SPEEDING DEFENCES 2: What can I do if I receive a NIP late or cannot identify the driver on the occasion of the alleged offence?
APlease Note the latest advice (at 18-4-2007) as to how to respond to a NIP that gets all its facts correct and is received on time is at the bottom of this page. Also note the penalty for lying with regard to a NIP.
Basically a Notice of Intended Prosecution has to be given to you verbally at the time of the alleged offence, or in writing withing 14 days, but see below.
Once a Notice of Intended Prosecution or a verbal NIP has been received (eg in the police car after being stopped) the driver has to wait up to six months from the issue of the NIP written or verbal and if contested six months from the last correspondence in which the court can pursue him. Once six months has lapsed the case can no longer be pursued. Section 127 Magistrates' Court Act 1980 states
that for all summary offences the information must be laid (i.e filed with the court
by the prosecution) within six calendar months of the commission of the offence.
The Road Traffic Offenders Act 1988 (c.53) Section 1 (2) clearly states that within fourteen days of the commission of the offence the NIP must be served on either the driver or the registered keeper of the vehicle. Subsection 2 in full reads:
"A notice shall be deemed for the purposes of subsection (1)(c) above to have been served on a person if it was sent by registered post or recorded delivery service addressed to him at his last known address, notwithstanding that the notice was returned as undelivered or was for any other reason not received by him."
Idris Francis knows more about this than anyone else, so here is his assessment of your rights and what you can do.
The following points seem relevant:
1/ There is a statutory requirement to "serve" the NIP within 14 days of the offence - calendar not working days, othewise it is invalid and can be ignored or returned with a note to that effect.
2/ Given the volume of NIPs the authorities do at times have difficulty in keeping pace - and in my view it would not be that unusual for them to miss the deadline - or to carry on anyway in the hope that no one will notice.
3/ Posting on the 14th day is not sufficient - it must be SENT by the 13th day at the latest and by 1st Class post.
4/ The authorities do not use the Post Office recorded DELIVERY system. They keep their own records of DESPATCH, normally accepted by the courts.
5/ Strangely, this proof of posting will normally suffice, even though there is no proof of receipt!
6/ NIPs can be accepted as valid by the courts even when sent after the 14 day limit under some circumstances, such as the registered keeper's address not being known, or the driver having been identified by the registered keeper.
7/ Nevertheless, the courts understand the difficulty (going on impossibility) of those who often share or drive the same car remembering who was driving, weeks or months after the event.
8/ This is of the reasons that Parliament, accepting that no one should be penalised for failing to do what they are unable to do, provided the Para 4 defence in S172, as follows:
"(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 was."
9/ If the S172 notice is valid (ie not sent after the time limit) or perhaps in any case, you should tell the police that you have no idea, after this length of time, who was driving.
10/ It is however very likely that the NIP does not include a space for this reply - certainly I have never heard of one. The reason is very simple - the authorities prefer that as few people as possible know that this defence exists. As there is no appropriate space on the form, it is (in my view) better simply to complete the form identifying yourself as the registered keeper - but in the space for the name of the driver, write "Unable to identify driver - see attached letter" and write a letter explaining the circumstances that mean that you do not know.
11/ Because the Para 4 defence requires the respondent to use "reasonable diligence" you MUST
(a) ask for a copy of the photograph or video "to help you identify the driver" (very very few do, but asking serves to confirm that you are trying to find out.
(b) Ask all others who MIGHT have been driving, whether they were. If no one can remember, state that in your letter, identifying each by name and address.
12/ I have seen many astonishing responses from the authorities to letters of this kind - including:
(a) As registered keeper you have "a statutory duty to identify the driver.". This is a LIE - there is no such law! If they try this one on, ask them to quote the precise words and location of the law - they cannot, but they may try to bluff it out.
(b) You might be threatened with fines of up to £2,500 and extra penalty points - but this is a bluff as you have a valid defence, and even in the very unlikely event that you lose in court, the penalty would be nothing remotely like that.
(c) giving the impression that they really do not care what name you give them, as long a you provide A name! Point out that the NIP itself specifies severe penalties for "providing false information" so as you cannot be sure you have no alternative but to say so.
Note that applying such duress when they have already been told that you do not know, could amount variously to:
i Attempting to pervert the course of justice.
ii Entrapment (into committing a criminal offence)
iii Misfeasance in Public Office
iv a breach of the Policeman's Oath.
If they try duress of this kind, a sharp reminder of their duty and responsibility seems to work!
Finally - since my application to the European Court of Human Rights I have corresponded with large numbers of people caught up in this nonsense, and have helped at least 20 people win by using the para 4 defence. It is all too clear that the authorities do not play fair, are determined to raise as much cash as they can regardless of the consquences for drivers, and regardless of the self-evident failure of speed camera policy.
(6) Where the alleged offender is a body corporate, [..........] subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.
TO SUM UP: Case law confirms that that the NIP - strictly speaking, the demand for information - MUST be served so that by NORMAL post it would arrive no later than the 14th day. It does NOT have to ARRIVE within that time, but it MUST be posted so that it COULD. Hence SERVING the demand (ie posting it) on the 14th day is NOT acceptable and the demand would be invalid.
Furthermore, although the 13th day is usually the deadline to post, it becomes the 12th day if the 13th is a Sunday or a Bank Holiday Friday with no postal delivery, and the 11th day if the 12th is a Sunday and the 13th a Bank Holiday Monday.
It would not be reasonable for large organisations not to keep records of who SHOULD have been driving - though this could on occasion be different from who WAS driving.
Small organisations with only the odd few vehicles, for the first offence or two, could say that it was reasonable not to keep such records, but that claim would wither with further charges!
If the registered keeper is not the person keeping the vehicle, e.g. a car owned by a company in Northampton but usually kept by a sales rep who lives in Manchester, Section 172 (2)(b) applies and the recipient of the notice only has to give such information "which it is in his power to give". In my example, all the company could do would be to name the person keeping the vehicle, namely the sales rep. Moreover:
(1) If the police charge the company they must prove that the company had information in the first place.
(2) The due diligence defence in S172(4) has no relevance. If the company didn't have information he commits no defence whether he uses due diligence or not.
This also applies to a person (not registered keeper) who receives a S172 notice as a result of information supplied to the police.
Say a company receives a notice and names one of its drivers as the culprit. The driver receives his own notice and says "I'm just a driver". I don't know who was driving but it definitely wasn't me because (e.g.) it was my day off. The due diligence test doesn't apply to him either.
Note however that corporate bodies cannot get penatly points (as the DCC Hampshire explained to me)
Finally, if you receive a NIP for 59mph and are fairly certain you were not travelling at this speed, it was probably the calibration speed of the radar/laser gun, not the speed at which you were travelling. It means the officer using the gun has not triggered it properly on your car.
If you need more information, please see
www.righttosilence.org.uk and www.safespeed.org.uk
Once a Notice of Intended Prosecution or a verbal NIP has been received (eg in the police car after being stopped) the driver has to wait upto six months from the issue of the NIP written or verbal and if contested six months from the last correspondence in which the court can pursue him. Once six months has lapsed the case can no longer be pursued.
Further notes from Simon Maasz (received 25-11-2006)
A NIP sent by *registered* post is deemed to be served when sent, but this method is seldom used for cost saving purposes. A NIP (the first one to the registered keeper) served (i.e. recieved) after 14 days is time expired. The police may state that earlier NIPs have been sent but a credible witness swearing under oath that the NIP was received time expired creates a rebuttal defence that
the police must *prove* is untrue.
1) A NIP issued by recorded delivery is deemed to be served even if the recipient didn't receive it.
2) NIPs issued by first class mail are deemed to be served "unless and until the contrary is proved": that is, if you can show they weren't delivered. No delivery = no service (MacLeod v Anderson, Beer v Davies).
2a) If the initial NIP isn't received, then providing it was sent out by first class mail, the recipient should plead not-guilty and swear under oath that he didn't receive it.
2b) Providing that witness is credible, the speeding charge has no realistic prospect of succeeding.
3) A NIP sent on day 14 after the alleged offence has not been served.
4) A NIP sent out by first class mail is not guaranteed to arrive the next working day
4a) As such, a NIP sent out on day 13, but not arriving until after day 14, could be easily argued that it is time expired.
This all applies only to the first NIP to the registered keeper and does not necessarily apply if there are other factors in play. e.g. the car has just been purchased and the DVLA records haven't been updated.
This subject is examined in great detail with references to case law as a "sticky" post in the members forum at www.pepipoo.com.
Further notes from David Eades received 27-11-06
No one ever has to prove a negative; the rule is that ‘he who asserts must prove’ (called ‘negative averment’ in legal jargon). Example: if a motorist is summoned for using a vehicle without insurance, the prosecution do not have to prove that he was uninsured; he has to prove that he was (and would do so by producing the certificate). Likewise with an MOT certificate and there are other examples. So, with a late received NIP, the prosecution would have to prove that they sent it
to him; he couldn't prove they didn't.
What you do if you receivce a NIP late depends on what you want: Economy or justice?
If you want economy, just put it down to experience and plead guilty to the speeding offence, if indeed you committed that offence. Pay the fine and take the points.
If you want justice, you must be prepared for a legal battle which will be both time-consuming and potentially costly.
Have you got the ability and indeed the bottle to represent yourself? If ‘Yes’, all well and good. If ‘No’, you need to get himself a smart solicitor who is used to defending cases in the magistrates’ court.
Assuming that you are the registered keeper of the vehicle, was the driver at the time of the alleged offence and that you can DIY defending yourself in court.
Your first step is to tell the court that you intend to plead not guilty and require all the prosecution witnesses to be there on that day. The liklihood is that the case will be adjourned, as the witnesses will not be available.
Come the day in court. The prosecution will have to prove
a. that the speeding offence was committed;
b. that you were the one who committed it; and
c. that either you were warned of prosecution verbally at the time of the offence or were sent a Notice of Intended Prosecution within 14 days of the date of the offence.
So far as the NIP is concerned, a notice sent by post must be dispatched so that it would reach the driver within the 14 days within the ordinary course of the post. If this is the case then it will have been deemed to have been served even if it is delivered outside the 14 day period.
Assuming the prosecution can prove a and b, you will have to challenge c. The prosecution will have to prove beyond reasonable doubt that the Notice was sent to you. To do that they need to prove that
a. the Notice was prepared;
b. it was placed in an envelope addressed to M.D. at his place of residence; and
c. that it was despatched by post as described above.
There is a possibility that they will not be able to produce a witness or witnesses to prove each of those three points and M.D. would challenge the prosecution evidence, by cross-examining each witness as to what precisely he/she did. He would have to raise a reasonable doubt that a valid NIP was posted within the 14 days. When the prosecution case closed, he would give evidence that he did not
receive either of the first two NIPs alleged to have been sent to him. It seems strange to me that the police sent three notices. It begs the question as to what happened to the first two if M.D. did not, as he says, receive them.
Economy or justice? The latter comes at a price.
Here is one reader's story:-
Vincent Grant fights 3 points
On 23rd October last I received an unpleasant missive from Dorset Police regarding an allegation that my car had been recorded doing 61mph in a 50mph limit on 9th August, some 75 days AFTER the offence.
I replied as follows:
“Your own advice is clear that a ‘A Notice of Intended Prosecution must be sent to the last known address of the Registered Keeper within 14 days of the detection of the alleged offence.’
Having received such notice (copy attached) 75 days after the alleged offence (and 11 weeks is a long time to remember who may have been driving), I intend to take no further action.
Please confirm the cancellation of this Intended Prosecution in writing to me as soon as possible.”
I received the following reply on 12th November from Miss J Rogers, Supervisor, Central Ticket Office:
“I write with reference to your letter dated 24 October 2004.
We are legally obliged to send the Notice to the Registered Keeper according to DVLA’s records.
I can confirm that DVLA’s records show a Mr. Conroy James as the Registered Keeper of Vehicle Registration Mark VG3472.
A Notice was sent but returned stating he had no knowledge of the vehicle.
We then contacted DVLA who provided us with the correct name and address.
I can therefore confirm that the Notice is valid and I would suggest you contact the DVLA regarding the error on their system so that your details are present.
Please complete the enclosed notice within seven days.”
This had taken up most of the 28 days during which a straight £60 fine and 3 points can be applied. I telephoned Miss Rogers who confirmed again their position.
I therefore sent off my licence and £60, writing a disclaimer on the back of their form regarding my intention to contact the DVLA and confirm this mess.
I wrote thus:
I am informed by Dorset Police that the details for this vehicle of mine, which I have owned for more than four years and this registration, which I have owned for more than fifteen years, does not contain my name and address * on your database, although somehow, even though it doesn’t, or didn’t, they still eventually got my details from you.
Do you have two names and addresses for each vehicle or can’t they use your database properly, or what precisely?
They suggested I write to you to find out the facts of this matter. The story as given so far seems rather fabulous and I need the exact facts as they could become part of legal arguments.
* Rather the details of a Conroy James in Surrey somewhere.
Please inform me as soon as possible what has been going on from
your point of view, if anything.”
The DVLA efficiently replied by return of post:
“Vehicle Registration Mark VG3472
Thank you for your recent letter enquiry regarding the above vehicle registration mark.
I have checked this record and can confirm the present details recorded on our data:
· You are the first and only registered keeper
· You acquired the vehicle on 18.04.2000
· A V5 Registration Document was issued 02.05.2000
· The car is taxed until 01.04.2005
If you require any further information regarding this vehicle please do not hesitate to contact us.”
I did phone Miss Howells who wrote the above and further confirmed the facts as laid out.
I then wrote back to Dorset Police:
“Following my recent correspondence with yourselves and the DVLA, it is now confirmed (I knew it all along) that I have been the registered owner of the vehicle since April 2000 and that your previous response was not accurate. Appropriate correspondence is attached.
Due to the delay in your original reply, happily not repeated by the efficient DVLA, I was obliged to pay the speeding fine even though I could not be sure who was driving so long ago. I reserved my position,
however on the reverse of your form.
My original letter remains correct. The procedure has been invalid from the start. Please arrange to cancel the fine and the points on my
otherwise clean licence.
I look forward to your early response. I simply cannot be held responsible for errors in your own administration.”
I received the following response, this time from The Manager of the Dorset Central Ticket Office: (this time only 14 days elapsed before the
“With reference to the above Fixed Penalty Notice and your recent letter, I can advise that I have investigated this matter and have decided that no clerical errors were made in the administration of this offence and consequently the penalty should stand.
Registered Keeper details are provided by a DVLA database to which we have access, and are retrieved by an automatic process.
I accept that when your vehicle registration mark was entered, your details were not initially provided, however we must act on information given which in this case stated Mr. Conroy James as the Registered Keeper.
It is not the intention of the Central Ticket Office to cause unnecessary inconvenience, however, please accept my apologies if this was the case.”
By now it was near the end of the year and I waited for the new ‘Freedom of Information Act’ to try a new tack.
I wrote back in early January:
“What may be ‘unnecessary inconvenience’ from your perspective is ‘incompetence and injustice’ from my perspective.
I still lack a credible explanation from you regarding the different results obtained by yourselves and the DVLA when accessing, as you admit, the same database.
When the same database is accessed by two different sets of people, one in Dorset and the other in Wales, it is only because of an error by one of those that inappropriate results are returned. As I have been the
owner of that registration for some 15 years, I know where my money goes.
If what you say is true, then were you to look into the database again
today, you will still get Mr. Conroy as the Registered Keeper. I guess if some dreadful accident were to occur, the ‘Widow’ Conroy would be in
early receipt of Police commiserations.
If this is the case, then I require an IT expert of yours (I am one, myself) to explain to me how such a discrepancy can continue to occur.
If, on the other hand, the database does now show me as the Registered Keeper, then, either:
· There has been some amendment to it by the DVLA, which we will be able to
· The original look up by your staff contained a procedural error.
I need to know which of these is the case and under the new freedoms to
receive this information, I expect to be informed. Without adequate explanation I cannot accept the status quo and the matter will go all the way to court if necessary, where facts can be gleaned under oath.
I received a reply from the Freedom of Information Manager which promised me a formal reply by February 4.
I received the following on January 24:
“Further to my letter of 19 January 2005, I would like to inform you that I have completed investigation into the circumstances regarding the issue of Ticket C1675842.
Investigations indicate that a clerical error had occurred which resulted in the failure to notify you, the Registered Keeper of VG3472, within the required 14 day period from the date of the offence occurring. Procedures have been amended accordingly and staff training implemented to ensure that potential offences concerning Cherished Registration Plates are processed correctly. I also took this opportunity to initiate a systems check to ensure data transfer from DVLA was being received correctly and I am happy to report that all was in order.
In this instance, due to the findings of my investigation, I am instructed to remove the relative 3 points from your licence and refund the £60.00 fixed penalty you have already paid. I have enclosed a pre-paid envelope to enable you to send your licence to this office and offer our sincere apologies on behalf of the Dorset Safety Camera Partnership for this error
From Vincent J Grant
A case with massive implications has just been tried on 6-5-2006 (& found in the appellant's favour) in Cleveland: see rmbconsulting.co.uk. The Cleveland NiP has been wrongly worded for some 6 years; meaning that around 150,000 prosecutions are potentially unlawful. That is just one flaw in a comedy of errors committed by Cleveland Constabulary.
news: for immediate release 6-5-2006.
At Teeside Crown Court this morning, His Honour Judge Bowers acquitted Dr William Dehany on appeal against speeding conviction. A critical defect in the prosecution case was that the 'section 172' request (notice to owner requiring
him to identify the driver at the time of the alleged offence) could not be determined to have been issued on behalf of the Chief Constable. This is a fatal defect that renders prosecution impossible.
Evidence was given that the same form has been in use since 2000.
Paul Smith, founder of the Safe Speed road safety campaign (www.safespeed.org.uk) said: "Defects in prosecution cases are far too commonplace. All those convicted in Cleveland since 2000 on the basis of faulty procedure should now apply to have their fines refunded, licence points
removed, and in many cases to be compensated for consequential losses."
"The knock on effects are massive and will cost countless millions."
"As the authorities are enforcing technical regulations against the motorist, motorists are fighting back and enforcing technical regulations against the authorities. In this insane war of technical regulations, road safety has been forgotten."
Richard Bentley, an expert witness in the case said: "This is one part of a symphony of errors present in Cleveland enforcement. The Judge has
ruled correctly on a critical defect that has implications running into tens of millions of pounds."
Dr Dehany said: "I did it for the common man and for justice for motorists everywhere."
(Report from USA). A Teeside Crown Court ruling on 6-5-2006 in Cleveland, UK has put the legality of of thousands of speed camera tickets issued since 2000 in question. Dr. William Dehany, 52, fought and won against a photo citation he received in October 2004. A machine had accused him of driving his wife's Opel Astra hatchback 35 MPH in a 30 zone in October 2004.
Dehany obtained a copy of the photograph from the Cleveland Camera Partnership and noticed another car was next to his -- making it impossible to determine who was really driving 35 MPH. Dehany also argued that the Section 172 notice that required him to finger the individual driving at the time of the alleged offence contained a fatal flaw. It was not signed by the chief constable, as required by law. Judge Peter Bowers had no choice but to agree and find Dehany not guilty. The same error is found on every notice issued in Cleveland over the past six years.
"This is one part of a symphony of errors present in Cleveland enforcement," said
www.getjustice.co.ukRichard Bentley, an expert witness in the case. "The Judge has ruled correctly on a critical defect that has implications running into tens of millions of pounds."
"I did it for the common man and for justice for motorists everywhere," Dehany said, explaining why he risked losing as much as £1000 (US $1850) to fight a £60 (US $110) ticket.
FAILURE TO SIGN A NIP AS A DEFENCE
Link to appeal court case which set legal precedents regarding signing of NIPs:
(Note, very difficult for non-legal minds to fully understand.)
RE: Summons - Failure to give details of driver - Speed camera
I thought you might like to hear the outcome of this matter. I took your advice and spoke to a firm of solicitors in Coventry (found via your Q and A section). They only gave me a 50/50 chance of success but I decided to plead not guilty and just before the hearing they dropped the case! The solicitors are confident of recovering most of my costs so I am delighted with the outcome.
Date: Wed, 15 Nov 2006 18:10:34 +0000> Subject: Re: Summons -
Failure to give details of driver - Speed camera
Question: I have recently received a summons which resulted from a trip my wife and I made to the Midlands last June. We shared the driving and changed places on a regular basis. Neither of us is able to remember who was driving when the speed camera was triggered and consequently I advised the police accordingly. A photograph produced by them was so unclear that it failed to shed any light on the identity of the driver. Ultimately I received the above summons. I appreciate you are not a lawyer but any comment advice you might have would be appreciated. I am torn between pleading not guilty on the basis that we cannot provide the information as we genuinely cannot remember or guilty with mitigating circumstances. Any thoughts? Regards R.D.
Answer: There are a couple of patched-together FAQ answers about this at www.honestjohn.co.uk I am under the impression that in UK law a spouse cannot be required to testify against a spouse, and this is what you are being asked to do. Now you have received the summons you may be able to use this as your defence. But a summons means court, so you better get some legal
Latest Advice: How To Respond to a Notice of Intended Prosecution
Insert their reference number
Insert your car registration number
Dear Chief Constable,
Further to the above Notice of Intended Prosecution, I confirm the below individual was driving the above vehicle at the time of the alleged motoring offence:
(Insert all the details asked for on the NIP including home address and date of birth and driver number)
As this statement is provided under the threat of criminal penalty (Funks v/s France) and as I have not received the caution required by paragraph 10.1 of the Police and Criminal Evidence Act code C (Mawdesley v/s the Chief Constable of Cheshire  I AII e.R 58), I make this statement on the express understanding that it shell not be used or disclosed in any proceedings of whatsoever nature against myself.
(Insert your signature)
(Insert your name in print here)
However. Idris Francis warns "bear in mind that my solicitor and barrister both insist that the PACE approach is without any merit at all, at least in legal terms, because the principle of implied repeal means that S172 1988 takes precedence over PACE 1984."
Do not ever lie in response to a NIP. And do not lie in court as that is perjury.
Janet Lefton, 49 and her husband, Harold, 51, who live on Belle Isle upon Lake Windermere, had contacted solicitors in 2006 after receiving Notices of Intended Prosecution addressed to their house that their son Jeremy had been twice caught on camera speeding in Wales, in May 2005.
All three claimed to have been advised by solicitors, Manchester-based Freeman and Co, the firm headed by celebrity lawyer Nick Freeman to claim that they had not received NIPs relating to the alleged speeding.
Mrs Lefton claimed she was told by the solicitors to do nothing, and then, if further notice was received, to write saying she had not received the notices.
Their case came to light on 27th April 2007, when it was reviewed by London’s Criminal Appeal Court.
Describing the letter in which Mrs Lefton falsely claimed she had not received the prosecution notices, Lord Justice Gage said it was “false in a number of particulars.”
“It was signed by Harold on behalf of his son,” said the judge. “It falsely suggested he had no recollection of who was driving and falsely implied that others could have driven.”
Prior to the first magistrates’ hearing which their son attended, he spoke for the first time to his solicitor in an eight-minute phone call, in which he said he made it clear he had known about the receipt of the notices.
He claimed he was advised to stick to what had been said in the letter sent by his parents.
Then on April 19, 2006, Jeremy attended court accompanied by his mother.
Mrs Lefton was not expecting to have to give evidence. However, she was asked by his legal team to confirm before justices that she had not received the prosecution documents.
“She felt she had reached a point of no return and refused to place her son in real difficulty,” said the judge.
The magistrates accepted their evidence, but, at the end of the hearing, their counsel applied for defence costs, an order which led to an investigation, which in turn led to the discovery of the two notices of intended prosecution.
In March 2007 Mrs Lefton and her son admitted perjury at a hearing at Cardiff Crown Court and both parents also pleaded guilty to perverting the course of justice.
All three were jailed for three months.
Representing the family on 27th April, Miss Clare Montgomery QC, said that though they accepted they had knowingly done wrong, they had not given the matter as much thought as they would have done without the solicitors’ advice.
The Appeal Court judges ruled that the Leftons’ sentences were “manifestly excessive” and agreed to cut them to 21 days for Jeremy and six weeks each for his parents.
Lord Justice Gage, sitting with Mr Justice Burton and Judge Stephen Stewart, QC, said a letter was indeed sent to the police by the couple.
He said, "It misrepresented the position by saying the originals had not been received. It falsely suggested [Jeremy] had no recollection of who was driving and falsely implied that others could have driven."
Jeremy was convicted in his absence by magistrates, but they agreed to review the case. Last year, Jeremy and his mother attended court for another hearing. Mrs Lefton was unexpectedly asked by Jeremy's solicitor to confirm that they had never received the documents.
She duly did, effectively committing perjury.
In late April 2007 it was reported that Celebrity lawyer Nick Freeman, who was arrested on suspicion of conspiring to pervert the course of justice, had his bail date extended again.
Mr Freeman was arrested in Manchester in October 2006 as part of an investigation carried out by Gwent Police in Wales.
He had been due to answer bail in April, but a Gwent Police spokeswoman said the date has now been deferred to May 8 2007.
It is the second time Mr Freeman, known as “Mr Loophole” for his ability to help motorists escape convictions, has had his bail date deferred. He had originally been due to answer bail in March 2007.
Mr Freeman, from Mere, Cheshire, has represented celebrities including Sir Alex Ferguson, model Caprice and former England captain David Beckham with his Manchester-based firm, Freeman & Co Solicitors"
Celebrity lawyer Nick Freeman has been told he will not face a charge of conspiracy to pervert the course of justice.
Mr Freeman, 49, of Mere, Cheshire, was arrested last October as part of an investigation by Gwent Police.
Dubbed Mr Loophole because of his success in motoring cases, Mr Freeman said he planned to resume his career.
In the past he has represented Sir Alex Ferguson, David Beckham and model Caprice through his Manchester firm.
Speaking on Thursday, Mr Freeman said he had always said he was innocent of wrongdoing and "that statement of fact was fully vindicated".
"For the avoidance of doubt, the case which was being investigated concerned a client I had never met, never spoken to, and did not defend in court," he said.
"The last seven months have been physically, mentally and emotionally draining.
"Throughout this time, I have had to cope with a severe and unnecessary strain upon my life.
"Now I fully intend to resume my career and very much look forward to doing so."
A Gwent Police spokeswoman confirmed a 49-year-old man arrested in the Manchester area on suspicion of conspiracy to pervert the course of justice has been released without charge.
"One 45-year-old man arrested at the same time last year, in connection with the same investigation, remains on police bail," she added.
Solicitors specialising in defending alleged motoring offences:
IDRIS FRANCIS LOSES RIGHT TO SILENCE APPEAL TO ECHR
From BBC 29-6-2007
Motorists lose speed camera case
Two British motorists who took their legal fight against speed cameras to Europe have lost their case.
Idris Francis, of Petersfield, Hants, and Gerard O'Halloran, from London, argued that current rules forced car owners to incriminate themselves.
They said human rights were breached by making a car's owner name the driver if the vehicle is caught speeding.
But judges at the European Court of Human Rights in Strasbourg voted 15 to two to reject their argument.
"In my view it is a perverse decision," Mr Francis said. "I am shocked and amazed."
Both men have separately claimed a right to silence after their cars were caught speeding.
Company director Mr Francis refused to say who was behind the wheel of his vehicle as it was photographed doing 47mph in a 30mph zone.
He was fined and had three points put on his licence.
Mr O'Halloran had said he was driving his vehicle but later retracted, saying he had a right to silence and protection from self-incrimination. Magistrates fined him and added penalty points.
The men took their case to the European court last September with the support of human rights group Liberty.
Judges acknowledged that both men had been faced compulsion to provide information, but threw out their claim that the right to remain silent and the right not to incriminate oneself are "absolute rights".
Their judgement noted that people "who choose to keep and drive cars" have implicitly "accepted certain responsibilities" under UK law.
This includes an obligation to name the driver of a vehicle after a road traffic offence has been committed.
The judges also pointed out that UK law made it clear that no offence has been committed if a car owner can prove that he or she did not know, and could not be expected to know, who was driving the vehicle.
Mr Francis said after the verdict: "The fight for freedom goes on. We can't allow the tyrants, who are taking away our rights, to succeed. They have to be stopped."
Further Case Law 5-9-2007 (reported by the BBC 5-9-07)
Top Gear presenter Jeremy Clarkson has been acquitted of a motoring offence.
Mr Clarkson had been accused of failing to name the driver on a speeding ticket sent to him by car company Alfa Romeo.
The company said he had been loaned a car caught by a speed camera travelling at 82 MPH in a 50 MPH zone on the A40 in Ruislip, west London, last October.
His solicitor, Nick Freeman, argued the case was "fatally flawed" as Alfa Romeo only had details of who the car was loaned to, not who the driver was.
If someone had looked at this process properly it would never have come to court
Nick Freeman, Mr Clarkson's solicitor
The City of London Magistrates' Court dismissed the charge after the prosecution offered no evidence in relation to the case.
Speaking outside court, Mr Freeman said: "If someone had looked at this process properly it would never have come to court."
He added that prosecutors should have gone back to Alfa Romeo instead of chasing Clarkson.
Mr Freeman said the end of the case was an enormous weight off Mr Clarkson's mind.
The television presenter, who lives in Chipping Norton in Oxfordshire, was not present in court and was awarded costs.
However, an analysis by Dwight Van Driver in the Backroom at hjuk on 7-9-2007 shows this 'get off' was flawed:
For the offence of speeding detected by camera then to get information as to who the driver was the authorities have to rely on Section 172 Road Traffic Act 1988 which states
Where the driver of a vehicle is alleged to be guilty of an offence—
2(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.
In the case of a Hired or loan car then the Reg keeper complies and discharges his liability by naming the next person down the line i.e. Clarkson as the person in charge of the vehicle but not necesssarily the driver , or uses the defence under the Section:
A person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was .
Having obtained from the Keeper of the vehicle the information that Clarkson had the vehicle, but no information that he had been the driver, a further sub section of 172 is used:
2(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.
A person who fails to comply with the requirement of subsection (2)(b) above is guilty of an offence.
It will be noted that the defence under 2(a) is not repeated in a 2 (b) request so it would appear one cannot rely on did not know/could not ascertain who the driver was.
Whilst not being privy to full report of Freemans defence, must have been the (2)(a) defence which does not apply to 2(b) offence and in usual style has bamboozled the bench. He came to our local Court some time ago and defended a female on drink drive and got her off on an alleged procedural technicallity. Resulting from that, I heard, an internal enquiry was held, higher legal advice sought and police procedure found not wanting.
Change in Law from 24-9-2007
From this date changes to the Road Traffic Act Section 172 increased the maximum penalty for failing to identify the driver of a car to 6 points against the registered private owner.
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A little publicised change to the way motoring cases are dealt with
in court shows that the government wants to put more pressure on
drivers to meekly pay up, by denying them free legal advice from the
Duty Solicitor and making it difficult to request adjournments while
a defence is prepared. The following information has been received
from ABD members Hewitts Solicitors:
DON'T DELAY IN OBTAINING LEGAL ADVICE
Unfortunately in the current climate of the police targeting drivers
as an easy option to improve crime figures, an ever increasing number
of motorists are coming before the Courts. There have been recent
changes that will have a major impact on all Magistrates Court
hearings and particularly when an individual wishes to seek an
adjournment of his case.
As long ago as 2004 the Government changed the rules as to who could
be represented by the Duty Solicitor at Court. The Duty Solicitor is
a free service provided by courts to provide advice and
representation to individuals who do not have their own solicitor.
The Duty Solicitor is now no longer able to represent individuals who
face non-imprisonable offences (which most motoring offences are)
unless that individual is in custody. This was introduced by the
Government as a means of reducing the amount of money spent on
criminal legal aid. As a result, those facing road traffic offences
before a Magistrates Court are precluded from obtaining the free
services of the duty solicitor.
The Government has now introduced a scheme to accelerate Court
proceedings, which is known as "Simple Speedy Summary Justice". The
goal is to have the majority of cases concluded at the very first
hearing. This means that the court will expect an individual to state
whether he is guilty or not guilty at the first hearing. In order to
facilitate this, the Crown Prosecution Service is now required to
provide advance information such as witness statements to a Defendant
as early as possible.
The likely impact of these radical changes is that motorists
appearing on their first appearance will struggle to be granted an
adjournment of their case by the court in order to seek legal advice.
This is likely to lead to two potential problems:
1. Motorists will feel pressured into entering guilty pleas at the
first hearing without the benefit of legal advice that may give light
to a defence;
2. Motorists will have no option but to enter not guilty pleas as
the only way to secure an adjournment. This could lead to a loss of
credit on sentence if ultimately (following legal advice) the plea
becomes one of guilty.
It is therefore essential for motorists facing prosecutions who wish
to obtain legal advice to do so as soon as possible after they become
aware they may face a prosecution, in order to avoid the possibility
of injustice arising in their case.
I hear recently from a friend who had checked with me about a NIP for
speeding in Surrey.
He replied that as his son was home from overseas for a month, and
both of them drove his car frequently, he did not know and could not
find out who was driving at the time of the supposed offence.
He produced his son's driving license and stamped passport, and dug
in his heels, pointing out that para 4 S172 states that it is not an
offence not to know or be able to find out, and that it would be an
offence to provide false information as to the identity
Motorist's Prosecution Checklist:
* The speed limit must be correctly signed in
accordance with the regulations (Folly Bottom,
Wylye, North Wales, Cleveland, Starcross and others)
* A speed limit order must apply correctly to the
location in question. (Lincolnshire, London, North Wales and others)
* The paperwork must be correct and in accordance
with all laws and regulations. (Dorset, Cleveland)
* The paperwork must be delivered on time (very recent case, Nov 2009 Idris)
(* The record showing the date the NIP was posted
MUST have been completed at the time, not
retrospectively - as Hants SRP routinely did for years Idris)
* The Notice of Intended Prosecution (NIP) cannot
be served by second class post. (South Wales)
* Papers to issue a summons must be laid within 6
months of the date of alleged offence.
* The equipment must be calibrated correctly.
* The operator must use the equipment in accordance with rules and guidelines.
* The operator must form a prior opinion of speed in excess of a speed limit.
* Arguably only a Police constable is qualified
to form a prior opinion of speed in excess of a posted speed limit.
* Communications equipment must be switched off
while measurements of speed are taken (including the operator's mobile phone).
* The site must be suitable (restrictions include near power lines)
* The equipment must be working properly.
* Evidence must be disclosed to the defence at
least 7 days before the trial on request or it becomes inadmissible.
* If you don't know who the driver was at the
time of the alleged offence you may well have a
statutory defence in RTOA1988 S172(4) as amended
"(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 was."
* A corporate keeper is required to provide only
what information it is in his power to provide (Idris)
* A corporate keeper (ef Company Secretary)
cannot be given penalty points - some solicitors
advise drivers to register their cars in the name of a company (Idris).
* The court must be impartial (And since the
Magistrate's Court Service are usually a camera
partnership member it is far from clear that the
court has the required degree of impartiality.)
* In the case of Gatso fixed speed cameras the
transit of the calibration marks in the two
photographs must match the speed recorded by the radar speed meter.
* The prosecution must turn up in court with the correct paperwork.
* Witness statements cannot be signed by machine. (North Wales)
* The LTI20.20 (common laser speed meter used in
virtually all mobile speed camera vans) is
subject to various operating anomalies, notably 'slip effect'.
A failure in any of these areas will usually be fatal to a prosecution case.