Put this here as it's not an actual case (well, it is, but not mine)
There was an article on the BBC website yesterday about how a driver had been caught doing 140mph on the A9 in Scotland, and it got me thinking about sentencing for that level of speed.
The A9 isn't a motorway, but if this had been on a motorway and the car had been caught be a camera, there's obviously no FPN available at that speed. So it's a court summons, and a ban (which guidelines say should be considered as more than 56 days when the speed is greatly in excess of the limit) and / or a fine of up to 150% of weekly income.
Or the keeper could just ignore the s172 and take the 6 points and a fine of £1000, which may be less than 150% of their income.
Now I'm obviously not going to drive at that speed (the only way my car's doing 140mph is if it gets dropped off a cliff and reaches terminal velocity), but what would the cops do in that situation? Would they be stuck with the s172 offence and unable to ban the driver if their licence was previously clean?
I'm assuming there's something obvious I've missed?
There is a general power to disqualify for any offence. Perhaps that might be considered.
In Scotland you could also/alternatively be convicted of dangerous driving based on speed alone.
We had a case on PePiPoo where a poster's car had been caught speeding at 120mph (presumably in a 70 limit or possibly a 60). He was aware that the confession to being the driver was sought using the coercion of tell us who was driving "or else", and realised that the "or else" would result in a significantly lesser punishment and failed to respond to the s. 172 notice. He was charged with both the speeding and the s. 172, and plead guilty to the s. 172. He was convicted of the s. 172 and the prosecution were not able to prove the speeding. As regards the standard sentence for the s. 172 (I forget whether it was 3 or 6 points at the time), the prosecutor apparently went into full Vicky Pollard mode and sought to argue, yebbut he was doing 120, to which the court responded that he hadn't proven that the accused was driving.
In some cases, particularly with motorbikes where the leathers can be distinctive and easily seen in the evidence, and more worthwhile speeds are easily achievable, the po-po might actually do some police work.
Would they be stuck with the s172 offence and unable to ban the driver if their licence was previously clean?
Yes they would. Precisely because of this:
...the prosecutor apparently went into full Vicky Pollard mode and sought to argue, yebbut he was doing 120, to which the court responded that he hadn't proven that the accused was driving.
They wouldn’t be unable to ban the driver (leaving aside that the police don’t ban anyone). Section 34(2) of the Road Traffic Offenders Act 1988 allows the court to disqualify for any offence involving obligatory endorsement, which s 172 does. The difficulty would be convincing the court to do so.
The difficulty would be convincing the court to do so.
Indeed. With no aggravating features there is no justification for imposing a ban for a s172 offence. The excessive speed cannot aggravate the s172 offence because there is no evidence that the driver and the recipient of the s172 request are one and the same.
which guidelines say should be considered as more than 56 days when the speed is greatly in excess of the limit
They do but the Sentencing Council for England and Wales' guidelines have no meaning in Scotland, while a Scottish court will very likely be tending to a substantial ban for that speed it's nothing to do with any guidelines.
I believe I recall the same case as AF on Pepipoo which I had in mind was for 122mph and on a motorway (70 limit), as I recall the S172 was 6 points by that time but memories can be fallible. But the progress of the case and the prosecution 'yebbut' is as I recall.
The excessive speed cannot aggravate the s172 offence because there is no evidence that the driver and the recipient of the s172 request are one and the same.
I don't see why the s172 offence cannot be aggravated by the underlying offence. Let's say that I'm not the driver but am the RK and I fail to name a driver who was doing 35 in a 30 at 2 am, there isn't really anything aggravating about that.
Now let us say that my mate is driving at 3:30 pm and he does 120 mph past a school while there are children out and about, is that s172 offence arguably more serious than the previous scenario?
I would say that it is: a court could take the view that failing to name the driver accussed of a more serious offence is itself more serious than failing to name a driver accused of a less serious offence.
That's not to say that a court would (let alone must) take such a view, but unless there are any authorities to the contrary then the Crown could run the argument and invite the court to disqualify.
Would it be a defence or mitigation for an s. 172 offence if it were shown that the underlying offence was not or could not have been committed? Or even that it was utterly trivial?
I would suggest that if it could somehow be shown (as opposed to merely suspected) that the accused had deliberately failed to provide the information then the intent could increase the seriousness of the criminality, and that an intent to avoid the course of justice for a more serious offence would tend to increase it further.
However, I would suggest that the accused would have to seriously go out of his way to shoot himself in the foot for the above to happen.
However, I would suggest that the accused would have to seriously go out of his way to shoot himself in the foot for the above to happen.
I don't disagree, but it does tend to happen from time to time that people shoot themselves in the foot, I've seen it a lot recently.
So what then happens if the S172 is sent to a company for very excessive speeding, say 140 in a 30 and the company doesn't return the S172? You cant ban the company and theres no proof as to who was driving.
Unless there is evidence of connivance, or the police actually do some police work, company gets £667 fine + 40% + costs (assuming early guilty plea).
There are numerous problems with sausage machine enforcement reliant on a unique and narrow exception to the privilege against self incrimination.
So what then happens if the S172 is sent to a company for very excessive speeding, say 140 in a 30 and the company doesn't return the S172?
140 is very excessive but not unheard of. If we were talking about 200+ mph the police might investigate whether the directors were culpable.