Free Traffic Legal Advice
Live cases legal advice => Speeding and other criminal offences => Topic started by: nathanielclyne on May 12, 2024, 09:55:51 pm
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You have been getting some rather odd legal advice, a conditional discharge is unheard of in a speeding prosecution, put that out of your mind. I get the impression that you have got yourself far too worked up over this minor matter. Speeding offences are all about the numbers, had you been doing 95mph you would have been offered a fixed penalty, but at 96mph the case goes to court, this is at the discretion of the police, forces may vary slightly but they are all very rigid with their policies, I suspect to avoid rather pointless discussions. Magistrates are very likely to stick to their guidelines which are for 4 to 6 points for 91 to 100 in a 70 limit, you are therefore likely to get 5 points and a fine equivalent to one week's net income less a 33% discount for a guilty plea. There is no reason at all for the prosecution to accept a lower speed when they have a good measurement from HADECs, they may do so in different circumstances such as a police follow check, but not when they have a good reading.
Pleading not guilty in the hope that the prosecution make some error is clutching at a very small and flimsy straw covered with grease, as mentioned it will cost you considerable additional prosecution costs when you are found guilty, but it will put things off for a while, but you will have to appear in court eventually. Courts are not terribly impressed by defendants who plead not guilty without a viable defence.
Getting a minor motoring conviction is not the end of the world, even when a job involves driving, the condition is most often "not exceeding 6 points" and I would be amazed if it ever stopped you getting a visa, what concerns the authorities are offences of dishonesty, and drug offences, not traffic offences.
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One last try then I’m out as well.
If you base your decision on the information you have mentioned here (or anything like it) you should be prepared for failure. I’ll just make a couple of comments then I think I’m done.
Firstly, from the “Just Answer” item:
Exceptional hardship and special reasons apply to totting or disqualification not to the addition of points for speeding I’m afraid.
That is incorrect. ”Exceptional Hardship” arguments are indeed available only for “totting up” disqualifications (i.e. 12 points within three years). But “Special Reasons” arguments are presented to avoid licence endorsement and disqualification or the imposition of penalty points. Whilst this is not particularly relevant to you (as you have no "Special Reasons" other than you don't want a criminal conviction) it demonstrates that misleading (or in this case plainly incorrect) information abounds.
However, they are wholly disorganised so you may be lucky.
Of course that is subjective. However, I would disagree that the Magistrates’ Court system is wholly disorganised. Yes, errors occur. But they are nowhere near as frequent as the writer would like you to believe and when your case does not enjoy one of those errors it will cost you dearly.
Mostly putting them to proof is about battering them with disclosure requests which they will fail to deliver and then you can challenge that.But it costs and you need to be aware of that.
You cannot “batter them with disclosure requests”. You cannot simply “go fishing” for material. As I explained earlier, if you want anything from the police which they have not disclosed you must ask the court to order its disclosure. Before that is done, the court will want to know what you want and why you want it. This will involve explaining how it will help you. The police have no obligation to disclose everything they have in connection with your case.
As above, the “Piston Heads” article does not even warrant a comment.
The information and advice you have received on here is accurate and your case is far more likely to finish in the conclusion outlined here than it is to see you acquitted. It seems you’ve been trawling the internet and have found all sorts of hopelessly inaccurate or misleading advice. You would be foolish in the extreme to contest the charge in the hope that a procedural error will be made that is serious enough to see you acquitted. I think that’s all I can say.
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I don't know how many times you need people to give you the same answer before it sinks in.
That pistonheads thread is nonsense, and 22 years old.
You have again referenced putting the prosecution to proof. This has already been answered.
It is a speeding conviction. Stop fussing FFS. And I say this as someone who undergoes SC checks routinely and has previously been convicted of motoring offences in court.
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Thanks to everyone who has taken the time to reply.
I assumed the solicitors advice may have some merit as doing research I noted the 'putting the prosecution to proof' notion mentioned online also:
https://www.justanswer.co.uk/traffic-law/nklal-jo-just-received-note-intented-prosecution.html
Although she does caveat:
'This is obviously a high risk course of action that should only be pursued if the sky is going to fall if you plead guilty.The chances are they will prove it. However, they are wholly disorganised so you may be lucky.'
https://www.pistonheads.com/gassing/topic.asp?h=0&f=10&t=15322
I did note this thread also mentions the 'bargaining with CPS' approach:
'Once in court you can start bargaining with CPS. Their sole aim is to get a conviction for their stats, no interest in what speed you really or are charged with. Court papers are usually allocated shortly before court, literally, so not really worth writing in. When you turn up for the pleading diet, CPS solicitor will be looking to settle as many cases as possible as quickly as possible, so will consider offers then. Usually reluctant or refuse to haggle/bargain with punters, but never a problem where a solicitor is employed. Logic being if you are willing to employ a solicitor, you could well be willing to plead not guilty and go to trial. That takes up time and effort and a win is not guaranteed, CPS could screw up, police witness on holiday, one of the cops put their foot in it. Why should they take the risk ? If you appear without a lawyer, you're seen as a chancer. You'll either plead guilty to whatever's thrown at you, or take it to trial and shoot yourself in the foot.'
However admittedly the post is somewhat dated.
With the exception of the witness statement stating the Section 172 Notice was served one day after it actually was and the clerical error stating my car reg when referencing my driving license number on the traffic report, I can't see much else as the NIP was issued within 14 days.
Thanks again.
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I absolutely agree. I really don' know what it is you believe a speeding conviction will jeopardise.
Some driving jobs could be problematic. Though I doubt that is what is feared since it's the conviction rather than the points that is OP's worry.
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I think your chances of getting a discharge (conditional or unconditional) are slim. On what grounds would the court not sentence you in the normal way and impose the mandatory minimum number of penalty points?
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The SJPN does not have a specific page titled IDPC
It wouldn't have. It is a term used in Criminal Procedure Rules and not many people would know what it means.
I did note when stating my driving license number there is administrative error whereby my Car registration is listed instead, and is listed as 'foreign DL' although I have a full UK license - I presume a small clerical error as such however would not amount to defence.
Correct
I was advised by one solicitor that my options would be to Plead not guilty and check the evidence which carries no guarantees, although case can be won if the evidence is incorrect.
You already have the evidence. The police need to show that:
- It was your vehicle involved (they have photographs of it)
- You were driving (they have your response to the "request for driver's details")
- The vehicle exceeded the speed limit (they have evidence from the device).
Unless you object to any of the evidence they have provided the statements you have copies of will be provided to the court and accepted as true and accurate. If you believe they do not have evidence to prove those three elements you need to say so. You will need to have the writer of those statements appear in court (or via video link) where they can be questioned (cross examined). Just wanting them to slip up or make a procedural error really won't cut it.
I was advised there may be practical problems when prosecuting lower priority cases with Evidence often missing/incomplete and many cases resolved before court.
There seems nothing missing. There is no reason for the police or CPS to seek a resolution before court. This is not a parking ticket or a railway fare evasion (where there are opportunities o do that).
If all the evidence ‘checks out’, consider offering a guilty plea to a lower speed (e.g. 90mph) (apparently this depends upon the prosecutor in court and whether they’re willing to accept the reduced speed,
Why should the prosecutor do that? There is evidence of your speed provided by an approved device. All you have is a desire to see the penalty lessened.
....but in his experience, most are, as it brings the case to an end quickly and with minimum cost/effort and is then more likely the magistrates will impose a conditional discharge (due to the lower speed).
I would be interested in his experiences. I have never, ever seen or heard of a Conditional Discharge being imposed for a straightforward speeding offence. Whilst it is in the court's power to do that, there is no provision for it in Magistrates' Sentencing Guidelines. A lower speed results in a lower fine, that's all. There would be no problem securing your conviction at the alleged speed and there is no reason whatsoever for the prosecution to entertain a lower one. More than that, by your solicitor's reasoning, all a a driver has to do is simply agree to plead guilty to a lower speed and be subject only to a conditional discharge rather than a fine. That is absolute nonsense.
It was my understanding conditional and absolute discharges followed findings of guilt but did not constitute criminal convictions per se thus did not need to be disclosed as such (my main aim).
Already explained by me and others - a discharge (either absolute or conditional) follows a criminal conviction, so will not help. In any case, there is no reason whatsoever for a court to impose a discharge simply because you offer to plead guilty to a slightly lower speed. This solicitor is either deliberately misleading you or is unfamiliar with the sentencing of speeding offences. In either event I recommend you do not pay him or her any money for advice or representation.
I do realise I am in an unenviable position...
I think your expectations are unrealistic. You are clearly not going to avoid prosecution in court. That process has already begun and it will not be discontinued, particularly on any of the bases you have put forward. With that in mind, you seem to have no realistic defence to the charge. Instead you are depending on an administrative or procedural error being made which is serious enough to see the prosecution fail. You have been served with the evidence the police will rely on to convict you and there is little or no scope for any issues with disclosure. If you want anything else from the police you will have to ask the court to order it. You will have to explain what it is and how you believe it either assists your defence or undermines the prosecution. Yes, errors are occasionally made and most of them can be rectified in court. Depending on one being made that will prove fatal to the prosecution is not really a very good idea.
You are really overthinking this. It really is a very minor offence, a conviction in a criminal court yes, but not one anyone is ever going to have any issue with.
I absolutely agree. I really don' know what it is you believe a speeding conviction will jeopardise.
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I was advised by one solicitor that my options would be to Plead not guilty and check the evidence which carries no guarantees, although case can be won if the evidence is incorrect.
I was advised there may be practical problems when prosecuting lower priority cases with Evidence often missing/incomplete and many cases resolved before court.
Let's hope you weren't charged for that advice.
They have provided you with a copy of the evidence on which the prosecution will rely - i.e. that your speed was measured with an approved device, you were speeding at 96 in a 70 limit and that you have admitted being the driver. What else do you think there is to be missing ?
The case has already been submitted into the court system (you mention it has been referred to the SJPN).
If all the evidence ‘checks out’, consider offering a guilty plea to a lower speed (e.g. 90mph) ( apparently this depends upon the prosecutor in court and whether they’re willing to accept the reduced speed, but in his experience, most are, as it brings the case to an end quickly and with minimum cost/effort and is then more likely the magistrates will impose a conditional discharge (due to the lower speed).
Arguing for a lower speed (known as a "Newton hearing") is a possible option where there is some doubt about the actual speed because of the method of capture - usually where it has been measured by a police vehicle following over a distance and there is room for some error. An approved device on the motorway is presumed to be accurate - unless you have evidence that it wasn't.
You are really overthinking this. It really is a very minor offence, a conviction in a criminal court yes, but not one anyone is ever going to have any issue with.
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It was my understanding conditional and absolute discharges followed findings of guilt but did not constitute criminal convictions per se thus did not need to be disclosed as such (my main aim).
An absolute discharge is still a conviction. It is, however, immediately spent so would not need disclosure when the rehabilitation act applies.
A conditional discharge is spent when the period of the order expires.
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Dear New Judge,
Many thanks for your detailed response.
Indeed the NIP was served within 14 days.
The SJPN does not have a specific page titled IDPC however I have attached the Police Report Pages which I presume are the same thing.
I did note when stating my driving license number there is administrative error whereby my Car registration is listed instead, and is listed as 'foreign DL' although I have a full UK license - I presume a small clerical error as such however would not amount to defence.
I accept I am likely in hope a small procedural fault or similar disclosure failure / the case being discontinued for some other reason.
I was advised by one solicitor that my options would be to Plead not guilty and check the evidence which carries no guarantees, although case can be won if the evidence is incorrect.
I was advised there may be practical problems when prosecuting lower priority cases with Evidence often missing/incomplete and many cases resolved before court.
If all the evidence ‘checks out’, consider offering a guilty plea to a lower speed (e.g. 90mph) ( apparently this depends upon the prosecutor in court and whether they’re willing to accept the reduced speed, but in his experience, most are, as it brings the case to an end quickly and with minimum cost/effort and is then more likely the magistrates will impose a conditional discharge (due to the lower speed).
It was my understanding conditional and absolute discharges followed findings of guilt but did not constitute criminal convictions per se thus did not need to be disclosed as such (my main aim).
I do realise I am in an unenviable position with a strict time deadline and appreciate everyone who has taken the time to respond.
[attachment deleted by admin]
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I am not sure which cases are more likely to have disclosure deadlines missed
Once you have your SJPN you should also have the "Initial Details of the Prosecution Case" (IDPC). This should be the evidence the police intend to rely on to convict you. Unless there is anything missing that's all the disclosure you are entitled to and are likely to get. Do you believe there is anything missing?
I did briefly consider appealing to the CPS on the basis of the 'public interest' part of their 2-stage test - essentially reiterating what I had initially represented to the police: alternative out-of-court disposals were available enabling an equivocal if not greater penalty whilst safegaurding public interests and sparing cost to the wider criminal justice system
Why would it not be in the public interest to prosecute you? I would suggest it would be against the public interest not to do so. The police have guidance on the enforcement of speeding offences which suggest they may offer out-of-court (OOC) disposals for less serious occurrences. Your offence is above the threshold for one of those (just). The public need to have confidence that the police are not abusing their OOC options and that offenders receive the appropriate penalties. In any case, the decision to prosecute you has been taken by the police, not the CPS. The CPS will only become involved in the event of a not guilty plea being entered, where they would normally assume responsibility for the trial. They have no need to revisit the decision to prosecute. It would hardly sit well if the police decided that prosecution was appropriate only to see the CPS discontinue the prosecution. One of the aims of the guidance the police use is to achieve consistency.
I don't know what "alternative out-of-court disposals" you have in mind which would enable "an equivocal if not greater penalty" to be imposed. A fixed penalty would cost £100 and three points. Sentencing in court for your offence, even with a guilty plea, will cost you two thirds of a week's income as a fine, a surcharge of 40% of that fine, costs of around £90 and at least four but more probably five points.
Also mentioning My licence is clean despite driving for over a decade and other mitigating factors including empty motorway, first thing in the morning with excellent driving conditions etc.
Nothing you mention is mitigation. You having previous convictions or the conditions being adverse would aggravate a speeding offence, but you having a clean licence or the conditions being favourable do not mitigate it.
I did consider wondering whether I could mitigate and ( 0 points, clean license, empty motorway, good driving conditions) and ask for 'conditional discharge' whilst still imposing the relevant points and fine etc as it really is just the semantics of a formal criminal conviction I am trying to avoid...
It's not going to happen but it wouldn't matter if it did. You would still have been convicted. A Conditional Discharge is simply a disposal available to the court to deal with those convicted.
As far as the trial process goes, you are perfectly entitled to simply "put the prosecution to proof." However, at some stage before your trial (usually at a case management hearing) you will be asked to identify the issue(s) in dispute. You don't seem to have any, other than the fact that you would prefer not to be prosecuted. It is a very brave (for that read "foolhardy") strategy to rely on a procedural error (and that's largely what you are doing) to secure an acquittal.
I believe you are clutching at straws. The police will not revisit their decision to prosecute you and the CPS has no reason to look at it again.
I take it you've checked such things as whether the first NIP was served within 14 days?
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Regarding the flight questions it depends on what the destination wants to know.
The guidance on the US for example is reasonably clear that a minor motoring offence is fine. It doesn't define minor of course. As such the VWP/ESTA route can still be used and "no" answered on the application and landing card.
My last AUS visa it seemed reasonably clear that I had to answer yes, the guidance at that time made no exceptions. The result was a couple of days delay.
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I have been through many employment applications recently in a competitive field and in hindsight they all asked the question 'Have you been convicted of an offence of any nature' - as I understand the usual FPN 3 points can be truly ignored whereas the court fines constitute convictions as there is admission/ finding of guilt and cannot be excluded. (Even on flight incoming passenger cards the question is 'Do you have any criminal convictions?')
Pedantically a fixed penalty isn't a conviction but never under estimate the ability of HR departments top not say what they mean and they probably believe you would/should declare FPs so in the interest of not misleading them you should probably be declaring them, especially if they will have a reason to access your driving record. As for visiting foreign countries, many of whom don't have an FP equivalent and so would expect an admission of guilt to be the same as conviction, you would risk their ire by answering in the negative.
As for your public interest test, laughable I'm afraid.
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Dear The Rookie
Thank you for taking the time to reply. Indeed at this stage it is mainly a hope for prosecution error, albeit unlikely.
I have been through many employment applications recently in a competitive field and in hindsight they all asked the question 'Have you been convicted of an offence of any nature' - as I understand the usual FPN 3 points can be truly ignored whereas the court fines constitute convictions as there is admission/ finding of guilt and cannot be excluded. (Even on flight incoming passenger cards the question is 'Do you have any criminal convictions?')
I did consider wondering whether I could mitigate and ( 0 points, clean license, empty motorway, good driving conditions) and ask for 'conditional discharge' whilst still imposing the relevant points and fine etc as it really is just the semantics of a formal criminal conviction I am trying to avoid - although I realise this is unlikely at this stage!
The SJPN has a police report with offence wording - on x date a motor vehicle on a motorway travelling at a speed of 96mph at a speed exceeding 70mph contrary to regulation 3 of the Motorways Traffic Regulations 1974..
There is then a witness statement from an evidence assessor stating that they are employed as such by Central Ticket Office. Their duties include the checking and collation of documents sent out by GMP CTO and their production as business records for court proceedings.
They go on to say a prescribed device of a type approved by the Secretary of State was placed at said Motorway
At said date and time a vehicle with my reg number caused the device to be activated speeding at 96mph in a 70mph speed zone.
This offence detection was processed within the CTO under file reference number.....
A successful login to PAS system was made, this system allows access to information regarding the alleged offence.e. photographic evidence, camera calibration certificates answers to FAQ's and on line driver admissions and nominations can be made.
Driver admission was submitted and all required data fields completed. Application is made to the court to grant a direction for the prosecution witness to give live evidence over a live CVP link.
Again thank you to everyone who has taken the time to reply thus far.
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You seem to basically be relying on a prosecution error, they do of course happen but I'd give no better odds than 100:1 of it happening, if you are well off enough to consider a circa £1000 extra (noting if you're better paid the fine will be higher so the loss of discount will be bigger likewise the surcharge so you could be looking at nearer £1200or more extra) as worth the gamble, have at it. Otherwise I'd suggest it's a fools errand and you are better off minimising the impact.
I'm not aware of any change in reporting requirements from 3 points for an FPN and 5/6 from a court case, can you clarify why you think they are different?
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If you are looking to rely on a defence of insanity, you should be aware that the burden on the defence is to prove it beyond any reasonable doubt.
If you are looking for a technical defence of putting the police to proof on some ingredient of the offence and hoping that they fail to prove that ingredient, absent some issue specific to your case, the starting point would invariably be the contents of any statements or certificates disclosed with the SJPN. As you have not meaningfully shared those with us, you are currently just wasting our time and yours.
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I really wanted to resolve this without a formal court conviction. Mainly as a court convictions become formal criminal convictions requiring disclosure as opposed to FPN's which are not 'convictions' per se and never have to be mentioned on any form ( be that VISA's jobs etc - I am aware speeding on it own is non-recordable but if asked motoring offences are not specifically excluded this will require disclosure).
Most forms I have filled in that ask such questions exclude such offences. You won't need to disclose it for example, for US immigration, DBS checks, even UK Government Security Clearance isn't bothered by such offences. I think you are over-worrying about an offence that a significant number of people have had over time.
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I presume the attached certificate of calibration is genuine.
I did consider wondering whether I could mitigate and ( 0 points, clean license, empty motorway, good driving conditions) and ask for 'conditional discharge' whilst still imposing the relevant points and fine etc as it really is just the semantics of a formal criminal conviction I am trying to avoid - although I realise this is unlikely at this stage!
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Southpaw82
Thanks for your reply above.
I have received the 3 photographs from the camera device on the admit to being the driver website and the certificate above. On the SJPN there is also a witness statement from the Central Ticket Office 'evidence assessor'. This states the device was home office approved and triggered by my vehicle and asks for permission for them to give evidence via live CVP link.
I am not sure which cases are more likely to have disclosure deadlines missed - I presumed this was more likely due to stretched nature of the police force and resultant delays in handing over files to the CPS as opposed to a function of how complicated the case was, however, I am well aware my case is fairly straight-forward for any prosecutor.
I did briefly consider appealing to the CPS on the basis of the 'public interest' part of their 2-stage test - essentially reiterating what I had initially represented to the police: alternative out-of-court disposals were available enabling an equivocal if not greater penalty whilst safegaurding public interests and sparing cost to the wider criminal justice system. Also mentioning My licence is clean despite driving for over a decade and other mitigating factors including empty motorway, first thing in the morning with excellent driving conditions etc. However, I am sure they would not discontinue on these grounds and this would essentially end any 'not guilty' plea.
Thanks again for taking the time to read and reply.
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There is no camera operator though. HADECS isn’t a manned system.
Have you heard about disclosure deadlines being missed in very simple unmanned camera cases or more complicated cases?
What evidence have you already received?
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The PDF attached is available on the 'identify driver' website :
[attachment deleted by admin]
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Southpaw82
Thanks for your reply above. I was caught by HADECS 3 camera device. A 'Certificate of Compliance' was available on the 'admit to driving website'.
I realise I am not in an enviable position and indeed the loss of credit for an early guilty plea. I have heard on the off chance, occasionally due to disorganisation etc, the crown can sometimes fail to meet disclosure deadlines, or cases be discontinued for other reasons, indeed including a camera operator not attending the trial, so just wanted to explore any small avenue that may remain.
Thanks again.
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How much disclosure do you think is required in a speeding case? You don’t say how you were caught, which will have a bearing on the evidence that will be produced.
I’m not sure “nothing to lose” is correct. If you plead guilty, you will receive points, a fine (reduced by 1/3 for the early guilty plea), a small costs award and surcharge (based on the fine).
If you are convicted after trial, the fine will not be reduced by 1/3, so the surcharge will go up, and costs start at £650-ish. You’re essentially risking an extra grand (thereabouts) by pleading not guilty with no defence.
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Dear All,
Hope you are well.
Would be really grateful for your advice:
NIP for 96 in a 70 motorway (silly of me and lesson well and truely learnt)
I really wanted to resolve this without a formal court conviction. Mainly as a court convictions become formal criminal convictions requiring disclosure as opposed to FPN's which are not 'convictions' per se and never have to be mentioned on any form ( be that VISA's jobs etc - I am aware speeding on it own is non-recordable but if asked motoring offences are not specifically excluded this will require disclosure).
Ive had a clean license for 10 years. I thereby (perhaps unwittingly!) contacted the police asking whether the matter could be dealt with via FPN instead of via a court route. They very sternly declined. I should mention I made more than one representation.
My question is, I fully realise I have very few options left now in not getting a formal court conviction, as I've been given an SJPN with only a couple of days left to reply.
Im aware I do not have a factual defence but was essentially just hoping to put the prosecution to proof following a not guilty plea ( as per my legal rights) as I have nil to lose. I know certain disclosure requirements are not always met, which can result in favourable outcomes.
I appreciate this is a niche question but was wondering if anyone had taken this approach before and how to go about it? What disclosure do you usually ask for and at what time during the process?
I have approached many driving solicitors but not located one I feel comfortable with in offering assistance.
Thank you all in advance!