Free Traffic Legal Advice
Live cases legal advice => Speeding and other criminal offences => Topic started by: Bertieboo on October 03, 2023, 11:59:26 am
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Particularly as the NIP was from Devon & Cornwall - so one hell of a (memorable!) detour on the route from Norfolk to the Highlands!
You have the OP mixed up with ManxTom's reply.. OP went to Cornwall
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Particularly as the NIP was from Devon & Cornwall - so one hell of a (memorable!) detour on the route from Norfolk to the Highlands!
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This is all very interesting but what matters is the diligence the defendant actually exercised, not hypothetical possibilities.
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If my wife and I are sharing driving duties on a long drive we normally swap over at service stations, filling stations, coffee shops etc. But there is no regular pattern as to whether it's the outgoing driver or outgoing passenger who pays for food, fuel and drinks etc.
However, knowing where a particular camera was in respect to service stations etc would probably help us remember who was driving at a particular point. Receipts might possibly help but I'm not convinced...
Mobile phone records would be of more use assuming the passenger (and not the driver) had used their 'phone around the relevant point of the journey.
But apart from those possibilities, if two people can't remember who was driving then they can't remember who was driving.
(We drive from Norfolk to the Highlands of Scotland - and return - twice a year. Next time we'll keep a note of who drove when. Especially on the A9...)
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So if you swap drivers at the same time as getting fuel, is the passenger paying or the driver?(https://emoji.tapatalk-cdn.com/emoji848.png)
You are right that it wouldn't be useful to everyone. Me, for example. Whoever pays on our journeys is decided by who goes into the shop. If she wants a coffee or something, she might go in while I refuel. If she doesn't, I'll go in and pay.
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What would a spending pattern prove in this case, if they were both in the same vehicle at the time?
Well it might help in my case. Whenever Mrs NJ and I are on a trip where the driving is shared, the passenger usually gets out to pay for petrol, newspapers, sandwiches etc. By looking at which credit card was used we could tell with a reasonable degree of certainty who was driving when such purchases were made and it may help identify who was driving at a particular time.
Of course that would not be useful to everybody but the idea here is to give the OP a taste of what might be done.
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So, in an entire week or travelling, there is no trace whatsoever of a spedning pattern? No breaks/food, no fuel refills etc etc?
Good luck with that defence............
What would a spending pattern prove in this case, if they were both in the same vehicle at the time? I don't think the OP has attempted to offer it up as a defence anyway.
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For the sake of completeness, and to avoid others checking,whilst an SJPN can include multiple charge sheets, the date of the written charge (for the s. 172 offence) is beyond the 6 month limit for the speeding offence, so that will not have been included on a separate sheet.
Getting the prosecution and court to agree to drop the lawfully charged offence in return for pleading guilty to a charge that has not been issued and which the court would not be entitled to try is apparently common practice if the accused is a serving cabinet minister. For anyone else, not so much.
If a deal is attempted in front of the bench and rejected, I would suggest that any s. 172 defence would necessarily fail unless you persuade the bench to recuse themselves on the basis that they would have reason to disbelieve you.
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So, in an entire week or travelling, there is no trace whatsoever of a spedning pattern? No breaks/food, no fuel refills etc etc?
Good luck with that defence............
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By the way, your registration number is visible in the NIP you posted up.
As indeed is his wife's name and address.
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It is what is mentioned on the "Single Justice Procedure Notice" which determines the offence(s) she has to answer. The Notice of Intended Prosecution (NIP) will obviously only include the speeding allegation because at that point that was the only offence that the police suspected had occurred. The "Fail to Provide Driver's Details" offence is not committed until 28 days after the request was served and no NIP is required for that offence.
As I said earlier, your wife's case is not the same as somebody who either did not receive or did not respond to a s172 request. In those circumstances prosecutors will usually agree to accept a guilty plea to speeding on the understanding that the s172 charge is dropped. It is a tried and tested strategy which is recommended frequently on this forum (and which is invariably successful). Your wife, however, has already stated categorically that she could not establish who was driving.
Of course, as Rookie suggests, her "diligence" in trying to identify the driver need not end because she has been charged with failing to do so. She could approach the prosecutor at her Case Management hearing and say that her diligence has been rewarded and she can now accept that she was driving. What she should emphasise is that she will only plead guilty to speeding providing the s172 charge is dropped. This is important. At present she cannot be convicted of speeding as there is no evidence she was driving. If she pleads guilty to it she will receive three points for that and, since she has little in the way of a defence to the s172 charge, probably six for that in addition. Whether this would be acceptable to a prosecutor in your wife's circumstances, especially as Rookie mentions, as she has not been "dual charged", I don't know. But if she doesn't ask she won't get.
By the way, your registration number is visible in the NIP you posted up.
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Well of course the intention to prosecute only contained the one (speeding) allegation as the second offence couldn't have been committed when that was sent, but its clearly on the charge sheet. The charge sheet appears to only include the failing to furnish, so no, not being dual charged, while that doesn't make the plea deal impossible, it is all but the case as the prosecutor would have to agree (somewhat dubiously) and out of time speeding charge for your wife to accept.
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Newnit posted a reply ‘unless your wife has been charged with both speeding and failure to furnish’…
I attach the ‘intention to prosecute’ in which the offence is excess speed. I also attach the charge sheet which only ‘refers failure to identify’. Is she being charged with both offences? If both charges are valid, could a deal admitting the offence be open to her. How would we do this? Writing directly to the Court?
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I'm afraid we don't have anything like that we can rely on. Bank and credit card statements have nothing.
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What can a solicitor say she did that she cannot say herself?
A solicitor worth any salt will likely add 4 figures to your total cost, so double it for a guilty plea or add about 50% if a non guilty plea fails at trial.
What you will be attempting is known as the 'Hamilton Offence' as obviously a lot of the 'reasonable diligence' doesn't help when both possible drivers are in the car as they were with the Hamiltons (yes THOSE Hamiltons). HOWEVER, the statute does say 'could not with reasonable diligence have ascertained who the driver" That doesn't actually say you have to have performed the RD now, just that you can show that RD wouldn't have done it - it may sound like semantics but it does mean you can do it now! Example, if you swapped drivers at services and spent money there on card then the receipt will confirm the locations you swapped drivers.
Hamiltons
http://forums.pepipoo.com/index.php?showtopic=691
https://www.theguardian.com/uk/2003/nov/28/northerner.heatherstewart
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All your considerations have been very helpful indeed. I think she will have to engage a solicitor for representations.
She may well do. However, she may wish to see what the advice here says first, before she spends her money on legal representation. If she changes her mind about pleading not guilty then she can simply change her plea at the case management hearing (and save the costs - on both sides - of a trial).
I don’t think we have the full details at present but I have to say that based on what you have said I rate her chances of a successful defence as being pretty low.
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All your considerations have been very helpful indeed. I think she will have to engage a solicitor for representations.
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The summons reason is ‘For a case management hearing (deft to attend). What does that mean?
A case management hearing is one held in advance of the trial. Its purpose is to identify what is agreed and the issues in dispute. In more complex matters it is also used to determine which evidence can be simply read to the court and which witnesses need to attend to give evidence in person, to be cross-examined if necessary. Finally an estimate of the time required for the trial is made and a date is set.
The issue is straightforward - did your wife exercise reasonable diligence in an attempt to identify the driver after receiving the request? The prosecution evidence should not be in dispute. It will consist of evidence that an offence was suspected, that a s172 request was served and a reply, failing to name the driver, was received. I'm surprised a case management hearing is deemed necessary, but that's a matter for each individual court.
Water under the bridge, but since you have seen the photographs that the police have, which did not help identify the driver, it is unlikely they had anything else which did. So your worries that they might would have been unfounded. Even so, in the event that the wrong driver was nominated and the police can see that (this would usually be a male nominated and a female seen in the driver's seat, or vice versa) they would have been unlikely to have prosecuted your wife for making a false statement. Instead, provided they did not suspect her of attempting to pervert the course of justice (say if one of you had nine points and the other none) they would usually simply ask if she wished to "reconsider" in the light of the photographs.
It is usually possible to do a "deal" with the prosecutor to plead guilty to speeding if the "Fail to provide driver's details" (s172) charge is dropped. As above, this can only be done when the person charged is the driver and usually (though not necessarily) when they have been charged with both offences. This deal is often undertaken when the recipient did not receive the request or did not respond to it. You haven't said whether your wife has been charged with both offences but I have a suspicion she might not have been, in view of her response to the request. Quite how a prosecutor would react if your wife suggested such an arrangement, when she has stated categorically that she was unable to say who was driving is difficult to say. It might be worth delicately broaching the subject.
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Yes it was
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Was the camera location not specified on the NIP?
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Unless your wife has been dual charged with both speeding and failure to furnish, the opportunity to plead guilty to the speeding is gone. But again, there is no 'we' or 'our'. It is just your wife that has been charged.
However it looks like you are suggesting it would be you putting your hands up as the most likely driver which now becomes impossible to do, even with the dual charge. Only your wife can do a deal to admit to the speeding in return for dropping the FTF charge.
Just asking for pictures will not pass the test of reasonable diligence though. If you think about it, if just not knowing was a defence, we would all use it. It sounds like the actual journey was quite memorable. How far were you driving and how many times did you swap on that journey?
Diary entries and Phone records are not bizarre requests. Obviously It doesn't quite work when you are both together in the vehicle, but its intention is to identify if someone had a reason to be on that journey. Likewise, phone records can show travel timeline in maps, whether phone calls were made, or texts sent that indicated who might be driving.
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Our ‘reasonable diligence’ was asking if there was a front facing photo (didn’t help) but which helped us to also find the camera location to work out who was driving. If it comes down to ‘what is most likely’, then we can say who. We didn’t think it was right to guess (could the police have other photographic evidence proving or disproving our plea?)
Can we put this forward to the court in writing now or do we have to travel to the court to answer the summons?
The summons reason is ‘For a case management hearing (deft to attend). What does that mean?
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Summons received to attend Court on 13/12/2023.
What do we do now?
First of all, there is no "we" involved here. The proceedings are only issued against one of you - presumably your wife.
She will have to attend court on the appointed date and face a trial. The prosecution will produce their evidence which they say, supports the charge. That will be evidence of the request made by the police and evidence of your wife's reply. Without any evidence from your wife she will undoubtedly be convicted. She has the opportunity to take advantage of the statutory defence which says this:
"A person shall not be guilty of an offence.....if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."
Unfortunately your explanation demonstrates that she has exercised no diligence whatsoever. It simply describes the circumstances prevailing at the time the speeding offence was alleged to have taken place and that, due to those circumstances you cannot, between you, recall who was driving. The requirement to exercise diligence (in establishing who the driver was) begins when the request is served. She seems to have done nothing since then (not that you've explained here, anyway).
The camera's function is to identify the vehicle, not the driver and your protestations that it was facing the "wrong" way are irrelevant. The suggestions that the police made to help you establish who was driving are not bizarre. In fact they are among the suggestions that you might receive on here had you asked how to tackle your situation before your wife responded to the s172 request. One of the parties might, for example check their phone records and note that a call was in progress at the relevant time and so indicate that (hopefully) they were not driving.
I'm afraid from your explanation your wife faces almost certain conviction. If it was as simple as turning up to say "can't remember who was driving, guv" (which is effectively what she has already said) everybody would do it and speeding enforcement would be impossible. The offence carries six points, a hefty fine and an endorsement code (MS90) which will probably see increased insurance premiums for up to five years.
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Only "knowingly or intentionally" naming the wrong driver would be an offence - the pragmatic approach in this sort of situation, is usually to name the mostly likely driver.
The case has now been progressed to court and trials aren't carried out on paper submissions so your wife will have to attend and answer the charge. If she can convince the court that she did use "reasonable diligence" and could not identify the driver then she should be acquitted - but courts are very sceptical and will expect a very detailed account of what she did to try - and why it failed.
We do sometimes hear of examples of courts being sympathetic to a registered keeper in this position and finding them not guilty, but she needs to understand that it is a risk and the costs for losing will be significant.
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Attached is the pleas made and enclosed with the posted plea
[attachment deleted by admin]
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We were both in the car. We were travelling for a week from Herefordshire to Devon, then Cornwall, then back home. We had 4 dogs in the car - 3 our own and one border collie we were looking after. It was very stressful. Our dogs were caged and the collie restrained. The collie barked, whined and occasionally was very argumentative with our other dogs. We shared the driving, with the passenger basically keeping them distracted, quiet etc. We had to use google maps to see where the camera was and to then think who was driving then...which we couldn't answer. We were being honest. The easiest way would have been to say I was driving..but we were not sure.
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Presumably your wife’s defence will be that she did not know who the driver was and could not work it out, having exercised reasonable diligence. That then begs the question, what reasonable diligence did she carry out?
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on 16/12/2022 my wife received an ITP from Devon ans Cornwall Police for speeding 'on the A30 Roseworthy Eastbound@ for 'exceeding 60mph'. The alledged recorded speed was 69mph.
we would not recall 100% who was driving ( we are both insured on the vehicle) so we asked for assistance in identifying the driver (letter to the 21/12/2022).
The images they sent on 17/1/2023 showed the rear of the vehicle. Identity of the driver was impossible - 'unfortunately in this instance the images are rear facing only. You may be able to refer to the offence location, time, diary entries, or phone records (both bizarre requests) to identify who was driving at the time of the alleged offence.'
My wife replied on 26th January ' my husband and I have thought very carefully about this matter and understand our obligations to take all reasonable steps to identify who was driving. We re unable to be certain who was driving at the time. We are aware that it is a further offence to make a false declaration and regretfully we just cannot truthfully identify who was driving.'
D&CP responded on 6/2/2023 saying we have failed to comply with section 172 and the case is forwarded for court proceedings.
She received the SJP on 26/6/2023. we replied under Section 4 NOT GUILTY
Section 5 - we sent reasons for the not guilty plea.
Summons received to attend Court on 13/12/2023.
What do we do now?