Proving who was driving
Discussion
A letter came through this morning, advising the Mem Sahb that a summons was imminent following a NIP. She had previously written back to the camera partnership stating that due to the fact that we have 2 cars and drive them both, and often drive similar routes, we are unable to say which one of us was driving at the time.
Bearing in mind we have given them the names of all possible drivers - i.e. her and me - have we not discharged our duty, and if so what is likely to be the next step.
Apologies if this has been done to death, but we are in thte dark with this one.
Bearing in mind we have given them the names of all possible drivers - i.e. her and me - have we not discharged our duty, and if so what is likely to be the next step.
Apologies if this has been done to death, but we are in thte dark with this one.
You have to exercise reasonable diligence in attempting to ascertain who was driving. Did you request pics? Check diaries, credit card statements and anything else which might have pointed to who was where that day?
If it goes to court you'll have to convince the mags that you actually don't know and could not find out.
If it goes to court you'll have to convince the mags that you actually don't know and could not find out.
The SCP is not a Court of Law. Its function is to churn out the notices of those who are electronically indicated to have committed an offence and to ascertain who the offending driver was. He is then given the opportunity to pay or have the matter contested in a CofL.
Failing to name a driver under these circumstances is an offence but as mentioned it is stated that if a person shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicler was that person will not be guilty of the offence.
Where this is decided in generally before a Magistrates Court after a person is summoned for failing to name. There a plea of Not Guilty will give the opportunity for the person charged to give what evidence he can of steps and enquiries made to invoke the above defence to convince the Magistrates and thereby bring about a decision of Not Guilty.
dvd
Failing to name a driver under these circumstances is an offence but as mentioned it is stated that if a person shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicler was that person will not be guilty of the offence.
Where this is decided in generally before a Magistrates Court after a person is summoned for failing to name. There a plea of Not Guilty will give the opportunity for the person charged to give what evidence he can of steps and enquiries made to invoke the above defence to convince the Magistrates and thereby bring about a decision of Not Guilty.
dvd
Possibly you should do the following:
Ask for the photos in writing by recorded delivery. At the same time re-iterate the fact that either of you could have been driving on the day in question.
If the photos don't clearly identify the driver, write back asking for advice on how to proceed further with the identification.
If they write back saying that you MUST name the driver or proceedings will be taken for failing to identify the driver, write again saying that you are both prepared to plead guilty and each pay the fine and take the points as, clearly, one of you was definately driving and a penalty is appropriate. Also ask, if this is not acceptable, from whom would they be happy to take the confession as, although it may be the wrong person, someone would then be named, although you would require their wriotten confirmation that should this be proved subsequently to be incorrect there would be an indemnity against further prosecutions of either of you for any other offence(s).
Keep copies of all of this paperwork to use in a subsequent 'Hamilton Defence' should this prove necessary. It may not.
Ask for the photos in writing by recorded delivery. At the same time re-iterate the fact that either of you could have been driving on the day in question.
If the photos don't clearly identify the driver, write back asking for advice on how to proceed further with the identification.
If they write back saying that you MUST name the driver or proceedings will be taken for failing to identify the driver, write again saying that you are both prepared to plead guilty and each pay the fine and take the points as, clearly, one of you was definately driving and a penalty is appropriate. Also ask, if this is not acceptable, from whom would they be happy to take the confession as, although it may be the wrong person, someone would then be named, although you would require their wriotten confirmation that should this be proved subsequently to be incorrect there would be an indemnity against further prosecutions of either of you for any other offence(s).
Keep copies of all of this paperwork to use in a subsequent 'Hamilton Defence' should this prove necessary. It may not.
Any comments about the Freeman defence?
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
Flat in Fifth said:
Any comments about the Freeman defence?
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
Are you saying ask for the photo evidence or not?
Flat in Fifth said:
Any comments about the Freeman defence?
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
That may hold true for a speeding allegation, but the original poster refers to a failure to supply driver details offence.
IMO, credibility is paramount when defending a Section 172 charge. Not asking for photos could significantly reduce this credibility in the eyes of the Magistrates.. After all, wouldn't a pre-requisite of 'reasonable diligence' include asking for the photos to assist in driver identification ?
Tyre Smoke said:
Any comments about the Freeman defence?
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
Are you saying ask for the photo evidence or not?
I think he is saying that the persecution have to provide you with copies of all evidence 7 days prior to court
Dont ask for the photos, if the SCP dont provide them prior to court date you can go for the non disclosure route.
Personally totally agreed about the need for credibility and all due diligence to be shown. Plus keeping everything on record and special delivery.
However the Criminal Justice Act thing refers to the written statement from the scam operator as opposed to attending court, ie after the S172 issue, ie when its decided who, when and in which vehicle.
It's Mr Freeman that says asking for the photos is the worst thing to do, which was a new one on me when I heard it I must admit.
Seems to me that the Freeman technique relies on having an encyclopaedic knowledge of procedures to trip up TPTB when they slip. Personally not convinced, but he seems to think it works.
See Motor Cycle News march 1 edition. Initially refuted by ACPO who have now backtracked and admitted MCN were correct.
However the Criminal Justice Act thing refers to the written statement from the scam operator as opposed to attending court, ie after the S172 issue, ie when its decided who, when and in which vehicle.
It's Mr Freeman that says asking for the photos is the worst thing to do, which was a new one on me when I heard it I must admit.
Seems to me that the Freeman technique relies on having an encyclopaedic knowledge of procedures to trip up TPTB when they slip. Personally not convinced, but he seems to think it works.
See Motor Cycle News march 1 edition. Initially refuted by ACPO who have now backtracked and admitted MCN were correct.
marcos maniac said:
I think he is saying that the persecution have to provide you with copies of all evidence 7 days prior to court
Specifically what Freeman appears to be saying is that S9 1967 Criminal Justice Act allows for evidence to be presented in written form to avoid the need for witnesses to attend court. Their statements can be read out in court and it is as if they had presented the evidence orally in person. That bit is correct.
However the problem is that this does not allow cross examination by the other side, therefore there is a 7 day grace period in which the opposition can object to the statement being tendered in evidence and thus request that the witness give evidence in person and be cross examined. Remember this disclosure rule works both ways, defence and prosecution. Again this is correct, see referred legislation.
Thus he, Freeman, appears to be saying that in a lot of cases the CPS screw up and don't supply evidence, be it photos, scam operator statement or whatever 7 days in advance of the hearing, therefore there has not been the necessary time allowed for defence to examine and object to the evidence, thus it is inadmissible, thus no case to answer. CPS ask for time to get their knickers untwisted, defence says no we object we are here ready willing and able to proceed, CPS unable to proceed, case dismissed.
Don't shoot the messenger, I'm just reporting the facts as I think I understand the alleged strategy which in my view is high risk as it relies on another party making the cock up.
What do you fink DVD?
>> Edited by Flat in Fifth on Wednesday 8th March 15:37
Afternoon all. I received an NIP this morning but my partner and I were sharing the driving on that particular day and cannot (honestly!) remember who was driving at that particular moment/road.
I dont want my partner to admit fault in case it was actually me, and visa virsa. therefore how can we prove to ourselves who was in fact driving at that point?
The camera was a manned tripod behind a small white unmarked van - is it best to request a photo from the police in the hope of identifying which one of us it was?
I dont want my partner to admit fault in case it was actually me, and visa virsa. therefore how can we prove to ourselves who was in fact driving at that point?
The camera was a manned tripod behind a small white unmarked van - is it best to request a photo from the police in the hope of identifying which one of us it was?
marcos maniac said:
I think he is saying that the persecution have to provide you with copies of all evidence 7 days prior to court
Dont ask for the photos, if the SCP dont provide them prior to court date you can go for the non disclosure route.
But this thread relates to an alleged failure to supply driver details offence - not speeding..
Photographic corroborative evidence would be vital to the prosecution in an excess speed case where an alleged offender was scammed by a mobile unit or fixed camera.
As I understand it in a S172 trial, the CPS would not need to prove to the usual criminal standard that a speeding offence occurred (an allegation by scam operator would probably be sufficient to justify service of the NIP) and, as such, they would not be relying on photographic evidence. Whether it was disclosed or not is largely irrelevant, IMHO.
I think NF is referring to cases where the allegation is of excess speed. His opinion that SCPs are fairly capable of stuffing up the paperwork is of no great surprise though
>> Edited by SS2. on Wednesday 8th March 16:05
soir said:
The camera was a manned tripod behind a small white unmarked van - is it best to request a photo from the police in the hope of identifying which one of us it was?
Cynic mode = on
So you can remember is was a manned tripod behind a small white van but cannot remember who was driving. hmmmm.
Anyone else not that convinced?
soir said:
Afternoon all. I received an NIP this morning but my partner and I were sharing the driving on that particular day and cannot (honestly!) remember who was driving at that particular moment/road.
I dont want my partner to admit fault in case it was actually me, and visa virsa. therefore how can we prove to ourselves who was in fact driving at that point?
The camera was a manned tripod behind a small white unmarked van - is it best to request a photo from the police in the hope of identifying which one of us it was?
See pepipoo here http://forums.pepipoo.com/index.php?s
SS2. said:
But this thread relates to an alleged failure to supply driver details offence - not speeding..
Deep sigh.
Substitute evidence of speeding for written evidence of scamps ticketing clerk that he/she prepared S172 request for Mr X and posted it first class on dd/mm/yy.
Statement not disclosed 7 days before hearing.
Better?
Flat in Fifth said:
The camera was a manned tripod behind a small white unmarked van - is it best to request a photo from the police in the hope of identifying which one of us it was?
Cynic mode = on
So you can remember is was a manned tripod behind a small white van but cannot remember who was driving. hmmmm.
Anyone else not that convinced?
You wily old fox Flat in Fifth said:
But this thread relates to an alleged failure to supply driver details offence - not speeding..
Deep sigh.
Substitute evidence of speeding for written evidence of scamps ticketing clerk that he/she prepared S172 request for Mr X and posted it first class on dd/mm/yy.
Statement not disclosed 7 days before hearing.
Better?
Another deep sigh...
I was responding directly to
marcos maniac said:
Dont ask for the photos, if the SCP dont provide them prior to court date you can go for the non disclosure route.
and not trying to be pedantic..
SS2. said:
Any comments about the Freeman defence?
Namely that asking for the pics is the worst possible thing you could do. The CPS will almost certainly cock up under the disclosure rules and fail to submit evidence the required 7 days in advance, thus such evidence will be inadmissible under Section 9 1967 Criminal Justice Act and therefore "no case to answer."
Mr F claims to have had 3 failures only with this tactic. 3 failures out of a fair number I suspect.
That may hold true for a speeding allegation, but the original poster refers to a failure to supply driver details offence.
Obviously I misunderstood that bit wasn't referring to me then.
Never mind, worse things happen at sea.
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