Notices of Intended Prosecution and Section 172 requirements to state the driver
These two documents are very frequently received together, but different considerations apply to each.
Notice of Intended Prosecution
These need to be served before the police can prosecute a number of specified road traffic offences. The law says the motorist has to be warned either verbally or in writing that he may be prosecuted, and it’s to give him a fair warning in reasonably quick time.
This is what a notice of intended prosecution is. The vast majority of notices are received in writing and typically follow the commission of a camera detected offence, such as speeding.
The legislation that applies is contained in Section 1 of the Road Traffic Offenders Act 1988. It states that no one can be convicted of an offence to which that section applies unless he was either warned that he might be prosecuted either at the time the offence was committed, or within 14 days.
The notice must either be served on him or the registered as the keeper of the vehicle at the time of the commission of the offence. It must be put into the post so that it arrives before the 14 days is up.
The period is calculated by ignoring the day of the offence and then counting 14 days. Time is up at midnight on the 14th day.
The law requires the notice to specify the nature of the alleged offence and the time and place where it is alleged to have been committed.
The vast majority of such notices are sent by post by police in a process that is highly automated. The police invariably use ordinary first class post and the legislation deems it to have been delivered on the second working day after posting, “unless the contrary is proved”. That means that a motorist who received it late has to produce some evidence to show it. It can be as simple as a witness being around to see the post being opened and making a note of the date.
It is the date of receipt that matters, not the date upon which it was posted. This is something even the police sometimes misunderstand. They will invariably say that as long as the notice was posted before the end of the 14 day period, that is good enough. It may well be, but if for any reason it was actually received outside the 14 day period no prosecution can proceed. It is important that the date is checked at the beginning of any process to ensure that there is a proper legal basis for a subsequent prosecution.
I can help check to ensure the notice requirement has been complied with.
SECTION 172 REQUIREMENTS
Section 172 of the Road Traffic Act 1988 gives the police a statutory power to require the registered keeper of a vehicle or anyone else who might be able to help, to state who was driving it on a specified occasion.
I have dealt with very many prosecutions brought against people who for one reason or another have allegedly failed to comply with section 172. It is a very technical piece of legislation which the police sometimes get wrong.
The following are examples I have frequently encountered:
- The notice was never in fact received by the registered keeper or motorist. The police will assume it was delivered but it is a fact of life that sometimes they don’t arrive, and it is a defence to a subsequent prosecution. A motorist cannot be convicted of failing to provide information if the notice was never received:
- The notice was completed and sent back, but the police say they never got it. I have dealt with many instances of this where the response was lost in the post, or the police lost it in processing. Again, it is a defence to an allegation of failure to provide information
- The keeper completed the notice as best he could by giving whatever information he had. The police sometimes expect complete details to be provided but sometimes this cannot be done for perfectly good reasons. This is a good defence to a subsequent prosecution. The registered keeper has done the best he can.
Notices addressed to companies have to comply with strict requirements and sometimes the police overlook them. If the notice was incorrectly addressed there can be a difficulty with a subsequent prosecution.
I can help with any issues on these requirements.
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