[Help] Non footy...any legal eagles? Advice please

Bevendean Hillbilly · Oct 16, 2017

Hi all.

Bit if a long shot...here goes.

Does anyone have any advice to help stop my mrs worrying herself into a mental breakdown?

A few months ago we recieved an intention to prosecute for a speeding offence..so far, so what.

It occoured on a Saturday morning a few weeks prior to the notice and...try as we might..we just honestly had no idea which one of us was driving her car at that moment. We wrote to tell them we needed help I.D ing the driver and got a great photo back of the rear of her car but no way of telling who was at the wheel
We wrote back and told them this...but in the meantime had received another one...this time I KNEW it was me.

This in mind she wrote back and said we couldn't say was responsible for offence one but t that I was definitely responsible for offence 2 in the same reply.

Sure enough, I recieved my fine and endorsement based on her naming me but the police sent her another letter claiming she had not responded to the earlier letter.

Now, clearly they had recieved it as they knew about me but had chosen to ignore that. So they accused her of failing to reply to the request to name the driver on the original charge. She sent them a recorded delivery letter asking how they were aware of the time I had gone over the limit but saying she hadn't responded to the original request when they were sent in the same letter?

Long story short. On Friday she got a letter from the court saying she had willingly failed to name the driver and was slapped with six points and an £845.00 fine. We hadn't recieved a summons (apparently they don't need to issue one) and they had found her guilty by omission.

She had responded to EVERY letter, she honestly didn't know who was driving, she quoted the Vicky price/ Chris Huhne thing where she knowingly took his points and went to prison for it, and they clearly had recieved a response that they lied about not receiving.

I know it's a long shot, but does anyone have any idea how we get this injustice set aside so we can at least prove to a magistrate that the OB have been dishonest to get a quick conviction?

Cheers.

Come on you Seagulls.

drew · Oct 16, 2017

I would suggest you get a solicitor. assume you kept copies of your letters!

Bevendean Hillbilly · Oct 16, 2017

drew said:
I would suggest you get a solicitor. assume you kept copies of your letters!

Yes. Obviously.

The recorded delivery letter where I admitted my one and she explained why she couldn't sign to say who was responsible for the disputed one.

Funny how they issued my endorsement and fine tout suite based on that but apparently somehow didn't see hers ON THE SAME F@"*#ing letter!

I know there's several cops on here and I have a couple in my mates. The ones I know are not surprised at this at all.

To quote Joe Strummer "I fought the law and the law won"

Going to call a lawyer today but wondered if any of you esteemed gentlemen or ladies has knowledge of similar?

drew · Oct 16, 2017

Bevendean Hillbilly said:
Yes. Obviously.

The recorded delivery letter where I admitted my one and she explained why she couldn't sign to say who was responsible for the disputed one.

Funny how they issued my endorsement and fine tout suite based on that but apparently somehow didn't see hers ON THE SAME F@"*#ing letter!

I know there's several cops on here and I have a couple in my mates. The ones I know are not surprised at this at all.

To quote Joe Strummer "I fought the law and the law won"

Going to call a lawyer today but wondered if any of you esteemed gentlemen or ladies has knowledge of similar?

Is this going to be down to the Police or the CPS though. From what you say it does sound a bit odd and that common sense should prevail. Shame you need a solicitor to hopefully accomplish that? Could be a very simple error in that someone only put the letter on the file for the second offence!

Goldstone1976 · Oct 16, 2017

I don't know (at all), but I'm wondering if a "I'm sorry, I don't know who was driving" gets interpreted as the same as "I'm not telling you"? You'd hope that you'd get a "I'm sorry, that's not good enough. If you can't/won't tell us, the consequences will be..." letter before it went to Court, but maybe not?

Call a solicitor...

OzMike · Oct 16, 2017

When I lived in Brighton I hired a van and went through a speed trap which took a picture, I was only going about 7 mph over, no excuse I know.
Anyway, they checked with the van hire company and found that I had hired it and sent me the demand with a photo on it.
I had a beard at that time and wore sunglasses, it was a cold bright morning and I had a black beanie on as well, the picture could have been anyone, they threatened me with all sorts of stuff.
I stuck to my guns and wouldn't give any information that might incriminate myself, so I didn't say anything, the van hire guy said that it was me who drove the van out of the yard, but he didn't know if anyone else drove it after I had left.
They kept on at me and I said nothing, anymore points would have brought me close to maximum.
They got fed up and left me alone in the end and I never heard anymore about it.
If you don't know who was driving say nothing, don't say it was you, but don't say it wasn't, say nothing.

Gazwag · Oct 16, 2017

The only advice I would listen to from here is go and see a solicitor asap

happypig · Oct 16, 2017

Firstly, consider a solicitor is good advice.
Having said that...
If you were genuinely unaware that the case was listed (and they do have to tell you) then you can go to court and make a statutory declaration under oath. If the magistrates accept your declaration (I heard dozens and we didn't refuse any) then the conviction is set aside. This effectively resets the process and the prosecution can (and almost certainly will) re-issue proceedings. Why you never got the court letter is odd, given that they have your name/address and have previously sent you letters.

You could also investigate whether the N.I.P. was issued within 14 days. If it wasn't then you may be able to avoid prosecution altogether. This is what a solicitor will be able to advise on.

McTavish · Oct 16, 2017

OzMike said:
When I lived in Brighton I hired a van and went through a speed trap which took a picture, I was only going about 7 mph over, no excuse I know.
Anyway, they checked with the van hire company and found that I had hired it and sent me the demand with a photo on it.
I had a beard at that time and wore sunglasses, it was a cold bright morning and I had a black beanie on as well, the picture could have been anyone, they threatened me with all sorts of stuff.
I stuck to my guns and wouldn't give any information that might incriminate myself, so I didn't say anything, the van hire guy said that it was me who drove the van out of the yard, but he didn't know if anyone else drove it after I had left.
They kept on at me and I said nothing, anymore points would have brought me close to maximum.
They got fed up and left me alone in the end and I never heard anymore about it.
If you don't know who was driving say nothing, don't say it was you, but don't say it wasn't, say nothing.

This is very poor advice.

It might have worked in OzMike's case as it was a hire vehicle and depending on when it was the law might have been different - the law has recently been tightened up to avoid this sort of thing. When you are the registered keeper you are responsible for knowing who is driving the car - it will not go away.

studio150 · Oct 16, 2017

The following is from S172 of the Road Traffic Act 1988

(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 or the Chief Constable of the British Transport Police Force, 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 other exceptions are in respect of body corporate (companies in plain langauage)

The only defence is therefore has reasonable diligence been used in trying to identify the driver, but having applied due diligence you are still unable to identify the driver. The problem is that with only two possible drivers of the vehicle, the Police and Courts would no doubt take the view that it should not be too difficult to reach a conclusion as to who was driving at that time.

As others have stated talk to a solicitor and be prepared to explain fully why neither of you can recall who was driving, unless other avenues to challenge open up

Tricky Dicky · Oct 16, 2017

Probably not relevant, but I have noticed in correspondence with authorities, that they can only seem to handle with one issue per letter/email, so if you address two issues, one gets overlooked. It's as if they read it partially, understand what the first bit is saying, then ignore the rest of it, which contains your second point. Two letters, one each addressing a single point might have worked better - bit late now, though, of course.

happypig · Oct 16, 2017

studio150 said:
The only defence is therefore has reasonable diligence been used in trying to identify the driver, but having applied due diligence you are still unable to identify the driver. The problem is that with only two possible drivers of the vehicle, the Police and Courts would no doubt take the view that it should not be too difficult to reach a conclusion as to who was driving at that time.

You cannot arbitrarily convict one party on the basis that there's a 50% chance they did it.

WATFORD zero · Oct 16, 2017

Unless there has been an issue with the process (as highlighted above) I don't see how you will get out of it. One of you will have to take the points as I don't believe that not knowing will stand up as a defence. If it did, I'm sure that every speeding ticket that didn't have a full frontal photo as evidence would be challenged. Being unaware it was listed and re-starting the process looks to be your best bet, but one of you will still take the points and fine. (I say this with no legal knowledge whatsoever).

Sorry

Shropshire Seagull · Oct 16, 2017

Bevendean Hillbilly said:
...but in the meantime had received another one...this time I KNEW it was me.

First piece of advice - SLOW DOWN ! [both of you]

As you've described the prosecution as "Failure of keeper to name the driver" and professed to genuinely not knowing who was driving, your wife is guilty as she's not named the driver as required by the law. So, I don't think they're ignored that part of your letter, they've taken it as "still not telling us who we should prosecute".

It's well known that this "I dunno who was driving" statement can get you off private parking prosecutions - did you hope it may get you both off the speeding?
Maybe offer to share the fine & points?

McTavish · Oct 16, 2017

Shropshire Seagull said:
First piece of advice - SLOW DOWN ! [both of you]

As you've described the prosecution as "Failure of keeper to name the driver" and professed to genuinely not knowing who was driving, your wife is guilty as she's not named the driver as required by the law. So, I don't think they're ignored that part of your letter, they've taken it as "still not telling us who we should prosecute".

The registered keeper is required to know who is driving the car and when so, unless there is a really compelling reason not to know (eg stolen car), then the keeper is guilty of "failure to disclose" which is 6 points and a big fine.

It doesn't matter if you are failing to disclose because you are being obstructive or because you have genuinely forgotten - the law says that the driver should know - the AA even suggest that two people sharing the driving on a journey not when they swap in order to avoid not knowing.

studio150 · Oct 16, 2017

happypig said:
You cannot arbitrarily convict one party on the basis that there's a 50% chance they did it.

The Courts are not doing this, they have convicted the registered keeper of the vehicle as laid down in the Road Traffic Act.

They have not levied a conviction for the actual speeding offence.

Munkfish · Oct 16, 2017

Tricky Dicky said:
Probably not relevant, but I have noticed in correspondence with authorities, that they can only seem to handle with one issue per letter/email, so if you address two issues, one gets overlooked. It's as if they read it partially, understand what the first bit is saying, then ignore the rest of it, which contains your second point. Two letters, one each addressing a single point might have worked better - bit late now, though, of course.

Oh look its Captain Hindsight.

Chinman3000 · Oct 16, 2017

Bevendean Hillbilly said:
Hi all.

Bit if a long shot...here goes.

Does anyone have any advice to help stop my mrs worrying herself into a mental breakdown?

A few months ago we recieved an intention to prosecute for a speeding offence..so far, so what.

It occoured on a Saturday morning a few weeks prior to the notice and...try as we might..we just honestly had no idea which one of us was driving her car at that moment. We wrote to tell them we needed help I.D ing the driver and got a great photo back of the rear of her car but no way of telling who was at the wheel
We wrote back and told them this...but in the meantime had received another one...this time I KNEW it was me.

This in mind she wrote back and said we couldn't say was responsible for offence one but t that I was definitely responsible for offence 2 in the same reply.

Sure enough, I recieved my fine and endorsement based on her naming me but the police sent her another letter claiming she had not responded to the earlier letter.

Now, clearly they had recieved it as they knew about me but had chosen to ignore that. So they accused her of failing to reply to the request to name the driver on the original charge. She sent them a recorded delivery letter asking how they were aware of the time I had gone over the limit but saying she hadn't responded to the original request when they were sent in the same letter?

Long story short. On Friday she got a letter from the court saying she had willingly failed to name the driver and was slapped with six points and an £845.00 fine. We hadn't recieved a summons (apparently they don't need to issue one) and they had found her guilty by omission.

She had responded to EVERY letter, she honestly didn't know who was driving, she quoted the Vicky price/ Chris Huhne thing where she knowingly took his points and went to prison for it, and they clearly had recieved a response that they lied about not receiving.

I know it's a long shot, but does anyone have any idea how we get this injustice set aside so we can at least prove to a magistrate that the OB have been dishonest to get a quick conviction?

Cheers.

Come on you Seagulls.

I've been through this before and the below is based on what I did in similar circumstances.

First thing you need to do is file a statutory declaration stating you were unaware of the court case against you and only found out about it following the conviction in your absence. You have to do this quickly though, within 14 days of finding out about the case I believe. Leave it longer and you will have to justify why its taken you so long to do it.

She will be swearing an oath in court to this effect, so I would suggest if you have bent the truth on that matter, think again as she could purjure herself which would make things 100 times worse.

Its free to do a statutory declaration - you need only contact your local court with the case reference and then they will give you a date to go down there to make it in front of a magistrate. It can take a few hours though so your wife will likely need the day off work.

This will overturn the decision to prosecute her for failure to provide. The magistrate will then likely ask if you are are guilty of the offence or not and I would suggest you think hard and work out who was driving as this is the best outcome for you. Tell the judge you now know it who it was and it should then lead to an ordinary speeding prosecution.

You realistically cant get out of this. Its either 6 points and £845 or 3 points and £100.

happypig · Oct 16, 2017

studio150 said:
The Courts are not doing this, they have convicted the registered keeper of the vehicle as laid down in the Road Traffic Act.

They have not levied a conviction for the actual speeding offence.

Sorry, I may have misunderstood your post. I thought you were saying that, in effect, "One of you is guilty of speeding so we might as well assume it's the driver".

It's never sat easy with me that the registered keeper does not have the right to silence (despite never having fallen foul of it myself).

Tory Boy · Oct 16, 2017

She needs to contact the court and ask to make a statutory declaration if she didn’t receive any information about any court hearing.

She will have to attend court to make the declaration, but that will put aside the conviction and costs.

Then the case will be either dealt with then or referred back to the police/DVLA for them to make a decision as to what to do next.

TB

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