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m111ked
I HAVE BEEN SUMMONSED TO APPEAR IN COURT TO ANSWER TWO ALLEGATIONS:


1. THAT I DROVE A MOTOR VEHICLE AT A SPEED IN EXCESS OF 30 MPH ON 03/02/11. AND


2. THAT I FAILED TO GIVE INFORMATION RELATING TO THE ID OF THE DRIVER.


HOWEVER I HAVE NOT RECEIVED A 'NIP' TO DATE.

THE VEHICLE WAS A HIRE CAR AND THE HIRE FIRM GAVE DURHAM TICKET OFFICE THE WRONG INFORMATION ABOUT
THE DRIVERS NAME AND ADDRESS, TWICE, AND I ONLY FOUND OUT WHEN I WAS PROSECUTED IN MY ABSENCE AND RECEIVED
A LETTER FROM THE DVLA TO SURRENDER MY LICENCE TO HAVE 6 POINTS PUT ON IT.

SUBSEQUENTLY I MADE A STATUTORY DECLARATION AT A LOCAL MAGISTRATES COURT THAT I HAD NOT RECEIVED A SUMMONS OR A NIP FOR THAT CASE AND THE PROSECUTION WAS CANCELLED.

I WROTE TO THE TICKET OFFICE, TO VOLUNTEER MY CORRECT ADDRESS AND 4 WEEKS LATER I RECEIVED A SUMMONS BUT HAVE NOT BEEN GIVEN THE CHANCE TO REPLY TO A NIP AS I HAVE NEVER RECEIVED ONE.
AS YOU CAN SEE, OVER 6 MONTHS HAVE PASSED NOW, CAN THEY STILL PROSECUTE WHEN THEY HAVE LET SO MUCH TIME PASS?

THANKS


andy_foster
Firstly, DON'T SHOUT.

The 6 month rule is that an information (application for a summons) must be laid with the court within 6 months of the alleged offence. From what you have told us, this may have been done - depending on who was named in the information.

You say that the hire car company provided wrong information about your name and address. Without getting into discussions about metadata (your name and address are information, and the information that was required) in what way was this information wrong?

Your defence to the s. 172 charge is that no requirement was served on you. If it was sent to the wrong name and address, there will be no presumption of service to rebut.

The fact that you did not receive a NIP is irrelevant to the speeding charge. Either the RK received a NIP within the 14 days or they didn't. Nothing that is done after the 14 days can alter that.
The prosecution do not have a signed statement from you admitting to being the driver (s. 172 response), so might have difficulty in proving that you were the driver.
The Rookie
You can't make a state dec about non receipt of NIP, only the original summons.

Other than that, listen to what Andy has said, it's important to know the level of error in your name.

As it stands you should have an easy time of getting a not guilty verdict to teh S172 as it clearly never got to you, however in the process they may try and get you to admit to driving and 'do' you for that instead, so we need to sort out that detail, hence why the name error is importamt.

Simon
sgtdixie
The reason why we need to know the level of the mistake is simply put that if the error would indicate that you could not reasonably received the S172 request you cannot be convicted of that offence. If that falls the prosecution can be put to a strict proof you were guilty of the original speeding offence which in the absence of you admitting it or a photograph clearly identifying you (and it would have to be unusually good to pass that test) they will struggle to do and hence you should not be convicted of the original offence.

If however the name is just a minor spelling error and the address close enough your own that it is likely the post office delivered it to you then your statutory declaration may give rise to a far more serious allegation namely perjury.

So you see the question Andy & Simon ask really is crucial, walk away without a stain on your character or prison.

Don't post the actual details for obvious reasons but give us some more facts.

In any event the courts will ask you to account for how the NIP, any possible reminder and the original summons failed to reach you (you are not claiming poor postal service you are claiming incorrect details such as it could not have been delivered after all) yet the DVLA correctly identified you by name and address in order to require your licence.
m111ked
Hi,
initially the hire company gave another persons details to the ticket office after which they (hire company) gave an abbreviated version of my name, and instead of my address they gave the address of a self storage facility where they picked me up from on the day the hire began.

The reason for this is unknown to me, but it would appear that the people opening the mail at the self storage yard, simply threw it away as there is not a response from them on file (this is a facility some 200 miles from my own address and not a place i have been to before or since).

The rental agreement had my driver licence number on it and when the person named at the wrong address was summonsed in errror in July, and convicted, then DVLA, wrote to me at the address on my licence asking for it to be surrendered to them for the 6 points to be added for failing to give the drivers details in court.

That was when i wrote to Durham constabulary for an explanation

I was subsequently telephoned by a lady at Durham ticket office and she told how to approach my local court to make a Statutory Declaration.

Previous to this I had received a phone call in May from a lady stating she was from Durham ticket office, and she said they had written to me 3 times and their letters had gone unanswered, and that they would write again, after which i would be taken to court, however she did not ask me for my address and rang off without leaving her contact information.

This was 3 months before i received the letter from the DVLA.

I had a letter dated, 23rd August from the police in response to my letter saying that the details of my letter would be handed to the ticket office, the next communication was a summons dated the 12th september.

So I have never received a Notice of Prosecution so i have not had the opportunity to either see the evidence they have or give them the information they require, as quite simply i have never been asked for it.

So should i request a delay in the case? write to the CPS? ask for the evidence? plead not guilty,?or just attend court on the day and try to reason with the magistrates?

Your advice is greatly appreciated.

Thanks


Mike
andy_foster
QUOTE (m111ked @ Wed, 12 Oct 2011 - 07:31) *
So I have never received a Notice of Prosecution so i have not had the opportunity to either see the evidence they have or give them the information they require, as quite simply i have never been asked for it.

So should i request a delay in the case? write to the CPS? ask for the evidence? plead not guilty,?or just attend court on the day and try to reason with the magistrates?


What evidence was disclosed with the summons?

You have no entitlement to see the evidence against you until a not guilty pleas has been entered, although in most cases, a bundle is sent with the summons.

The fact that you have not received a requirement under s. 172 to name the driver and have not named yourself as the driver work very much in your favour.

There are no grounds to request an adjournment before a plea has been entered. If you plead not guilty and they don't bother to disclose any evidence, it is likely that it will be even easier to defend.

You do not need to attend on the date on the summons if you plead not guilty to both charges by post.
desktop_demon
I was under the impression that the CPS were now obliged to reveal basic prosecution evidence on or before the first day of any hearing. I would presume that includes the initial plea hearing. So (technically speaking) it is not necessary for a defendant to plead Not Guilty before the evidence is disclosed. However I do accept that the CPS can deviate from correct procedure and often do. For more information on advance disclosure see advance information rules

Not sure what SgtDixie is alluding to above. he seems to be implying the OP might be trying to deceive us and the court. He correctly notes that attempting Perjury is unwise in any situation but in the circumstances the explanation offered by the OP seems to be reasonable. The law requires a NIP or other document to be correctly served on the accused. So a NIP & s.172 request was either correctly delivered/served to the OP or it was not. The similarity of any name or address is neither here nor there. Even if the NIP was correctly addressed it would still need to be served on the accused and not just dumped in a convenient bin by a disgruntled postperson.

However details aside I think Andy's advice is spot on. The s.172 charge could not stick if the NIP/s.172 was not served. While there are many defendants who claim not to have received the NIP and s.172 request - in this case there seems to be a very good explanation as to why that has not happened - an explanation that seems to be supported by the facts (as reported). So the chances of success for a s.172 prosecution are IMHO very low. As the CPS have no proof of who was driving the chances of successful prosecution for speeding are equally low - if not lower. The only thing to remember is that the OP should not give evidence in person. Once in the witness box the prosecutor could ask the question of who was driving. But that can only be done in the witness box and not elsewhere - unless a "confession" is made/signed. So technically speaking this case should be easy to run.

The OP may even wish to hire a solicitor ( a MOTORING LAW SPECIALIST!) and not turn up himself on the day. If successful with the defence the costs could be reclaimed. There would seem to be little point to discussing the case beforehand in any depth with the CPS. It would be nice to think they realise the case is rather badly founded but they rarely consider the facts until in court and actually reading the case notes.
The Rookie
QUOTE (desktop_demon @ Wed, 12 Oct 2011 - 11:04) *
I was under the impression that the CPS were now obliged to reveal basic prosecution evidence on or before the first day of any hearing. I would presume that includes the initial plea hearing. So (technically speaking) it is not necessary for a defendant to plead Not Guilty before the evidence is disclosed.

The statuts clearly says INITIAL and you seemt to have missed that, so (for example) the operators statement from a mobile camera 'ping' would probably satisfy that.

Simon
sgtdixie
Disclosure is mainly governed by the Criminal procedures and Investigations Act. Initial disclosure for the first hearing needs to be sufficient to show the offence has been committed and has been said the operators statement satisfies this requirement. If a guilty plea is submitted no further evidence is provided and the court sentences.

If a NG plea is entered the full evidential bundle is sent. The test of what is disclosed over and above the evidence is governed by the principle of if it harms the prosecution or assists the defence it must be disclosed. The defence should submit a defence statement outlining the defence case. The material held by the prosecution is reviewed against the defence statement to see if any material now falls under that heading.

DD

I wasn't alluding to anything just pointing out the 2 opposing scenarios. As it is the OP has clarified the position as such scenario 1 applies.
Logician
As far as I know, no defence statement as such is required for a summary trial as opposed a Crown Court trial, however the defence are required to state the basis for a NG plea on a case management form.
sgtdixie
QUOTE (Logician @ Wed, 12 Oct 2011 - 12:37) *
As far as I know, no defence statement as such is required for a summary trial as opposed a Crown Court trial, however the defence are required to state the basis for a NG plea on a case management form.


You are correct I was merely trying to put this into laymans terms. The end result is the same whether it is a basis of plea or defence statement.
m111ked
I have now entered a not guilty plea to both of the offences on the court schedule and returned my plea by royal mail special delivery to the court.
Accompanying the summons, i received, copies of the mail sent to the rental co. and their responses and a witness statement
from the WPC that set the camera up and made the recording.
However, all of the correspondence is shown to be going elsewhere except the summons, hence no S.172.
To further complicate matters, i have moved house and my licence is at dvla being changed, i have, of course, informed #the courts of my new address.
As i haven't had a NiP, i haven't been invited to view the evidence.
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