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jenko16
Hi all

In January I was caught doing 61mph in a 50mph zone by a speed camera. At the time I had also just moved house and not updated my address on my licence. So the NIP went to my old address and didnt get forwarded for some reason (I had set up forwarding). So the first I knew of it was the reminder which did manage to get forwarded. When I received it, I wrote to them to see if they could send me a copy of the NIP as I wasn't sure if I was driving (my friend and I take turns to drive to golf). I didn't get a response after a few weeks so I wrote to them again and repeated the request. Both times I mentioned they were writing to me at the wrong address and gave them the new one, and I had also updated my licence address and had confirmation of that.

Eventually they sent me the photo, and I can't really tell but its probably me driving.

I am already on 9 points:

SP50 from Sept 2010
SP30 from May 2011
SP50 from Oct 2011

What is the best thing for me to do now? Get a good solicitor and hope for the best? Do I have a chance of not getting banned, and if I do, then what will the likely ban be?

Let me know if you need any more info or if I should scan on the NIP.

Many thanks in advance
Jlc
Have you nominated the driver yet? There's a slim chance you'll be offered an awareness course to avoid the points (they are usually offered up to 4 months from the offence).

You cannot accept a fixed penalty as this will take you to 12 points where a 6 month ban is likely unless you can successfully plead 'exceptional hardship'. This tends to focus on the effects on others rather than yourself.
jenko16
No not yet.

I have also already done the course, so thats not an option
Jlc
Ok, failing to nominate the driver is a 6 point offence. (And hard to defend)
jenko16
i will do that tomorrow
Logician
It sounds as though an exceptional hardship argument is your only hope left. Have you got a good argument to put forward? It is going to have to be pretty good to persuade the court, who may well consider you have been given a few chances to mend your ways but you have simply carried on regardless.
CuriousOrange
QUOTE (jenko16 @ Mon, 13 May 2013 - 21:50) *
In January I was caught...first I knew of it was the reminder...I wrote to them...I didn't get a response after a few weeks so I wrote to them again...Eventually they sent me the photo...
How about some exact timescales on this?


S172s have to be replied to within 28 days unless you can demonstrate why it wasn't reasonably practicable to do so. While you probably have that for the first one it's not exactly sounding like you're within the 28 days of the reminder, given the alleged speeding offence was 3-4 months ago. There's a danger that they may already be going to an S172 summons, and with your record it's too likely that it'll be thought that you were just trying to avoid the points. When did you get the photos, and was a further/any extension mentioned?




jenko16
I got the letter with the photo at the end of April - its dated the 25th, but still sent to my old address

The fact they sent it to the wrong address must give me a bit of leeway, as I might have never actually received it!
Ms Demeanor
You maybe able to talk this outside of the limitation period if you handle with care and the original speeder happened in January? Approach with caution and this would only stand a chance if you accept you were the driver..You need help if you are going to try this approach and there is only a small chance you would succeed.

Alternatively if you don't know who the driver was (despite what JLC says) section 172 fail to name cases are reasonably easy to defend if you know what you are doing and you have a good argument. The delay in you getting to know about this matter will enhance your credibility and you have the benefit of two potential statutory defences? Getting a solicitor on board? Well that depends on how much you value your licence.

If you take it on the chin you can argue exceptional hardship to try and avoid a ban but you will have used up your last chance. If you genuinely cannot say who was driving then the correct response is "I don't know who the driver was" and then you try and defend the fail to name by showing reasonable diligence/not reasonably practicable on the balance of probabilities.
CuriousOrange
QUOTE (jenko16 @ Tue, 14 May 2013 - 11:00) *
I got the letter with the photo at the end of April - its dated the 25th, but still sent to my old address. The fact they sent it to the wrong address must give me a bit of leeway, as I might have never actually received it!
No leeway at all, because they're not obliged to send the photos.

A lot of people make the mistake of asking for the photos and then assuming that they no photos mean that they can reply late or not at all. When did you get the reminder and how much of an extension did it give you? When you got the photos did they mention any extension at all?

Since it's now two or three weeks since the photos arrived you're on very thin ice.

CuriousOrange
QUOTE (Ms Demeanor @ Tue, 14 May 2013 - 11:26) *
If you genuinely cannot say who was driving then the correct response is "I don't know who the driver was"
The correct response would be to give the details of the possible drivers. "I don't know who the driver was" alone results in a conviction.
QUOTE (Ms Demeanor @ Tue, 14 May 2013 - 11:26) *
...and then you try and defend the fail to name by showing reasonable diligence/not reasonably practicable on the balance of probabilities.
The OP would also have to show that they couldn't provide the necessary details (list of possible drivers) within the 28 days plus any extension time given. I find it vanishingly unlikely that the OP is currently within any such extension by now.




Ms Demeanor
QUOTE (CuriousOrange @ Tue, 14 May 2013 - 12:38) *
QUOTE (Ms Demeanor @ Tue, 14 May 2013 - 11:26) *
If you genuinely cannot say who was driving then the correct response is "I don't know who the driver was"
The correct response would be to give the details of the possible drivers. "I don't know who the driver was" alone results in a conviction.
QUOTE (Ms Demeanor @ Tue, 14 May 2013 - 11:26) *
...and then you try and defend the fail to name by showing reasonable diligence/not reasonably practicable on the balance of probabilities.
The OP would also have to show that they couldn't provide the necessary details (list of possible drivers) within the 28 days plus any extension time given. I find it vanishingly unlikely that the OP is currently within any such extension by now.


"I don't know who the driver was" often results in an acquittal! The issue is whether or not you can show that you have excercised reasonable diligence in trying to work it out. There is nothing in the statute that suggests that you can only argue reasonable diligence if you have told the police about your efforts to work it out...

Non registered keepers are obliged to provide information that is within their power to give which may lead to the identification of the driver ....so the requirment to communicate the information you have is more significant with non registered keepers.

Having said all of that my intial response was somewhat summarised and for the sake of showing willing/cooperation with the police its always best to tell them the problems you have an identify all potential drivers.
sgtdixie
The phrase " I was caught speeding" in the 1st line of post 1tends to suggest the OP perhaps does know who was driving.

I would just caution that far from being easy to defend, s172 offences are very difficult to defend and many courts are very reluctant to acquit. Many solicitors recommend their clients plead not guilty and then go to court and change to a guilty plea on the day of the trial so if you choose this approach you need to fully appreciate the potential penalties.
Ms Demeanor
QUOTE (sgtdixie @ Tue, 14 May 2013 - 18:49) *
The phrase " I was caught speeding" in the 1st line of post 1tends to suggest the OP perhaps does know who was driving.

I would just caution that far from being easy to defend, s172 offences are very difficult to defend and many courts are very reluctant to acquit. Many solicitors recommend their clients plead not guilty and then go to court and change to a guilty plea on the day of the trial so if you choose this approach you need to fully appreciate the potential penalties.


Are you a police officer (former police officer) by any chance sgt dixie......?
CuriousOrange
He is, but don't mention it. He doesn't like to talk about it.

Meanwhile your reply post to mine suggests you're completely unaware of the obligation to provide at least a list of the possible drivers, unless you're saying that isn't necessary and 'I don't know' alone is enough to fulfil an S172 obligation?

Ms Demeanor
QUOTE (CuriousOrange @ Wed, 15 May 2013 - 18:14) *
He is, but don't mention it. He doesn't like to talk about it.

Meanwhile your reply post to mine suggests you're completely unaware of the obligation to provide at least a list of the possible drivers, unless you're saying that isn't necessary and 'I don't know' alone is enough to fulfil an S172 obligation?


Don't be silly curious....there is no statutory obligation to give a list of possible drivers. I've defended more of these in the last 10 years than you've had hot dinners. You haven't read my response properly.

You maybe referring to the case of Flegg? In Mr Flegg's case the court stated that HE should have named the other potential driver, but that was because Mr Flegg was saying there were "two potential drivers and I dont think it was me".....I distinguish that case day in day out at court when the person accused is stating it may have been them and has asked the other potentials before responding.

I was being flippant. I was simply referring to him maintaining his stance that he doesn't know rather than suggesting that his response to the police should literally be "I don't know"... It certainly helps to cooperate and provide as much information as possible. The statutory requirement to provide "all the information that's within your power to give that may lead to the identity of the driver" only applies to someone other than the registered keeper but I agree with you it helps to tell them as much as possible and name other potential drivers.
CuriousOrange
QUOTE (Ms Demeanor @ Thu, 16 May 2013 - 12:22) *
Don't be silly curious....there is no statutory obligation to give a list of possible drivers.
QUOTE
Even if I were wrong about that, there is a second reason why, in this case, the claimant should be found to have failed to comply with the statutory requirement under sub-section (2) in the particular circumstances of the present case. The notice required the claimant to provide the driver's details "or give any information in your power which will lead to the driver's identification". That was either a requirement under sub-section (2)(b), which uses the language of giving information which will lead to the driver's identification, or was a further requirement imposed under sub-section (2)(a). Mr Siddle does not contend that it fell outside the power of the Chief Constable, even under sub-section (2)(a), to impose such a requirement.

The requirement in question was sufficiently carried over into the form by the wording in the bottom right corner of Part 2, namely the request to state the reason for an inability to provide driver details. The claimant had it in his power, in stating that reason, to provide information that would lead to the driver's identification, namely all the information about the fact that the motorcycle had been driven during the relevant period only by himself and by Dr Sepp, and that he did not believe that he was the driver at the time of the alleged offence. He failed to provide any of that information. He was thereby again in breach of the requirement lawfully imposed by the notice.
The CC can require more from an S172 recipient than just the name of the driver. You haven't seen the detail of the OP's S172 requirement, and yet you're confidently asserting that 'I don't know' would be a suitable response. And still ignoring that his response is may well be out of time with no good reason for being so.

QUOTE (Ms Demeanor @ Thu, 16 May 2013 - 12:22) *
I've defended more of these in the last 10 years than you've had hot dinners.
And yet up until a few months ago you didn't understand the difference between 'keeper' and 'registered keeper' with regards to S172.


QUOTE (Ms Demeanor @ Tue, 14 May 2013 - 17:10) *
Non registered keepers are obliged to provide information that is within their power to give which may lead to the identification of the driver ....so the requirment to communicate the information you have is more significant with non registered keepers.
My bad. It seems you still don't.
The Rookie
MsD's responces do seem to be contradicoty to law and case law and it's obvious reading (yes Flegg), however I will never cease to be amazed at the ability of BS to baffle brains (assuming the CPS and LA have enough for that to fit) and it wouldn't surprise me totally if there were some success to be had by such tactics, though the claimed success rate does seem suspiciously high.....
TonyS
Is the OP claiming they can't name the driver? I don't see that in anything they've posted.
sgtdixie
QUOTE (TonyS @ Thu, 16 May 2013 - 16:11) *
Is the OP claiming they can't name the driver? I don't see that in anything they've posted.

Perhaps another read of Post 1 may help.
QUOTE
When I received it, I wrote to them to see if they could send me a copy of the NIP as I wasn't sure if I was driving (my friend and I take turns to drive to golf). I didn't get a response after a few weeks so I wrote to them again and repeated the request.
norahl
QUOTE (Ms Demeanor @ Thu, 16 May 2013 - 12:22) *
...The statutory requirement to provide "all the information that's within your power to give that may lead to the identity of the driver" only applies to someone other than the registered keeper but I agree with you it helps to tell them as much as possible and name other potential drivers.


Section 172 of the RTA says:(2)Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—

(a)the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

(b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

How does that place different requirements upon the person at (a) to that at (b)?
If the person keeping the vehicle is required to "...give such information as to the identity of the driver as he may be required to give..." Then the information the person keeping the vehicle needs to give either the name of the driver or information "as to the identity of the driver". The only qualification is that the chief of police needs to convey the question. All of the S172's I have seen recently do exactly that.
Oh and another thing, if the RK doesn't identify the driver then he is going to win 2 summons, one for failing to ID, the other for speeding. The court can then decide if guilt is proven for either one or both.







johnjo42
QUOTE (jenko16 @ Mon, 13 May 2013 - 21:50) *
Eventually they sent me the photo, and I can't really tell but its probably me driving.

As you already have 9 points it probably doesn't matter whether you get done for speeding or failing to comply with S172 as you'll be a totter anyway.
Playing games with the system usually ends in failure and in cases of deliberate fraud, prison.
Best bet is to plead exceptional hardship provided it applies
JJ
The Rookie
QUOTE (norahl @ Thu, 16 May 2013 - 19:32) *
(a)the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

(b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

How does that place different requirements upon the person at (a) to that at (b)?

Becasue the keeper has to ID the driver (absent the statutory reasonable dilligence defence), the AOP only has to give infromation in his power to give, no dilligence required at all, so effectively what they know at the moment they read the S172.
johnjo42
This is a very dangerous tactic. Although the duty is less in (b) cases, the recipient has to provide all information which is in his power to give. In other words:

(1) What you actually know

(2) What you could easily find out if you made reasonable enquiries (this is not contained in the statute but follows from "in his power to give").

A simple example based on a real case.

A milk van (not a float!) was caught by a speed camera. The dairy checked their records and named my client as the driver because the van had been signed out to him. But he had only worked a half day and had returned the van to the depot. Someone else had taken it out after lunch. Client suspected that a Mr X had been driving but had no proof. So when he got his own NIP he simply replied giving all the facts including that while he had been the driver in the morning, he had not been in the afternoon and that Mr X might have been the driver.

He was charged both with speeding and with S172 failure. (This was a while ago). Speeding was dropped at the start of the case. As to the S172, Prosecution alleged that he should have made efforts to identify the driver. Case thrown out because it was a (b) case and as such he was under no obligation to make enquiries. He had told them everything he knew.
JJ
Ms Demeanor
QUOTE (johnjo42 @ Fri, 17 May 2013 - 14:54) *
This is a very dangerous tactic. Although the duty is less in (b) cases, the recipient has to provide all information which is in his power to give. In other words:

(1) What you actually know

(2) What you could easily find out if you made reasonable enquiries (this is not contained in the statute but follows from "in his power to give").

A simple example based on a real case.

A milk van (not a float!) was caught by a speed camera. The dairy checked their records and named my client as the driver because the van had been signed out to him. But he had only worked a half day and had returned the van to the depot. Someone else had taken it out after lunch. Client suspected that a Mr X had been driving but had no proof. So when he got his own NIP he simply replied giving all the facts including that while he had been the driver in the morning, he had not been in the afternoon and that Mr X might have been the driver.

He was charged both with speeding and with S172 failure. (This was a while ago). Speeding was dropped at the start of the case. As to the S172, Prosecution alleged that he should have made efforts to identify the driver. Case thrown out because it was a (b) case and as such he was under no obligation to make enquiries. He had told them everything he knew.
JJ


Good result...

But the tone tends to suggest the burden is on the defendant to prove that he gave all the information that was within his power to give.....we always havie in mind that it's not a statutory defence, so rather than defendant having to prove that he gave all the information that was within his power to give - the burden remains with the corwn to prove BRD that he didn't......
johnjo42
QUOTE (Ms Demeanor @ Fri, 17 May 2013 - 17:07) *
But the tone tends to suggest the burden is on the defendant to prove that he gave all the information that was within his power to give.....we always have in mind that it's not a statutory defence, so rather than defendant having to prove that he gave all the information that was within his power to give - the burden remains with the corwn to prove BRD that he didn't......

This is absolutely right. The prosecution have to prove that he had some information in the first place, for example some sort of connection with the vehicle. Once they have established this, the Defendant can give evidence to rebut it. In my milk van case the fact that my client regularly drove that vehicle and was shown in the company records as being the driver that day was more than enough to satisfy the burden of proof that he must have had some information that might lead to the identity of the driver. Indeed he did, but was able to show that he had given all he knew.
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