Thread: Is this Notice of Intended prosecution legal?

I received a notice of intended prosecution for breaching the miles per hour speed limit contrary to Section 3 of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.

This is the first NIP

CHESHIRE CONSTABULARY Form 200207

NOTICE OF INTENDED PROSECTION

Mr Xxxxxx Xxxxxxxx Xxxxxxxxxx Police Station
XX Xxxxxxxx Xxx Xxxxxxxxx
XXXXX Xxxxxxxxxxxxxx
Cheshire Cheshire
XXX XXX XXX XXX

Vehicle Registration Number: XXXXXXX

In accordance with Section 1 of the Road Traffic Offenders Act 1988, I hereby give you notice that it is intended to take procedings against the driver of Motor vehicle XXXX XXXXXXXXX for the alleged offence of exceeding the miles per hour Speed Limit at XXXXXXX EXPRESSWAY (Roadworks prior to Runcorn Bridge) on Sunday 26 October 2008 at 11:35 hours contrary to Section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.

FILM NUMBER THIS WAS BLANK FRAME NUMBER THIS WAS BLANK

The allegation is supported by statemented evidence of Police officers

The current owner of the vehicle, or any other person who is able to do so, is required by law to give any information which will lead to the identification of the driver.

You are recorded as the registed keeper of the above vehicle at the time of the alleged offence and you are required to provide the full name and address of the driver at the time of the alleged offence.

Under Section 172 of the Road Traffic Act 1988, you are required to supply the information above within 28 days of service of this notice. On conviction for failure to supply the information, the penalty is similar to the alleged offence itself - a fine of up to £400 and 3 penalty points.

PLEASE PROVIDE THE INFORMATION ON THE FORM PROVIDED.

PC XXXX XXXXX
THEN IT WAS SIGNED
Officer in Charge On behalf of the Chief Constable.

I was advised by a friend that I was being prosecuted for careless driving not speeding and advised me to write to them. they replied by letter saying the following:

Date: 06 November 2008

Mr xxxxxx XXXXXXXX
xx xxxxxxxxxx
xxxxxxxxxxx
xxxxxxxxxxxxxxxx
xxxxxx

NOTICE OF INTENDED PROSECUTION
Road Traffic Offenders Act 1988, Section 1

Dear Mr, Xxxxxxxxxx,

I write in response to your letter dated 30/10/2008. Having reviewed the Notice of Intended Prosecution (NIP) I wish to clarify the matter that has been notified to you. The incident is not one of speeding but involves your vehicle mounting the central reservation and forcing it's way past an unmarked Police vehicle whilst traffic was being channelled down to one lane prior to the Runcorn Bridge. This vehicle was occupied by two Police Officers who have made statements and described the driver. Such was the concern of the Police Officer driving that he Knocked on the passenger side window of XXXXXXX as it squeezed by.

As the registered owner of the vehicle XXXXXXX you are required by law (Section 172 of the Road Traffic Act 1988) to provide the driver identification at the stated time and date, 1125 hrs Sunday 27 October 2008 within 28 days of receipt of the NIP. Failure to supply the information is an offence in itself that can result in a substantial penalty.

I enclose a pre-paid addressed envelope in which you may return the requested information.

PC XXXX XXXXXXX
XXXXXXX Police Station
XXXXXXXXXX
XXXXX
XXXXXXXX
XXXXXX

What I would like to know is would the second letter be valid as a Notice of intended Prosecution? It does not say under the signiture Officer in Charge On beharf of the Chief Constable. also it did not have on the top Form 200207, to me it just seems like a letter not a NIP. Please could you advise me as I'm just about to pay £1500 to a solicitor but if I've got no case then would like to save the money.

There are also a number of mistakes:

1, The offences are wrong
2, the times are different on each NIP
3, the second NIP doesn't have under the signiture
Officer in Charge On beharf of the Chief Constable.
4, the second NIP doesn't have the Offence that I'm being prosecuted for.

Thank you for taking the time to read this.


Networkrail

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A NIP should be received within 14 days of the offence, if not no further action can take place by the Police, so if you NIP arrived after 14 days inform the Police of this, they have to cancel the NIP.

I understand that if they make a mistake on the first Notice of Intended Prosecution they have 14 days to send another NIP out, in this case the second letter was within 14 days but what I would like to know is, is the second letter classed as a NIP in law as there is things missing off it for example it doesn't have the form number on it, or it doesn't have after his signiture signed on behalf of the chief constable and it doesn't state the offence I'm being prosecuted for.

Would anyone be able to tell me if the second letter complies with the legislation with regards to a Notice of Intended Prosecution.

Networkrail

Originally Posted by networkrail

I understand that if they make a mistake on the first Notice of Intended Prosecution they have 14 days to send another NIP out, in this case the second letter was within 14 days but what I would like to know is, is the second letter classed as a NIP in law as there is things missing off it for example it doesn't have the form number on it, or it doesn't have after his signiture signed on behalf of the chief constable and it doesn't state the offence I'm being prosecuted for.

Would anyone be able to tell me if the second letter complies with the legislation with regards to a Notice of Intended Prosecution.

Networkrail

There are no second chances on a NIP as you surmise. The first NIP must be served with 14 days of the alleged offence.

The second letter does comply - It is a Notice of Intended Prosecution. What it is not, is a valid S.172 request - which is a different matter entirely. Only a S.172 request has to be signed by or on behalf of the Chief Officer of Police.

Let us look at these letters in turn.

Letter 1 is a combined NIP/S.172 request. I assume that is was served (ie delivered( within the requisite 14 days. If not, are you the RK and have you been for some time?

You must respond to this S.172 request, regardless of the validity of the NIP. They are completely wrong about the £400/3 point penalty; it's £1000 and 6 points.

It would appear to allow prosecution for speeding and from what you say, they will be unable to produce any evidence of speeding.


Letter 2 is a NIP tells you that the prosecution is for careless driving on the evidence of 2 officers. However, it is not a valid S.172 response and can be ignored as such. Also, it is served outwith the 14 day rule.

It may be a typo on your part, but the alleged offence date changes between the letters.

Unless the Court rules that a NIP for any offence is sufficient notice for all offences, then I think that they may have cocked up and you are in the clear. You must however, respond to the S/172 request from the first letter within 28 days or you will be prosecuted for failing to provide. As it is now well beyond the 28 day window, can we ask what response(s) you actually made?

I have filled in my details and sent them back to them and now I've received a court date and paperwork to send them back with a guilty or not guilty plea

After giving it much thought I think I'm going to have to plead guilty, it is going to cost me far to much £ to get a solicitor and how can I prove two police offcers wrong, I'm worried sick as I need my license for my job and feel this is going to destroy my life, all I did was take over a car that was stantionary and would not move, now I could lose everytihng I own.

My whole life is being turned upside down over this, my faith in the law has gone. I urge everyone to learn by my mistake and don't take over a vehicle that is staionary in the outside lane and the road is clear ahead at any cost.

NWR

"don't take over [overtake?] a vehicle that is stationary in the outside lane"?

And your name is "Network Rail"?

I hope you don't drive trains!!

Sam the Eagle

When I say the vehicle was stationary I mean stopped causing an obstruction with a clear road ahead.

NWR

You said that [1] the vehicle was stationary in the outside lane, [2] there were also Police Officers in attendance, and [3] it was in roadworks.

With respect, did it occur to you that the vehicle might have been stopped by the direction of a Police Officer, and that it might have been a situation where a bit of discretion took precedence over valour, or maybe you should just have sat and had a bit of old fashioned patience?

Sam the Eagle

To tell the truth, this is how it panned out in my mind I was traveling down the a lane that was clear at the left of me there was a que of traffic caused by the road works ahead, then I come to a car just stopped for no reason with the road clear ahead of it, I wait still it will not move, the traffic on the lef moves so the car moves, then stops the same time as the que, I'm then stuck behind a car so I choose to drive past it on the right hand side, it is tight but just enough to get through. I make the move without any complications, then pass the car then carry on my route until I have to merge in at the cones, then I get a NIP thorugh the post.

Please tell me what you would of done in this situation?

NWR

Originally Posted by flyingdoc

My opinion is that there are large holes in this intended prosecution.

How can either be a valid NIP when the first is for an offence that you didnt commit and the second does not contain any offence under the road traffic act(section or subsection)

You have to comply with the S 172 but I would personally challenge this as this appears to me to be a complete bollix up and they should not be allowed to get away with it.

ALSO if the police officers were so concerned by your conduct why did they not stop you at the time? (from my understanding they were IN the unmarked car that you squeezed past) or radio for a traffic car to come stop you.

which makes me think were they actually officers ON DUTY? in a POLICE VEHICLE or were they simply a couple of off duty bobbies on their way to or from work?

There are so many questions regarding this that I would want to ask.....

That's what I thought, in their statements they say that they were indicating, this was not the case also they say that the cones were 100meters ahead this was not the case also once I passed them I drove about 600yrds then joined the que where the cones were, they also say that the driver showed me his ID card this did not happen, I feel I'm being stiched up but there is nothing I can do to stop it.

I would really appreciate your help with this flyingdoc.

NWR

Originally Posted by networkrail

To tell the truth, this is how it panned out in my mind I was traveling down the a lane that was clear at the left of me there was a que of traffic caused by the road works ahead, then I come to a car just stopped for no reason with the road clear ahead of it, I wait still it will not move, the traffic on the lef moves so the car moves, then stops the same time as the que, I'm then stuck behind a car so I choose to drive past it on the right hand side, it is tight but just enough to get through. I make the move without any complications, then pass the car then carry on my route until I have to merge in at the cones, then I get a NIP thorugh the post.

Please tell me what you would of done in this situation?

NWR

OK, leaving the pcn aside and answering your question on "what would you have done".

From your discription it is quite apparent that the vehicle paused in the lane in front of you was there intentionally to stop queue-jumpers pushing their way right up to the front of the road works (that is queue jumpers like you clearly were demonstrating you were!).

i.e. he was travelling at the same speed as the "main" roadworks traffic, and would have safely merged back in with the vehicle he was next to closer to the cones. I have seen it done this way many times as I am sure most of us have, and have on occasion been that "car stopped for no reason" in front of you.

So what I would have done is remain behind that "obstructive" car or merged into the queue at that point and waited my turn to pass through the roadworks patiently like everyone else. I hope you will do the same next time.

From your post in my opinion it is clear that the offence of "careless driving" would be an appropriate charge, whether the way the NiP has been handled will give you a get-out is what will continue to be debated here.

Please could someone advise me if the second letter (Clarifiing letter) would need the section (contrary to section 3 of the road traffic act) on to make it vaild? as this doesn't have it on would it make it void and they would have to prosecute me for the original NIP which has the wrong alleged offence on?



NWR

Originally Posted by flyingdoc

In the absence of a lawyer I (which you really should have) I would answer the s172 (even though I think you could argue that neither of the s172 requests were legal in that the first pertained to an offence which they have, in their second letter admitted you did not commit, and the second is a) not signed by the chief constable and b) not linked to a recognised offence. I would answer anyway.

An S.172 request is valid at any time - it does not have to be attached to a NIP.

In law, it is an investigative tool that the police can use to investigate any RTA offence.

Only one S.172 request has been made here - the first. The second, if the transcript is a true copy - is not an S.172 request because it is not signed by or on behalf of the Chief Officer of Police. As such, you cannot be successfully prosecuted for failing to provide for this second letter - there is case law, but I haven't the time to look it out right now.

Originally Posted by crem

From your discription it is quite apparent that the vehicle paused in the lane in front of you was there intentionally to stop queue-jumpers pushing their way right up to the front of the road works (that is queue jumpers like you clearly were demonstrating you were!).

Driving ,like this is not queue-jumping. The intention of the coning is that traffic should merge in turn (zip merge) at the start of the roadworks. If drivers were not supposed to use the outside lane up to the road works, then it should surely be coned off.

The problem is caused by drivers determined that nobody should 'get in front of them' instead of properly zip merging - all this does is increase the length of the queue. There is a growing tendency for specific 'merge in turn' signage these days.

Highway Code rule 288 (my bold)

288

When the ‘Road Works Ahead’ sign is displayed, you will need to be more watchful and look for additional signs providing more specific instructions. Observe all signs - they are there for your safety and the safety of road workers.

• you MUST NOT exceed any temporary maximum speed limit
• use your mirrors and get into the correct lane for your vehicle in good time and as signs direct
• do not switch lanes to overtake queuing traffic
• take extra care near cyclists and motorcyclists as they are vulnerable to skidding on grit, mud or other debris at road works
• where lanes are restricted due to road works, merge in turn (see Rule 134)
• do not drive through an area marked off by traffic cones
• watch out for traffic entering or leaving the works area, but do not be distracted by what is going on there. Concentrate on the road ahead, not the road works
• bear in mind that the road ahead may be obstructed by the works or by slow moving or stationary traffic
• keep a safe distance - there could be queues in front

i.e. he was travelling at the same speed as the "main" roadworks traffic, and would have safely merged back in with the vehicle he was next to closer to the cones. I have seen it done this way many times as I am sure most of us have, and have on occasion been that "car stopped for no reason" in front of you.

And in contravention of the Highway Code - see above

So what I would have done is remain behind that "obstructive" car or merged into the queue at that point and waited my turn to pass through the roadworks patiently like everyone else. I hope you will do the same next time.

Why, I would hope that others would drive properly the next time

From your post in my opinion it is clear that the offence of "careless driving" would be an appropriate charge, whether the way the NiP has been handled will give you a get-out is what will continue to be debated here.

I suggest that unnecessary obstruction is an appropriate charge for the driver of the unmarked police car. The Police driver is probably outwith force guidelines trying to control traffic in an unmarked car in such a situation. The only fault of the OP is causing his vehicle to partially enter the central reservation area.