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Unable to complete s172 - Mark D
Hi,

After returning home from a short break in August I received A NIP and S172 from Humberside police. The alleged offence occurred on a stretch of road my girlfriend and I had commuted back and forth along to the coast several times. We had shared the driving and neither of us could remember who was driving at the time, neither of us recall seeing a speed camera or seeing a flash. My girlfriend suggested we just put her name down and she take the points, but I really didn't want to give false information. I was going to request the photographic evidence, and noticed they had enclosed an FAQ which pointed out they didn't have to provide photographic evidence until the case went to court. Therefore, I sent them a letter saying I didn't know who was driving at the time of the alleged offence. They responded with a letter which stated I had requested photographic evidence (which I had not) and enclosed the photos. I was still unable to determine the driver. I then received another letter from them saying I had failed to respond to the NIP and S172. I replied with a copy of my initial letter pointing out I had responded, adding I had also now reviewed the photos and was still unable to determine who was driving, and that it was not a case of me refusing to provide the information, it was that I did not have the information to give.

I am now in receipt of a letter from them stating that in the circumstances enforcement action will continue as it is my responsibility as the registered keeper to identify the driver. I have failed to do this and the matter has been referred to the Magistrates' court.

I am currently awaiting Summons.

Whilst I am sure I'm in the right here, and have broken no law, I have zero legal experience and am now tasked with preparing a defence. Any help would be gratefully received.



Mark

Edited by Mark D on 07/09/2010 at 17:58

Unable to complete s172 - LucyBC
You need legal help with this as Section 172 is a tricky offence with a very stiff penalty as it is intended and an enforcement offence to make people provide information. As you rightly say if you don't know you cannot tell them.

There is a defence if you have diligently attempted to discover who was driving but have failed to do so. However the courts set the bar pretty high on "diligence" and it is not usually enough to say the photographs are not clear.

Before embarking on defending a Section 172 you need to show that the vehicle was insured for and driven by more than one person and that both of you drove the car on that day. It helps if you can show that you would have driven past the camera several times.

However the fundamentals of winning a Section 172 come down to how credible you are and the way that you present your case.

You are right to seek some legal assistance as unfortunately we come across many people who believe they can "handle it" but end up leaving court somewhat dazed with 6 points and a fine around the £500 mark.

Please email a telephone contact number to asklucy@honestjohn.co.uk and one of my staff will call so we can set up a free 30 minute advice call with a specialist motor prosecution defence lawyer who will go through your case in detail.
Unable to complete s172 - Mark D
Thank you kindly, I'll drop you an email.

Edited by Avant on 09/09/2010 at 20:29

Unable to complete s172 - Peter D

Was this a fixed Gatso or Truvelo camera or a mobile van. You can tell from the photo's sent to you. what marking are on the road. Regards Peter

Unable to complete s172 - Mark D

Hi Peter,

It's deffinantly not a Truvelo as the photo is from behind, the camera is a such an angle as to make seeing the road impossible and the car is framed by a white crosshair. The picture is taken from the same height as the car. If I had to guess I would say mobile van, but the picture seems to have been taken over the central reservation from the other side of the dual carridgeway.

Unable to complete s172 - Peter D

If the view was from the same hight could you not make out the driver of the silhouette of the driver. Also be aware that the image they have is a far better resolution that that they have re-produced and sent to you. As this is mobile ping that means there is a continuous video/DVD of the event so at some range there may be a clear view/silhouette from the rear and an ID may well have been possible if you had requested to view the video. However it may be too late but there ofter summons you with speeding and failure to furnish. If this is the case and you can identify the driver they ofter drop the F2F and just deal with the speeding. You may not be allowed to view the video view as it ahs gone to summons, but you could try. Regards Peter

Unable to complete s172 - Mark D

Thanks Peter, I'll fire off another letter, it can't hurt to try

Unable to complete s172 - LucyBC

The type of camera and the issue of whether the photograph permits you to identify the driver is irrelevant. All it has to do is provide evidence to identify the vehicle and that it was speeding. It is then the responsibility of the keeper to identify the driver.

Failure to do so will lead to charges of failing to provide information as to driver under section 172 of the Road Traffic Act.

If the keeper does not identify the driver then pretty much the only defence is that they have diligently attempted to do so but have failed. The court sets a high bar on diligence and not being able to identify because the photograph does not assist will get you nowhere.

As I said we need a telephone number to assist.

We get 96%+ of these cases acquitted but I also get several cases a week which come in after trial where people have taken "internet advice" on what will play well with the courts. They usually come in on the afternoon following the hearing when the court has given them 6 points, a fine in the region of £500 and a bundle of court costs. All we can do for them at this stage is appeal to the Crown Court which is expensive and risky.

It is always best to deal with this at the magistrates court but you will need good quality legal advice if you want to deal with this and not incur penalty points for the speeder or the Section 172.

Unable to complete s172 - Peter D

What date did you receive the NIP, are you well insdie the 28 day limit for completing the returning the S172. Regards Peter

Unable to complete s172 - Mark D

I completely forgot about this until the summons landed on my doormat today, I think it's going to be a case of whether it's cheaper to pay for legal help or cheaper to just plead guilty by post. I will email you my contact details Lucy. Argggh!

Unable to complete s172 - Peter D

And what is the charge/charges on the summons. Regards Peter

Unable to complete s172 - Mark D

Peter - Alleged speeding article under 2(c) section 89 and failing to identify the driver section 172.

Lucy - have emailed a contact number

Unable to complete s172 - LucyBC
Well at least if you successfully defend you avoid the points penalty on your insurance for five years and you still recover your legal costs on a defendant's cost order. No brainer really.
Unable to complete s172 - Mark D

Yeah if sucessful, but as I say have emailed a contact number as you asked last year.

Unable to complete s172 - LucyBC
I have passed on your details.

Emma's team are currently 96% successful on S172s when they feel the claimant genuinely does not know - and is not just attempting to swing it.

However no member of the general public should try to self defend a S172 without taking detailed legal advice and nobody should think that the lack of a decent photograph offers any defence whatsoever. There have to be other supporting arguments.

S172 is also very much a graveyard for "high horse" defendants who think they have legal skills. They usually make spurious or irrelevant arguments, irritate the bench and get higher fines as a consequence.
Unable to complete s172 - Mark D

Well, I have tried every avenue to raise the funds bottom line is; I don't have the money and am unable to borrow it. I realise I have a high chance of success and Emma's team would then reclaim the costs on my behalf but I just don't have the money in the first place.

Faced with the option of pleading guilty or defending myself seems obvious what I must do.

I am currently researching as much as I can in preparation and have come across a few cases around 2000 where people have used Article six as a successful defence, arguing that the police were asking for the details of the driver and stating that they intended to prosecute the driver, forcing the recipient to effectively admit their part in the offence, which is in contravention of Article Six of the European Convention of Human Rights:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

I'm thinking the wording on the NIPs or section 172s was changed to somehow comply with this legislation or some new legislation was introduced to stop this. If someone could advise I would be most grateful.

Unable to complete s172 - LucyBC

Article 6 is no defence. S172 was always compliant. The campagners just ran out of courts to appeal to.

Idris Francis lost his High Court appeal in 2004 and subsequently Idris Francis and Gerard O'Halloran lost their appeal in the European Court of Human Rights by a majority of 15 to 2.

There is only one effective defence under Section 172 and that is that you are able to persuade the court that you genuinely do not know who was driving. If you know who was driving you should tell them.

If you don't know who was driving then you need to provide convincing arguments as to why not, what means you have taken to discover who was driving (lack of photograph is no defence).

Under no circumstances state "I don't know who was driving but will take the points anyway" as they will take that as a "not guilty" plea.

Also remember that magistrates are lay people (often with penalty points themselves) and are inclined not to believe defendants who say they cannot remember being flashed or passing through a mobile speed trap as for most people (incuding magistrates) it is a "oh no" memorable experience.

Unable to complete s172 - Mark D

Thanks for clearing that up Lucy. I am currently preparing my defence, assembling mobile phone records, bank statements, all the things I initially went through to try and determine who was driving at the time.

I really was unable to determine who was driving, I though it must have been myself as my partner often sat behind lorrys doing under the limit, then she said she remembered the sat nav beeping to say she had exceeded the limit, but she could not recall on which day this was. I then saw the bit on the s172 about it being and offence to provide a false statement, the maximum penalty being imprisonment.

Also it was a lasergun on the opposite side of the carridgeway, neither of us had a clue until the NIP landed on the doormat, but this is a very good point I hadn't consdiered and will now go towards my defense.