S172(2) alledged offence of using an electronic device whilst driving

Mildly_Miffed

Aretnap said:

Unlike use of a mobile phone, careless driving would require a NIP (which may or may not have been served on the registered keeper - if not it's too late now).

Is it?
Has six months passed since the alleged offence?

The OP's timeline doesn't say for sure, but suggests not.

OP spotted
RK gets s172, returns it.
OP gets s172 (this could all be within a week or two, easily)
OP doesn't return s172 even after the 28 days.
"after a few months" (probably less than a month after the original deadline), OP gets reminded via s172(2).

If it gets even slightly close to six months, then the s172(2) reminder is definitely going to turn into failure to provide. This is not going to just time out with the OP walking away clean.

The longer the OP leaves it, the more likely to miss out on a course or FPN.

Aretnap

Mildly_Miffed said:

Aretnap said:

Unlike use of a mobile phone, careless driving would require a NIP (which may or may not have been served on the registered keeper - if not it's too late now).

Is it?
Has six months passed since the alleged offence?

The OP's timeline doesn't say for sure, but suggests not.

OP spotted
RK gets s172, returns it.
OP gets s172 (this could all be within a week or two, easily)
OP doesn't return s172 even after the 28 days.
"after a few months" (probably less than a month after the original deadline), OP gets reminded via s172(2).

If it gets even slightly close to six months, then the s172(2) reminder is definitely going to turn into failure to provide. This is not going to just time out with the OP walking away clean.

The longer the OP leaves it, the more likely to miss out on a course or FPN.

14 days have certainly passed, so no NIP = no careless driving charge.

TooManyPoints

"Is it?

Has six months passed since the alleged offence?"

Yes it is. A NIP (if the offence requires it - which a mobile phone offence does not) must be served on either the driver or the RK within 14 days of the date of the offence. If the offence requires a NIP and one was not served in time a prosecution cannot normally succeed. Six months does not enter into it.

The reason I asked for the timeline was to establish (a) whether the offence was close to "timing out" and (b) to establish how long ago the OP was served with the s172 request (to see if an offence under that section had already been committed and if not, how close he was to doing so).

Mildly_Miffed

Aretnap said:

Mildly_Miffed said:

Aretnap said:

Unlike use of a mobile phone, careless driving would require a NIP (which may or may not have been served on the registered keeper - if not it's too late now).

Is it?
Has six months passed since the alleged offence?

The OP's timeline doesn't say for sure, but suggests not.

OP spotted
RK gets s172, returns it.
OP gets s172 (this could all be within a week or two, easily)
OP doesn't return s172 even after the 28 days.
"after a few months" (probably less than a month after the original deadline), OP gets reminded via s172(2).

If it gets even slightly close to six months, then the s172(2) reminder is definitely going to turn into failure to provide. This is not going to just time out with the OP walking away clean.

The longer the OP leaves it, the more likely to miss out on a course or FPN.

14 days have certainly passed, so no NIP = no careless driving charge.

Nope.

The original s172 has to be sent out to be received within 14 days.
We presume it was.

The NIP cannot possibly be sent until the driver is identified - and each s172 sent has 28 days to respond.

Aretnap

Mildly_Miffed said:

Aretnap said:

Mildly_Miffed said:

Aretnap said:

Unlike use of a mobile phone, careless driving would require a NIP (which may or may not have been served on the registered keeper - if not it's too late now).

Is it?
Has six months passed since the alleged offence?

The OP's timeline doesn't say for sure, but suggests not.

OP spotted
RK gets s172, returns it.
OP gets s172 (this could all be within a week or two, easily)
OP doesn't return s172 even after the 28 days.
"after a few months" (probably less than a month after the original deadline), OP gets reminded via s172(2).

If it gets even slightly close to six months, then the s172(2) reminder is definitely going to turn into failure to provide. This is not going to just time out with the OP walking away clean.

The longer the OP leaves it, the more likely to miss out on a course or FPN.

14 days have certainly passed, so no NIP = no careless driving charge.

Nope.

The original s172 has to be sent out to be received within 14 days.
We presume it was.

The NIP cannot possibly be sent until the driver is identified - and each s172 sent has 28 days to respond.

Nearly every word of this is wrong.

TooManyPoints

The issue is IF the original s172 request was sent without a NIP (because a mobile phone offence does not need one) and IF the police now choose to charge the driver with an offence that does need one (such as careless driving) a prosecution for that offence cannot succeed.

In reality it is unlikely in the extreme that a s172 request would be sent without a NIP (if for no other reason, the system which produces a s172 request also produces a NIP, even though only the first one is required by law at all).

So almost certainly a non-issue.

The original s172 has to be sent out to be received within 14 days.

I think you mean the original NIP.

Aretnap

TooManyPoints said:

The issue is IF the original s172 request was sent without a NIP (because a mobile phone offence does not need one) and IF the police now choose to charge the driver with an offence that does need one (such as careless driving) a prosecution for that offence cannot succeed.

In reality it is unlikely in the extreme that a s172 request would be sent without a NIP (if for no other reason, the system which produces a s172 request also produces a NIP, even though only the first one is required by law at all).

So almost certainly a non-issue.

Does it generate a NIP for every possible offense though, or only the offense which is actually under consideration at the time? Particularly if done as a manual process in response to something an officer has happened to spot while driving a van, as opposed to semi-automated enforcement involving fixed cameras or camera vans? 

Thinking is that if the original NIP only mentioned the possibility of being prosecuted for a mobile phone offence, it should not be possible subsequently to charge with careless driving instead as there has been no NIP for that offence, or indeed for any offence to which S1 RTOA applies.

TooManyPoints

Does it generate a NIP for every possible offense though,

The law does not require a NIP to be that specific. What it says is that it must  specify “…the nature of the alleged offence and the time and place where it is alleged to have been committed…”.
I don’t know of any case law, but I think it would be a stretch to defend a prosecution on the basis that (say) the police issued a NIP mentioning  that prosecution was being considered for a mobile phone offence and they went on to prosecute for careless driving or “not in proper control”, so therefore no compliant NIP had been served. 
The purpose of the NIP is to notify the recipient that proceedings are under consideration for an offence arising from a  particular incident, the date, time and location of which has been provided. 
However, the CPS charging guidance takes the view that specific offences must be mentioned:
“The warning need not be specific but must refer to one or more of the offences to which section 1 RTOA 1988 applies.”
The court must be satisfied that the NIP meets the requirements of the statute. I would suggest (and I think the police might argue) that the purpose of the NIP has been achieved. In fact, if a driver received a NIP stating that a prosecution for a mobile phone offence was being considered, he would be in  better position than if it just mentioned “careless driving” (which cover a multitude of less specific sins),
Of course strange things happen but if I knew I had been seen using a phone whilst driving I would be very reluctant to defend a different, less specific charge on the basis of  deficient NIP. I’ll do a bit of scratching round and see what I can dig up.

Aretnap

TooManyPoints said:

Does it generate a NIP for every possible offense though,

The law does not require a NIP to be that specific. What it says is that it must  specify “…the nature of the alleged offence and the time and place where it is alleged to have been committed…”.

I don’t know of any case law, but I think it would be a stretch to defend a prosecution on the basis that (say) the police issued a NIP mentioning  that prosecution was being considered for a mobile phone offence and they went on to prosecute for careless driving or “not in proper control”, so therefore no compliant NIP had been served. 

The purpose of the NIP is to notify the recipient that proceedings are under consideration for an offence arising from a  particular incident, the date, time and location of which has been provided. 

However, the CPS charging guidance takes the view that specific offences must be mentioned:

“The warning need not be specific but must refer to one or more of the offences to which section 1 RTOA 1988 applies.”

The court must be satisfied that the NIP meets the requirements of the statute. I would suggest (and I think the police might argue) that the purpose of the NIP has been achieved. In fact, if a driver received a NIP stating that a prosecution for a mobile phone offence was being considered, he would be in  better position than if it just mentioned “careless driving” (which cover a multitude of less specific sins),

Of course strange things happen but if I knew I had been seen using a phone whilst driving I would be very reluctant to defend a different, less specific charge on the basis of  deficient NIP. I’ll do a bit of scratching round and see what I can dig up.

Yes, you're right. I was misremembering the statute slightly - I was thinking of subsection 1a, which is a more prescriptive.

"...he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration."

But the requirement for a postal NIP is a bit different as you point out, and I agree that it's at least arguable that a NIP which mentions use of a mobile phone has specified the nature of the offence if there's a subsequent careless driving charge based mainly on alleged phone usage.

Gerrard00004

Thank you all for your replies.

I appreciate that the incident may seem coincidental. Trying to address some of the questions raised in the thread.

The phone fell on top of the dashboard, I picked it up and tossed it onto the passenger seat. 
The S172 request, states that I was seen by 2 police officers.
As advised it maybe nonconsequential but if I have committed an offence then it is my expectation for them to deal with it, they laboured in the slow lane a few vehicles in front of me.
Regarding the date of offence, it will be 6 months within the next 3 weeks, 14 days after the 28 days allowed by the notice. 

Reading the advice posted, It is my understanding and intention to respond to the S172 in the required time frame and then keep my fingers crossed that they do not respond until after the 6 month period. 
Am I right in my understanding, any additional advice would be appreciated.

Thanks