This has been discussed before, possibly back in the PePiPoo days, but to the best of my knowledge ending up with the majority consensus it started with, rather than what I would consider a satisfactory conclusion...
It is common ground that a person has an constitutional right to plead not guilty to any offence that he is charged with, and to require the prosecution to prove his guilt. This however is not an "absolute" right insofar as he can be punished more harshly if he is found guilty at trial than if he enters an early guilty plea.
American law has decided that the converse is not true - there is no constitutional right to plead guilty to an offence you know/believe you did not commit - which would typically be done variously to avoid the hassle of a trial or to obtain a lighter sentence than if convicted at trial. Obviously the relevant authority would not be binding on UK courts, but might well be persuasive. N.B. I am unable to cite the case.
Scenario 1 -
A was not the driver, has failed to name the driver (and has no defence) and is dual charged. At trial, which is outwith the 6 months, he pleads guilty to the speeding and the s. 172 is dropped.
AIUI, the "hive mind" is firmly of the opinion that he has perverted the course of justice by pleading guilty to an offence he did not commit in order to avoid a harsher punishment. This is regardless of whether any deal was done, who instigated any such deal, or whether he simply pled guilty to the speeding in the hope that the s. 172 would be dropped as a result.
Scenario 2 -
A received a NIP/s. 172 which was served (delivered) 2 months after posting, returned the form immediately naming the driver, and us charged with the s. 172 offence only. He pleads guilty as he has little faith that the court will accept his defence and wishes to avoid a harsher punishment.
AIUI, the "hive mind" is firmly of the opinion that he has not perverted the course of justice.
In both cases, he has not prevented the (presumably) guilty driver being prosecuted by entering a "false" guilty plea. The only distinction that I can see is that the s. 172 offence in scenario 2 would have required a defence, so he could be convicted of it anyway if he chose to sit on his hands - which he would have been entitled to do.
Entering a guilty plea is a positive action, as opposed to sitting on your hands, so the apparent distinction on the basis that he could have been convicted without perverting the course of action in scenario 2 seems somewhat contrived.
Is there a more meaningful distinction that I have missed, or is it more a case that if the court was likely not going to believe him anyway, there is little public interest in taking up more of the court's time?
Having given some thought on how to structure the reply, this is how I see it.
In Scenario 1, the accused/charged person is pleading guilty to an offence which they not only haven't committed but which there is prima facie insufficient evidence to charge or convict them for (there is no driver ID established*). As such they are using a falsehood to escape a more serious punishment and that to me is clearly perverting the course of justice (noting that absent a 'confession' it may be almost impossible to prove - though some like Vicky Pryce have been happy to provide similar 'confessions', all be it under slightly different circumstances of course).
In Scenario 2, the accused has prima facie committed the offence, without a defence being presented they would be convicted, while the accused may have a statutory defence (in this case the 'reasonably practicable' as he couldn't reply until the S172 was served) with a possibility that it succeeds, nothing requires him to use a statutory defence and as such pleading guilty IMO isn't perverting.
Of course the more likely (to occur) scenario 2 is that the keeper didn't ID the driver and chooses not to present his reasonable diligence defence that he couldn't. Which would be mush more of a grey area than your presented scenario 2 (which is why, I suspect, you chose the more defined scenario?) and even less likely to be perverting.
*On the face of it that secondary charge is 'bad practice' in that the police know they can't prove the case so shouldn't really be charging it, it is offered as a 'benefit' only to the accused and while I wouldn't seek to stop them doing that, in fact I'd encourage it, that remains my view on dual charging. That may mean the guidance for charging isn't always correct but that's not the question here." - seemingly well considered quote - but meaningless with attribution - Andy
Furthermore, in scenario A, when the driver insists they do not know who was driving at a particular time in the day, we suggest the most pragmatic approach is to name who was most likely driving based on who drives that vehicle more. If this is accepted as not PCOJ, where is the level of investigation happening to stop someone who knows they weren't driving taking the deal?
At S.172 stage, nominations are sometimes asked to be reconsidered where the pictures clearly show a male over a female for example. But I'm guessing by the time this becomes a SJPN for FTF, that level of scrutiny has disappeared?
If the prosecution wants to offer the speeding offence as an alternative charge to FTF, and shout 'gotcha' when the accused does just that, would that not seem a little dodgy if that was the only reason?
Interesting point Bert. I probably included that one last time and probably should have also had it in mind this time.
For practical purposes, guessing who was the driver, tossing a coin, or choosing the most convenient driver if unsure, seems to avoid a lot of hassle and likely reduce the eventual punishment.
However, subject to the wording of the s. 172 notice (and interpretations thereof), the respondent is effectively falsely making a statement to the effect that they "know" that the named driver was driving. And they are not "providing any information that is in their power to give and that might lead to the identification of the driver", so if they have not coincidentally named the actual driver, they have also committed the s. 172 offence and negated the possibility of any defence.
Some regulars are absolutely adamant that naming the most likely driver is absolutely fine, but that naming the most convenient potential driver is perverting the course of justice. In both cases, the person making the statement that he neither knows to be true or untrue. The difference appears to the the probability that it is correct.
Simon's response appears to mostly be using more words to restate the distinction I noted in the OP. Perverting requires a positive action, so sitting on your hands and being convicted cannot constitute perverting. The argument that pleading guilty - which is a positive action - cannot constitute perverting when you know you did not commit the offence because you would be convicted if you simply sat on your hands, albeit with a higher punishment, seems to be somewhat perverse. Effectively, if something would otherwise be perverting, but the result could be achieved without a positive action, that negates an offence of perverting which included a positive action.
As a hypothetical example, A is the RK and B was the driver. B intercepted A's NIP and responded as A naming "himself" (A) as the driver. A discovers this and for some reason is keen to avoid throwing B under the bus. A receives a summons (or SJPN). A is faced with the practical choice of pleading guilty to the speeding, pleading not guilty and sitting on his hands, or pleading not guilty and defending himself - which would throw B under the bus.
As A would be convicted of the speeding offence that he did not commit if he sits on his hands, the argument appears to be that he is entitled to plead guilty to an offence that he knows he did not commit in order to lessen the eventual punishment (and effectively to protect the very guilty).
I would suggest that the majority of the hive mind would say that the position above "cannot be right", and I would agree. However, legal principles apply to the facts, rather than the other way around. If A cannot plead guilty when framed, do the same principles apply when he wasn't framed?
I would strongly suggest that for the purposes of this discussion and general sanity, we assume that something is either known or not known - A knows that he was driving, knows that he was not driving, or is unsure which of the possible drivers, A, B or C, was driving.
I have also semi-deliberately avoided potentially complicated the issue by inviting discussion on what the course of justice actually is.
In 99.99% of cases there will be a most likely driver based on time, location/direction and even speed (e.g. if it we between me and my wife odds on a speeding allegation would be me - all else being equal - as I tend to 'push my luck' a little more of the two of us).
Naming the most likely driver (on balance of probabilities) cannot be perverting, there is no positive action taken to pervert, naming a driver based on the one who can 'take the points' creates a risk (noting that that is IF all that information comes out, no need that it should). Obviously if the 'wrong' person is named that would be an S172 offence. That said, if the photos are looked at and some degree of reasonable diligence performed and the keeper can't be certain of ID it's hard to see how the Police would have any suspicion, let alone proof beyond reasonable doubt, that that offence was committed.
My first reply was indeed agreeing 'in more words' as I was trying to explain my thought process and rationale in reaching the same conclusion. That allows people to challenge my process (remembering at school how you were always told to 'show your workings) rather than just conclusion.
Naming the most likely driver (on balance of probabilities) cannot be perverting, there is no positive action taken to pervert
Other than because you say so, how is deliberately providing a statement stating that X *is* the driver, when you don't know whether or not X is the driver, with the intention of X receiving a fixed penalty for speeding rather than having to defend an s. 172 charge, not a positive action which tends to pervert the course of justice?
There is no intent for the unknown driver to avoid liability for the speeding offence, but there is an intent for the recipient of the NIP to avoid liability for a potential s. 172 conviction.
naming a driver based on the one who can 'take the points' creates a risk (noting that that is IF all that information comes out, no need that it should). Obviously if the 'wrong' person is named that would be an S172 offence. That said, if the photos are looked at and some degree of reasonable diligence performed and the keeper can't be certain of ID it's hard to see how the Police would have any suspicion, let alone proof beyond reasonable doubt, that that offence was committed.
Once again, your argument appears to be that guessing the most convenient driver, rather than the most likely would be perverting the course of justice (regardless of whether or not the guess was correct?), based on the well established legal principle of "because you say so", but that that is only a problem IF (your emphasis) there is evidence to show that the nomination was incorrect.
My first reply was indeed agreeing 'in more words' as I was trying to explain my thought process and rationale in reaching the same conclusion. That allows people to challenge my process (remembering at school how you were always told to 'show your workings) rather than just conclusion.
You didn't and it doesn't.
WEll clearly if the nomination is correct, even if it was best guess, it complies with that statement.
As for if the best guess is wrong, I'd refer to the CPS guidance (acknowledging not the law)
Perverting the Course of Justice
The offence of Perverting the Course of Justice is committed when an accused:
does an act or series of acts;
which has or have a tendency to pervert; and
which is or are intended to pervert;
the course of public justice.
I don't see a genuine 'best guess' meeting that standard.
https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard
If we take the view that the course of justice when the recipient is genuinely unsure who was driving after exercising reasonable diligence is to state as much and to provide any information that is in his power to give and that might lead to the identification of the driver, and then letting the court decide, then
not responding to the s. 172 notice would not be a [positive] act, but
responding naming the best guess as "the driver" would meet the quoted criteria - which mirrors the law.
I note that you quoted the test for whether something constitutes perverting, but merely provided a link for the guidance for the decision to charge without indicating what part(s) of that document you feel support your argument.
I further note, that you appear to be relying on the CPS guidance for the decision to charge. Is your point that, if making a best guess was perverting, it is still fine to advise posters to commit the offence on the basis that the guidance apparently says that it is too trivial or otherwise not in the public interest to charge them?
N.B. I am not talking about cases where the named driver is sure it would have been him but simply does not have a specific recollection of driving at that time/place, but where a poster opens with "we genuinely do not know which of us was driving".