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sueg
My husband received a NIP (doing 36mph in a 30mph area) on Jan 19th 2009. The offence took place on Dec 12th 2008. The thing is that 1) it wasn't my husband driving - he was at work and can prove it 2)the driver was either me or my son but it happened so long ago, we can't remember who it was and 3)the car was a hire car (ours was in the garage after a shunt).
The first thing I thought was that the 14 day limit had expired. I called the garage who told me they assumed they were the registered keepers and that they had had the NIP on 13th Jan (also past the sell-by date). We called Safecam to check and after a couple of calls, they told us that they had sent several NIPs, the first being within the 14 day limit. So question 1 - can I ask them for proof?
The next thing is that we genuinely can't remember who was driving. The offence took place in the road we live in so that was no help. I asked for photos which arrived but were fuzzy and taken from the back - so no help there. In fact it should have been easy because I'm 5ft 4 and my son is 6ft 6 - but I have the seat at its highest and he has the seat at its lowest and there are head restraints in the way. We even took pics in our own car to prove that its not easy to tell (we didn't send these when we returned the NIP). Neither of us had any appointments that morning so we have nothing to jog our memories. Anyway, we contacted Safecam several times because we didn't know what to do. I have 3 points on my licence already and my son has none so either of us could have taken the hit (we'd have gone for the speed awareness course - in fact I would have made my son take the rap for that reason) but it didn't seem fair to flip a coin to decide and anyway, we were warned several times (in emails) that nominating the wrong person could be perverting the course of justice. Talk about being caught between a rock and a hard place! So, my husband sent the NIP back (signed and dated) with a letter saying he couldn't identify which one of us was driving and what he'd done to try (as above but without the pics). We got an immediate reply saying he was going to be summonsed for failing to supply the details of the driver and lots of nasty things would happen to him unless he could satisfy the court that he'd taken all reasonable steps etc.. But what other reasonable steps are there??
The case is going to be heard at Bath and I'm handling the details. I intend to turn up on his behalf even though Safecam says he can just write a letter. But I've never been to court before. I've read many posts and it seems very complicated. And where does the CPS get involved? Will I hear from them? Do I send evidence to them (like the pics we took of me and my son in the car)? I don't want to pay for a solicitor - I might as well have paid the fine!! I'm just so cross that it seems like gross laziness and bullying on behalf of the police ie "give us a speeding conviction or we'll get you for something else - and it'll be a lot worse than if you just admit to speeding". Am I mad to think that justice might prevail over the "blah, blah, blah" of twisted legal sentences?
Enitor
Seems like we have much the same issue - so have a look at my thread (posted within 2 mins of yours - scary!) "Reasonable Dilligence" as some answers in there may be relevent for you too.
andy_foster
Has he provided the details of the possible drivers, and an explanation of the circumstances? If so, this should be relatively simple.

How long did he have the hire car for?
There does not appear to be an authoritative legal definition of the person keeping the vehicle, but if he had the car for longer than a couple of days, it would probably be difficult to argue that he wasn't the person keeping the vehicle.

The reasonable diligence test (assuming that he is the PKV) is that he must prove that he could not with reasonable diligence determine who was driving. If he was one of the possible drivers, this could be quite involved as there might be many things that might suggest whether or not he was driving at the time.

He has been summoned, not you, so it is unlikely that you will be allowed to represent him. However, the first hearing will just be for a plea to be entered, which can be done by post. [N.B. for the benefit of those that can't be bothered to read before posting, the OP has not received a summons yet]

The CPS usually become involved when a plea of not guilty has been entered. If/when you receive a summons, you will usually have the CPS' details for objecting to s. 9 statements served with the summons.

You don't have to disclose evidence if it is being presented by a live witness (as opposed to as witness statement), although it can sometimes be a good idea.


BTW, perverting the course of justice would involve wilfully and knowingly naming the wrong person. If you were to recklessly guess at which of the possible drivers was actually driving, that would not be perverting (or s.5 Perjury).
sueg
Thanks for the advice so far. My husband sent a reply with the signed NIP (he filled in the "I was not the driver" bit but did not fill in a name - he wrote "please see attached letter"). This is the relevant part of the letter he wrote (I have removed personal details as advised by the moderators)
:
I understand that the NIP clearly states that if I am not the driver then it is my legal responsibility to say who was. I accept this but I am completely unable to say. I can tell you that there are two other people who might have been the driver at that time: my wife, X or my son, Y. Both of them are named on the rental agreement and both of them accept that they might have been the driver. Unfortunately, it took so long for the NIP to find me (over a month) that neither can remember who was driving it at the time. Neither of them had any appointments that day which might help to jog their memory.



We looked at the location of the alleged incident in the hope that that might indicate who was the driver but it took place in Z Road which, as you see, is where we live so that wasn’t any help.



Then I requested and was sent photographic evidence but the photograph was taken from the back and from a distance and it’s dark and a bit fuzzy. It’s not possible to see the face of the driver of course, but nor is it possible to identify them by clothing.



The best I could do is just pick one to nominate but it says quite clearly on the NIP that it’s an offence to supply false information knowingly or recklessly so that isn’t really an option.



So although I am not able to nominate who was driving at the time with any certainty, I hope you accept that I have taken all reasonable measures to fulfil my legal obligations and identify the driver of the vehicle at the time of the alleged incident.




-----------------------------------------------------
Unfortunately, Safecam don't seem to be the ones that make the distinction about what might or might not be reasonable attempts to establish the driver's id. It seems that all that happens is that they don't see a name so they whack out the "you are going to summonsed" letter as a matter of routine. I'm afraid that the previous contributor can send all the estate agents letters that he likes back with his NIP but it won't make a bit of difference. I should send copies, if I were you - you'll need the originals for the court.

If I understand Andy correctly, the next thing that will happen is that my husband will get a letter from the CPS saying he will be summonsed? And then he writes back to plead Not GUilty? Doesn't he enter a plea at the Magistrates' Court?




I forgot - we only had the car for 3 days. My husband was the lead driver on the rental agreement because it was his insurance company that was sorting out the repair to the car. He didn't actually drive the car once!!

Sorry! Just re-read the post from Andy. The FIRST hearing is where he can plead NG by letter. So then does he get a second hearing so that he can argue his case? Is there any danger that the decision will be made regardless at the first hearing? My concern is that the Magistrates will throw it out and find him guilty because he didn't turn up in person.
andy_foster
QUOTE (sueg @ Mon, 16 Feb 2009 - 17:55) *
Sorry! Just re-read the post from Andy. The FIRST hearing is where he can plead NG by letter. So then does he get a second hearing so that he can argue his case? Is there any danger that the decision will be made regardless at the first hearing? My concern is that the Magistrates will throw it out and find him guilty because he didn't turn up in person.


The CPS may or may not write to him to tell him that he will be summoned (they won't, but the scammers already have by the sounds of it), but that is inconsequential.

If proceedings are instigated (most likely), he will receive a summons, with a plea form enabling him to plead not guilty by post. A subsequent hearing will then be listed - either a pre-trial review (to see what issues need to be resolved before the trial is listed - e.g what witnesses are required, how long will be needed) or a trial.
It is possible that the plea form could be misread and he would be convicted in his absence, but that is rare (like being run over by a bus), and easily resolved (unlike being run over by a bus).
jobo
no

but id go myself it good practise for when it the real thing
sueg
Thanks - I strongly suspect that it'll be thrown out by the magistrates because we really have done all we can to try to sort out which one of us was driving. Surely the CPS/scammers must know this? And what with all the pre-trial review and stuff, why are they wasting public money like this?
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