Speeding offence - notice of intended prosecution quoting wrong road. Is it invalid?

matt_drummer

Car_54 said:

Ms_Chocaholic said:

Do you have an iPhone? If so mine gives details of recent "Places" in Apple Maps.

That tracks the OP's location, not that of her car.

Does it?

I know some people are quite attached to their phones but I would say that the phone tracks the location of the phone, not a person.

Car_54

matt_drummer said:

Car_54 said:

Ms_Chocaholic said:

Do you have an iPhone? If so mine gives details of recent "Places" in Apple Maps.

That tracks the OP's location, not that of her car.

Does it?

I know some people are quite attached to their phones but I would say that the phone tracks the location of the phone, not a person.

Fair point.

paul_c123

TadleyBaggie said:

Yes but that NIP appear to reference the wrong location, making it invalid.

Only the first NIP - the one required to go to the registered keeper of the car - has the time limitation of 14 days though. And that was delivered in time, to the OP's husband, who was able to identify the driver - despite the location error - and return the paperwork (or fill in the online form) in the required timeframe.

A NIP is not rendered "invalid" and thus the obligation disappears, until a court determines it as such.

The opportunity to quash this has ALREADY GONE. Have a look at Road Traffic Act 1988, section 172, para. 4:

"A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."


ETA to challenge the NIP, would require you (the OP in this case, once they receive their NIP and assuming it still has the wrong location/road name details) to not select the speed awareness or fixed penalty options, but to go to court, then plead not guilty to the speeding offence and argue that the location was wrong and thus the NIP was never served properly.

ETA again - after doing some reading around on the topic, there is no requirement at all for a second NIP to be sent, in the case of the registered keeper, having received a s.172, nominating another driver. You would need to select the "court" option if/when offered and challenge it based on wrong location as above.

facade

paul_c123 said:

TadleyBaggie said:

Yes but that NIP appear to reference the wrong location, making it invalid.

Only the first NIP - the one required to go to the registered keeper of the car - has the time limitation of 14 days though. And that was delivered in time, to the OP's husband, who was able to identify the driver - despite the location error - and return the paperwork (or fill in the online form) in the required timeframe.

A NIP is not rendered "invalid" and thus the obligation disappears, until a court determines it as such.

The opportunity to quash this has ALREADY GONE. Have a look at Road Traffic Act 1988, section 172, para. 4:

"A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."


ETA to challenge the NIP, would require you (the OP in this case, once they receive their NIP and assuming it still has the wrong location/road name details) to not select the speed awareness or fixed penalty options, but to go to court, then plead not guilty to the speeding offence and argue that the location was wrong and thus the NIP was never served properly.

ETA again - after doing some reading around on the topic, there is no requirement at all for a second NIP to be sent, in the case of the registered keeper, having received a s.172, nominating another driver. You would need to select the "court" option if/when offered and challenge it based on wrong location as above.

The solution is above my pay grade I'm afraid, but the keeper (husband) could not possibly identify the driver at that time and place (unless he happened to be in the car- in which case he should have replied that the car was not at the stated location, since he would know that it wasn't). 

He can only give the information within his power to give- i.e. say that the OP had custody of the car at that time, hence the OP gets an NIP to admit to being the driver at the stated time and place- which she wasn't, as although she was the driver at the time, the car was not at the stated place, (the photograph proves that it was 15 miles away).

Definitely one for FTLA as the first NIP has been responded to and the gears of the machine are turning.

The driver has not been materially disadvantaged by the error as regards the speeding offence, but is answering the question asked correctly. It clearly isn't a simple typo, the road changing name at that point, or GMT/BST error, it is a 15 mile difference in location.

 

Unless they ask the right question they cannot convict for the speeding, and they cannot convict for MS90 as the OP has responded truthfully to the S172. (and kept copies as proof) Should the MS90 go to Court, the Police will look rather stupid when the photo is shown to be of a location 15 miles from where they claim.

TooManyPoints

The opportunity to quash this has ALREADY GONE. Have a look at Road Traffic Act 1988, section 172, para. 4:

No it hasn’t. 

Those in receipt of a second or subsequent "Requests for driver's details" (having been named by somebody else) have exactly the same opportunity to take advantage of s172(4) as the recipient of the first request has.

ETA to challenge the NIP, would require you (the OP in this case, once they receive their NIP and assuming it still has the wrong location/road name details) to not select the speed awareness or fixed penalty options, but to go to court,

But you’re missing the point.

Section 172(4) is not relevant. The OP would have no difficulty identifying the driver if the location was stated correctly. The reason she cannot say who was driving the car at the place specified is because it wasn’t there, either at the specified time or at all.

In the event that the second request for driver’s details specifies the same (wrong) location, she cannot say she was driving at the time and place specified. The police will be unable to offer an out-of-court disposal and they will have to decide whether to continue the matter (by way of a prosecution under s172) or not. 

If they do prosecute her, they will have to show that the alleged offence occurred at the location mentioned in the second s172 request. With any luck they will discover before then that the location they have specified is wrong.

He can only give the information within his power to give- 

The requirement (as the “person keeping the vehicle”) is for him to provide the driver’s details. The lesser requirement (to provide "any information which is in his power to give") applies to “any other person”.

The Registered Keeper knows who had possession of the car at the specified time but may not have known where it was (assuming he wasn't in it at the time) and so had no reason to question the location. He would be in a far weaker position than the driver if he attempted to defend a charge under s172 as the whereabouts of the car at the specified time was not within his knowledge.

paul_c123

facade said:

paul_c123 said:

TadleyBaggie said:

Yes but that NIP appear to reference the wrong location, making it invalid.

Only the first NIP - the one required to go to the registered keeper of the car - has the time limitation of 14 days though. And that was delivered in time, to the OP's husband, who was able to identify the driver - despite the location error - and return the paperwork (or fill in the online form) in the required timeframe.

A NIP is not rendered "invalid" and thus the obligation disappears, until a court determines it as such.

The opportunity to quash this has ALREADY GONE. Have a look at Road Traffic Act 1988, section 172, para. 4:

"A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."


ETA to challenge the NIP, would require you (the OP in this case, once they receive their NIP and assuming it still has the wrong location/road name details) to not select the speed awareness or fixed penalty options, but to go to court, then plead not guilty to the speeding offence and argue that the location was wrong and thus the NIP was never served properly.

ETA again - after doing some reading around on the topic, there is no requirement at all for a second NIP to be sent, in the case of the registered keeper, having received a s.172, nominating another driver. You would need to select the "court" option if/when offered and challenge it based on wrong location as above.

The solution is above my pay grade I'm afraid, but the keeper (husband) could not possibly identify the driver at that time and place (unless he happened to be in the car- in which case he should have replied that the car was not at the stated location, since he would know that it wasn't). 

He can only give the information within his power to give- i.e. say that the OP had custody of the car at that time, hence the OP gets an NIP to admit to being the driver at the stated time and place- which she wasn't, as although she was the driver at the time, the car was not at the stated place, (the photograph proves that it was 15 miles away).

As I see it, the way the law is written is to be flexible enough to deal with the variety of scenarios where the registered keeper might be distant and unrelated to the driver. For example, large fleets which are centrally managed; lease cars; hire cars. But its basically still putting the obligation on the RK to supply DRIVER details if they can.

In this specific instance, the location and exact time are moot, because (let's assume the car is used solely by the RK and the OP, no extra use by kids, nor its a company/pool car, etc etc) if the RK wasn't using it, it is reasonable to infer that his wife must have been the one using it. (Slightly off topic, but I believe there have been cases where people have tried to be clever and say (for example) their au-pair was driving and has now returned back to Ukraine; or their Ugandan friend was driving. The police invariably follow up a dead-end to the s.172 process by asking for proof of insurance cover at the time of the alleged offence).

paul_c123

TooManyPoints said:

The opportunity to quash this has ALREADY GONE. Have a look at Road Traffic Act 1988, section 172, para. 4:

No it hasn’t. 

Those in receipt of a second or subsequent "Requests for driver's details" (having been named by somebody else) have exactly the same opportunity to take advantage of s172(4) as the recipient of the first request has.

ETA to challenge the NIP, would require you (the OP in this case, once they receive their NIP and assuming it still has the wrong location/road name details) to not select the speed awareness or fixed penalty options, but to go to court,

But you’re missing the point.

Section 172(4) is not relevant. The OP would have no difficulty identifying the driver if the location was stated correctly. The reason she cannot say who was driving the car at the place specified is because it wasn’t there, either at the specified time or at all.

In the event that the second request for driver’s details specifies the same (wrong) location, she cannot say she was driving at the time and place specified. The police will be unable to offer an out-of-court disposal and they will have to decide whether to continue the matter (by way of a prosecution under s172) or not. 

If they do prosecute her, they will have to show that the alleged offence occurred at the location mentioned in the second s172 request. With any luck they will discover before then that the location they have specified is wrong.

He can only give the information within his power to give- 

The requirement (as the “person keeping the vehicle”) is for him to provide the driver’s details. The lesser requirement (to provide "any information which is in his power to give") applies to “any other person”.

The Registered Keeper knows who had possession of the car at the specified time but may not have known where it was (assuming he wasn't in it at the time) and so had no reason to question the location. He would be in a far weaker position than the driver if he attempted to defend a charge under s172 as the whereabouts of the car at the specified time was not within his knowledge.

The problem is, when the OP (wife of RK) receives her s.172 request, because it contains additional information, namely a measured speed, the speed limit of the road, 1 or more photographs, date/time in addition to the location, there is effectively an excess of information. And the way s.172 is written is fairly open, its not asking a closed question. It is a "Duty to give information as to identity of driver etc in certain circumstances.", not "a duty to say who the driver is at a location". If the circumstances mentioned (ie the list of information) contradicts itself, there is still an obligation to interpret that information as best they can and either admit to being the driver, or to give further information if they believe they were not the driver.

Given the lack of a 3rd driver in this scenario (for example, let's say the date was wrong, they'd just bought the car, and the date was 1 day before they bought it), the photo, the date/time and the fact the car is only used by the two of them, the correct response to the s.172 is to admit to being the driver.

All this is, is an admission of being the driver. It is NOT an admission of speeding - that would still need to be either proven in court. Or the OP accepting the speed awareness course or fixed penalty, and in doing so admitting guilt.

There is a slim chance it wouldn't make it to court, but there is also a chance the court would interpret the wrong road name and location as a "small admin error" which doesn't affect the outcome of the case at hand. So for the OP, they have the choice to either accept the FPN/course or try that angle in court. 

TooManyPoints

“…there is still an obligation to interpret that information as best they can”

No there isn’t. There are two critical features of the request made by the police: the time the alleged offence was said to have occurred and the place where it was said to have occurred. Neither is more or less important than the other. 

If one or other is wrong it is not for the recipient to guess which it is nor is it incumbent on them to find out what the correct details are. 

“…but there is also a chance the court would interpret the wrong road name and location as a "small admin error"”

It was not a small admin error. It was a mistake with a detail that is fundamental to the allegation – where the offence was alleged to have taken place. It describes a completely different place, some distance away. 

When the second s172 request is received and assuming it asks the same question (i.e. “who was driving the vehicle ABC123 on dd/mm/yy at [a location where the car had never been driven]” there is only one answer to that: nobody was.

paul_c123

TooManyPoints said:

“…there is still an obligation to interpret that information as best they can”

No there isn’t. There are two critical features of the request made by the police: the time the alleged offence was said to have occurred and the place where it was said to have occurred. Neither is more or less important than the other. 

If one or other is wrong it is not for the recipient to guess which it is nor is it incumbent on them to find out what the correct details are. 

“…but there is also a chance the court would interpret the wrong road name and location as a "small admin error"”

It was not a small admin error. It was a mistake with a detail that is fundamental to the allegation – where the offence was alleged to have taken place. It describes a completely different place, some distance away. 

When the second s172 request is received and assuming it asks the same question (i.e. “who was driving the vehicle ABC123 on dd/mm/yy at [a location where the car had never been driven]” there is only one answer to that: nobody was.

Where is this defined? Case law? Actual legislation?

TooManyPoints

I don’t know of any case law, and it is not defined in legislation. 

But he same can be said of your contention that the recipient has an obligation to guess what the police want to know, So it comes down to a sensible interpretation. 

In sending a s172 request the police must suspect that an offence has been committed. So they must know when and where the alleged offence occurred. What they are saying when they issue a s172 request is “we suspect that vehicle ABC 123 was involved in an offence at 2pm in the High Street and we need you to provide the driver’s details.” 

If the car was not in the High Street at 2pm, the car had never been driven there and was fifteen miles away at the time, she is entitled to reply, “nobody was.” 

Somebody suggested taking this to ftla.uk. There are at least two threads there dealing with this very issue. Here’s one: 

https://www.ftla.uk/speeding-and-other-criminal-offences/nip-and-pics-received-but-location-doesn-t-match-the-pics/

 A precis from one of the answers: 

“The s. 172 requirement asks you to state who was driving your vehicle at the specified time, date and location.

Was anyone driving your vehicle at that location at that time and date?

If not, then your vehicle was not involved in the offence alleged in the notice…”

The author of that post is the  Global Moderator of ftla and I believe he is legally qualified.

He also suggests adding that the car was [where it really was]. That may be sound advice. If the police wanted to pursue a new speeding allegation based on that information, they would have to issue a new NIP as the original did not meet the requirements of s1 of the RTOA. And by then it would be too late. 

They would also have to issue a new s172 request with the correct location (which the recipient would be obliged to respond to) but since no compliant NIP had been served within 14 days, no prosecution for speeding could succeed.

The greater likelihood is that the police would abandon the idea entirely.