nip and some dodgy behaviour from police. Opinions needed please.

[Bad lad]

Thank you again,  your explanations make perfect clear sense to me, I cant find fault with that rationale.

dates are as follows :

 07/09/21 speeding offence committed.

10/9/21 police sent nip with s172.

29/9/21 (on or around) police say they they received  S172 nomination.

01/10/21 letter sent to me saying they viewed photo evidence and it suggests incorrect due to age / gender. Asked me to re check my records. HAd S172  On back.

12/11/21 police did pnc / dvla checks on me. After no response. From me.

12/11/21 police sent letter saying they had no correspondence, summary proceedings being considered. 
16/11/21 police got email from me requesting photo evidence.

17/11/21 police sent photo evidence along with another S172

22/02/22 police sent SJPN with statements etc

26/02/22  SJPN recieved.

…Charge dates on SJPN….

12/12/21 fail to give information identifying driver.

07/09/21 Speeding. 
 

Obviously I’ve got some of that date information from police statement  accompanying SJPN.

Hope that helps.

thanks again.

 

 

[Man in the middle]

So alas, no timeout, then. As the request was sent on 10/9/21, it was “served” on you on Tuesday 14th and if a s172 offence was committed it would be on 12th October. They had until 12th April to begin proceedings.

 

So with that out of the way I think your situation is quite straightforward. In order to convict you under s172 the court must be sure that the person you named was not the person who was driving at the relevant time. If they are not sure it means you have made a satisfactory response to the request and the issue of whether subsequent requests place new requirements on you should not arise.

 

When you respond to the SJPN I assume you will plead Not Guilty. There should be a space on the response form allowing you to state the basis of your NG plea. You don’t have to complete this but it may shorten matters if you say that you have provided a response as required and that this response was received and acknowledged by the police. If the matter proceeds as usual you should get a hearing date (this may be some months off). You could, in the meantime, suggest that the police take a statement from your wife where she can confirm she was indeed the driver. There is no chance of her being prosecuted for the speeding offence on the basis of that statement – that offence times out in seven days’ time. The prosecution may want her attendance to give live evidence at your trial if they do not “agree” her statement. Other than that I don’t see what else you need to do. You have the evidence that your response was received. The only issue is the police do not believe the information you provided is true and it is for them to provide evidence to support that contention.

 

You may want to take other advice on this. Unfortunately you will not be eligible to see the duty solicitor at your first hearing as the offence does not carry a custodial sentence. But some High St solicitors offer a free half hour consultation and it should not take longer than that to obtain an opinion.

 

Let me know if I can help further.  

 

MitM

[Bad lad]

Fantastic, I really appreciate your help. Obviously I’ll be posting updates on here as things move along.

[Manxman in exile]

I think follow the advice given by @Man in the middle at #27.

 

In the meantime, would it be possible for you to post up suitably redacted images in PDF format (not just transcriptions) of these three letters from the police?  I'm interested to see what they actually tell you and how they express it.

 

18 hours ago, Bad lad said:

...

29/9/21 (on or around) police say they they received  S172 nomination.

01/10/21 letter sent to me saying they viewed photo evidence and it suggests [my bold and how did they "suggest"?] incorrect due to age / gender. Asked me to re check my records. HAd S172  On back.

...

12/11/21 police sent letter saying they had no correspondence, summary proceedings being considered. 
...

 

 

 

Just one final though important question - and apologies if you've covered it previously and I've overlooked it - but was the original s172 response you returned to the police (a) 100% unequivocal in identifying the driver, and (b) did you sign it?  

Edited March 1, 2022 by Manxman in exile

[Manxman in exile]

@Man in the middle  -  going back to your comments in #20, if the OP returned an unequivocal and signed s172 response but the police don't believe it, can they really charge him for failing to respond rather than for committing perjury or attempting to PCOJ?

 

I don't see how they could make what looks like such a fundamental error... ?

 

 

[Bad lad]

Quick question is this group the same as the fb community action group? If so I’ll post redacted paperwork there easier 

 

[Man in the middle]

Quote

if the OP returned an unequivocal and signed s172 response but the police don't believe it, can they really charge him for failing to respond rather than for committing perjury or attempting to PCOJ?

 

That was something which struck me. However, the consensus is that they can. The requirement is to provide the identity of the driver. If the recipient provides the identity of somebody else, he has failed in that requirement. In circumstances where the age/gender etc. do not match the person identified,  the police normally provide a "do you wish to reconsider" letter, as they have done here. Bad Lad did not wish to reconsider. 

 

It is clear that to succeed under s172 on the basis that the wrong person has been identified, the prosecution must prove their contention to the court and from what Bad Lad says, they will struggle to do that as his wife really was the driver. My concern was not with that, but with the validity of the subsequent s172 requests served (which Bad Lad did not respond to). If they were valid he could be prosecuted for failure to respond to them even though he had responded in time to the first. However, I have made some further progress on that issue (with considerable help from elsewhere). The Scottish case which I knew existed but could not find is here:

 

PROCURATOR FISCAL, GLASGOW v. WILLIAM GORDON JACKSON

WWW.SCOTCOURTS.GOV.UK

 

The background to that case (in summary) is the RK responded to a s172 request naming the person who had hired a car from them. A s172 request was sent to that person but he did not respond. The police visited him and asked him who the driver was at the relevant time and he replied that he did know. Eventually he was prosecuted under s172 but the prosecution failed as the court ruled that the charge was out of time. It was out of time based on the original written request but was still valid under the later oral request. The Procurator Fiscal appealed the decision, arguing that the clock begins again when a fresh request is made. The Scottish Appeal Court ruled against the PF, confirming that the offence is committed based on the first occasion the request was made. Here's the relevant passage from the ruling:

 

"The question is on what date the contravention occurred. The position of the Crown in this appeal, as we understood it, was that, if more than one requirement under section 172 of the 1988 Act was made, then the 6 month period for prosecution commenced on the occasion of the last such requirement, in this case on 30 April 2009. We cannot accept that submission. If it were correct, it would mean that the statutory time limit provided for in section 136 of the 1995 Act could, in effect, be obviated by the making of repeated requirements, presumably subject to the proviso that, eventually, a prosecution might be considered to be oppressive on account of the passage of time. We cannot think that that reflects the intention of Parliament in enacting section 172 of the 1988 Act. In our view, the statutory intention emerging from our consideration of that legislation is that there can be but one requirement which would occur when the requirement was first validly made, if oral, or twenty eight days after service of a requirement in writing, from which date the statutory time limit would start to run. In saying that we do not intend to suggest that there should never be more than one actual requirement. We can understand that where, for example, a written requirement is made and apparently ignored, it may be appropriate for a personal requirement to be made by police officers. That might be done with a view to obtaining useful information which could lead to the prosecution of the original offence. However, where that occurs, it should be understood that the limited time available for a summary prosecution for breach of section 172(3) of the 1988 Act, provided for under section 136 of the 1995 Act, will nonetheless have started to run from the expiry of the 28 day period, in the case of a prior written requirement, or from the date of any prior oral requirement."

 

So, Bad Lad, I think you need to prepare a two pronged approach to your defence. Personally I think the prosecution will have to lay out their case before your trial and say whether (a) they are prosecuting you on the basis that you provided the details of somebody other than the driver when you made your first (and only) response,  or (b) they are prosecuting you for failing to respond to the subsequent requests. If (a) a statement from your wife confirming she was the driver may help but if the photos are inconclusive as you suggest I can't see them proving their case anyway. If (b) you need to be armed with the details of the case above. As I mentioned, rulings in Scottish Courts are not binding in England and Wales. However, I would suggest the case should be very persuasive. Section 172 applies throughout the UK and there would be fundamentally no difference between your case and the Scottish one. The only difference is that you would not be using that case to suggest the prosecution was out of time, but that its principle (that there can only be one requirement - the first one) means that the subsequent s172 requests made of you were not valid. The ruling made it clear that, as in your case, there was simply no need for them. A prosecution could have been launched as soon as the 28 days had expired following the first request. You told the police you did not need to "reconsider" so nothing new had emerged which necessitated a fresh s172 notice.

[Bad lad]

Please note I’ve posted redacted pictures 

 

Docs1.pdf

[Bad lad]

Thanks again for your continued dedication man in the middle,  I’m chuffed you found the Scottish case

[Man in the middle]

I didn't find it myself. I had a lot of help  

[Bad lad]

Well done you obviously have some very good friends and contacts. Thanks fo coordinating them

 

btw I’m assuming you have seen the paperwork I’ve posted on Facebook,  take a look at those pictures.

 

Yes they really are that bad, that’s probably why police aren’t including them in prosecution.

 

Nothing to substantiate their  unfounded claims there…

[Manxman in exile]

I don't do Faceache, but regarding my earlier question, was your s172 response (a) unequivocal in naming the driver (eg you didn't say something like "I think it was probably my wife") and (b) you did actually sign it?

 

(I ask because in earlier posts you seemed to be demonstrating what might come across to some people as a bit of an unco-operative attitude to the process, so it would be good to know you have complied fully with the request).

[Bad lad]

Apologies Manxman, I did type out a reply to you earlier, god knows where that vanished to.

 

Anyway you’re right I’m not a fan of the police but I didn’t pull any sillly stunts, S172 was completed properly and signed.

 

I didn’t see any reason to give them ammo to use against me,,,, Little did I know what was to unfold.

Edited March 2, 2022 by dx100uk
unnecessary previous post quote removed

[Manxman in exile]

Thanks.

 

OK.  In that case it's even more odd that they are pursuing this.

[Bad lad]

It’s madness, but then again this sort of thing is exactly why I don’t like the Police. They have too much power when they are judge jury and hangman. They start to behave as they like, Thugs.

Edited March 2, 2022 by dx100uk
unnecessary previous post quote removed

[Manxman in exile]

OK.  Have to see what happens.

 

I suggest you take careful note of Man in the middle's suggestions in the last paragraph of #32

[Bad lad]

Yes he’s been very helpful and obviously put a lot of effort and thoughts into it. I’m very grateful.

 

There’s one thing MITM mentioned and I’m not sure about, that’s the “Abuse of Process “  Im thinking this is a bit of a Hand grenade to be thrown in if needed…

 

The question is do I  go “all in” with my defence with the SJPN  quoting pretty much every point MITM makes, including saying that the Police actions will cause an abuse of process if If the case is forwarded to trial. 

A sympathetic magistrate might decide enough is enough and Police have overstepped the mark,  others might be interested to see it go all the way and how it plays out.

[Man in the middle]

I wouldn't go down the "abuse of process" route at the moment. The only action I can see as being along those lines is the issue of multiple s172 requests being made but even that has its explanations:

 

• The second one - It is standard practice, when a "discrepancy" between the person nominated and the photo is noticed, to send a fresh s172 request along with the "do you wish to reconsider?" letter.
• The third one - once again you asked for photo evidence and if you wanted to change your mind having seen it you would need a fresh s172 form.

The problem with all this stuff is that it is produced by a "sausage machine" and very often the process followed does not fit the precise circumstances.

 

Based entirely on what you say I cannot see a prosecution succeeding. The Scottish judgement ruled that the first s172 request establishes the requirement, that there can only be one requirement and that it cannot be "renewed" by virtue of successive s172 requests being made. If that were the case a recipient could be convicted for every one issued to which he failed to reply and the Scottish High Court recognised this in their judgement. I would suggest that, in the absence of any English precedent, a Magistrates' Court here would be almost bound to take heed of the Scottish ruling.

 

That leaves the issue of you identifying the wrong person as the driver. If the photos are inconclusive as you suggest it is hard to see what evidence the police have that you have told lies when making your s172 return. If they do have any it should have been disclosed to you by now. but since your wife really was driving none can exist.

 

As far as a trial goes, I cannot see it progressing beyond the half way stage. In its case, the prosecution must prove that the person you nominated was not the driver. If they fail to do this you can submit that there is "no case to answer" and if the Bench agrees you will not have to provide your defence.

Edited March 2, 2022 by Man in the middle

[Bad lad]

MITM message understood, thanks.

You  cleared that up perfectly.

Have you not looked at my profile picture? You keep mentioning it as if you haven’t. That’s the evidence supplied by police. I’ve also put it on the Facebook group with another they supplied. You will have a good chuckle to yourself when you see it and despair at how the police can cast such aspersions. Please have a look and let me know. Thanks, Phil..

[Manxman in exile]

@Bad lad  -  I think you should do exactly as Man in the middle says in #43 and play this with a perfectly straight bat.

 

I bet he doesn't often get to tell people dual charged with speeding and failure to identify that they will probably have an opportunity to submit "no case to answer" at half way.  It would be a pity to cock that up and possibly end up snatching defeat from what should be almost certain victory by deviating from the obvious path.

 

If some antagonism exists between you and the police and they are perhaps trying to provoke you in some way, the best way to give them satisfaction is to allow yourself to react to that provocation.  I'd suggest that after you have successfully defended the case would be a better time to question how they have handled this and to ask how they came to the decision to prosecute at all - which on the face of it seems a strange decision and a likely waste of public resources 

 

I may be wrong (I'm sure Mitm will put me right if I am) but I think the the thing for you to take from that Scottish court decision is that Parliament must have put a time limit on prosecution for a reason, and that the police/prosecuting authority can't get around that time limit simply by re-issuing new s172 requirements at a later date just because they don't like what you've submitted.  Otherwise they would be subverting the clear intention of Parliament that there should be a time limit on prosecution.  That might or might not amount to "abuse of process", but I don't think it's necessary to mention that to the court - just that it clearly isn't what Parliament intended when they passed the law*.

 

*I'm not sure whether the 1988 Act referred to by the Scottish court is the same Act that applies to England & Wales or not.  The legal requirements will be the same, it's just that the Act that applies in Scotland might be different from the one that applies in England.  I think it always helps to persuade magistrates if you can demonstrate to them that you look like you know what you are talking about and don't make obvious mistakes!  I'm sure @Man in the middle can confirm which Act you may need to rely on - if you get so far as having to present a defence that is - you may not need to do so... 

 

 

 

Edited March 2, 2022 by Manxman in exile

[Man in the middle]

1 hour ago, Bad lad said:

Have you not looked at my profile picture? You keep mentioning it as if you haven’t. That’s the evidence supplied by police.

No. As above I can't see it. I don't use Facebook so have not seen the photos. However, it doesn't really matter. I'm simply going on what you told us and, after all, you would know better than anybody whether the photos can identify someone other than your wife!  

 

1 hour ago, Manxman in exile said:

*I'm not sure whether the 1988 Act referred to by the Scottish court is the same Act that applies to England & Wales or not. 

Yes it is. RTA 1988 applies equally in Scotland. In fact the Scottish Court judgement mentions two Acts, that and s136 of the Criminal Procedure (Scotland) Act 1995. The latter provides for a six month time limit on summary proceedings (**but see below) in the same way that s127 of the Magistrates' Court Act provides that limit in E&W. The reason for that was that the Scottish case centred around the charge being time expired. The intention of the legislators in both cases was to impose a strict time limit on prosecutors to bring summary proceedings. You're right in that intention could be circumvented if the issue of subsequent s172 notices meant the six month clock was re-set each time. This is something the High Court recognised and mentioned in its judgement, though it is not relevant here as Bad Lad's matter does not revolve around the charge being time expired. But the judgement helps because it states clearly that there can be only one requirement which has to be met and that requirement is established when the request is first validly made. 

 

**The current limit on summary proceedings has been "temporarily" increased to twelve months. This change was brought in early in the pandemic.

[dx100uk]

pdf of stuff from facebook now in about post 33.

 

i have also removed your name from a post here and the docs..too..please dont post your pers details here, as we must abide by your, ours and the sites gdpr laws and regulations.

[Bad lad]

Thanks to Dx100 for getting the paperwork and photos up in this thread for me.

MITM  and Manx exile please take a look at message number 33, as I said you will be amazed police are questioning who driver was. 
 

[Manxman in exile]

Well I personally can't see anything from those photos which justifies them questioning your response.  I can barely make out the outline of the driver let alone have a view as to their age or sex.

 

[Man in the middle]

Ditto, absolutely incredulous.