and in the possesion of the Crown. Or evidence not in the possesion of the Crown. A defence statement is essential. It must outline the potential proberty of the evidence in relation to a 'defence arguement' outlined in the statement. There must not be any fishing trips. As the RTA forms 'criminal' offences, the CPIA does apply once a defence statement is supplied ( In an indictable or either way trial it is compulsary to make one regardless), and sec 8 may then be invoked to force disclosure or a certificate that no such evidence exists.

I agree with you Chris.

There is no doubt that, for summary trial, a defence statement is voluntary.  Prosecution evidence for trial should be dislosed as a common law requirement (and in accordance with AG guidelines) and previously undisclosed material which might undermine the prosecution case must also be disclosed without request (or a statement made that no such material exists) (s.3 CPIA).

There is a small question in my mind whether the defence can make a voluntary defence statement in all circumstances.  S.6 CPIA applies where the prosecution has complied or purported to comply with s.3.  If the prosecution has not done so (in breach of s.3), does that prevent a defence statement?  It would be somewhat absurd if that was the case.


Sathya's comment is clearly incorrect in law, although I accept that the law may have been wrongly applied in his case.

The risk of making a defence statement to force disclosure is that it brings s.11 CPIA into play.  In my case, as I said, I would not want to take that risk.  My letter was designed simply to strengthen my complaint (if I have the opportunity to make it) about prosecution non-disclosure of evidence to be used at trial.

Mika's standard Disclosure letter starts with 'With regard to the above summons for an alleged speeding offence I believe that the police evidence may be inaccurate and would like to seek disclosure of the video (or photographic) evidence'.

Observer: Just in case you missed it, I am also fighting a Disclosure case. My own legal knowledge if nothing to shout about but there is some good advice on the string and as my case is due next Monday I'm hoping there might be some more soon...

disclosure. Not sure if this is  relevent.. If it is use it, if it's not sorry.
rgds Bill

Any wording in a defence statement will do providing you don't admit the offence and give the reasons or explanation why............

Initial hearing adjourned on not guilty plea.  PTR set for 18.4.05 which I am requested to attend.

As posted earlier, I sent the following letter in response to the summons.


or

(ii) sit tight and bring it up at trial to support submission that the operator's statement is inadmissible for want of disclosure of the exhibit.

Comments?

Hi Observer,

Have they provided instructions on how you can view the video pre trial?

Surely if they think that the Data Protection Act applies outside of court but during a prosecution process then it must also apply in court. The disclosure of the same "personal data" will take place in the court.

I think that if they have not provided you with instructions on where and  how the evidence can be viewed pre trial then the s9 statement is inadmissible. The video is also caught by s23 of the Road Traffic Act 1991 which amends s20 RTOA 1988.


FWIW in my untested opinion I think that you have put yourself in a very strong position having made the statement and request that you did in your letter. They cannot shout ambush because you have given them fair warning. I think that you Data Protection argument might be used as part of your objection at your trial. In this way "The Crown gave a false and misleading reason for why I could not view the documentary evidence in the video tape, - I should like to quote (insert your Data Protection quote)."

I think it will also help your attempts to resist an adjournment as well. You did give them fair warning and they are the architects of their own misfortune, by deliberately misleading you and trying to prevent your right to a fair trial by refusing evidence which you have a right to the prosecution have prejudiced your case. Now, having said that you are going to need a bit of look to pull it off in the Mags court.

Best wishes

Bob

PS I know that you already know all the stuff I've said above, I'm just putting what I think into words. If it helps you to make a decision I just hope its the right one.

Thanks for taking the trouble to make such a full response.  I had not cottoned on to the s.23 angle so I'm grateful for the reminder.  My instinct was to sit tight and I think you've confirmed it's the right one.

And no, they haven't provided "such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof" so they can't escape that way.

Data Protection Act ... red herring IMHO
http://www.informationcommissioner.gov.uk/...20Fact%20V2.pdf

Look under 'Sensitive data'.

I have added an account on the first post of this thread of my PTR which was held today.

Hi Observer,

Well done and can we all come to your trial, or would you rather it were kept low key?

I'd prefer not to give the impression that I'm orchestrating a circus show but would be very happy to see a couple of supporters from BB&G and a volunteer to be a McKenzie friend.

Hi Observer,

Don't forget that getting ECHR judgements is covered by the HRA 1998 and that states that they are adnitted as evidence in a manner provided by the rules of court.



Since you are planning a technical defence it would be a shame to have one of your aces excluded for a technical reason. From what you said re your PTR you have disclosed that your argument includes HRA and ECHR judgements. Therefore the one thing that they are able to prepare as a little surprise for you is an attack on the admission of the evidence of those judgements.

I've had a read of the Magistrates Courts Rules and I can't see on which is directly applicable. Someone else might be able to give you better advice but in my case I have served on the court and prosecution all of the judgements that I intend to rely on in my trial. I've also given them a skeleton argument but understand why you might not want to do this.

Best wishes

Bob

Bob,

Thanks for the reminder.  I covered this with the clerk who confirmed I should send copies of the authorities I will be using to the court and CPS.

And by the way. Very well done for standing your ground!

Good luck

Bob

Observer, did you not consider raising the disclosure issue in front of the bench?
It would have been amusing to hear thier reaction to the Attorney General's binding Guidelines on disclosure by public prosecutors?

I did consider it but thought I may have more fun at trial when I read from the CPS's own website and



from s.20 RTA.

Observer well done so far, but is there a reason you said you would be willing to give evidence? I wouldn't have...... and will you be adding the latest AG guideline ' we're not to give out video's cos it costs too much'?

Jimmy,

Ooops.  Rearrange these words - "foot myself the I've in shot".  Actually - no I haven't.  What I said was "I'll be available to give evidence if called".

I don't plan on calling myself.