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Man in the middle

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Man in the middle last won the day on May 12

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  1. It seems she is guilty of the drink-driving offence and must plead guilty to it. However, a court has the discretion not to endorse her licence or disqualify. That said, excess alcohol carries (in normal circumstances) a mandatory disqualification. Persuading the court that the circumstances were such that she had no alternative but to drive, for fear of the safety of herself or her child, is not something she should attempt herself as it really needs expert advice and representation in court This is one instance where a solicitor - preferably one who specialises in such matters - would be recommended.
  2. Indeed Bazz. But it's been over two years since the judgement and nearly a year since the "consultation" was launched. I suppose they must be busy but quite why they need a "consultation" is mysterious. The problem was readily identified by the High Court and it should take a government lawyer a fairly short time to produce an amendment to the statute. I suppose one saving grace is that not many people seem to know of Barreto (yet) which I must say surprises me a little in this day and age. But the DfT needs to get its backside into gear.
  3. A few points to note. 1. There is talk of issuing a FPN. That is not the procedure for a mobile phone offence. Once the driver has been identified, a Conditional Offer of a Fixed Penalty might be made (if appropriate). That is different to a FPN. 2. You will note that such an offer must be made to the driver. Whoever witnessed this alleged offence does not know who was driving. So in order to find out the police must issue a request under s172 of the Road Traffic Act to the Registered Keeper. 3. Most importantly, in order to prosecute the driver successfully (should he decline a Fixed Penalty offer) the police must prove that the phone was being used for "interactive communication." This is as a result of the High Court judgement in the case of Ramsey Barreto vs DPP.: https://www.judiciary.uk/wp-content/uploads/2019/07/19-07-31-DPP-v-Barreto-Ref.-CO2702019-Judgment.pdf From your description, they may have some considerable difficulty doing that, so the rest becomes somewhat irrelevant. BTW a "NIP" is a Notice of Intended Prosecution. Where the driver was not stopped at the time of the alleged offence, certain offences require such a notice to be served on either the driver or the Registered Keeper within 14 days. As far as I can remember, a mobile phone offence is not one that does. I'll check and come back if I'm wrong.
  4. Yes, No Insurance is a "strict liability" offence. That is, you either have it or you haven't. The question of intent is not relevant. There is a statutory defence to the charge which says this: (3)A person charged with using a motor vehicle in contravention of this section shall not be convicted if he proves— (a)that the vehicle did not belong to him and was not in his possession under a contract of hiring or of loan, (b)that he was using the vehicle in the course of his employment, and (c)that he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance as is mentioned in subsection (1) above. Of course this does not fit the bill as the vehicle was not being used in the course of his employment. Magistrates do have the discretion to listen to an argument that there are "Special Reasons Not to Endorse" (SRNTE) the defendant's licence. If they accept this argument they do not have to endorse the licence and impose points. However, I would rate the chances of success as quite low. There may be some merit in such an argument if the driver is insured to drive all your other vehicles and had no reason to believe he was not covered to drive this particular one. But it is complicated by the fact that it was not being used for work purposes (in fact if it was he would have a strong defence as I outlined above). Of course there is the possibility that even if he was insured for this particular vehicle for work purposes he may not be covered for private use. So before embarking on a SRNTE argument that would have to be clarified. To strengthen his argument he would be well advised to produce proof that he was covered to drive all your other vehicles and if he wasn't covered for non-work purposes the argument is a complete non-starter. To make his Special Reasons argument he would have to decline the Fixed Penalty offer and take the matter to court. There he would plead guilty but then present his argument. The downside to that is that if he is unsuccessful it will almost certainly cost him more than £300. He will pay a fine of a week's net income (although a kindly court may reduce that a little in the circumstances), a Victim Surcharge of 10% of the fine (minimum £34) and £85 costs. Although the court has the discretion to award between six and eight points (or even impose a disqualification) I would still expect to see the minimum of six imposed. So he would be basically gambling the difference between £300 and the sum which arises from the above calculation against the possibility of avoiding an endorsement.
  5. Yes, no NIP is required when you were stopped at the time of the alleged offence. The Road Traffic Offenders' Act (s1) says this: Requirement of warning etc. of prosecutions for certain offences. (1)Subject to section 2 of this Act, a person shall not be convicted of an offence to which this section applies unless]— (a)he was warned at the time the offence was committed that the question of prosecuting him for some one or other of the offences to which this section applies would be taken into consideration, or (b)within fourteen days of the commission of the offence a summons (or, in Scotland, a complaint) for the offence was served on him, or (c)within fourteen days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was— (i)in the case of an offence under section 28 or 29 of the M1Road Traffic Act 1988 (cycling offences), served on him, (ii)in the case of any other offence, served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence. You could go to court and argue that a verbal warning of a possible prosecution was not provided during your dealings with the officer. I doubt you'd have much success with that as he would hardly have been asking for your details so that he could send you a Christmas card!
  6. Certainly not a good idea to go anywhere near a court. Court's cannot order courses as a disposal at all, regardless of the speed.. If he is convicted in court he will face an income related fine, costs of £85 (assuming he pleads guilty), a Victim Surcharge of 10% of the fine (subject to a minimum of £34) and three points. As Bazza states, courses are only offered up to (Limit + 10% +9mph). After that it's a Fixed Penalty of £100 and 3 points and if you don't fancy that, off to court you go.
  7. Before you respond to the request for driver's details you can ask for "photographs to help identify the driver." Where a variable speed limit is involved they will usually show a photo of your vehicle (though are normally of no help in identifying the driver) together with a photo of the gantry sign displaying the prevailing limit. As far as I can recall, those in the Clacket Lane area are of that type. You should be offered a speed awareness course for that speed provided you have not done one for an offence that occurred in the three years prior to this one.
  8. Indeed, your fault, I'm afraid. Inform your insurers. Occasions where the injured party offers to get parts from the scrappers have a habit of ending badly, especially when you hear things like this:
  9. The definition (according to the Road Traffic Act) of careless driving is when "...the way he drives falls below what would be expected of a competent and careful driver." And that's it. Nothing about white lines; nothing about undertaking; nothing about merging. Nothing about anything, in fact. So with that in mind, it is impossible for anybody on here to give you a definitive answer as to whether your driving fell below standard. From your brief description it seems to me you undertook some vehicles and then cut in to merge with those in the outside lane. But that's only my opinion, based on what you have said and it counts for nothing. Since 2013 (IIRC) low level careless driving has been dealt with by way of the offer of a fixed penalty (£100 and 3 points). The police also have the option of offering a course (cost £100 but no points) so you may be offered one of those. If you want to accept neither, or the police think the matter is serious enough to go to court you will have the option to plead not guilty. The police will serve you with the evidence they intend to use to convict you along with a "Single Justice Procedure Notice" (a summons is no longer used). They have six months to take court action and in many areas they take all of that. Careless Driving carries a maximum penalty of an unlimited fine (though in practice it will be income based and limited to around a week's net income) and either between 3 and 9 points or a disqualification.
  10. Yes, beware of "warranties" issued by conservatory companies. I had a fifteen year warranty with mine. Twelve months after the installation some of the DG units failed and began to mist. I contacted the installers only to be told that the company that installed mine had gone into liquidation. Meanwhile a "new" company had taken over the business. Same "T/A" name, same premises, same staff, same phone number. They could fix my problem, but unfortunately there would be a charge. Enquiries led me to discover that this company, which had been operating under the same name for forty years, performed this trick about every two years or so. You live and learn
  11. It's arguable. Dangerous driving and careless driving both require a NIP to be served within 14 days in the same way as speeding does. The legislation (S1, Road Traffic Offenders Act) states that a NIP must specify "... the nature of the alleged offence and the time and place where it is alleged to have been committed" So you could argue that the nature of dangerous/careless driving is totally different to that of speeding (and I would agree). So whilst there is nothing to stop the police or CPS preferring more charges, the lack of a NIP may make a prosecution likely to fail.
  12. The difference between your case and Speedy's is that his involved an error on the summons. Yours is on the NIP. The two are judged at different levels, but nonetheless I am surprised that the court did not permit an amendment to the summons. As an aside, minor motoring offences are not commenced by way of summons now. They begin with a "Single Justice Procedure Notice" (sent to the defendant) together with a "Written Charge" (sent to the court). There is a different strategy you could consider. Before you return the Section 172 notice providing the driver's details, you could ask for "any photographs that will help identify the driver." They don't have to provide them but usually will. They don't usually help identify the driver (especially those taken from the rear) but it is a way of avoiding asking for "evidence" to which you are not entitled at this stage. When you have them you can confirm the location and if the NIP and S172 request state it incorrectly you could reply saying that your vehicle was not in the location mentioned at the relevant time. This is a risky business. Unless the police drop the matter out of "embarrassment" you will face a charge of "Failing to Provide Driver's Details" - an offence which carries six points. Whether you are convicted of that depends very much on all the circumstances and it's impossible to give a view here. But it might be worth a try. It is not your job to second guess what the police really mean when they ask who was driving your car at 12 noon in the High Street. You could give it some thought.
  13. I don’t agree with Bazza’s assessment. The guidance to impose points rather than a ban applies when there is a choice of sentencing options. If he had driven on the cusp of a ban (say 105-110mph) either six points or a ban would be a consideration and points should be imposed so as to trigger the New Drivers’ rules. There are also occasions where drivers who clearly would not otherwise be banned ask for a short ban in order to circumvent those rules. That is what the guidance seeks to address. That is not the case here. I believe he can forget any idea that points will be imposed for this offence. He will be banned. I would expect the court to begin their deliberations at around six months and work upwards from there when they hear about his inexperience. Anything less than six months will be a result but I would not be surprised to see a ban of up to a year imposed. So the “New Drivers” legislation should not be a worry for him. All he will have to do is worry about where he will get insured and how much it will cost him. Insurers will see, together with his SP50 endorsement, that he also received a lengthy ban and will put two and two together (to come up with £££££s). He was indeed lucky not to have been caught camera and not by a patrol. If it had been a stop he may well be facing a careless (or more probably dangerous) driving charge. As it is, it is unusual to see such charges follow a camera catchment. If he fails to return the S172 request for driver’s details he will receive six points (which will see his licence revoked). That endorsement (MS90) for a young driver is probably a bigger killer insurance wise than speeding endorsements. The thinking behind that is that insurers wonder what the offender may have done that caused him to fail to name the driver. In this case their general suspicions would be well founded. The maximum fine for the offence is £2,500. However the guidance suggests a fine of a week’s net income. That incorporates his one third discount for a guilty plea. I would not be surprised if the court increases that in view of the seriousness of the offence. He will also pay a “Victim Surcharge” of 10% of the fine (minimum £34) and £85 costs.
  14. Agree with Manxman. The NIP has to show "...the nature of the alleged offence and the time and place where it is alleged to have been committed." As Manxman points out, the basis of the NIP is to provide you with sufficient information so as you are not disadvantaged. If you want to defend the matter on the basis that the NIP did not meet the requirements (of S1 of the Road Traffic Offenders' Act) you will have to have the matter heard in court. You will be required to give evidence and so be liable to cross examination. You will be questioned on the disadvantage you suggest the error caused you. You are unlikely to convince the court that the NIP was deficient enough to provide a defence (especially as you know exactly where the offence occurred) and failure will cost you the thick end of £1,000. You should be offered a course for that speed provided you have not done one for an offence which occurred in the three years prior to this one.
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