Received an NIP for a car I don't own?
Discussion
imagineifyeswill said:
You would have thought in JustinP1s case a simple pnc check would have revealed he didnt stay at that address.
Yes.When I was in my 20's before this happened, on every occasion I was pulled over for being a young chap in a nice car, there was no problem in a PNC check 'just in case' - it only took two minutes.
As it happened, the police officer even took the trouble to pull up my licence for the court, which of course showed my real address nowhere near Burnley.
The 'bundle' of paperwork must have taken a couple of hours to put together, including a 3 A4 page witness statement. As well of of course a morning or afternoon for the officer at court.
6-7 police hours lost, a CPS brief being paid for court, and a set of mags in Burnley convicting me, and another at my local court unconvicting me.
Edited by JustinP1 on Sunday 2nd August 19:22
battered said:
Red Devil said:
I have a fundamental dislike of any legislation which requires you to prove a negative. It is an unwelcome feature which seems to be becoming more prevalent as time marches on.
I can only assume your completely OTT response is to deflect readers' attention from the weakness of your position.
Just suppose the OP paid for his food and drink with cash. What supporting evidence does he then have for his contention that he couldn't possibly have been at the location to commit the alleged offence? Hopefully Mrs Patel will eventually have some questions to answer but that is of little consolation to the OP who may well be severely inconvenienced in the meantime.
Th bit in bold suggests to me that you
- either don't know, or have chosen to ignore, that the speeding offence and S.172 compliance are entirely separate matters.
- fail to understand that the latter is not about him ever having driven the car but all to do with whether he possesses information on who did.
- have a touching faith in the willingness of Scamera Partnerships to roll over.
It is the S.172 requirement, not the alleged speeding, which is the OP's immediate problem. The negative which he has to prove is that he does not have any information which he is required to supply per paragraph (2)(b). His mere presence elsewhere doesn't do this, but it just might help to persuade the SCP that Mrs Patel has wrongly grassed him up as he can't have committed the alleged speeding offence (whereas she, or someone she really does know, might well have). Hence my suggestion to include any evidence he has in his response to the SCP. Your blithe assertion that the SCP, faced with his denial, will simply say "So sorry to have bothered you sir, please accept our humble apologies: have a nice day" is simply unrealistic.
What is particularly interesting is that the potential 'get-out-of-jail' card in S.172 (4) only applies to the keeper - paragraph (a) of subsection (2) - and not, it would appear, to any other person - paragraph (b) of subsection (2).
The fact remains that any party wrongly identified (for whatever reason) by the recipient of a NIP faces a lot of hassle because in such cases SCPs are often more interested in finding someone to impose penalty points on and extract money from than properly investigating what has really happened. A lot of people succumb to intimidation and/or will take the line of least resistance, accept the hit, and pay, because it takes a disproportionate amount of time, effort, and expense to put up a fight.
It happened to my sister (her details were provided by an embittered 'ex' to a friend of his to whom he owed a favour). She was lucky because when I found out I was able to call on the services of a very good motoring solicitor to help her. He got it binned before the case was due to be heard but the grief she was subjected to in the meantime by a cohort of faceless and intransigent bureaucrats beggared belief.
While S.172 serves to ensnare the truly guilty, it leaves those who are wrongly named (whether by accident or design) extremely vulnerable to the 'grind 'em up ans spit 'em out' machinations of decision makers in the SCPs/CPS.
I think that you may be misreading section 172. In particular, your statement
"The negative which he has to prove is that he does not have any information which he is required to supply per paragraph (2)(b)"
goes too far. The prosecution must prove that the person has not given information that it was in his power to give.
The burden placed on the keeper is arguably a bit heavier than that placed on any other person, and in the case of the keeper there is a partial transfer of burden of proof, but only to the extent that if the keeper runs the reasonable diligence defence then he must show reasonable diligence. There is also an evidential burden in respect of time of response, but that's a slightly different point.
For ease of reference, subsections 172(2) to (4) provide as follows -
(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
(3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.
(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
"The negative which he has to prove is that he does not have any information which he is required to supply per paragraph (2)(b)"
goes too far. The prosecution must prove that the person has not given information that it was in his power to give.
The burden placed on the keeper is arguably a bit heavier than that placed on any other person, and in the case of the keeper there is a partial transfer of burden of proof, but only to the extent that if the keeper runs the reasonable diligence defence then he must show reasonable diligence. There is also an evidential burden in respect of time of response, but that's a slightly different point.
For ease of reference, subsections 172(2) to (4) provide as follows -
(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
(3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.
(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
Edited by anonymous-user on Monday 3rd August 06:06
Edited by anonymous-user on Monday 3rd August 08:13
I add that section 172 responses that name the wrong person can indeed cause the innocent person a lot of hassle, but that follows from the fact that someone has been dodgy. Criminals cause the law abiding trouble in all sorts of contexts. What is the alternative to a section 172 notice? Have each case where a vehicle breaks a motoring rule investigated individually so that the driver is positively identified by the sleuths? That might work in the days when the only one driving with undue vim and vigour was Toad of Toad Hall*, but what about now when there are a gazillion motorists and limited enforcement budgets?
* You will recall that it was more cheeking the rural constabulary than furious driving which did for him.
* You will recall that it was more cheeking the rural constabulary than furious driving which did for him.
Fair enough BV. At least a more measured response than the previous poster. 
Have you or anyone close to you experienced the dead hand of the SCP/CPS descend on your shoulder in this particular field?
If so, your background in the law suggests to me that you are less likely to be intimidated and will know to whom to call on for help if necessary.
That won't be the case for most MoPs. The elderly (and callow youth) are particularly vulnerable to such pressure.
In answer to your question I would say that the state apparatus should be more willing to entertain reasonable doubt*.
It can seem to the innocent that it is more hell bent on investing time and money battering them than going after the scrotes.
* http://www.bartleby.com/73/953.html
As for Toad, it would seem it was both. As the Badger admonished him "you're getting us animals a bad name in the district by your furious driving and your smashes and your rows with the police."
http://genius.com/Kenneth-grahame-the-wind-in-the-...
I reckon Toad is actually the archetype of many a PH powerfully-built, tatooed, and goatee-wearing director.
Have you or anyone close to you experienced the dead hand of the SCP/CPS descend on your shoulder in this particular field?
If so, your background in the law suggests to me that you are less likely to be intimidated and will know to whom to call on for help if necessary.
That won't be the case for most MoPs. The elderly (and callow youth) are particularly vulnerable to such pressure.
In answer to your question I would say that the state apparatus should be more willing to entertain reasonable doubt*.
It can seem to the innocent that it is more hell bent on investing time and money battering them than going after the scrotes.
* http://www.bartleby.com/73/953.html
As for Toad, it would seem it was both. As the Badger admonished him "you're getting us animals a bad name in the district by your furious driving and your smashes and your rows with the police."
http://genius.com/Kenneth-grahame-the-wind-in-the-...
I reckon Toad is actually the archetype of many a PH powerfully-built, tatooed, and goatee-wearing director.
Breadvan72 said:
The prosecution must prove that the person has not given information that it was in his power to give.
That should not be an offence in the first place when the information refers to self (in particular) or spouse. It shouldn't be required of anyone. The entire gamut of S172 runs counter to long-lasting protections that have been casually discarded by people ignoring the principles of natural justice. The lack of any requirement for an individual to provide information that could be used against that individual in any way has been seen as a necessary safeguard against coercion. In the past this might have been an accidental fall down some steps, today it's applying stress and pressure to vulnerable people including pensioners who may feel compelled to confess 'to start to stop the stress'. Including, for exanple, when they are not guilty of any offence but have not kept a minute-by-minute driving diary (as per the vast majority of the motoring population) but want to prevent their spouse from stress. This is the basis for my view that extension of protection from self to spouse remains entirely reasonable.
My earlier posts about seeing this happen from personal experience of supporting such people show that loss of this important safeguard in the trivial instance of safe driving above an arbitrary number - speeding is an absolute offence unrelated to safety - is widespread, it's completely ridiculous and disproportionate.
tb, are you not aware of O'Halloran v United Kingdom (2008)? Your arguments were rejected by the UK and Strasbourg Courts. Sorry, but that ship sailed long ago. See also Mulcaire in the Supreme Court in 2012 (self incrimination in relation to phone hacking) for the modern approach to the subject.
Breadvan72 said:
tb, are you not aware of O'Halloran v United Kingdom (2008)? Your arguments were rejected by the UK and Strasbourg Courts. Sorry, but that ship sailed long ago. See also Mulcaire in the Supreme Court in 2012 (self incrimination in relation to phone hacking) for the modern approach to the subject.
You've missed the point completely.Foolishly setting aside important principles of natural justice was mentioned in my post.
You just gave a reference, so thanks, but it changes nothing.
The situation is what it is, everyone knows that, but it's a ridiculous and disproportionate situation in which numbers of vulnerable and innocent individuals 'confess' to something they didn't do.
Red Devil said:
...
I reckon Toad is actually the archetype of many a PH powerfully-built, tatooed, and goatee-wearing director.
Good point! Toad, however, is a good chap at heart, whereas the standard PH bruiser appears to be an irredeemable sI reckon Toad is actually the archetype of many a PH powerfully-built, tatooed, and goatee-wearing director.
t!I agree that someone like me would be able to deal with the CPS or plod cocking things up better than some people would, and that for many people to be caught in the toils of the law is a deeply unsettling experience, that can lead to very bad things happening undeservedly. That is one reason why we need effective criminal legal aid services, but that again has to be paid for.
turbobloke said:
Breadvan72 said:
tb, are you not aware of O'Halloran v United Kingdom (2008)? Your arguments were rejected by the UK and Strasbourg Courts. Sorry, but that ship sailed long ago. See also Mulcaire in the Supreme Court in 2012 (self incrimination in relation to phone hacking) for the modern approach to the subject.
You've missed the point completely.Foolishly setting aside important principles of natural justice was mentioned in my post.
You just gave a reference, so thanks, but it changes nothing.
The situation is what it is, everyone knows that, but it's a ridiculous and disproportionate situation in which numbers of vulnerable and innocent individuals 'confess' to something they didn't do.
I add, tb, that I wonder if your apparent strong opposition to many aspects of speed control in general is colouring your view on this. I agree that not all speeding is dangerous, and agree that much speed enforcement is questionable, but, I think, not all of it. I also don't see this as a major human rights or civil liberties issue, especially when there are much more important threats to freedom posed by the State in other contexts.
Breadvan72 said:
I add, tb, that I wonder if your apparent strong opposition to many aspects of speed control in general is colouring your view on this.
No, I support speed control in the form of limits set at the 85%ile of speed, and support enforcement where police remove dangerous drivers from the roads with vehicle speed as one aspect facilitating that removal.As you must surely have noted by now, it's not about me, nor is it about my views on speeding which you got badly wrong (which is in any case a diversion and a persoinal angle diversion at that).
It's about the known problems that occur when important principles of natural justice are set aside. This has happened with s172. Vulnerable innocent people are being convicted as a result. You appear to support that via a lack of opposition to it. All threats that harm innocent people are important.
Breadvan72 said:
I think that you may be misreading section 172. In particular, your statement
"The negative which he has to prove is that he does not have any information which he is required to supply per paragraph (2)(b)"
goes too far. The prosecution must prove that the person has not given information that it was in his power to give.
The burden placed on the keeper is arguably a bit heavier than that placed on any other person, and in the case of the keeper there is a partial transfer of burden of proof, but only to the extent that if the keeper runs the reasonable diligence defence then he must show reasonable diligence. There is also an evidential burden in respect of time of response, but that's a slightly different point.
Agree with BV. If a defendant contends that the information requested is not in his power to give then he must raise that issue by asserting that he is not the keeper. If the defendant does not reply then he will be found guilty; see R v Grant [2001] EWHC 1114. If he does reply then the prosecution would have to disprove that he was not the keeper and prove that the information was in his power to give; Mohindra v DPP [2004] EWHC 490. "The negative which he has to prove is that he does not have any information which he is required to supply per paragraph (2)(b)"
goes too far. The prosecution must prove that the person has not given information that it was in his power to give.
The burden placed on the keeper is arguably a bit heavier than that placed on any other person, and in the case of the keeper there is a partial transfer of burden of proof, but only to the extent that if the keeper runs the reasonable diligence defence then he must show reasonable diligence. There is also an evidential burden in respect of time of response, but that's a slightly different point.
Edited by agtlaw on Monday 3rd August 10:04
turbobloke said:
Breadvan72 said:
I add, tb, that I wonder if your apparent strong opposition to many aspects of speed control in general is colouring your view on this.
No, I support speed control in the form of limits set at the 85%ile of speed, and support enforcement where police remove dangerous drivers from the roads with vehicle speed as one aspect facilitating that removal.As you must surely have noted by now, it's not about me, nor is it about my views on speeding which you got badly wrong (which is in any case a diversion and a persoinal angle diversion at that).
It's about the known problems that occur when important principles of natural justice are set aside. This has happened with s172. Vulnerable innocent people are being convicted as a result. You appear to support that via a lack of opposition to it. All threats that harm innocent people are important.
turbobloke said:
Vulnerable innocent people are being convicted as a result. You appear to support that via a lack of opposition to it. All threats that harm innocent people are important.
How many people? How big a problem is this? Are there any reliable data? Those questions are not rhetorical.I suggest that the argument "if you do not oppose something then you must support it" is a weak argument.
In any event, FWIW, I deplore, oppose, condemn, and excoriate each and every false conviction of anyone for anything, forever.
Breadvan72 said:
turbobloke said:
Vulnerable innocent people are being convicted as a result. You appear to support that via a lack of opposition to it. All threats that harm innocent people are important.
How many people? How big a problem is this? Are there any reliable data? Those questions are not rhetorical.It's a matter for the justice system to address via data collection, I'm paid to do other things and my spare time is now devoted to unrelated matters.
Breadvan72 said:
I suggest that the argument "if you do not oppose something then you must support it" is a weak argument.
I had hoped you'd appreciate the irony following your own weak argument using erroneous assumed information about my view on speeding which turned out to be wrong and therefore irrelevant. Sauce for the goose.
Breadvan72 said:
In any event, FWIW, I deplore, oppose, condemn, and excoriate each and every false conviction of anyone for anything, forever.
Me too. One approach to removing a large number of such instances is to include on the s172 proforma 'no comment'. IANAL as you know, but am I way off the mark in thinking that a person accused of murder cannot be coerced to offer any information whatsoever on pain of conviction for a separate offence? They may confess willingly but cannot be compelled to provide any information to the best of my knowledge after reading legal beagle info, but I defer to your qualified opinion. Yet for safe driving, many are so compelled, and provide false information under stress to end the stress and are wrongly oonvicted.If the authorities cannot identify a driver and place them at the scene in a manner consistent with guilt, without what is in effect compelled self-incrimination, that should be the end of it. The demonstrable impact on vulnerable people effectively confessing through coercion to something they didn't do is not acceptable.
At the end of the day, how many convictions would result if the owner did not have to say who was driving? (It's a rhetorical question).
The argument for making S172 non compulsory is greatly weakened by the present activities, ranging from the white lie to the downright fraudulent.
I'm sure there must be those who really cannot recall, but in reality, in all likelihood a very small percentage of those who claim thus.
The argument for making S172 non compulsory is greatly weakened by the present activities, ranging from the white lie to the downright fraudulent.
I'm sure there must be those who really cannot recall, but in reality, in all likelihood a very small percentage of those who claim thus.
Slidingpillar said:
At the end of the day, how many convictions would result if the owner did not have to say who was driving? (It's a rhetorical question).
The argument for making S172 non compulsory is greatly weakened by the present activities, ranging from the white lie to the downright fraudulent.
I'm sure there must be those who really cannot recall, but in reality, in all likelihood a very small percentage of those who claim thus.
That may be so but it's an assertion without proof. BV will be along soon to ask you to provide numbers.The argument for making S172 non compulsory is greatly weakened by the present activities, ranging from the white lie to the downright fraudulent.
I'm sure there must be those who really cannot recall, but in reality, in all likelihood a very small percentage of those who claim thus.
It's also missing the point, the lack of compulsion exists to protect vulnerable individuals from coerced and false self-incrimination. The issue of mendacity is irrelevant with that in mind, since by virtue of protecting vulnerable people there would be a 'no comment' option.
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