The importance of checking police compliance with the notice of intended prosecution provisions

Posted by Barry Culshaw on
Section 1 of the Road Traffic Offenders Act 1988 ("RTOA") requires that for certain offences the police must give a motorist at risk of prosecution a warning of the possibility of prosecution.

This can be done at the time of a stop check. However, with the proliferation of camera enforcement in the context of road traffic offences the warning known as a notice of intended prosecution ("NIP") is more often than not given by the police by first class post. The NIP is normally served on the registered keeper of the vehicle as the identity of the driver at that stage will not be known to the police and is accompanied by a request for driver details pursuant to section 172 of the Road Traffic Act 1988. The written postal NIP must be served on and received by the driver/registered keeper within 14 days of the date of the alleged offence.

The NIP requirements extend to offences such as speeding, careless/dangerous driving and failing to comply with traffic directions/signs. This is not an exhaustive list. There is a rebuttable presumption of compliance and the NIP requirements do not apply where there has been an accident and/or where a fixed penalty notice has been issued. The NIP requirements also do not apply if the registered keeper details could not be ascertained by the police with reasonable diligence and/or the accused motorist has by his own conduct contributed to the failure. The importance of checking compliance by the police with the NIP requirements is illustrated by the following case study which highlights a police investigation concluding only this month into an alleged speeding offence.

G consulted Blake Morgan's Motoring Offences Team as he was the subject of an investigation by Hampshire Constabulary's Summary Justice Unit ("SJU") in regard to a speeding incident captured by a mobile speed camera. G was alleged to have contravened a 30 mile per hour speed limit whilst driving his motor vehicle at 35 miles per hour. This investigation was of considerable concern to G who already had nine penalty points endorsed on his driving record over the relevant three year period and was, therefore, liable to be subject to the totting up procedure. Had the matter resulted in court proceedings the court would have had no alternative in the event of conviction other than to impose a minimum period of disqualification from driving of six months unless G was able to advance exceptional hardship or some other significant mitigating factor.

Barry Culshaw, a consultant with the Motoring Offences Team specialising in road traffic law, had conduct of the case throughout. Upon receiving initial instructions, Barry noted at the outset that the NIP had been served on G outside the statutory 14 day time limit imposed by section 1 of RTOA. During the initial conference with Barry it became evident that G had been unaware of the NIP requirements and had thought that there was no problem for the police in the manner in which they went about serving the NIP. In this particular instance the SJU had initially delayed in sending out the NIP. However, when the NIP was eventually posted to G it was posted first class post on the Thursday the day before Good Friday. The date of posting was nine days after the date of the alleged speeding incident. This meant that it was impossible for the NIP to arrive within the 14 day time limit to comply with the relevant Criminal Procedure Rule which discounts Saturdays, Sundays, Good Friday and Easter Monday The 14 day period happened to expire at 23:59 hrs on the Tuesday , the day after bank holiday Monday. The earliest the NIP could have been received in accordance with the Criminal Procedure Rule was one day outside the 14 day time limit. Indeed, as G resided in a rural area where it was not unusual for first class post to be delivered somewhat later than normal the NIP was eventually received the following Saturday some four days late. Although there is a presumption that a first class letter is served on the second business day after posting if a motorist can prove on a balance of probabilities that the NIP was received late then the motorist is entitled to an acquittal by the court.

The NIP had been combined with a request by the SJU for driver details from G. As the NIP provisions do not apply to the obligation to provide driver details Barry advised G to respond to the request naming himself as the driver of the vehicle at the material time. However, again pursuant to Barry's advice, G did point out when replying to the SJU that the NIP had been served out of time.

A representative of the SJU did respond to G's letter pointing out that the NIP was served in time. That representative probably failed to take account of the fact that posting took place the day before the bank holiday weekend. G was offered the opportunity of accepting a fixed penalty for the speeding offence and 3 penalty points being endorsed on his driving record. That disposal would not have been open to G in any event as he would have been under an obligation to be placed before the court under the totting up provisions. However, pursuant to Barry's advice, G instructed Barry to enter into correspondence with the SJU. As a result of this correspondence which pointed out the SJU's non-compliance with the 14 day legislative requirements a decision was made by the SJU to take no further action. Indeed, the SJU's team leader wrote personally to G acknowledging that the NIP was not served within the 14 day period. The team leader apologised for the error and any inconvenience and distress caused. Indeed, the team leader expressed thanks for the error being highlighted. G was assured that an investigation had taken place and that the erroneous actions of SJU staff members would be addressed accordingly.

G was very appreciative and thankful for Barry's advice and assistance. G had been greatly concerned that he was at risk of disqualification with the attendant hardship that this would have caused. This case does demonstrate the importance of seeking specialist road traffic legal advice in a timely fashion in a case of this nature.

About the Author

Barry Specialises in road transport law within our Driver Defence team. He represents clients facing allegations of careless/dangerous driving, driving with excess alcohol and speeding.

Barry Culshaw
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023 8085 7209

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