Free Traffic Legal Advice
Live cases legal advice => Speeding and other criminal offences => Topic started by: Jake Speed on October 01, 2025, 10:02:50 pm
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- As the registered keeper I got a NIP through the post for the offence of "Driver not in position to have proper control" contrary to Section 41D of the RTA 1988
- There was a link to 3 photos (i assume taken by a police camera), 2 of these appear to show the driver handling a mobile phone
Presumably they have chosen a Not in Proper Control charge rather than a Using a Mobile Phone one because they don't have sufficient evidence that the phone was being "used" (for the purposes of the legislation), only that it was in the driver's hand. It would then come down to an argument before the court (if the driver wanted to contest) as to whether just evidence of handling the phone was enough to convict, or whether there needs to be some other aspect of not being in control, e.g. swerving across lanes. The police will likely have more evidence than just that included with the NIP.
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Criminal statute often sets out what a person must or must not do in one part, and provides that failure to do so is a criminal offence in another part. E.g. other than motorway speeding (s. 17(4) RTRA 1984), just about all speeding offences are created by s. 89(1) RTRA 1984. Sometimes they create the requirement and the offence within the same section, but that is just lazy and doesn't create work for the legal profession.
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Thanks SP.
I was looking under the C&U legislation. I thought it odd that there were no C&U offences listed in Schedule 2.
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The offence is under s 41D of the Road Traffic Act 1988, and is most definitely listed in Schedule 2 to the Road Traffic Offenders Act 1988.
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It's in neither as far as I can see, Andy.
The offence is under Construction & Use legislation (s104)and there are no C&U entries in Schedule 2 (again, as far as I can see).
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The statutory maximums will be listed in Schedule 2 to the Road Traffic Offenders Act 1988. The Magistrates' Sentencing Guidelines will be in the Magistrates' Sentencing Guidelines.
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(@NewJudge the 33 in a 30 is just background information, there is no mention of a speeding offence)
I didn't mention a speeding offence. You asked if you were legally obliged to respond confirming who was driving. I explained that the notice probably tells you that it is an offence to fail to do so and what the penalty for that failure is.
I am certain the maximum number of points for "not in proper control" is three. I'm fairly sure the maximum fine is £1,000. It's certainly not £2,000 as there are no offences with that maximum.
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Thanks for both the replies, i've confirmed the driver details.
(@NewJudge the 33 in a 30 is just background information, there is no mention of a speeding offence)
Could anyone please advise how i can confirm the maximum penalty for the offence of "Driver not in position to have proper control"
I found this site https://sentencingcouncil.org.uk/guidelines/3-motoring-offences-appropriate-for-imposition-of-fine-or-discharge/ but it only has the "Use of mobile telephone" offence
There's conflicting information online, some suggest 6 points and a maximum penalty of either £1000 or £2000, whereas other sites suggest "Driver not in position to have proper control" is an alternative offence to "Use of mobile telephone" and carries a smaller penalty of 3 points and a fine.
Thanks
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am i legally obliged to respond confirming who was driving at the time?
The notice probably tells you the maximum penalty for failing to respond.
If not, it is fine of £1,000, and either six points or a disqualification. No fixed penalty is available for the offence.
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- The notice demands that i supply the details of the person who i think was driving the vehicle at the time
That is an unusual requirement. The requirement is usually to name the person who was driving at the time.
- The notice also states that the speed was 33mph (the location in the notice is in a 30 mph zone)
Does it mention an intention to prosecute the driver for exceeding the speed limit, or is that merely background information?
- am i legally obliged to respond confirming who was driving at the time?
Failure to do so is a criminal offence, which carries 6 points and a hefty fine.
- do they need to prove there was evidence of dangerous driving (swerving etc) or would the photo's be deemed sufficient evidence?
Presumably you have been living under a rock since 2003. Using a hand-held phone while driving has been a specific criminal offence for over 20 years! Until about 3 years ago, the use had to be for interactive communications, but the law was tightened up in (IIRC) 2022 to include any "use".
They would need to be able to prove that you were using it, but I would suggest that holding a phone while driving very much raises a presumption of use.
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Hi,
Any help gratefully received. I read the "Read this first" post hopefully i've added the required info
- As the registered keeper I got a NIP through the post for the offence of "Driver not in position to have proper control" contrary to Section 41D of the RTA 1988
- There was a link to 3 photos (i assume taken by a police camera), 2 of these appear to show the driver handling a mobile phone
- The notice demands that i supply the details of the person who i think was driving the vehicle at the time
- The notice also states that the speed was 33mph (the location in the notice is in a 30 mph zone)
Looking for any guidance or advice please
- am i legally obliged to respond confirming who was driving at the time?
- do they need to prove there was evidence of dangerous driving (swerving etc) or would the photo's be deemed sufficient evidence?
Thanks in advance for any advice