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gaz_whitty
Apparently I was caught speeding doing 81mph on a 70mph dual carriagway. The first I heard of this was when I received a Court Summons through the door stating that I am being charged with:

1. The intial speeding offence
2. S172 Failure to give driver details.

The only problem is, is that I have not received any NIP for the above offence through the post. The offence was dated 26-06-08 and this states that an NIP was sent out to me within the 14 day period. There was no copy of the original NIP in the papers filed to the court. Had I received this NIP I would have filled in this form and sent it off, receiving 3 penalty points and £60 fine.

I have filled out the original court forms and pleaded guilty for speeding as I am the only person registered and insured for the car (Thought that this would be the easiest and cheapest way out) I pleaded Not Guilty to the S172 Failure To Give Driver Details as I have never received this form to declare that I was the driver and I was speeding. I am also going to get my partner to create and sign a statment to say that not NIP has been recieved at the address is this a good idea? I thought that this would help in my credability to the court. I also want to make a Statutory Declaration to the court again to show the courts that I have not received any NIP. What do you think guys?

I received a letter this morning and now the local magistrates are stating "They are conisdering disqualification"!! I have spoken with the DVLA and they have informed me that my licence is currently clean.

I need help guys in succesfully defending myself at court and getting the S172 dropped, any tips or guidance will be gratefully recieved. My court hearing is 16-02-09.
cabbyman
1. If it's not too late, DO NOT send anything back to the court yet before others have had a chance to respond to your post.

2. What is the date of information laid on the summons?
Fedup
When did you receive the summons? What is the date on it? Look carefully...

In simple terms, you CANNOT be convicted (or charged) with speeding AND "failing to furnish" (s172). The two are mutually exclusive. This is simply because you either:-

a) gave details of who was driving, so a prosecution can be brought against that person for the speeding offence

or

b) You didn't give the details of who was driving. This would mean that there was no evidence of who was driving and so a speeding allegation can't be brought. However, the s172 requirements would not have been met (on the face of it).

In your case, if you can provide credible evidence that the initial NIP (and all subsequent NIPs) were not served (received) then you might be in the clear for both offences. However if there are reasons why the NIPs weren't received, such as you moving house and not changing vehicle registration details then the non-receipt of the NIP will, IMHO, be moot.
Fredd
QUOTE (Fedup @ Thu, 5 Feb 2009 - 19:46) *
In simple terms, you CANNOT be convicted (or charged) with speeding AND "failing to furnish" (s172). The two are mutually exclusive.

This is one of those occasions when the OP could be convicted of both if they aren't careful - pleading guilty to the speeding, and having failed to respond to the s172 request in time. Not just, but they aren't mutually exclusive.
andy_foster
Please visit the READ ME FIRST section (Click Here), answer all the questions in the NIP Wizard (including the detailed questions reached by clicking on the Additional Questions button on the second page), and the Wizard will then post its output back here to enable us to help you.

Have you returned the plea forms? Is the hearing date the date on the summons (when you usually do not have to attend if you plead by post), or is this a subsequent hearing?

Are you aware of any issues with post not being delivered?
gaz_whitty
I've already sent off the courts summons as this needed to be responded to by 23rd Jan 09

The original court summons date was 17 Dec 08

QUOTE (Fredd @ Thu, 5 Feb 2009 - 20:22) *
QUOTE (Fedup @ Thu, 5 Feb 2009 - 19:46) *
In simple terms, you CANNOT be convicted (or charged) with speeding AND "failing to furnish" (s172). The two are mutually exclusive.

This is one of those occasions when the OP could be convicted of both if they aren't careful - pleading guilty to the speeding, and having failed to respond to the s172 request in time. Not just, but they aren't mutually exclusive.


Yes but had I recieved the NIP I would have held my hands up and filled it in receiving 3 points and £60 fine

The NIP Wizard is of no help in my situation as soon as I say no to the very first question all it says is hang fire...

I was wondering because I have already pleaded Guilty to the speeding, would the court drop the S172 charge?

Would a written statment off my partner declaring to the best of her knowledge no NIP was received as this is the only adult living with myself?

Would making a Statutory Declaration on the day of the hearing help get the S172 dropped?
davepoth
As it currently stands, you have not even seen the NIP that the police purport to have sent you. You will not see that unless you plead not guilty to at least one of the charges. IMO you should plead not guilty to both to buy some time until you have seen the NIP.

The situation is this. For the court to convict you of speeding, they must have the NIP filled in with your name on it. They cannot have that, so you cannot be convicted of speeding, unless you plead guilty.

Since the NIP didn't exist, or if it did it wasn't served, the S.172 charge cannot proceed either. However, if you plead guilty to the speeding charge the fact that there is no NIP works against you and there is a chance that the S.172 charge will succeed too.

I suggest writing to the court and requesting to change your plea to Not Guilty for the Speeding, based in part upon Hatton v Devon & Cornwall Police (http://www.bailii.org/ew/cases/EWHC/Admin/2008/209.html).



gaz_whitty
After speaking with the CPS they said in most cases if I plead guilty to speeding the S172 gets dropped....i don't know what truth there is in that...

Surely if they find my guilty on both (Don't know how they would as yet) these offences will only carry a maximum penalty of 9 points? So why suggest on "Notice of new hearing date" letter that they are considering disqualification?

Quote - I suggest writing to the court and requesting to change your plea to Not Guilty for the Speeding, based in part upon Hatton v Devon & Cornwall Police (http://www.bailii.org/ew/cases/EWHC/Admin/2008/209.html) - Quote

Won't the above then look bad on me if I change my plea?
andy_foster
The NIP Wizard provides automated 'advice' and, if you post the output onto this thread, tells us certain things that may or may not be relevant to the case - basically, it often enables us to provide better advice without resorting to guesswork and/or pulling teeth asking separately for every 'missing' piece of information.

Generally, when dual charges are laid, they are (improperly) treated as alternative charges - in most cases, if you cough to one, the CPS will drop the other.
N.B. Whilst the distinction between the impartial court and the prosecution might seem to be somewhat theoretical, the court cannot 'decide' to drop the other charge - if the CPS does not drop it, it goes to trial.

The stock advice to those considering coughing to the speeding in such circumstances is to get the CPS to (conditionally) agree to drop the other charge before you enter the plea, rather than after you have given away your bargaining tool, but in the vast majority of cases, it is CPS policy, rather than the defendant's negotiating skills that results in the s. 172 being dropped.

A lot of notices sent by the court are pro forma and clearly haven't been read by anyone with 2 brain cells to rub together.
Subject to the alleged speed not warranting consideration of a ban, most likely someone saw that a subsequent hearing had been scheduled after a guilty plea had been entered and assumed that that was for sentencing - the court will usually convict you in your absence after a guilty plea, but if the circumstances (speed) warrant consideration of a ban, they will require you to attend for sentencing, partly so that you can explain why they should not ban you, and partly so that if they do ban you, you will be aware that you have been banned.

If the speed was within the COFP guidelines (up to 49 in a 30, up to 25 over any higher limit), then it might be worth explaining that you understand that had you received the notice, etc. you would normally have been offered a COFP, and respectfully inviting the court to consider applying an equivalent penalty.
gaz_whitty
So what advice would anyone give to me now if you were facing the same charges?
andy_foster
Please visit the READ ME FIRST section (Click Here), answer all the questions in the NIP Wizard (including the detailed questions reached by clicking on the Additional Questions button on the second page), and the Wizard will then post its output back here to enable us to help you.
gaz_whitty
NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - June 2008
Date of the NIP: - 8 days after the offence
Date you received the NIP: - 15 days after the offence
Location of offence (exact location as it appears on the NIP: important): - A467 DANYCRAIG RISCA
Was the NIP addressed to you? - Yes
Was the NIP sent by first class post, second class or recorded delivery? - Not known
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 - Mobile Speed Camera was on opposite side of the road, the camera must have caught the back end of the car. I was traveling away from the camera on a dual carriageway.

NIP was never received by myself - How do I respond to a NIP not knowing I had one?


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? - Unsure
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? - Yes
Which country did the alleged offence take place in? - Wales

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:
  • The law requires you to provide the information requested in the Section 172 notice within the 28 day period, naming yourself as the driver. If you are considering obtaining formal legal advice, do so before returning the notice.

    You should note that there is nothing to be gained by responding any earlier than you have to at any stage of the process. You are likely to receive a Conditional Offer of a Fixed Penalty (COFP) and further reminder(s). If you want to continue the fight, you should ignore all correspondence from the police until you receive a summons. You need to understand from the outset that while you will receive much help and support from members on the forums, you will need to put time and effort into fighting your case and ultimately be prepared to stand up in court to defend yourself.

Generated by the PePiPoo NIP Wizard v3.3.2: Thu, 05 Feb 2009 23:10:27 +0000
andy_foster
AFAIK, Gwent are the only force that do not routinely issue 'reminders' after the original notice is not responded to in time - which explains why you did not receive a reminder after not receiving the NIP.

One letter going missing is plausible. A NIP and a reminder both going missing would imply that there is an issue either at the source, the target, or in between.
gaz_whitty
I would now like advice on the following:

1. Judging by what you have read up until now, what should I do before the court hearing?
2. Do I need to write to the court and change my speeding plea to Not Guilty?
3. By doing the above how is it going to effect me at court?
4. I cannot afford to hire a solicitor as they are really expensive.
5. Will a statment off my partner signed to say that no NIP has ever been received help my case?
6. Would a Statutory Declaration again help my case?
7. When I got some free advice yesterday off a solicitor (over the phone), he said why would a person with a clean driving licence run the risk of racking up 9pts and possible disqualification?
8. How am I going to defend myself at court and get the best possible outcome?
9. Has anyone got or know of anywhere where I can get a template letter to write to the court to change my plea and when the hearing date comes to have a statment ready to say to the judge at court?
andy_foster
What does the notice of your new hearing date say?

QUOTE (gaz_whitty @ Fri, 6 Feb 2009 - 08:32) *
I would now like advice on the following:

1. Judging by what you have read up until now, what should I do before the court hearing?
2. Do I need to write to the court and change my speeding plea to Not Guilty?
3. By doing the above how is it going to effect me at court?
4. I cannot afford to hire a solicitor as they are really expensive.
5. Will a statment off my partner signed to say that no NIP has ever been received help my case?
6. Would a Statutory Declaration again help my case?
7. When I got some free advice yesterday off a solicitor (over the phone), he said why would a person with a clean driving licence run the risk of racking up 9pts and possible disqualification?
8. How am I going to defend myself at court and get the best possible outcome?
9. Has anyone got or know of anywhere where I can get a template letter to write to the court to change my plea and when the hearing date comes to have a statment ready to say to the judge at court?


1. Probably wouldn't hurt to phone the court a confirm the status of both charges - i.e. have you been convicted/sentenced for the speeding, is the s. 172 still live. Subject to that, it may also be worth having a chat with the CPS and seeing if they intend to continue with the s. 172 as you have coughed to the speeding.

2. You do not need to do that. If you have been convicted, I'm not sure that you can vacate your plea without grounds for doing so.

3. If the intention of coughing to the speeding was either for credibility in the s. 172 matter, or in the hope that by coughing to one, they'd drop the other, vacating the guilty plea to the speeding charge is not going to achieve those aims.

4. Was there a question?

5. Can't see how it could hurt.

6. SD as to what? AFAIK you cannot make a statutory declaration that you did not receive a NIP - there does not appear to be any statute that allows or requires such a declaration. I assume that you are confusing this with an SD for non receipt of a summons?

7. see 4

8. Depends what charges you are defending.
gaz_whitty
1. I did ring the CPS yesterday and they said that both charges will still be heard at the magistrates - I also asked the question as to why the S172 still standed, my response was "Becuase it is up to the judge to drop a charge, we do not have the authority to do so"

2. I don't beleive that I have been convicted of this offence as yet.

3. What would you suggest I do, leave everything as it is and wait for the hearing?

4. No Sorry...

5. Would this help my credability for the S172?

6. Is that what it means? I read on another forum a guy was pretty much in the same position as me but only getting charged for the S172 he got a summons but wrote a letter to court and made a Statutory Declaration under Oath to say that he received No NIP's, his case got dropped?

7. Should this question be raised at the hearing?

8. At the moment it's both charges...
davepoth
I had a fun time at the hands of Gwent a year or so ago, dual charges, and got off both. Gwent are worst in the country at this, they're absolute scum (Ms. McCarthy, if you're reading this, hi!), and would tell the court the sky was green if it meant winning a case.

Check out the link in my signature to see all the fun and games I got up to.

You will get railroaded into a guilty for both charges unless you fight them all the way. You cannot be convicted of both; the case I posted shows that. I would reccommend joining BB&G to have a look at Middleton v Bath which also is very useful in this situation.

The court will entertain a change to a NG plea provided you can prove there's a good reason for it. I believe that finding out that the CPS' entire case is an abuse of process is a pretty damn good reason.
The Rookie
I disagree with Dave completely, neither of those cases prevent you being convicted for both unless you had responded as both (or at least in a similar manner) those gentlemen did, giving such advice is just plain wrong. In both cases they ID'd the driver via a method the scammers didn't 'like', so summonsed for S172 on tha basis of a 'wrong' responce BUT also for speeding using that 'wrong' responce (so its not acceptable and it is acceptable!), if no responce is sent, or its late, then these cases are about as relevant as a plate of blue Stilton to those scenarios.

In your case I would retract the guilty plea to speeding as it won't be entered until the first hearing date, and fight them both, non responce due to lack of a served S172 request and no prosecution for speeding due to no NIP.

Simon
gaz_whitty
I need to compile a letter to the CPS retracting my Guilty plea to speeding, can anyone help me with this (Never done this before) Can I also state on the letter that becuase I have received no NIP, I could not ask for video/photgraphic evidence to help identify the driver?

Also can anyone help me compile a defence against both charges before the hearing date which is 16-02-09.

Any help will be gratefully received.
southpaw82
The letter will be to the court, not the CPS.
gaz_whitty
Sorry the court...
The Rookie
Write a letter to the court.

You were unable to ID the driver as you were never asked, don't cloud it with other unable to ID reasonas as they are relevant.

For S172 to stick they have to show you did not respond to a served S172 request, if your evidence is credable and they accept no service then no responce is required, the fact that "Bent" scammers are tight wads who don't send reminders only helps your case, 2% of first class post goes missing, you are one of that 2%, penalising you for that is an error in law and to natural justice.

Simon
gaz_whitty
Would this body of a letter surfice to send to the court:

I wish to change my plea for speeding to Not Guilty on the grounds of I am unable ID the driver as I was never asked i.e no NIP received.
The only reason why I pleaded Guilty to speeding was after advice from the CPS stating that if I did so the other charge would be dropped.

Would this be ok? If not can somone please post a relevant response, I want to send a letter to them on Monday (Recorded Delivery)
gaz_whitty
Any news for me guys?
sputnik365
QUOTE
no NIP received

s172 request?
gaz_whitty
Ok...

Would this body of a letter surfice to send to the court:

I wish to change my plea for speeding to Not Guilty on the grounds of I am unable ID the driver as I was never asked i.e no NIP or S172 notice received.
The only reason why I pleaded Guilty to speeding was after advice from the CPS stating that if I did so the other charge would be dropped.

Would this be ok? If not can somone please post a relevant response, I want to send a letter to them on Monday (Recorded Delivery)

andy_foster
QUOTE (gaz_whitty @ Fri, 6 Feb 2009 - 13:10) *
Would this body of a letter surfice to send to the court:

I wish to change my plea for speeding to Not Guilty on the grounds of I am unable ID the driver as I was never asked i.e no NIP received.
The only reason why I pleaded Guilty to speeding was after advice from the CPS stating that if I did so the other charge would be dropped.

Would this be ok? If not can somone please post a relevant response, I want to send a letter to them on Monday (Recorded Delivery)


Personally, I don't like it.
What you are saying is not strictly true - you are able to identify the driver. Being unable to provide the driver's details previously due to not having received the NIP (s. 172 notice) is pretty much the defence to the s. 172 charge (technically, it's lack of service, rather than inability - but the same root cause and evidential burden).
Your 'defences' to the speeding would be to let the prosecution try to prove who was driving, and giving credible evidence that the NIP was not served.

If the CPS has advised you that if you coughed to the speeding, they would drop the s. 172, and they reneged on that, that would clearly be good grounds to vacate a plea that had already been entered. However, if your plea has not been entered/accepted, it would seem to be open to you to vacate it without reason.
fatboytim
As Andy says it would not only be a reason to vacate the plea but is/could be an Abuse of Process, as you have recieved an undertaking or representation that you will not be prosecuted for that offence.

from http://www.wikicrimeline.co.uk/index.php?t..._process_page_6

QUOTE
1.“Expectation” type of cases based upon representations/promises made by prosecution authorities/officers:

(a)Chu Piu-Wing v. Attorney General (1984) HKLR 411—The Court of Appeal in Hong Kong allowed an appeal against a conviction for contempt of court for refusing to obey a subpoena on the ground that the witness was assured by the Independent Commission Against Corruption that he would not be required to give evidence.

McMullin V.P. stated, at 417-418, that: “there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain”, (cited with approval by Lord Griffiths in Bennett [1994] A.C. at 61E) (see also Australian State Supreme Court decision in Miles and Green (1983) 33 SASAR 498);

(b) Att.-Gen. of Trinidad and Tobago v. Phillip [1994] 3 WLR 1134—The Privy Council decided that the reprosecution of offenders, after a pardon had been granted and an order of habeas corpus made, was an abuse of process and stayed proceedings, even though the initial pardon may have been invalid. It was the expectation aroused in the offenders by the pardon that lead to the unfairness;

© R. v. Croydon J.J., ex p. Dean (1994) 98 Cr. App. R. 76 DC—The prosecution reneged on its promise that a 17-year-old boy would not be prosecuted if he assisted the police. Proceedings were instigated despite implied representations by the police that he was viewed solely as a witness.

Staughton L.J. at 206, stated that “the prosecution of a person who has received a promise, undertaking or representation from police that he will not be prosecuted is capable of being an abuse of process”. The promisor need not act in bad faith nor have the authority to make such a promise;


(d) R. v. Robert Thomas [1995] Crim. L.R. 938—The defendant was charged with three offences, namely affray, wounding contrary to section 18 of the Offences Against the Person Act 1861 and actual bodily harm.By letter, the CPS stated that a plea to section 20 of the Offences Against the Person Act was acceptable. Accordingly, when arraigned, the defendant pleaded guilty to section 20.Having pleaded guilty, counsel for the Crown told the court that the plea was not acceptable and sought to continue proceedings under section 18. The trial was stayed on the basis that officials of the state were bound by promises they had made. The defendant had made a damaging admission in reliance on the representation that he would not be prosecuted for the more serious offence (contrast R. v. Hobbs, 27 April 1998, CA,No. 97/6508/Y2);

(e) Postermobile PLC v. Brent L.B.C., The Times, 8 December 1997—The QBD quashed convictions for displaying advertisements contrary to planning regulations. The appellants had been told by local authority officers that planning consents were not required. Although there was no promise not to prosecute, Lord Justice Schiemann considered the appellants were correct in relying on the advice if the officers, as the expression of opinion, clearly informed the appellants that they could proceed without planning consents. It was important that the citizen should be able to rely upon the statements of public officials;

(f) R. v. Bloomfield [1997] 1 Cr. App. R. 135—Prosecution counsel at a plea and directions hearing indicated to defence counsel that the Crown wished to offer no evidence because the prosecution accepted that the defendant had been “set-up”. The case was adjourned to allow the prosecution to offer no evidence at a subsequent pre-trial hearing. The Crown Prosecution Service then informed the defence solicitors that the Crown intended to continue the prosecution. At trial, an application to stay the proceedings as an abuse of process failed and the defendant pleaded guilty. The Court of Appeal quashed the conviction on two grounds:

i. the decision by the prosecution to continue proceedings would bring the administration of justice into disrepute, as no reason was given for their change of stance; and
ii. neither the court nor the defendant could be expected to inquire whether prosecuting counsel had authority to conduct a case in court in any particular way and they were therefore entitled to assume in ordinary circumstances that counsel did have such authority (R. v. Croydon ex p. Dean applied). See also R. v. Horseferry Road Magistrates Court ex. P. DPP (1999) Archbold News 7, QBD, CO/3832/98, 8 March 1999 and Justice Wright’s judgement in R v (S)C ,CA, 7 June 2001, no.99/4926/W3;


I am not an expert or a qualified lawyer, but this section came to mind as I was reading it recently for my own purposes.
Others may have a better understanding of the AoP procedures, it's a bit of a minefield, and would if sucessful probably only stay the s.172 proceedings IMHO.

fatboytim
davepoth
The trick here is that if the S.172 charges are stayed, the CPS don't know who the driver is (no filled in NIP) so that would be a pretty ideal outcome. biggrin.gif
mazdaman
I would be inclined to attend court early on the day and attempt to resolve the situation with the CPS but if it becomes clear that they are not dropping the s172 then prepare yourself for a long battle. The worse outcome would be a fight to the finish on the s172 ( the speeding will be dropped prior to trial usually ) - sometimes this can be an enjoyable experience and sometimes not.

If as you say you never received the s172 notice, get your partner to attend the trial ( s172 ) and swear on oath along with yourself and hope like me that you have a district judge that is impartial. Any other evidence that backs up the fact that mail has gone astray at your address is beneficial to your defence.

At the moment you have not reached the pre-trial review stage so you will need time to sit down and read the prosecution statements and decide whether you want to cross examine any witnesses. The less you say to them the better but I would use the words " Abuse of Process " and Hatton as this seems to bring the CPS back down to earth and off their high horse !
gaz_whitty
Would this body of a letter surfice to send to the court:

I wish to change my plea for speeding to Not Guilty on the grounds of, Being unable to provide the driver's details previously due to not having received the NIP (s. 172 notice).
The only reason why I pleaded Guilty to speeding was after advice from the CPS stating that if I did so the S172 charge would be dropped.

Is this letter ok to send to the court?

gaz_whitty
I'm due to appear at court for my first hearing on 16th Feb 09 can anyone advise me on what to say or compile a defence to take with me to get the best possible outcome?

I need to know where to find a Middleton V Bath or Hatten cases to have a read through...

Any help will be graefully received...
nemo
QUOTE (gaz_whitty @ Sun, 8 Feb 2009 - 16:45) *
I need to know where to find a Middleton V Bath or Hatten cases to have a read through...

Hatton is available on bailii.

Middleton v Bath can be found in the member's section of this website..
gaz_whitty
Why is the Middlelton V Bath case only open to subcribed users?
nemo
QUOTE (gaz_whitty @ Sun, 8 Feb 2009 - 20:00) *
Why is the Middlelton V Bath case only open to subcribed users?

One good reason is that it was subscriber donations which paid for the transcript from the RCJ.. wink.gif
gaz_whitty
Hi Guys & Girls

I am going to send the following letter to the magistrates tomorrow:

Dear Sir/Madam

I wish to change my plea for speeding to Not Guilty on the grounds of, being unable to provide the driver's details previously, due to not having received the original of the Notice of Intended Prosecution (s. 172 notice) and also based in part upon Hatton v Devon & Cornwall Police.

The only reason why I pleaded Guilty to speeding was after advice from Magistrates Court, stating that if I did so the S172 charge would be dropped.

Can anyone comment to let me know if this letter sounds ok? If not can you let me know what needs changing?

Thanks in advance
davepoth
Take out the "the only reason" paragraph, since it's not what happened according to your first post.

The fact that you never received a NIP is irrelevant at this point. All you want to do is to get both charges back on the table, and Hatton introduced by way of an abuse of process.

I would go with

QUOTE
Case No. xxxxxxx

Dear sir/madam

I wish to change my plea for the charge of (speeding as it's written on the summons) to NOT GUILTY. After making my plea I was made aware of the fact that the "dual charging" of both speeding and failure to supply information under S.172 2 (a) is an abuse of process. I have enclosed a copy of Hatton v Devon & Cornwall Constabulary, in which Mr. Justice Collins held that the position of the CPS when attempting to prosecute both charges was "absurd".

As this new information completely changes the situation of my case, I would be most grateful if you could amend my plea to NOT GUILTY.

Yours Faithfully


It would be better if you could get the name of the legal advisor (or justice clerk) dealing with your case, and address it to them directly. Send it by special delivery, and follow it up by phone calls as soon as you know it's been received.
gaz_whitty
Hi davepoth

Thankyou very much for your help, I am going to send the above letter off today and I will ring them in the next couple of days...
gaz_whitty
Hi davepoth

Thankyou for helping me compile a letter...

Could you help me in getting my defence ready, I don't fancy going to court not knowing what to say and looking like an idiot and getting disqualified...

Thanks in advance
gaz_whitty
Letter has now been sent will kep an eye on for a signature, will then ring them to find out if they have seen the letter...

I will need help though with getting a defence together...

Any help will be grately appreciated...
davepoth
QUOTE (gaz_whitty @ Mon, 9 Feb 2009 - 10:07) *
Hi davepoth

Thankyou for helping me compile a letter...

Could you help me in getting my defence ready, I don't fancy going to court not knowing what to say and looking like an idiot and getting disqualified...

Thanks in advance



Strictly speaking, Hatton is a bit of a "slam-dunk"; that is, it clearly states that the CPS have been naughty by charging for both offences at the same time. Have a really good read of it, because you need to understand exactly why that's what has been said.

The CPS will then be forced to drop one of the charges, leaving you to defend against only one; I would think the likelyhood is that they will drop the speeding as they would have to be monumentally stupid to do otherwise (Ms. McCarthy, are you still reading?biggrin.gif)

When I was trying to get them to drop the charge I sought to call as a witness the CPS caseworker who made the decision to charge for both offences. I did this becuase the CPS have a Code, which is legally binding. It states that they must have enough evidence to provide a reasonable prospect of conviction to lay an information. In the case of the speeding charge the only way that they could have that information is from a S.172 response having been received.

We know that this is not the case, so one of two things must have happened. Either the CPS didn't bother to read your case file before laying the information for the summons (gross negligence) or they read the file, realised a crucial piece of evidence was missing, and proceeded anyway in the hope that you would plead guilty. (this is malefeasance which is very naughty.)

All the letters I used as well as the abuse of process arguments are in my thread, which is linked in my signature. Happy reading! I'll clear my PM inbox in case you want to ask any questions.

andy_foster
For speeding, the information is laid by the police, not the CPS.
AFAIK, for s. 172 the policy varies from force to force.

In Hatton the practice of charging the accused with failing to furnish when he had furnished a signed (and therefore admissible) s. 172 response admitting to being the driver was deemed to be 'absurd' - which if it had gone to a full JR would have equated to 'unlawful'.
This was not because the 2 charges are mutually exclusive - they're not - but because the s. 172 charge was in itself 'absurd' - the prosecution's own evidence proved that Mr Hatton had complied with the requirement.

Dual charging when no s. 172 response naming the driver has been received can be various things. It can be a 'nicety' - allowing the accused to cough to the lesser speeding charge, or it can be an improper means of coercion - either requiring the accused to give evidence against himself for the speeding charge (whilst defending the s. 172), or just 'raising the stakes' - a potential 9 points if you don't accept their offer of a plea bargain.
davepoth
QUOTE (andy_foster @ Mon, 9 Feb 2009 - 22:32) *
For speeding, the information is laid by the police, not the CPS.
AFAIK, for s. 172 the policy varies from force to force.

In Hatton the practice of charging the accused with failing to furnish when he had furnished a signed (and therefore admissible) s. 172 response admitting to being the driver was deemed to be 'absurd' - which if it had gone to a full JR would have equated to 'unlawful'.
This was not because the 2 charges are mutually exclusive - they're not - but because the s. 172 charge was in itself 'absurd' - the prosecution's own evidence proved that Mr Hatton had complied with the requirement.

Dual charging when no s. 172 response naming the driver has been received can be various things. It can be a 'nicety' - allowing the accused to cough to the lesser speeding charge, or it can be an improper means of coercion - either requiring the accused to give evidence against himself for the speeding charge (whilst defending the s. 172), or just 'raising the stakes' - a potential 9 points if you don't accept their offer of a plea bargain.


I confused my information and my summons above I think, but certainly when I had my case in Gwent the CPS were responsible for the decision to summons for both charges. That's why they caved in. biggrin.gif
gaz_whitty
I'm after some advice, my letter has now been sent to the magistrates court:

1. Shall I ring them to see if any of the charges are dropped?
2. How does the court process work?
3. I have a hearing on Monday, what should I expect them to say or do?
4. Have the local magistrates got the powers to drop charges etc?
5. The last letter I received from the local magistrates stated that they are considering disqualification, after speaking with the admin clerk in the local magistrates she insisted not to drive as if they do impose a disqual then will be effective immediatly, can the local magistrates do this?

Any answers are welcomed

Thanks in advance....
davepoth
1. Absolutely no point doing this, as the CPS won't have seen your letter.
2. If this is the first hearing, it's unlikely that they will ask you for anything other than your pleas. It should be heard by a clerk to the justice rather than the magistrates, but it would be a good idea to have 6 copies of Hatton (one for you, one for the CPS, one for the clerk and one for each of the three magistrates) just in case they decide to use them.
3. Make sure you have your defence written down in the form of a defence skeleton argument. There are plenty of examples of these around the forum, and I think one or two in my thread. This will be useful in case the court decides to "push forwards" with your case, which is not unknown.
4. The magistrates do not decide on which charges to hear, they just decide on the verdict. Charge dropping is down to the CPS.
5. The magistrates can impose a ban, or can give you 12 points which could result in a "totting up" ban.
gaz_whitty
1. How/When will the CPS get to see the letter?
2. Yes this is the very first hearing...Is it also worth having copies of the change of plea letter?
3. This is what I need help with, I have no idea where to start with the defence at the moment...
4. Ok, so how do I get to speak to the CPS about charge dropping, will there be any CPS rep at the magistrates?
5. If I have pleaded Not Guilty to both charges, won't the hearing need to be adjourned again for a trial?
gaz_whitty
Any answers for me?
mazdaman
Your aim is to get the case adjourned for a pre-trial review whilst at the same time look to see if the Prosecution are willing to plea bargain concerning dropping the S172.

Get to court early and try and catch the prosecution before your case gets heard. If they do not want to entertain any plea bargaining then you have no option but to insist that it is an abuse of process to dual charge you and be insistant that you wish to stand trial on a not guilty plea on both charges.

take copies of the letter with you (3) just in case its needed to assist you. The case is likely to get adjourned twice before trial so you should have plenty of time to prepare a defence to what will probably be a s172 trial with the speeding dropped.
davepoth
I wouldn't be interested in plea bargaining; the CPS know it's an abuse of process so you shouldn't have to plead guilty to anything to get rid of one of the charges.
gaz_whitty
Can anyone help me in creating a skeleton defence? I currently presuming that they will be carring on with both charges so I will need to come up with a defence for both.

I can start with telling the court that this is infact an abuse of process, what paragraph can I refer the court to, to point out this using the Hatten case?

If they do drop any of the charges and I get charged with either or, do you have to pay a fine there and then or do you have 28days to pay up? After speaking with the Magistrates they told me 28days but I don't know whether to believe them or not?
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