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Messages - NewJudge

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It's probably because the police suggest they did not receive your licence details.

You should plead guilty when responding to the SJPN. If you don't want a personal hearing, in the "Mitigation" section you should explain that you complied with the conditions of the fixed penalty (by paying the penalty and submitting your licence details) and respectfully ask the court if they would consider sentencing you at the equivalent to the fixed penalty. They have guidance which suggests they should consider doing so:

"Where a penalty notice could not be offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties outside the control of the offender, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in these circumstances."

So one of my tickets after sending away unsigned, they have sent a new BLANK S172, this obviously has an updated date on it,...

In my view you should not respond to this second request. Instead you should concentrate on establishing whether a response to the first request was received by the police. If it was not, I would respond to that one and not this latest one.

There is (coincidentally) a Scottish precedent where the police served a written s172 notice on a driver which, despite a reminder letter, did not receive a response. About seven weeks after the issue of the first s172 request, The police then visited the driver at his home address and asked him who was driving the car at the relevant time. He replied "I have no recollection of the correspondence. I have no idea who was driving at the relevant time and date as my wife and I both drive the car."

He was eventually prosecuted under s172. The proceedings began after the six month time limit based on the service of the first (written) s172 request but before six months limit based on the second (verbal) request. The stipendiary magistrate ruled that proceedings were time barred, basing that decision on the date of the first request.

The Procurator Fiscal appealed that decision in Scotland's Appeal Court, on the basis that the six month period to prosecute began 28 days after the second (verbal) request was made. The Court ruled against the PF, saying that if the date of the second request were to be considered, it has the effect of providing the police with an open ended period in which to prosecute simply by making multiple requests:

This has a significance for you with your strategy of going "unsigned". The police may attempt to begin proceedings based on this second s172 request (or any subsequent requests they decide to issue) and so prolong the period during which you have to "keep your head down".

I would like to dispute this charge. Please can you advise me on how to go about doing this.

As above, disputing it is simple. The difficult bit comes after the police have presented their evidence to the court that you had exceeded the speed limit.

Average speed camera systems are very accurate. They take two timed photographs of the vehicle and the distance between the two cameras is known. So with the time and the distance known it is a simple calculation to determine the vehicle's average speed over the stretch. If your average speed was above the limit, you must have exceeded the limit in either all or part of the stretch.

So when the police have done their bit, what are you going to do to counter their evidence?

Failure following a trial is costly. You will pay an income-related fine of half a week's net income, a surcharge of 40% of that fine and prosecution costs of around £650. So an income of £500pw will see you pay £1,000. 

There are two documents on those sheets of paper: one is the NIP and the other is a request for driver's details. They are subject to different legislation, particularly regarding timescales. Whilst a NIP has to be served on either the driver or the Registered Keeper within 14 days of the offence, the request for driver's details does not. It has no time limit.

If they are addressed to your partner she needs to respond to the request by providing the details of the person who was driving at the relevant time within the 28 days allowed. Failure to do so will see her commit a more serious offence which carries six points.

Whoever was driving may have a defence to any speeding charge if it can be shown that no NIP was served on either the driver or the Registered Keeper within 14 days and if not, there was no acceptable reason why not. You can perhaps tell us where this "wrong address" idea came from when you find out. But meanwhile the duty to respond remains.

The driver should be offered a course for that speed.

Speeding and other criminal offences / Re: SJPN to be received
« on: June 11, 2024, 07:30:39 pm »
...I then received the second conditional offer.

Are you saying this is a second conditional offer for the same offence? Proceedings cannot be taken until the end of the suspended enforcement period. And they cannot take proceedings more than six months after the date of the offence. 

Speeding and other criminal offences / Re: Red light camera, 1 second
« on: June 11, 2024, 08:21:52 am »
I just thought that 1 second after the red may be worth challenging but I guess I'm wrong.
Yes you are. You have to remember that you had already had around 3 seconds of amber, which also means stop unless it is unsafe to do so. But red means stop with no exceptions.

I think you need to tread a little carefully.

Either the system will not deal with this scenario (which would be a defeat of the ends of justice) or someone will look at it and pursue the trustees.

If you ignore this court action, there is a danger (in fact a near certainty) that the trust will simply be found guilty in its absence. Unless the Magistrates’ Legal advisor is on the ball, it is unlikely that  anybody will raise the issue of the trust and its lack of “legal personality”. It will probably only surface when the enforcement of any financial penalty is attempted and that may possibly culminate in bailiffs visiting the address of the trust (presumably as shown on the vehicle’s V5C).

Whether anybody will look at it beyond that is uncertain. But they should because the implications for this are quite profound. It would mean, in effect, that people keeping vehicles where a trust is the registered keeper are immune from all the legislation that goes with that (e.g. road tax, change of details etc). It also means that they can ignore any s172 requests with impunity. The result of that is that the drivers of these vehicles need not worry about committing any offences – which are not always as trivial as speeding - that rely on s172 to identify the driver.

In a Freedom of Information request in 2019, the DVLA confirmed that is was possible to register a vehicle in the name of a trust:

“We appreciate that you have taken the time to contact us in relation to this matter. I can confirm you are able to register a Trust as a registered keeper.”

It would be interesting if you kept us informed of what happens. I’m already in the early stages of setting up a trust, and plan to transfer to it the vehicles currently registered to Mrs NJ and me!   :) 

A timely NIP is only required to successfully prosecute the speeding offence. If the NIP was received late (or even not at all) it does not invalidate the accompanying (or any subsequently served) s172 request.

Since the speeding offence is now irrelevant, so is the NIP and its timeliness.

I think if the recipient is deemed to be a "body corporate" you will have difficulty defending this. The very section - 172(4) - which you are relying on as a defence is not available in those circumstances (which, as I said, I am not able to comment on). In that case it is only available if the body corporate can show that no records were kept (and they obviously were not) and you can convince the court that it was reasonable not to do so.

It's a shame because you have at least the basis of a decent "reasonable diligence" defence under s172(4). It might therefore be better if you could convince the court that the recipient of the s172 request was an individual. Then a defence under s172(4) would be available to that individual unconditionally. But, from your description of the arrangements, I'm not quite sure how that could be done.

Meanwhile, in case you need to demonstrate it to the court, what are the circumstances surrounding this vehicle and the people who may drive it which might make the requirement to keep records of who does so unreasonable?

Moving a little further along, if "the trust" did end up convicted and, as southpaw suggests in post#2, it has no "legal identity", I'm not sure how any financial penalties imposed might be enforced. But once again, not something I have enough knowledge of.

Speeding and other criminal offences / Re: SJPN to be received
« on: June 09, 2024, 06:29:10 pm »
Is there any defence I could use? Do the magistrates have any discretion so that I can obtain a fixed penalty and not a criminal conviction?

They can sentence you at a level equivalent to the fixed penalty but it remains a criminal conviction.

You may do well to enquire precisely what your regulators "frown on". You may find your fears are unfounded.

Speeding and other criminal offences / Re: SJPN to be received
« on: June 09, 2024, 06:27:37 pm »
Is there any defence I could use? Do the magistrates have any discretion so that I can obtain a fixed penalty and not a criminal conviction?

They san sentence you at a level equivalent to the fixed penalty but it remains a criminal conviction.

You may do well to enquire precisely what your regulators "frown on". You may find your fears are unfounded.

-Come on these forums, get more cr@p heaped on thee
- driving offences are the Govts cash cow. It doesn't matter if patients are waiting in Ae for 30 hrs or dying whilst waiting or if you get robbed or vandalised. Drive 5-10 miles above the limit and you have the army, navy and airforce after you

I think you need to wind yourself in a bit. Nobody here knows why your case has been referred to the normal Magistrates' Court. They are simply trying to help you with your problem.

The very worst that can happen to you is that you will be sentenced in accordance with the normal sentencing guidelines. These suggest a fine of half a week's net income (reduced by a third for a guilty plea, so one third of a week's income). As well as that you will pay a surcharge of 40% of that fine and prosecution costs of about £90. You will also see a maximum of four points (but more likely three) added to your licence.

But if you explain the circumstances where you were offered a fixed penalty but failed to comply with one of its conditions, they may see fit to sentence you at the fixed penalty level (£100 and 3 points). One thing's for sure though - if you approach the court with the attitude you seem to have adopted on here, where people are giving their time freely to try to help, you may be disappointed.

I think the issue of whether a trust can be a RK will have to be ironed out and it's beyond my knowledge. On the assumption that "the trust" is eventually determined to be the RK:

Is a private irrevocable trust not registered with HMRC, a body corporate?

S172 seeks to differentiate between individuals (who hold driving licences which can be endorsed with details of offences) and corporate organisations (which do not). This trust, whatever its legal identity, is not an individual with a driving licence and I'm fairly certain that if the point was appealed in a higher court, that court would find the trust to be a "body corporate" for the purposes of s172. 

How does one prove a negative!? i.e. show that no records were kept?

As above, the defendant should have no need to take advantage of s172(4) if records were kept because presumably the driver could be identified from them. So before attempting a defence under that section the defendant will have to give testimony to show that no records were kept and that failure was "reasonable". It would be for the court to decide whether or not they accept that evidence as proof of both requirements of s172(6). If they do, then the defendant's defence under s172(4) can be considered. It they don't, s172(4) cannot be relied upon.

Excellent and just result!    :)

Thanks for letting us know.

- police ignored reasonable diligence provided in email correspondence prior to summons. Can they be accused of wasting the court's time?

The police will not make a decision on whether reasonable diligence has been shown or not. That is for a court to determine.

Have you also read s172(6)

Where the alleged offender is a body corporate...subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.

So assuming records were not kept, and if not has the trust considered whether not doing so was "reasonable"? Of course among the difficulties they may have in showing that is illustrated by the position they are now in.

even though RK will be submitting documentation evidencing reasonable diligence would it be wise to probe the reliability of the officer operating the speed camera, the speed camera certificates etc?

It would be pointless. The speeding matter is now irrelevant (unless you want to argue that the police had no right to allege that the offence had been committed, and so were not entitled to issue a s172 request).

What is the supporting case law in RK's defence? i.e. relating to the reasonable diligence clause 172(4) of the RTA1988

I'm not so sure there is much in the way of case law. Each case will turn on its own facts and it's for a court to decide whether the facts support the "reasonable diligence" that is required.

The Flame Pit / Re: RTA Section 88
« on: June 06, 2024, 07:06:58 pm »
They tell me S88 allows me to continue provided a correctly completed application has been received (so I get confirmation) and I am satisfied I am medically fit.

The more I read of this, the more disconnections I see between the legislation and the guidance (bit like Covid days!  :) )

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