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

paul_c123

TooManyPoints said:

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.

Thank you for posting a link to ftla.uk, it is similar but not the same (because in that case, the RK and the driver were the same). I think it is worth quoting the most relevant post:

"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, you are not the person keeping the vehicle that was (we suspect that there is no such vehicle, but that would tend to complicate things), and therefore as "any other person" you are required to provide any information that is in your power to give and that might lead to the identification of the driver [of the vehicle involved in the alleged offence at the time, date and location specified in the notice]. That information would be that your vehicle was not at the location specified at the time and date specified as it was <wherever it actually was> at the time.

As has been mentioned, there is a fair chance that the police will drop the whole session out of embarrassment.

However, if they were to reissue a corrected NIP, and more relevantly the associated s. 172 requirement, as a matter of law the original defect would not invalidate the NIP (for the purposes of s. 1 RTOA 1988) as you have not been misled by the error. Whether you would be able to put the prosecution to proof on the point by raising an issue at the half way point of the trial seems uncertain."

From this I would say the pertinent points are the same as my above interpretation:
1) The original NIP remains valid
2) The error did not result in the RK being misled (thus, they were able to complete the s.172 requirement by naming a driver, not just providing other relevant information)
3) There is no certainty in the process of what happens next. Andy (poster on FTLA) talks of "a fair chance...".

So we agree, that it comes down to interpretation.

I differ in that I don't believe any action now by the OP, can quash the case. I believe the police will act upon the new s.172 request like this: If the OP admits to driving, it will proceed to course offer/FPN/trial. If the OP provides the information suggested - that they were the driver of [car] at [time] but not at [location] - they will proceed in exactly the same way. I believe there is no need or requirement to re-issue the NIP or to re-request details via s.172. I don't believe there is a chance it will be withdrawn "out of embarrassment", it will proceed as above and possibly to trial either with the original wrong location, or they will try to amend it before it goes to court (if it goes that far). And if/when it arrives before court, they will rely on the "minor admin error" being too minor to materially jeopardise their prospect of a conviction. It is here that there is a chance, with a decent lawyer, to "get off".

TooManyPoints

I think we must agree to differ  

paul_c123

How did you get from "The original defect would not invalidate the NIP" to "They would have to issue a new NIP"?

Herzlos

Is this just a daylight savings timing thing again where the camera's got the time in GMT and we're in GMT+1, so the car may have been at the location mentioned an hour later?

user1977

Herzlos said:

Is this just a daylight savings timing thing again where the camera's got the time in GMT and we're in GMT+1, so the car may have been at the location mentioned an hour later?

OP said "I was never on the road or in the town that they quoted" - I was assuming the authorities have confused the records for two cameras.

TooManyPoints

How did you get from "The original defect would not invalidate the NIP" to "They would have to issue a new NIP"?

I trust you’re not asking me because as far as I can see I had not previously commented on the NIP. It has nothing to do with the OP at all. Only one NIP per allegation is normally required by law and that usually goes to the RK. 

However in this case, if and when the police realise their error, they are effectively alleging a different offence. No compliant NIP has been served for that offence because Section 1 of the Road Traffic Offenders’ Act requires the NIP to state the time and place where the offence was alleged to have been committed. The NIP mentioned by the OP doesn’t do that. 

So a new NIP must be served and that can be sent to the person who responded to the latest s172 notice. The trouble is, since it will almost certainly be beyond 14 days, that NIP will also not comply with S1 of RTOA and whilst the recipient must respond to the accompanying s172 request, no prosecution for speeding can succeed. 

The crux of all this is that the location is fundamental to both the NIP (because of the law) and the s172 notice (because that asks the question the police want an answer to). When the location specified is in a different town where the vehicle involved has never been, that is not a “minor administrative error” which can be corrected in court. 

Unless anything new crops up I think I’m out of  this now because we’re going round in circles.

Okell

@paul_c123

Have you perhaps misinterpreted what "andy foster" meant when he posted on ftla:

"… However, if they were to reissue a corrected NIP, and more relevantly the associated s. 172 requirement, as a matter of law the original defect would not invalidate the NIP (for the purposes of s. 1 RTOA 1988) as you have not been misled by the error…"

When I originally read that on ftla* I took his reference to "a corrected NIP" to be a referance to a corrected NIP reissued still within 14 days of the alleged offence, not after 14 days (which I think is what is being discussed on this thread).

I took that to be his meaning for two reasons: first, I couldn't see how a NIP issued after 14 days could properly be described as "a corrected NIP" because it would have been issued too late to qualify as "a correct NIP".

Second, I took the words "as a matter of law the original defect would not invalidate the NIP" to be referring to the reissued corrected NIP and not to the original NIP with the wrong location.

So what I understood him to mean was that if the RK responded promptly to the original NIP pointing out that the location was wrong, then a corrected NIP could still be served within 14 days and could still sustain a speeding prosecution, but that after 14 days the original NIP could not be corrected and neither it nor the corrected NIP would support a speeding prosecution. [This para edited for clarity]

Of course, I might well be completely wrong…

It would be good to get an update from the OP as to how this plays out [ie how the police respond to having the wrong location pointed out]

*I returned to this thread to ask the very question whether the police, having been informed of the error on the original NIP, would be able to issue a corrected NIP/s172 request outside 14 days, and whether that would sustain a prosecution. I'd forgotten that it had previously been discussed on FTLA

paul_c123

https://forums.moneysavingexpert.com/discussion/comment/81858485#Comment_81858485

Given that a corrected NIP would (presumably) be defect-free, I understood his comment to mean the original NIP.

Okell

Fair enough - although there seems little point in having a 14 day limit in which to serve the original and only required NIP if a 15 mile error in the location can be corrected at any time after 14 days.

I'd have thought a 15 mile error was both significant and relevant. It isn't a mere "slip" like a typo.

However, your opinion is that if the OP replies to their s172 request along the lines of "nobody was driving car xxx at location yyy at hh:mm on dd/mm/yyyy because the car was actually 15 miles away at location zzz at that time" then the police could simply issue a corrected NIP/s172 request outside the 14 days, and that could support a successful prosecution?

Who would the outside 14 days corrected NIP/s172 request be served on? The RK or the OP?

Car_54

https://forums.moneysavingexpert.com/discussion/comment/81858560#Comment_81858560

There appears to be no mention in the RTO Act for a "corrected NIP". Nor is there any mechanism to correct an already issued NIP.

It seems to follow that any "corrected" NIP could only be issued under the normal provisions of section 1, and therefore subject to the 14-day limit.