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Everything posted by Aretnap

  1. I don't think this is quite correct. The key considerations are (1) do members of the public, as opposed to a special class of people (like residents and their guests), actually use the area, and (2) if so, do they do so in defiance of a prohibition, explicit or implicit? The fact that it's physically possible for the public to access an area doesn't make it a public place. The presence of a physical barrier is good evidence that a place is not public, but the absence of a barrier is not proof that it is public - a "keep out" or "residents only" sign would have the same effect as a barrier. And even the sign isn't necessary if there's an implied prohibition (your front garden is not a public place, even if you don't have a front gate), or if there's no actual use by the public. There's a useful summary of the case law in Hallett v DPP https://www.casemine.com/judgement/uk/5a8ff72460d03e7f57ea8696 In that case a person was convicted of drink-driving on an ungated service road which provided access to the back gardens of some 20 houses. The High Court overturned his conviction because there was no evidence to establish that it was actually a public place.
  2. If the speed gun is pointed at you from an angle it would indeed affect the accuracy of the reading... by making your speed appear lower than it actually was. So that wouldn't be a good argument to reply on. (For those who remember A-level physics what the speed gun is measuring is the component of the vector of your velocity in the direction of the speed gun. Which is the cosine of the angle between your heading and the speed gun. If you're doing 40mph the speed gun will show a reading of 40 if you are driving straight towards it, 38.6 at an angle of 15 degrees, 34.6 at an angle of 30 degrees etc. So any error caused by the angle always works in your favour.)
  3. The normal fine for each offence is a band B fine, whihc means 100% of his weekly post-tax income. This would be reduced by a third if he pleaded guilty at the earliest opportunity (by post if he wasn't attending court). So did he complete and return the paperwork that came with the original summons/SJPN? In particular (1) Did he indicate that he was pleading guilty? If not, he wouldn't have got the one third discount (2) Did he fill in the statement of means with details of his income? If not, his income would be assumed to be £440/week - the notional national average. Prosecution costs of £85 and victim surcharge of 10% of the fine (rounded to the nearest fiver) are standard in the circumstances. It sounds like he didn't complete the paperwork. Rather than appealing and risking additional costs, his first course of action might be to contact the court and ask if the fines can be reconsidered if he submits a statement of means now. That's assuming his income is lower than £440/week - if it's higher he might be best to pay and keep schtum!
  4. The Gatso's primary speed measurement comes from the radar device - the distance you have travelled between the two photographs simply acts as a secondary or back-up check. The markings on the road look pretty clear to me. And even if they weren't clear there is an approved technique for carrying out the secondary check using photogrammetry - so the lines are only there for convenience, they are not actually required for a successful prosecution. That would be Highway Code Rule 123 - "The 30 mph limit usually applies to all traffic on all roads with street lighting unless signs show otherwise". The actual law is found in the Road Traffic Regulation Act sections 81 and 82. Well, the streetlights themselves are the signs that it's a 30mph limit. Road sign regulations actually prohibit putting 30 repeaters on a road with street lighting (other than the combined 30/speed camera sign which they have there). It would be impractical to put them on every road in towns and cities, and putting them on some street-lit roads but not others would probably cause more confusion than it solved. How would you decide which ones to put them on? How would you deal with all the people saying "yeah, but this road doesn't have repeaters but that other vaguely similar road does, so surely it's unfair to prosecute me for speeding"? Overall it would just end up diluting the clear rule that a road with streetlights is 30mph unless signs show otherwise. I'm afraid that nothing you've said suggests that you have any defence. Pleading guilty and sounding contrite is probably your best option.
  5. A NIP is only required for certain, specified offences. (They are offences to which Section 1 of the Road Traffic Offenders Act applies - listed here) Use of a vehicle in a dangerous condition is not one of those offences. So no NIP is required at all - verbal or written, at the time of the offence or 14 days later. The whole question of NIPs or 14 day timelines simply doesn't arise. The only relevant deadline is that in order to prosecute the OP for the offence they have to initiate court proceedings within 6 months, ie by late December.
  6. Presumably you mean driving while disqualified. Driving without insurance has a maximum penalty of a fine and a driving ban - it cannot attract a prison sentence, suspended or otherwise. From a criminal viewpoint the lack of insurance is very much secondary to the fact that he was driving while disqualified - that has a maximum penalty of 6 months in prison (though a community order and/or suspended sentence would be more likely unless the OP is a repeat offender).
  7. The law is actually pretty clear in that if you show a valid insurance certificate which covers the driver's use of the vehicle, then the police have no right to seize the vehicle. End of. What the police believe is irrelevant at that point. Of course the police might misunderstand the wording on the certificate, or believe reasonably but incorrectly that it's not a valid certificate, and decide to seize the vehicle. But if they do then they do so at their peril - if their suspicions turn out to be wrong then they will have acted unlawfully and they will be liable for the costs incurred by the vehicle owner/driver as a result of the unlawful seizure. The relevant case Lay is Pryor v Chief Constable of Greater Manchester. In that case the police thought that the policy did not cover what the certificate said it covered, so they called up the insurance company to check and were told that the driver was not covered to drive the car. The call centre bloke was wrong, the policy did cover the driver, so the Court of Appeal held that the police were in the wrong and that they were liable for the return of the impound fee, along with associated costs. The same principles would seem to apply here; assuming that the OP is correct in that the insurance policy did cover the driver's use of teh vehicle.
  8. No it isn't. The point is that it's an alternative to prosecution or a fixed penalty, so you don't get a conviction and you don't get points on your licence. It has nothing to do with insurance, and the people who organise the courses have no power to decide what insurers can and can't ask about. Well, whether or not you're required to disclose the information is a different question from how likely you would be to be caught if you didn't disclose it. It's true that as lies you could tell your insurer go, this is one of the ones you'd probably be more likely to get away with, as insurers don't (for now) have access to the record of who's done them. But you could still be in trouble if you post about your course on social media, or you get a quote with it declared, then remove it, or if you blurt out the truth without thinking when they ask you about it. What rules say they shouldn't? Legally the starting point is that insurers can base their premiums on anything they like, unless there's a law which says they can't. The Equality Act prevents them loading premiums on the grounds of race, or sex. The Rehabilitation of Offenders Act prevents them from loading them due to (most) convictions which are more than 5 years old. What law do you think prevents them from loading premiums for attending a speed awareness course?
  9. No reason to expect a court date. Anything up to 85mph in a 60 limit would normally be dealt with by a fixed penalty (I've 3 points and £100).
  10. Glad it got sorted out. The third party driver was never at risk of having to put her hand in her own pocket though, assuming she was properly insured. Her insurer is obliged to pay for all claims which are successfully made against her, so while they can say to Albany "you're having a giraffe - take it to court if you like", if Albany do take it to court and win then they can't continue refusing to pay. So while on paper the claim might be you vs the other driver, in practice it's actually Albany vs her insurer, and it's her insurer who ends up paying if she loses.
  11. There is potentially a defence - if it was not reasonably practical for her to provide the information within the 28 days then she has a defence, provided she did provide it as soon as reasonably practical (if it was ever reasonably practical). Precisely what is reasonably practical isn't defined by the law and is a question for the court to make a judgement call on based on the specific circumstances. If she was seriously ill in hospital for many weeks with no access to her home or her mail then it would be a very hard hearted magistrate who thought that she should have been able to respond to the NIP. On the other hand if she was just a bit run down after giving birth and let things get on top of her then it would be harder to argue that it wasn't practical for her to open her mail and spend a few minutes posting a form. Somewhere between those two scenarios there's a grey area where the court might decide either way. If she's convicted then 6 points are mandatory, and if she gets 6 points then revocation of her licence is automatic - the court has no power to waive it because of the hardship it would cause. So she has little to lose by trying to argue the point.
  12. You're misreading the guidelines (admittedly they're badly written) and missing the bit about fixed penalties. For a 70 limit a fixed penalty will normally be offered at speeds of 95 or lower, assuming the OP is eligible for one (ie he isn't already on 9 points or more). 3 points and £100. An instant summons would only come into play at 96 or above. The OP can only really wait and see what comes through the door. If it wasn't a traffic officer them there's always the chance that he might decide that it's not worth the paperwork, and that he'll forget about it.
  13. Your insurance documents will say when you need to tell your insurer about the points - with most insurers it won't be until your renewal date. However telling them now means that there's no risk of forgetting and shouldn't affect your premium until you renew. Three points for speeding won't usually make a lot of difference to your premium anyway - just use the comparison sites to shop around. It's not as if you're a drunk driver or some other pariah who the mainstream insurers won't touch. If the police only cared about making money they'd have sent you on a course - that way they keep the course fees (allegedly to pay for traffic enforcement). Fines and fixed penalties go straight to to the treasury, where they are swallowed up as a tiny drop in the great ocean of general government spending. There's no benefit to the police in handing out fixed penalties.
  14. If the OP (or rather his wife) really has done all he could to identify the driver then he does indeed have a defence to the case and no offence has been committed (other than the red light offence of course). However the law puts the burden on the defendant to prove that he/she did all he could, and "all he could" is a higher bar than a lot of people realise. The defence is not impossible to make, but it's not easy either.
  15. Your problem is that too many people who take their legal advice from a bloke in the pub think that a brilliant wheeze for getting out of speeding tickets is to say "sorry, can't remember who was driving, could have been either of us". As a result magistrates tend to treat the claim that two grown adults can't remember a journey they made a few days earlier with a healthy degree of scepticism, and while it's not impossible to defend these cases you are certainly on the back foot, and you be to be unusually credible when giving evidence to defend them. And the penalty for failing to identify the driver is significantly harsher than the penalty for most pending or red light offences - precisely to discourage people from playing sillybuggers over it. If you decide to defend the charge then the onus is on you to persuade the court that you did everything you reasonably could be done to work out who was driving. Asking for a photo was one of the things you could have done, certainly, but by no means the only one. You say it was a strange town - but you were given the time and location of the incident. Did you look up the location on a map or on Google Streetviiew? Was it on he way to the ground or on the way to the shop? How does the time fit with your journey? And so on and so forth. No point trying to complain about the prosecutor - the offer you've been given is perfectly standard and if you really can't honestly name a driver then you're not being forced to do so. However the prosecutor sees people every day who claim not to know who was driving, and the vast majority are either lying or have made almost no effort to find out. They would be easily broken down under cross-examination, and the prosecutor is in the main doing them a favour by giving them a chance to think again. As far as perjury goes, that only applies if you provide information which you know to be untrue. If you name the person who you believe was probably driving then you're not committing perjury, even if your belief turns out to be incorrect. It's your decision of course, but the penalties for failing to name the driver are severe (and the insurance penalties are even worse - the MS90 code makes insurers wonder what you did that was so terrible that £600 and 6 points seemed like a better option than owning up to it) so in your position I'd probably take the easy option ad take my best guess at who was driving.
  16. The offences he could be charged with would be: Driving without insurance (6-8 points and a fine) Driving otherwise than in accordance with a licence (3-6 points and a fine) For you it would be Causing or permitting driving without insurance (6-8 points and a fine) Causing or permitting driving otherwise than in accordance with a licence (3-6 points and a fine Even if you are both charged with both offences, in 99% of cases you will only get the points for the more serious offence - so most likely 6-8 points each (probably 6) for the insurance offences. It won't stop your brother getting a licence, but when he does get one the 6 points will remain in play with respect to the New Drivers Act. In practice this means that rather than having the usual 6 points to play with, if he gets any points at all in the first two years after passing his test he'll revert to a provisional licence and have to take his test again. If you passed your own test less than two years ago 6 points would also see your own licence revert to learner status and you'd have to retake your test. Probably won't do either of your insurance premiums much good either. There's no need for you to be given any paperwork at the roadside, though if you've been given a producer you'll have to go to a police station with your licence/insurance documents. You might get a fixed penalty through the post, but possibly not as it was more than one offence - if you don't then they have 6 months to begin court proceedings. The most lenient thing he *could* have done would have been to give you both a dressing down and send you on your way without making a report... but no insurance is taken very seriously these days so you would have to have caught him in an exceptionally good mood for that to have happened. As above he'd have been within his rights to have seized the car, so I suppose by not doing that he was showing a bit of leniency.
  17. You are unlikely to be offered a speed awareness course as the normal cut off point for them is 10%+9mph over the speed limit, i.e. 42 in a 30. Most likely you will be sent an offer of a fixed penalty, ie 3 points and £100. This could take a few weeks to arrive - if you have heard nothing in a couple of months it may be worth phoning the central ticket office for the force in question (Google the number or use 101) to check that it hasn't gone missing in the post, as if you don't respond to it you will be summomsed to court, where the fine and points are likely to be higher. (There will be no NIP or s172 notice as you were stopped at the time)
  18. Indeed, you were in line for a totitng ban f you got 12 points in 3 years - measured from date of offence to date of offence. The date you actually appear in court is irrelevant (otherwise t would be say to aid a rotting ban simply by delaying the court proses as much as possible. You can appeal against your senescence to the crown court provided you do so within 21 days of the conviction. Unless you think that the magistrates made a mistake with he dates (remembering it's the age of the offence that matters) any appeal would have to focus on "exceptional headship" that a ban would cause. Exceptional hardship means headship over and above that which would normally be expected to result from a ban - so having toget up at 6 am in order to take two buses and a train to work is normal hardship; losing your job, having to look for another (lower paid) job and reduce your standard of living as a result is probably fairly normal hardship; losing your job when you have no realistic hope f getting another one and losing your home as a result MIGHT be exceptional hardship. As a rue of thumb, hardship caused to other people (eg family) will weigh more heavily that hardship caused to you personally. If you do appeal you will have to be prepared to turn upon the allocated date, no matter how inconvenient it is.
  19. Driving on the hard shoulder is a £100/3 point fixed penalty offence. Talk of dangerous driving charges is melodramatic rubbish.
  20. England at least (not sure if it applies in Scotland) did recently introduce a 10 minute grace period, but only in places where parking is allowed at some times - ie if you're in a 30minute maximum stay bay you won't be penalised for being a couple of minutes late back to your car. It's not a licence to park where you damn well like and block the traffic because "I'm only going to be a few minutes". DYLs mean no parking at any time, unless one of the exceptions applies (eg loading, alighting, blue badges), so the grace period doesn't apply to them. So if your defence is going to be "I was parked there for over 3 minutes and there's CCTV to prove it" I can see it not getting very far.
  21. Historically courts have been reluctant to ban people in their absence because of the risk that they will inadvertently commit the serious criminal offence of driving while disqualified before they become aware of the ban. Instead, where the court was considering disqualification, failure to turn up commonly meant an arrest warrant, handcuffs and waiting in a cell for the next available court date. Apparently courts are getting more willing to ban people in their absence, partly because it's cheaper than arresting people, but the threat of arrest is still never something to be taken lightly. If you don't turn up you MUST NOT drive until you know the outcome because as the letter says any ban will take effect immediately, and driving while disqualified is a serious offence which will get you community service and an elongated ban at a minimum, and jail time as a possibility (not especially likely for a first offence, but still not a risk you want to take). That said if your licence is at all important to you I'd recommend that you make every effort to turn up. Contrary to popular belief a ban for doing a bit more than 100mph is not in any way a foregone conclusion if you turn up suited, booted and suitably contrite there's every chance of getting away with points instead. A letter of mitigation which will be read out in monotone by a bored legal adviser won't have quite the same impact. If you do go, again be aware that any ban will take effect immediately so do not drive there unless you have an alternative plan for getting your car home.
  22. You want the central ticket for whichever police force covers that area - without getting the map out I presume it's West Midlands. https://www.west-midlands.police.uk/advice-centre/help-and-advice/fines-and-fixed-penalty-notices/contact-details/index.aspx If you're confident that you were below the (variable?) speed limit it was probably someone else who got flashed, but there is no harm in giving them a call to make certain.
  23. If you have the car through work then the registered keeper is almost certainly either the company that employs you, or a separate lease company. Therefore the NIP must be server on them within 14 days of the offence. They will then reply naming you as the person who is actually in charge of the car and the police will send you a NIP of your own. There is no time limit for this second NIP to arrive. You cannot contest the charge on this basis.
  24. This is true, but note that under the Rehabilitation of Offenders Act most motoring convictions take 5 years to become spent - even though the endorsement may be removed from your licence sooner than that. This is why most insurers ask if you've had any convictions in the last 5 years. So the "Friend" will have to keep declaring all the convictions until July 2017.
  25. No. The number of points is set by statute at 6-8. The magistrates have various options - they can give him 6 points, they can give him 8 points, they can ban him, in exceptional circumstances (which don't seem to apply here) they can impose neither points nor a ban... but one thing they cannot do in any circumstances is impose 3 points. If he got a very sympathetic bench there's a slim chance that they might be willing to impose a short ban rather than giving him points. That would mean that he couldn't drive for a set period, but would not need to revert to a provisional licence and retake his test when the ban was up. Magistrates have guidance NOT to do this in order to subvert the provisions of the New Drivers Act, but it seems that there are some who either don't know about this guidance, or are willing to overlook it if they hear a good enough case. That's probably the OP's best hope. Or he could just accept the fixed penalty and make plans to retake his test ASAP, I've heard of people getting their licences back in a month, though it depends on how busy his local test centres are and how flexible he can be with times and dates.
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