A slightly complex situation and I need some advice. I don?t have the full story at this stage but I?d like to get some first thoughts from Backroomers.
In May 2002 (last year) my son was stopped by a patrol on the M23 doing over 100mph. (Don?t let?s have a debate on the rights and wrongs of this :-). He knows he was in the wrong and it's certainly slowed him down)
He didn?t have his licence with him at the time but was told he may be reported. He didn?t get any slip to tell him to produce his licence within 7 days. Time went by and he didn?t hear anything at all, so assumed he?d got a sympathetic plod and hadn?t been prosecuted.
A short time after this, he moved house but probably didn?t notify the DVLA of his new address at the time. He didn?t get round to this until about a month ago. He did however put a 3-month re-direct with the Post Office. This morning his licence was returned and he found that there was an offence on the licence dated 23 December (don?t know the code at the moment) with a 28-day ban and a £250 fine. Nobody?s chased him for the fine and he obviously didn?t know about the ban so he has been driving while disqualified.
I?ve told him he must tell his insurance company but some of the questions that arise are:
· Should he have received an NIP within 14 days?
· Why wasn?t he asked to produce his licence within 7 days?
· Does he have any grounds for appeal in that he was prosecuted without being informed?
· What should he do about the fine? Are the court bailiffs likely to appear on his doorstep now the DVLA know his address?
And I?ll bet there are issues that I haven?t even thought of. So any help, advice, recommendations are welcome.
Thanks chaps (and chapesses)
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I would have thought that all of your questions/assumptions are valid. I am no expert in law but believe that it is highly unusual to appear in court (even if absent) without being notified.
I hate to say it, but there was a similar thread to this some time ago when someone questioned the authenticity of the story provided by another poster's daughter in similar circumstances...
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I too think there are some important bits missing. I dont think its possible to get convicted unless you turn up in court, or admit guilty by post. Failure to respond to a summons (which this would be if all the paperwork procedures went astray) would result in a warrant for arrest surely?
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Wow, a hornets nest. Assuming you have the full story then:
Re NIP: You say son stopped for speeding and told he was being reported. I presume at this point, as standard plod practice, a verbal notice of prosecution would be given. Hence no written notice needed.
Was Fixed penalty Notice mentioned? If it was because speeding is an endorseable offence then Plod would want to see Licence to ensure points for this offence did not make him liable for 6 month ban under totting procedure. This either at the roadside on on a producer.
Plod can check through DVLA on Licence details.
May be that Force policy was to sheet those doing over 100 for a Court appearance re a ban, hence I presume no FPN.
Having been reported at the roadside the next thing that should happen is a summons to the Court of the area the offence was committed. Why this has not been served I cannot say, as you say GPO re-direct on Mail in force. Perhaps change of address may have affected this.
At Court it is necessary to produce a DL to the Clerk of the Court when dealing with endorseable offence (speeding). Further, unless the system has changed, as I understand it, then a Disqualification cannot be imposed without the presence of the transgressor or his Legal Rep.
You say offence in May 2002 but offence listed on Licence at December. Cannot be unless you are confusing Dec date with Court date. Should be an SP50 offence (speed on Motorway). Should also be a four digit number which will identify the Court involved.
Fine not paid.? So could still be outstanding. Could be a knock on the door from Plod with a Warrant to arrest for non payment.
I get that awful feeling that all is not well with the tale that you have been told and suggest a full debrief of son as to what actually happened etc.
If as you were originally told still stands then suggest a word with a Legal Eagle. Consider using C.A.B. Free advice system.
There appears to be several irregularities that need ironing out with Court Office concerned.
DVD
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Thanks DVD for your comprehensive analysis. Like you, I'm sure some of the facts are not yet to hand. He only received this at about 2.00 today and phoned me straight away. He hadn't had time to trawl through the memory banks to remember all the sequences. I told him that one of the first things to do was to get all the facts clear in his own mind.
A couple of points to pick up in your note.
He was told he may be prosecuted, not would be.
Date on licence was court date.
Police force involved was Sussex Police. No idea what their policy is on over 100 mph cases.
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Am I right in saying that prosecution for speeding must follow in any event within six months even though no written NIP (which is a notice of intended prosecution - so there is no need to confirm it) is needed?
May to December is seven months and even 31 May to 1 December is outside the six month period.
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Possible is someone else's offence put on by mistake. Check details carefully to see corresponds with your son's incident.
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david HM
Generally summary offences (i.e. speeding) have a limitation on proceedings of 6 months from date of offence. However, providing an information is laid ( application for a summons) within the 6 months then court date can be beyond 6 months. Not all the same as some S.O's have 6 months from coming to the notice of police and no longer than IIRC 3 years.
DVD
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david HM >> >> Generally ...... than IIRC 3 years.>> DVD>>
What's this - DVD teaching DHM the law? (teaching grandma to suck eggs comes to mind! ) Are backroomers to assume that DHM is not really as knowlegeable about the law as we believe?
re. Alfafan's Q about "maybe" vs "will be" prosecuted. I believe that the use of "maybe" is universal except shops who state "shoplifters will be prosecuted". Predicting a definite future prosecution would be difficult even for Dr Who.
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DVD is a former traffic oop of many years' standing. He knows far more than I do in this area although I could probably teach him a few things about contractual principles... :-)
My knowledge of criminal law is no more than the bare minimum needed to get through the exams... it's not what I do or what I ever want to do.
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Nobody will be disqualified unless they are physically present in court. The main question in interview for this offence is just that, 'were you present in court'. If not present, no offence, as it is impossible to prove that the defendant KNOWINGLY drove whilst disqualified. (It is easy to check, so no blanket get out for all you dizzy drivers out there.)
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"..verbal notice of prosecution would be given. Hence no written notice needed."
I didn't know that. Surely a verbal notice can be disputed?
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I didn't know that. Surely a verbal notice can be disputed?
JBJ - even in the case of a written notice, they do not have to pprove you received it. As for a verbal notice, who do youthink the Bench or Jury will believe - an upstanding Officer of the Law who they see appear before them frequently or a Defendant who alleges or implies that the said Officer is lying? If you speak to a plain-talking Solicitor or Barrister, he/she will tell you that the prospects of your word being believed against that of a Policeman are virtually NIL. Whether that is fair or not, it is the harsh reality.
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Am I missing something ? - its been a hard week. He didn't have his licence, he didn't have a HO/RT from the Officer. But his licence was returned....Was it because he sent it away for change of address ? CAn you clarify for me.
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Am I missing something ? - it away for change of address ? CAn you clarify for me. >
Pgugly, I think you may be guessing right as I read it in the same way. However, the story is 2nd hand, and as Alfafan has agreed it is patchy, we all keenly await full details in a clear chronological fashion of all the events.
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Yes, he sent it away from change of address, well from what I understand of the original post anyway.
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Contrary to what DVD says I have seen cases (in very exceptional
circs.) where drivers have been tried, convicted and sentenced in their absence and subsequently disqualified. This would normally be followed up by "Personal Service" of the notice of Disqualification. DVD quite rightly says that there are then difficulties in proving later "Disco" Driving offences. Difficult to comment about this too many if buts and maybes need Alfan jnr to give his first hand account.
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You state that an HO/RT was not issued for production of Driving Licence? What about insurance and MOT cert?
In my neck of the woods summonses are issued and a court date fixed, if the defendent does not answer summons or does not turn up an arrest warrant is issued (not normally backed for bail).
Court cases are occasionally heard in the abscence of the defendant but not where disqualification is considered. To pove disqualified driving it is necessary to prove that that person was the same person that was disqualified in court.
If your son has been dizzy driving then it would appear that he will have got away with that one.
At the very least there will be a warrant in existance for non payment of the fine.
Like others I strongly suspect that there are some facts missing here!
Fullchat
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Today's Bench was filling in some "downtime" today with some unfinished business. One of the cases was a driver who was summoned for two separate offences of No Insurance. He has not appeared personally in Court for either of them, eventually they were linked and he was tried in his absence.Today he was up for sentence - guess what he never showed up. He was disqualified for six months. FACT: It can be done and is done quite often.
The process is that a letter is sent to the last known address. As the Clerk told me after, not knowing that you are disqualified
is not a defence merely mitigation, and as she said most Offenders would not bother to open the letter anyway. The only time that a driver needs to present is when the offence is one that carries a Prison term. By the way home for lunch...one of the few perks of the job these days.
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In that case PU the Courts may be less particular now as to proving the offence of driving whilst disqualified.
My day if someone was caught for this offence then evidence had to be given of the actual driving, a Certified Copy of the Court Register AND evidence from an officer who was present and could identify that offender as the one who was disqualified.
Also how does the Clerk of the Court get hold of the Driving Licence from the accused? Likewise by letter with the same treatment?
Methinks the system is getting very lax.
DVD
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20 years go, maybe a little more, I was banned in my absence for an outrageous speeeding offence. The "in my absence" bit was through failing to attend and being untraceable by the police. (I wasn't in the country).
Ok, its was only for 4 weeks, but it indicates that they have always done this.
Dunno what would have happened if I had been stopped driving whilst disqualified, but as it happens it didn't arise.
M.
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My local courts will not diaqualify someone in their abscence. The case is adjourned and a warrant issued for non-appearance.
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I have a recent experience of a dizzy driver who was driving a car in which his girlfriend died. Without going into specifics he was disqalified under totting up where he attended court. However due to head injuries he sustained in the collision he could not recall being disqualified however agreed that if I said he was then he must have been. There was no other evidence to corroborate his disqualification ie HE was the named person who attended court on that day and who was disqualified. CPS wouldn't run it. Somewhere along the line I was shown a stated case to support their stand.
DVD you are right things have got lax. However the burden of proof has really got out of hand. Perhaps the Mags Clerk should take a photo on disqualification - you may laugh! Another example of disjointed legislation/practices.
Fullchat
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To be honest I raised an eyebrow on Monday and I actually questionned the process with the clerk after the bench adjounred for a brew before my trial. Disqualification is an absolute offence ( similar to No Insurance) Technically they are right but I think there is scope for some sharp practice here. Posting it to his last known address....?? In fact on Monday two timefillers netted the same result - both disqualified in their absence. My case collapsed in a heap of negotiation and a plea to a lesser charge - I thought the CPS had stopped doing this of late (after the Auld charging system came in) didn't stop them though.
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A note to bring things up to date. Alfafan Jnr has paid the fine and is not appealing against the ban.
When he received his licence back from the DVLA it still had points on it as well as the ban. A friend told him that a ban automatically wiped out points on the licence, which doesn?t make much sense to me. Anybody know the facts?
Upshot is that Jnr isn?t going to stir anything up in case the ban is retrospectively applied. He?s going to have to live with the increased insurance next year and will watch his speed in future. It probably helps that new paternal responsibilities have forced him to ditch the VX220 and replace it with a Mk3 Golf!
Thanks again to all BRs for the helpful comments
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Missed this thread the first time round, but I think it shows that when the BackRoom is good, it can be very, very good.
We're lucky to have pugugly, dvd and dhm offering their advice around here.
Lee
MINI adventure in progress
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Points only get wiped if you have served a 6 month ban for 12+, not points acrued for short bans e.g. 2 weeks/month. I assume this is the case here?
I'm a loser, baby....so why don't you kill me?!
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Only one point to make - a Police Officer cannot state that you "will" be prosecuted, only that you "may". It is up to the CPS to decide if there is sufficient evidence and that prosecution is in the public interest - which it usually is in speeding cases involving such high speed. Having decided that a prosecution will go ahead, the CPS MUST inform the defendant within a reasonable time. If all the reported facts in this case are correct then the fine and endorsements/disqualification are null and void and the defendant may apply to have them set aside - however, this may not be an end to it as the CPS will have the option to start the process all over again and issue a Notice of Intended Prosecution.
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Techno
I see what you're saying but frankly, Jnr can do without the hassle. And as you say, there's no guarantee that the process won't start all over again.
He's put it behind him and that's it.
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