NIP 110mph+ in a 50mph zone - non disclosure
Discussion
The Rookie said:
No the court cannot come to that conclusion at all, simply cannot. Have a read of Elliot v Loake which establishes what would be needed.
Anyone familiar with private parking companies' amusing antics knows of this case, as PPCs sometimes try to use it to justify pursuing a vehicle's registered keeper when they do not know the identity of the vehicle's driver at the time of an alleged parking "incident". It is nonsense in that situation, because it doesn't actually support the simplistic "rule" the PPCs think it does, namely that it is automatically "reasonable" to assume that the RK of a vehicle was the driver of that vehicle at any convenient time. The justices in EvL dismissed the appeal because there had been ample evidence presented to the magistrates to allow them to conclude that the appellant was indeed the driver at the time in question.I don't know if there are any more recent appeals cases relating to the question of when a person who denies being the driver can be held criminally liable (anyone got a copy of Wilkinson's handy?), but if EvL is (or ever was) the leading case, the prosecution would have to present "sufficient evidence" that the keeper of the vehicle was the driver at the time of the offence, and the mere fact that a particular defendant was the keeper of a particular vehicle at a particular time would be insufficient to meet that burden. The kind of evidence the appeals court considered notable included the appellant's "manifest" lies to the police about the damage to his car, which had been conclusively established by the police forensics lab to have occurred at the scene of the crime. The court of appeal did not identify what other kinds of evidence would have been sufficient to justify the magistrates' conclusion, but it is clear that there must be some evidence.
As has been pointed out previously, if this were not the case, there would be no reason for the police to bother with the cumbersome procedure specified under Section 172 of the Road Traffic Act 1988 to identify the driver.
The appellant in EvL obviously didn't help himself by telling a load of porkies to the police, which is certainly what the police and the magistrates found most incriminating, but in the case of our allegedly speeding RK, if he says nothing to the police I think it would be very difficult to prosecute him for the speeding. What would be the evidence placing him behind the wheel? Even mobile phone tracking would only place him (well, his phone...) in the vehicle, in which he could very well have been a passenger.
janesmith1950 said:
ghe13rte said:
...convince the magistrates that the keeper was likely to be the driver...
Maybe in civil proceedings. The Mags need to be convinced beyond reasonable doubt in criminal ones. Keeper refuses to provide the name of the driver
If I was a magistrate that would convince me beyond any doubt, reasonable or better that the keeper was hoping to absolve himself from the detected speed and speeding charge.
While it is up to each defendant to convince the magistrates how they don’t know who was driving their vehicle, lack of credibility in doing so can result in a conviction for both charges. That is perfectly reasonable. Maybe even more so if forum discussions like this increase the incidence of ‘forgetful’ keepers.
What needs to be acknowledged here is that there are people who have been convicted of both charges when they have remained silent to s172 requests and that’s a fact.
ghe13rte said:
Keepers vehicle is seen at 110mph in a 50mph limit
Keeper refuses to provide the name of the driver
If I was a magistrate that would convince me beyond any doubt, reasonable or better that the keeper was hoping to absolve himself from the detected speed and speeding charge.
While it is up to each defendant to convince the magistrates how they don’t know who was driving their vehicle, lack of credibility in doing so can result in a conviction for both charges. That is perfectly reasonable. Maybe even more so if forum discussions like this increase the incidence of ‘forgetful’ keepers.
What needs to be acknowledged here is that there are people who have been convicted of both charges when they have remained silent to s172 requests and that’s a fact.
This is the thing, you don't try and convince the magistrates of anything, you are not going to suggest that it was someone else driving the vehicle just that there is no evidence that it was you. Keeper refuses to provide the name of the driver
If I was a magistrate that would convince me beyond any doubt, reasonable or better that the keeper was hoping to absolve himself from the detected speed and speeding charge.
While it is up to each defendant to convince the magistrates how they don’t know who was driving their vehicle, lack of credibility in doing so can result in a conviction for both charges. That is perfectly reasonable. Maybe even more so if forum discussions like this increase the incidence of ‘forgetful’ keepers.
What needs to be acknowledged here is that there are people who have been convicted of both charges when they have remained silent to s172 requests and that’s a fact.
If you are asked about it, politely decline to go on the witness stand and give any evidence.
mickmcpaddy said:
This is the thing, you don't try and convince the magistrates of anything, you are not going to suggest that it was someone else driving the vehicle just that there is no evidence that it was you.
If you are asked about it, politely decline to go on the witness stand and give any evidence.
Why do you think silence will guarantee that you get off?If you are asked about it, politely decline to go on the witness stand and give any evidence.
Gavia said:
mickmcpaddy said:
This is the thing, you don't try and convince the magistrates of anything, you are not going to suggest that it was someone else driving the vehicle just that there is no evidence that it was you.
If you are asked about it, politely decline to go on the witness stand and give any evidence.
Why do you think silence will guarantee that you get off?If you are asked about it, politely decline to go on the witness stand and give any evidence.
ds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.Do you think they have enough evidence to convict you if you do remain silent?
mickmcpaddy said:
There are no guarantees of anything, some magistrates will be spiteful bds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.
Do you think they have enough evidence to convict you if you do remain silent?
Yes. ds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.Do you think they have enough evidence to convict you if you do remain silent?
mickmcpaddy said:
There are no guarantees of anything, some magistrates will be spiteful bds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.
Do you think they have enough evidence to convict you if you do remain silent?
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in court. Anything you do say may be given in evidence”. Certain specific adverse inferences are allowed by Sections 34-38 of the Criminal Justice and Public Order Act 1994. One of these is Section 35, which relates to the inferences which can be drawn by the jury/judge from a defendant's refusal to testify at trial, but s38(3) CJPOA does not allow an adverse inference to establish the prima facie elements of the charge. ds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.Do you think they have enough evidence to convict you if you do remain silent?
The prima facie case for speeding, or Section 89 of the RTRA 1994, requires that the CPS prove, beyond a reasonable doubt, that: (1) the defendant drove (2) a motor vehicle (3) on a road (4) in excess of the speed limit. In a speed camera case the police would easily be able to establish (2), (3) and (4), but they cannot prove (1) without the defendant's admission or some other credible evidence. Accordingly, the law does not allow a defendant's silence in court to be used to establish that he was driving at the time of the offence.
Of course, there is always the possibility that the courts will not follow the law, but then we would have a bigger problem than some harmless speeding...
mickmcpaddy said:
There are no guarantees of anything, some magistrates will be spiteful bds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.
Do you think they have enough evidence to convict you if you do remain silent?
Respectfully I don't think you've discovered the judicial equivalent of alchemy here.ds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.Do you think they have enough evidence to convict you if you do remain silent?
If it was that simple it would happen all the time.
bhstewie said:
hstewie said:mickmcpaddy said:
There are no guarantees of anything, some magistrates will be spiteful bds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.
Do you think they have enough evidence to convict you if you do remain silent?
Respectfully I don't think you've discovered the judicial equivalent of alchemy here.ds I would imagine and look at commoners with disgust, however it gives you a much better chance than if you admit the truth.Do you think they have enough evidence to convict you if you do remain silent?
If it was that simple it would happen all the time.
He fought the law, and the law won. If tilting at windmills counts...
TooMany2cvs said:
TBH, I think Mick is just showing his true colours here.
He fought the law, and the law won. If tilting at windmills counts...
He should try this for some quality court arguments next time: https://en.wikipedia.org/wiki/Freemen_on_the_landHe fought the law, and the law won. If tilting at windmills counts...
HantsRat said:
jwo said:
if a drunk driver refuses to give a sample they are automatically assumed to be over limit and charged accordingly.
No they're not. There is a completely separate offence of failing to provide which they are charged with. Which brings us back to the speeding one. Does refusing to complete the S172 avoid the speeding conviction?
The obvious and important difference between the scenarios is that with the failing to provide a specimen for testing the actual driver has already been caught and there will probably be video evidence indicating that they are under the influence of either drink or drugs or a medical condition, so in essence they are known to be unfit to drive.
In the speeding scenario the identity is not known, however suspicious the refusal to identify looks.
Edited by cmaguire on Monday 22 January 09:19
mickmcpaddy said:
This is the thing, you don't try and convince the magistrates of anything, you are not going to suggest that it was someone else driving the vehicle just that there is no evidence that it was you.
If you are asked about it, politely decline to go on the witness stand and give any evidence.
subsection 4 is a statutory defence.If you are asked about it, politely decline to go on the witness stand and give any evidence.
If a RK is accused under s.172 and wants to invoke the (4) defence the burden of proof passes to the accused, but to the lower 'balance of probabilities' standard.
The approach you suggest will guarantee a conviction under s.172 Whether it will also lead to a speeding conviction will depend on the particular circumstances of the case and the available evidence. It might be possible to get away with it (see Atkinson v DPP) but its probably a high risk strategy, seeing as you've already racked up 6 points and a fine.
hutchst said:
subsection 4 is a statutory defence.
If a RK is accused under s.172 and wants to invoke the (4) defence the burden of proof passes to the accused, but to the lower 'balance of probabilities' standard.
The approach you suggest will guarantee a conviction under s.172 Whether it will also lead to a speeding conviction will depend on the particular circumstances of the case and the available evidence. It might be possible to get away with it (see Atkinson v DPP) but its probably a high risk strategy, seeing as you've already racked up 6 points and a fine.
According to the first post in this thread the keeper has already been convicted of an offence under s172, so there is no need to discuss his defence options...If a RK is accused under s.172 and wants to invoke the (4) defence the burden of proof passes to the accused, but to the lower 'balance of probabilities' standard.
The approach you suggest will guarantee a conviction under s.172 Whether it will also lead to a speeding conviction will depend on the particular circumstances of the case and the available evidence. It might be possible to get away with it (see Atkinson v DPP) but its probably a high risk strategy, seeing as you've already racked up 6 points and a fine.
Either he was dual-charged at the time of the s172 hearing (in which case the speeding charge would have had to have been dropped for lack of evidence) or he wasn't, but in any case the time of the original offence has been receding into the past for some time. Obviously, the longer he put off the s172 hearing the closer he would have got to the six-month time-out for the speeding offence.
I am not familiar with the "no-bail warrant" situation. Is this because he did not acknowledge the s172 hearing at all? He did not attend and did not plead either guilty or not guilty? That seems like a silly thing to have done--especially under these circumstances.
a.lex said:
hutchst said:
subsection 4 is a statutory defence.
If a RK is accused under s.172 and wants to invoke the (4) defence the burden of proof passes to the accused, but to the lower 'balance of probabilities' standard.
The approach you suggest will guarantee a conviction under s.172 Whether it will also lead to a speeding conviction will depend on the particular circumstances of the case and the available evidence. It might be possible to get away with it (see Atkinson v DPP) but its probably a high risk strategy, seeing as you've already racked up 6 points and a fine.
According to the first post in this thread the keeper has already been convicted of an offence under s172, so there is no need to discuss his defence options...If a RK is accused under s.172 and wants to invoke the (4) defence the burden of proof passes to the accused, but to the lower 'balance of probabilities' standard.
The approach you suggest will guarantee a conviction under s.172 Whether it will also lead to a speeding conviction will depend on the particular circumstances of the case and the available evidence. It might be possible to get away with it (see Atkinson v DPP) but its probably a high risk strategy, seeing as you've already racked up 6 points and a fine.
Either he was dual-charged at the time of the s172 hearing (in which case the speeding charge would have had to have been dropped for lack of evidence) or he wasn't, but in any case the time of the original offence has been receding into the past for some time. Obviously, the longer he put off the s172 hearing the closer he would have got to the six-month time-out for the speeding offence.
I am not familiar with the "no-bail warrant" situation. Is this because he did not acknowledge the s172 hearing at all? He did not attend and did not plead either guilty or not guilty? That seems like a silly thing to have done--especially under these circumstances.
If they believe they have sufficient evidence for him speeding (without him filling in the Sec 172) but he nevertheless fails to complete the administerial section 172 request thus committing that offence?
The 6 months limit for the speeding doesn't come into it if proceedings have been commenced for it (ie information has been laid before the court & he has been summonsed).
In those circumstances could he not be convicted of the 172 offence in his absence, but a fail to appear warrant issued in relation to the speeding (for a speed where they are likely to consider banning him & wanting him present)?
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff