Free Traffic Legal Advice

I need some advice on responding to a s172 Notice of Intended Prosecution where the driver could have been either me or my husband but we genuinely don’t remember which of us was driving. I know that failure to respond to a NIP is a serious offence in itself and I will ensure I reply in good time.

We have just returned from a touring holiday in our car, driving some 900 miles in north Wales, Lancashire, Lake District and Yorkshire Dales. We left home on September 19th, returned September 30th.
Waiting for us in the post was a NIP from North Wales police addressed to me as Registered Keeper issued on September 27th for the alleged offence of “Exceeding the Speed Limit” at 26 mph in the early afternoon of September 23rd at A548 Greenfield, Flintshire [the north Wales coast road]. Speed limit not stated but presumably 20mph.

Although neither of us can recollect where the offence took place we were on that road at that date and time and I can’t imagine we have any defence against the allegation that our car exceeded the speed limit. I expect we missed the sign dropping the limit from 30 mph to 20 mph. Either I or my husband was driving, we were both in the car, but despite racking our brains we cannot remember which of us was driving.

We share the driving when we are on a touring holiday, often swapping driver each time we stop for a break. One drives, the other map reads. Both being pensioners we avoid either of us driving for lengthy periods of time.

All our driving in north Wales was on roads we had never been on before, routes that were new to us, so both of us would have been concentrating hard on making sure we in the correct lane etc for upcoming junctions. We did so much mileage on new roads in that 10 day period that one bit blurs into another. There was nothing memorable about the A548 at Greenfield that triggers any recollection of who was driving, no speed camera light flashed.

I would be able to include with my NIP response copies of accommodation bookings and petrol receipts to evidence that we were holidaying.

We both have clean licences, no points/endorsements. Neither of us have ever attended a speed awareness course. At least 20 years since either of us had a driving conviction. As we have both retired a speeding conviction would have no employment implications for us. So no ulterior motive in one of us trying to avoid serious consequences.

So how best to respond to the NIP?

I’ve read advice here that it is hard to convince the police that you genuinely don’t know who was driving. And if they then prosecute for failure to provide driver’s name even harder to convince magistrates. Is a response based on the above likely to be sufficient?

Alternatively, if I simply name myself as driver and then later plead guilty what is the likely outcome?

All thoughts appreciated.

Contact the issuing traffic office and ask for any pictures to try to help identify the driver at the time. Explain why you need this help as you were both sharing driving and cant remember at that time who was driving.

Thank you for that suggestion. I have done that.

The outcome will be the offer of a course or a fixed penalty (£100 and 3 points).

From the North Wales Police website it looks like the offer of a speed awareness course would be the most likely outcome.

https://www.northwales.police.uk/advice/advice-and-information/rs/road-safety/speeding/if-youve-received-a-speed-camera-activation-letter-or-notice/

That's looking like a more attractive, and less uncertain, route than trying to convince them or magistrates that I cannot remember who was driving (even though that is the truth!)

Yes, magistrates can fine you up to £1000, plus "victim surcharge" plus prosecution costs. It's the cheapest option.

Indeed. Although the likely fine (provided you plead guilty) is a week's net income (capped at £1,000) then reduced by a third for your guilty plea. The surcharge is 40% of the fine and costs are around £90. So the most you will pay (if you have an income of £1,000pw or more) is a bit over £1,000.

However, the deal breaker for most people is the endorsement code (MS90) that goes with the conviction. This is particularly nasty as far as insurers are concerned and will see considerably increased premiums for up to five years. For most people this is a far greater penalty than the fine.

I would be able to include with my NIP response copies of accommodation bookings and petrol receipts to evidence that we were holidaying.

There's no point in doing that. All the police want to know is who was driving. If you say you do not know, they will prosecute you for failing to provide the driver's details. There is no "might" about it as suggested above. That evidence may help if you decide to defend that charge but the police will not consider it; that will be done in court. There is a statutory defence (i.e. one written in law) 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."

It's a tough hurdle to clear (if it was easy everybody would do it) and the court will want to see evidence of the "diligence" you employed to find out who was driving. From your description that might be difficult for you. Whilst there are occasional success stories, I think defending that charge more often results in failure than success.

I would suggest the pragmatic way to deal with this is to obtain the photographs as suggested. They are very unlikely to help you identify the driver but the main reason for seeing them is to make sure nobody else could. If, say, you accepted you were driving but a photo showed clearly a male driver, the police would probably ask you to "reconsider" your nomination and it would be best to avoid that.

Then decide between you who was most likely to have been driving, return the form and take the course that is almost certain to be offered.

It's an unfortunate consequence of this legislation that often sees a far harsher penalty imposed for telling the truth than perhaps declaring something that you are not certain is true. There are various schools of thought that argue the legitimacy of this course of action. Strictly speaking, if you don't know who was driving you should say so, but with the potential consequences of doing that being so much harsher, it is little wonder that most people take a pragmatic approach.

So long as the police do not suspect one of you is trying to gain an undue advantage (for example if one of you was on nine points and you named the other just to avoid him or her facing a "totting up" ban) and so long as the photographs do not clearly suggest your nomination is incorrect, the overwhelming likelihood is that your case will simply make its way through the "sausage machine" without trouble.

That may be the implication, but these things are like a sausage factory. Your lack of submission or an equivocal submission will be noted as no satisfactory response received and it will automatically progress through to a Single Justice Procedure Notice. There will be very little human interaction with it prior to that other than someone ticking a box to make it go to the next step. From that you can either plead guilty to the written charges or NG and ask for it to be heard at court. Then with your NG response you can put down your mitigation/reasons for wanting to plead not guilty and you may (and I've only seen this once) get a prosecutor/CPS bod who will look at it before hand and decide they can't be arsed/not in the interest to pursue it*.

But as per others, it is 99% certain you will get a day in court.

Definitely worth going with the most likely driver/winner or loser of coin toss.

*that particular time was a chap in the middle of a messy break up. He had evidence that suggested his ex had withheld post from him and he sent this with his return NG submission. I guess someone did actually read it and decide he had had a hard enough time of it recently as he got a NFA letter by return.