Author Topic: Defence of suppling information in response to S172 RTA feasible? (Read 322 times)

Grumpy_chap · « **on:** March 09, 2025, 08:15:55 pm »

Hi,

Hoping for a bit of guidance and assistance on behalf of my brother.

Brother apparently driving 51 in a 40 zone, initially the s172 request to mum as the registered keeper who identified brother as driving the vehicle. Brother received first s172 notice and responded by filling out the forms identifying himself as the driver and posting them via postbox. Didn't hear back from the police and then subsequently received a s172 reminder and did exactly the same by posting to the same postbox but has now received a Single Justice Procedure notice being charged under s172(3) for failing to provide information of the driver's identity.

Obviously the police are going to argue they never received anything back despite sending a reminder and I presume if my brother decides to defend, what's the likelihood of the court accepting what he has said? I presume most magistrates have heard it all before so I would expect them to side with the police on this but wondering if using this as the only defence (even if he is able to describe the date, location of the postbox, time he posted it etc.) is worth it instead of pleading guilty.

Also I have other questions I'd like to understand for my own benefit:

1. The SJP Notice refers to a charge relating to S172(3) RTA, is that the correct section to reference? Would the charge not be under s172(2) instead?

2. What would be the chances of my brother contacting the local CPS and asking them to drop the charge under s172 if he pleaded guilty to the speeding offence and take the speed awareness course? This falls under Northumbria Police and from looking at their website it says you are eligible if driving up to 53 in a 51 zone. This is also his first offence. I think he would be willing to accept the points and fine for the speeding offence if it came to it.

3. Does S7 of the Interpretation Act apply to responding to a s172 notice? S172(2)(b) doesn't explicitly state that the response must be given by post but it does say that the person shall 'give' any information that may lead to the identity of the driver. And s7 of the IA includes the expression 'give' and I'm not familiar with the law to know whether this applies or not, though I'm sure it may have been argued in a court case before.

andy_foster · « **Reply #1 on:** March 09, 2025, 08:28:32 pm »

Quote from: Grumpy_chap on March 09, 2025, 08:15:55 pm

Hoping for a bit of guidance and assistance on behalf of my brother.

Is there any reason why he can't post a first hand account himself? With all the relevant details.

Quote

1. The SJP Notice refers to a charge relating to S172(3) RTA, is that the correct section to reference? Would the charge not be under s172(2) instead?

No. Not that it matters.

Quote

2. What would be the chances of my brother contacting the local CPS and asking them to drop the charge under s172 if he pleaded guilty to the speeding offence and take the speed awareness course? This falls under Northumbria Police and from looking at their website it says you are eligible if driving up to 53 in a 51 zone. This is also his first offence. I think he would be willing to accept the points and fine for the speeding offence if it came to it.

Whether he can plead guilty to the speeding offence depends on whether or not he has been charged with it - a detail you have chosen not to trouble us with.
The court cannot sentence him to a course, so in that regard absolutely not.

Quote

3. Does S7 of the Interpretation Act apply to responding to a s172 notice? S172(2)(b) doesn't explicitly state that the response must be given by post but it does say that the person shall 'give' any information that may lead to the identity of the driver. And s7 of the IA includes the expression 'give' and I'm not familiar with the law to know whether this applies or not, though I'm sure it may have been argued in a court case before.

The Interpretation Act provides that proof of posting creates a rebuttable presumption of service (delivery). The police's case will presumably be that no response was received - and provide evidence which rebuts any such presumption. Not entirely sure how you think this would help your brother.

Unless your brother can persuade the court that there is a problem with the police's mail system, he's going to struggle to get the bench to believe that he responded twice and that both responses were lost in the post.

NewJudge · « **Reply #2 on:** March 09, 2025, 09:19:07 pm »

As Andy has said, he needs to establish whether the SJPN lists both charges.

If so, he should respond to the SJPN by pleading “Not Guilty” to both charges. In the “Reasons for pleading Not Guilty” box he should state that he is willing to plead guilty to the speeding charge providing, and only providing, the s172 charge is dropped. This is a tried and tested method to deal with the problem and is almost always successful.

Before the pandemic it was necessary to attend court to do this "deal" because it needs the agreement of the police prosecutor. During the pandemic courts made every effort to have as few people as possible attend and they began doing this deal under the "Single Justice" procedure without the defendant's attendance. Some courts have carried this procedure on whilst others have reverted to a personal attendance being necessary.

If he is required to attend, his case will be taken out of the SJ procedure and he will be given a date for a hearing in the normal Magistrates' Court. If that is the way they do it in the area involved he will have to attend, see the prosecutor and offer his "deal" in person.

The alternative is to defend the s172 charge on the basis that he did respond. Assuming he has no proof of posting (you have no mentioned it) that will rely on his testimony to counter the police who will probably produce evidence of their "robust" post monitoring system. In those circumstances the speeding charge cannot succeed as there is no evidence he was driving.

Grumpy_chap · « **Reply #3 on:** March 09, 2025, 09:28:25 pm »

Thanks for responding Andy. In short, no he can't he's working away in an area with next to no signal for the next week or so and wants to try and get a head start.

Responding to some of your points:

1. The only charge is s172.

2. I understand the IA creates a rebuttable presumption but can you explain what reason/arguments the Police might give as to why it wasn't received? Simply saying that they didn't receive is not sufficient to overcome the rebuttable presumption. I suppose postal disruptions or strikes might count as rebuttal evidence but have already checked in or around those dates it was posted and nothing occurred.

@NewJudge, you are indeed correct as to the proof of posting. No witnesses were in the car at the time, nor is there any CCTV in the area that he is aware of and even if there was, the alleged offence happed back in September almost 6 months ago. There is a witness statement and it does mention their robust post monitoring system (though it doesn't seem to describe this system except a bit of blurb about how they issue notices) but it reads as if the system is perfect running smoothly 100% of the time. As we all know, things can go missing or get misplaced or otherwise lost so it is not beyond all realms of possibility that processing a substantial number of correspondence, thing could go missing, lost or misplaced. Happens at HMRC, HMCTS and other executive agencies, so why not Northumbria Police?

I appreciate there's an uphill struggle with this one and he now knows if something similar occurs again to ensure it is sent recorded delivery and keep copies of the documents that were sent. As this is outside my area of expertise, if you think the the best course of action is to simply plead guilty then it is what it is and I will let him know.

Southpaw82 · « **Reply #4 on:** March 09, 2025, 09:34:17 pm »

Quote from: Grumpy_chap on March 09, 2025, 09:28:25 pm

Simply saying that they didn't receive is not sufficient to overcome the rebuttable presumption.

Says who?

Grumpy_chap · « **Reply #5 on:** March 09, 2025, 10:18:38 pm »

Quote from: Southpaw82 on March 09, 2025, 09:34:17 pm

Quote from: Grumpy_chap on March 09, 2025, 09:28:25 pm
Simply saying that they didn't receive is not sufficient to overcome the rebuttable presumption.

Says who?

The courts say so.

andy_foster · « **Reply #6 on:** March 09, 2025, 10:20:07 pm »

Can't argue with that.

Southpaw82 · « **Reply #7 on:** March 09, 2025, 10:34:03 pm »

Quote from: Grumpy_chap on March 09, 2025, 10:18:38 pm

Quote from: Southpaw82 on March 09, 2025, 09:34:17 pm
Quote from: Grumpy_chap on March 09, 2025, 09:28:25 pm
Simply saying that they didn't receive is not sufficient to overcome the rebuttable presumption.

Says who?

The courts say so.

Please cite your authority (for what is a question of fact).

NewJudge · « **Reply #8 on:** March 09, 2025, 10:51:22 pm »

Quote

Simply saying that they didn't receive is not sufficient to overcome the rebuttable presumption

That would be for the court to decide. They will weigh up the evidence the police give regarding the reliability of their system which records incoming post and their assertion that neither of your brother’s responses were received, against his testimony that he sent them. The police cannot be expected to explain why they were not received. All they can do is give evidence to say they were not. The court will decide whether or not that is sufficient.

Nobody on here can predict with any certainty how it would go,

[mod edit - I think that we can, with much certainty]

Grumpy_chap · « **Reply #9 on:** March 09, 2025, 11:00:36 pm »

Calladine-Smith v Saveorder ltd: https://www.bailii.org/ew/cases/EWHC/Ch/2011/2501.html

para. 26 (see underlined)

The second question focuses on the word 'proved' in the phrase 'the contrary is proved.' As I already set out, the question is: is an addressee of the letter required only to show on the balance of probabilities that the letter was not delivered or served or received by him, or does the burden on the addressee go further? Is it a requirement to lead positive evidence as to what happened to the letter? Is there a burden on him to show that the sender of the letter was aware that the letter had not been delivered or served or received? In the absence of authority and basing oneself on the statutory language alone, it seems to me quite clear that the reference to something being proved in this context is a reference to something being proved on the balance of probability. Accordingly, if the addressee of the letter proves on the balance of probability that the letter was not served upon him then that matter has been proved and the section should be applied accordingly. Of course it is not enough simply to assert that someone did not receive the letter; the court will consider all the evidence and make its findings by reference to the facts which are established including issues as to the credibility of witnesses. That is the ordinary way in which a court goes about making findings of fact.

The common law position also applies a rebuttable presumption (a good case on this one is Newcastle NHS Trust v Haywood Court of Appeal decision) but I am yet to see any case law that has accepted a letter has not been received by that individual simply denying receipt of the letter. It usually requires something more.

Dave Green · « **Reply #10 on:** March 09, 2025, 11:24:46 pm »

Quote from: Grumpy_chap on March 09, 2025, 11:00:36 pm

. Of course it is not enough simply to assert that someone did not receive the letter; the court will consider all the evidence and make its findings by reference to the facts which are established including issues as to the credibility of witnesses. That is the ordinary way in which a court goes about making findings of fact.[/i]

But it probably won't be the police simply saying that they didn't receive the letters.
The chances are that they will have a team of people whose sole job is to record all incoming mail and then divert it to the relevant people or departments so there will be logs of the received mail.

The link also mentions the credibility of witnesses.
Being honest, who do you think the courts would fine more credible, your brother, a person who stands to gain by stating that he posted both letters or the police who in reality have nothing to gain from lying about not having received the letters?
Your brother would have a far better argument if they had obtained a free proof of postage certificate from a post office but without this, I honestly can't see him winning in court.

Grumpy_chap · « **Reply #11 on:** March 09, 2025, 11:53:12 pm »

Quote from: Dave Green on March 09, 2025, 11:24:46 pm

Quote from: Grumpy_chap on March 09, 2025, 11:00:36 pm
. Of course it is not enough simply to assert that someone did not receive the letter; the court will consider all the evidence and make its findings by reference to the facts which are established including issues as to the credibility of witnesses. That is the ordinary way in which a court goes about making findings of fact.[/i]
But it probably won't be the police simply saying that they didn't receive the letters.
The chances are that they will have a team of people whose sole job is to record all incoming mail and then divert it to the relevant people or departments so there will be logs of the received mail.

The link also mentions the credibility of witnesses.
Being honest, who do you think the courts would fine more credible, your brother, a person who stands to gain by stating that he posted both letters or the police who in reality have nothing to gain from lying about not having received the letters?
Your brother would have a far better argument if they had obtained a free proof of postage certificate from a post office but without this, I honestly can't see him winning in court.

A fair and valid point, but however robust their system is, it is not infallible. So it is not beyond all realms of possibility that the letters may have been misplaced or not processed - for the police to suggest otherwise would be absurd. Up until now, my brother has a squeaky clean record, never been in trouble with the police before in his 30+ years of life and there's no reason for him to lie about not sending them in the post either, other than being a little naive and sticking a first class stamp on the envelope and putting it in the postbox (twice). So far as credibility goes, I think he would be considered a credible witness.

Ultimately, it is his decision to make and I came here for answers I may not have thought of and experience of how this might pan out. It seems that the view is there is little chance of him being found not guilty and that's fine, I'll accept that. All I can do is give him the information and what he does after that is up to him. I get the impression that he wants to have his day in court as he feels he has done what was needed, but doesn't quite appreciate the hurdles he needs to get over to convince magistrates that have heard the same story before.

Edit: What's the worst case scenario if convicted, 6 points and a fine?

NewJudge · « **Reply #12 on:** March 10, 2025, 10:27:40 am »

Quote

What's the worst case scenario if convicted, 6 points and a fine?

Upon conviction following a trial, a fine of 1.5 weeks' net income, a "victim surcharge" of 40% of that fine, costs of around £650 and six points. The endorsement code (MS90) will see considerably increased insurance premiums for up to five years.

There is one other avenue to consider.

Unfortunately he has not been “dual charged” with speeding as well as the s172 offence. If he had it would have been a relatively straightforward process to agree to plead guilty to speeding on the condition that the s172 charge is dropped.

By the time his case reaches court it will be too late to raise a speeding charge (proceedings must begin within six months from the date of the offence). He could consider pleading not guilty so as to ensure a court appearance and then to ask the prosecutor to raise an “out-of-time” speeding charge.

It is probably unlikely to succeed (it is actually unlawful). But I believe it has been reported as a success once or twice on here.

If the prosecutor will not agree he can change his plea to guilty and so reduce the fine, surcharge and costs.

It’s a long shot and it may cost him some of the one third discount on the fine to which he would be entitled. As well as that the prosecution may also ask for a little more than the standard £90-ish which they request for an early guilty plea. But the financial consequences of a conviction for a s172 offence are considerable and stretch beyond those imposed by the court, so he may consider it worth a gamble.

RichardW · « **Reply #13 on:** March 10, 2025, 10:49:07 am »

I wonder if this is another of those wrong stamp cases... OP ask your brother if he put a barcode stamp on the letters?

andy_foster · « **Reply #14 on:** March 10, 2025, 12:34:47 pm »

Quote from: NewJudge on March 10, 2025, 10:27:40 am

He could consider pleading not guilty so as to ensure a court appearance and then to ask the prosecutor to raise an “out-of-time” speeding charge.

It is probably unlikely to succeed (it is actually unlawful). But I believe it has been reported as a success once or twice on here.

To the best of my knowledge, it was considered to be common practice at the precise moment it was done for Harriet Harman, but had never been done previously or since.

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Author Topic: Defence of suppling information in response to S172 RTA feasible? (Read 322 times)

Grumpy_chap

Defence of suppling information in response to S172 RTA feasible?

andy_foster

Re: Defence of suppling information in response to S172 RTA feasible?

NewJudge

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Grumpy_chap

Re: Defence of suppling information in response to S172 RTA feasible?

Southpaw82

Re: Defence of suppling information in response to S172 RTA feasible?

Grumpy_chap

Re: Defence of suppling information in response to S172 RTA feasible?

andy_foster

Re: Defence of suppling information in response to S172 RTA feasible?

Southpaw82

Re: Defence of suppling information in response to S172 RTA feasible?

NewJudge

Re: Defence of suppling information in response to S172 RTA feasible?

Grumpy_chap

Re: Defence of suppling information in response to S172 RTA feasible?

Dave Green

Re: Defence of suppling information in response to S172 RTA feasible?

Grumpy_chap

Re: Defence of suppling information in response to S172 RTA feasible?

NewJudge

Re: Defence of suppling information in response to S172 RTA feasible?

RichardW

Re: Defence of suppling information in response to S172 RTA feasible?

andy_foster

Re: Defence of suppling information in response to S172 RTA feasible?