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Man in the middle

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Everything posted by Man in the middle

  1. I shouldn't imagine they did that. They simply processed the case in the normal way. The people in the ticket office are not "decision makers" in the way you asked them to be. They have a fairly rigid process which they usually stick to. In the case of a transgression in a 30mph limit, their process is: Under 35mph - No Action 35-42mph - Offer a course. 43-49mph - Offer a Fixed Penalty (£100 and three points) 50mph and above - court action. What you were asking them to do is to consider a challenge to the evidence they have which verifies the speed. They will normally only do this in the event of a plate mis-read. Other than that, as far as they are concerned, the evidence they have is reliable enough for court action and if you want to challenge its reliability then court is the only place to do so. If your relative had ignored the offer a course a fixed penalty would have been offered (provided there was still time to prosecute in the event of the offer not being taken up). If that offer was ignored then court action would be taken.
  2. Then that's largely that. As I said, stuff happens. All you can do is let your insurers deal with the matter.
  3. You can report this type of incident on line and get a crime reference without having to speak to anybody. All you need to do is that and, of course, report it to your insurers. You don't really need to give yourself all this grief by trying to obtain the CCTV (which may not help you anyway). If anybody legally needs it they will make an application for it.
  4. Just out of interest, what would you have done if you had been provided with the CCTV footage as soon as you asked for it?
  5. Time for The Godmother to go seek advice elsewhere, methinks (perhaps a solicitor at £150 per hour rather than someone who is giving their time for free). I'll try (but I doubt I'll be well received): The sort of problem you face is notoriously difficult to solve. Quite honestly the widespread use of CCTV in this country is a waste of time in many instances. As you have seen, it is virtually impossible to gain access to it and if you are lucky enough to find someone who agrees to provide it, by the time you do so it will have been overwritten. I think you will have to suck this one up. For future reference, if anything similar happens again: 1. Report it to the police. 2. Report it to your insurers (as you are almost certainly obliged to anyway). The police won't do anything but you'll need to do so for when you do (2). Let your insurers sort it out - it's what you pay your premiums for. Stuff happens, I'm afraid, and sometimes the perpetrator cannot be brought to book.
  6. Yes, unclebulgaria has raised a good point which I neglected to mention. Your policy will almost certainly include a condition which places an obligation on you to inform your insurers of any accidents/incidents etc. You need to tell them about this.
  7. This is not quite so straightforward. Section 154 of the RTA says this: 154 Duty to give information as to insurance where claim made. (1)A person against whom a claim is made in respect of any such liability as is required to be covered by a policy of insurance under section 145 of this Act must, on demand by or on behalf of the person making the claim— (a)state whether or not, in respect of that liability— (i)he was insured by a policy having effect for the purposes of this Part of this Act, or (ii)he would have been so insured if the insurer had not avoided or cancelled the policy, and] (b)if he was or would have been so insured — (i)give such particulars with respect to that policy as were specified in any certificate of insurance delivered in respect of that policy under section 147 of this Act, or (ii)where no such certificate was delivered under that section, give the following particulars, that is to say, the registration mark or other identifying particulars of the vehicle concerned, the number or other identifying particulars of the insurance policy issued in respect of the vehicle, the name of the insurer and the period of the insurance cover. (2)If without reasonable excuse, a person fails to comply with the provisions of subsection (1) above, or wilfully makes a false statement in reply to any such demand as is referred to in that subsection, he is guilty of an offence. Of course the issue is that this section applies "where a claim is made." A claim may be made, but not successfully, but nonetheless a claim may still be made. As well as that, some insurers have agreements where, although one party may be liable, each insurer pays for repairs to their own policyholder's vehicle. Apart from possibly facing prosecution for an offence under s154 (which is very unlikely), it scarcely makes any difference. The Third Party's insurers can easily find out the details of your insurance if they have your vehicle details.
  8. For misusing a Freedom Pass TfL very rarely settle out of court and I think your friend can look forward to prosecution. The "extenuating circumstances" you mention are nothing of the sort. Such circumstances or mitigation should be used to lessen the seriousness of the offence or provide some explanation as to why it was committed. Being a carer or a breadwinner does neither. I would not trouble providing evidence of those facts as it will not make the slightest difference to the outcome. Depending on the circumstances the holder of the Freedom Pass may also be contacted by TfL (and possibly see action) because lending it somebody else is in breach of its terms and conditions. Before doing anything your friend should wait for TfL to make further contact because at present he or she does not know what the allegation is. Just as an aside: I don't have any friends who have been caught doing this.
  9. Hi BadLad Yes, a prosecutor will be present. It's worth a shot as asking for discontinuation - nothing to lose. If the prosecutor has done his/her job properly the evidence should have been reviewed by then. You can take Mrs BadLad to your CM hearing. She may not see it as much of a day out as there will probably be lots of hanging around. She can observe from the public gallery. I would certainly let the prosecutor know, at the earliest opportunity, that she is prepared to give evidence that she was driving. Before she can do so she will be asked to provide a statement to that effect, hence the reason I suggested she has one prepared. She cannot be prosecuted for speeding as the offence is now time expired. They had the opportunity to prosecute her when they received your response to the s172 notice but - for reasons that seem known only to them - they chose not to. In the event that she is asked to give "live" evidence on the trial day she will have to remain outside the courtroom until she is called in. I really cannot see, from the evidence you have been served with, just how the prosecution will handle this. If all they have is the two photos you have posted (and if they have anything else they must disclose it to you) I cannot see any court agreeing that they show (at all, let alone "beyond reasonable doubt") that somebody other than your wife was driving. Let me know if you need any other help but do keep us posted as I'm absolutely intrigued!
  10. No that’s not correct. Almost all trials in the Magistrates’ Court undergo a “Case Management” (CM) hearing. It is a similar process to the “plea and directions” hearing in the Crown Court. The idea of it is to prepare the case for trial. You will be asked to indicate the basis of your plea (i.e. why you deny the charge). Also to be determined is what the “issues” in dispute are – what is agreed and what is not agreed. Any witnesses required to attend are also identified and their availability checked.. A trial date will also be fixed and the general idea is that the trial can proceed with no problems on the appointed day. The basis of your NG plea is that you responded to the s172 request, identifying the person who was driving, within the time allowed. There seems no dispute about this and the witness statement you have been served with confirms it. You don't dispute any of this. The only issue is that the ticket office believes you have nominated somebody other than the driver and, that being the case, it falls to them to prove it “beyond reasonable doubt.” It is important to realise that the CM hearing will not be judging or assessing the evidence or anything else to do with reaching a verdict. So, unless the prosecutor sees that the evidence is somewhat unconvincing and decides to fold, it will proceed to trial. I would get your wife to write a statement confirming she was the driver and have this available at the hearing. You cannot “ambush” the prosecution with it on the trial day as they should have the opportunity to see her attend court if they wish so that they can cross-examine her. Personally I don’t believe it will be necessary because if the photos you have posted is all they have got they cannot possibly make out their case. You would be entitled, after they have presented it, to submit that there is “no case to answer” (as I mentioned earlier). Yes. In the event you are acquitted you can ask the court to award reasonable costs that you have incurred. The court is unlikely to be critical of the police but if they are they will not order punitive damages. As far as I am aware they have no powers to do so. You should be prepared for a long haul with this. Your trial date is not likely to be much before the end of the year but that is not all there is to it. Magistrates’ Courts “double book” trials as a matter of routine as they frequently fail to go ahead as expected. Your trial will be lower priority at the first attempt and if the other booked trial is ready it will take precedence.
  11. Hi Badlad This will not be concluded at the first hearing (unless you plead guilty ) I'm out this morning so will respond fully to the other points you raised a little later. MitM
  12. Right. Sorry, I got the impression from the timescales that you were awaiting trial. As I said, your statement showing contrition will deal with the latest offence, but it will not reduce the points awarded to fewer than three, which is the statutory minimum. Your description of the incident places it at the lower end of seriousness anyway and it is unlikely you would be awarded more than three points in any event. But the number of points is not really a concern as three will see you as a "totter." You can only argue "Exceptional Hardship" if you attend court. That said, being unable to drive to your Mother's care home is unlikely to cut the mustard. Even if you dress it up a bit, and explain why alternative means of travelling are not possible, it would still be a stretch. If there is no other way a ban will affect you or others, I cannot see your argument succeeding. However, it will cost you nothing to try, except overcoming the trauma you say it will present. Whilst being formal courts of law, Magistrates' Courts are far less imposing than Crown Courts. There are no wigs and gowns and Magistrates are "lay" people, not legally qualified. You should bear in mind that if you do not attend you should not drive until you learn the outcome of your case as any ban begins immediately it is announced. Because of this, Courts are generally loathe to disqualify drivers in their absence and they may, when discovering you are a "totter", adjourn once again to give you an opportunity to attend.
  13. I forgot to add that you can ask the court's permission to have a "McKenzie Friend" sit beside you in court. This can be anybody you choose and your request will almost certainly be granted. Your McKenzie friend can talk to you, and you to him (except when you are giving evidence) but he has no right to address the court. It may help a little with your stress problem. McKenzie Friends: how they can help in court if you cannot afford a solicitor WWW.LEGALCHOICES.ORG.UK Going to court can be a stressful experience. It can be made easier by using a regulated lawyer such as a solicitor. But not everyone can hire a lawyer. Sometimes, the only option might be to represent yourself in court. If you...
  14. You can only do that if you wish to plead guilty. If you want to defend the matter you must appear (or send a legal representative and that may not be acceptable if the prosecution wants to cross-examine you). It seems from what you've said that you've entered and maintained a Not Guilty plea (or it would have been done and dusted long before now). If you want to change your plea you must contact the court before next Monday. However, that only deals with the current case. If you want to present an "exceptional hardship" argument when you face a totting up ban you must appear and give evidence (as you can see from the Magistrates' guidance I provided in my earlier answer). The prosecutor (and possibly the Magistrates) will probably want to question you about your argument. What sort of "exceptional" hardship will you or others face if you are banned?
  15. It doesn't quite work like that. The police may suspect you have committed an offence and may offer you an out of court disposal to deal with it. But if you deny the offence you have a right to see the matter dealt with by a court. The definition of "careless driving" is that which "falls below the standard expected of a competent and careful driver." Competent and careful drivers do not pass too closely to cyclists and if you made a mistake and did so, it fits the definition. The offence is often highly subjective, and one person viewing the evidence may find carelessness, another may not. The police will produce the evidence which they say demonstrates carelessness, you will have to convince the court otherwise. A couple of things to remember if it does go against you: You will face an income related fine but the crippler will be prosecution costs which usually start at £620. You will also receive a minimum of three points. It is the dates of the offences which are considered for "totting up" purposes so, from what you say, you will face a totting up ban of six months. The only way to avoid this is to convince the court that you or others will face "Exceptional Hardship" if you are banned. Loss of employment alone is not usually considered "exceptional". The Magistrates' guidance is below: When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following: It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn. Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence; Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive. If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account. Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable; Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.
  16. They have six months from the date of the alleged offence to begin court proceedings. Those proceedings begin with a "written charge" (sent to the court) and a SJPN (sent to you). Since your SJPN was issued on 11th March, that is within six months of the offence. There is no right to a fixed penalty. They are issued entirely at the discretion of the police (though they tend to stick to their guidelines). But whatever the reason for you not being offered one you will not be offered one now. You must be allowed 28 days to accept it (during which time no court proceedings can be taken) and this would take you beyond the 28th April, when prosecution would no longer be possible. It would be useful to establish why no FP was offered so that you can mention it when responding to your SJPN (as I suggested in my earlier post). But you might as well do so asap as delaying beyond 28th April will provide no advantage. As well as that, if the SJPN was dated 11th March there is a possibility that it was delayed reaching you and your case may either have already been heard or about to be so. You could check on that too.
  17. Whatever the reason for the delay, you will not be offered either a course (for which that speed would normally qualify) or a fixed penalty. Normally neither will be offered beyond four months from the date of the offence since insufficient time would remain to prosecute you if you decline the offer. (Court action has to begin within six months). You need to find out why a FP was not offered. In normal circumstances a pending prosecution for a more serious offence should not influence that. When you have established that, and assuming it is down to some sort of administrative error, you can reply to your SJPN and in the "mitigation" section respectfully request that you are sentenced at the FP equivalent. Magistrates have guidance which suggests they should do this: "Where a penalty notice could not be offered or taken up for reasons unconnected with the offence itself, such as administrative difficulties outside the control of the offender, the starting point should be a fine equivalent to the amount of the penalty and no order of costs should be imposed. The offender should not be disadvantaged by the unavailability of the penalty notice in these circumstances." Of course, if the delay was your fault (say because you delayed responding to the s172 request) that guidance would not be appropriate and you could expect to be sentenced in accordance with the normal guidelines (half a week's net income, reduced by a third for a guilty plea, a Victim Surcharge of 10% of the fine (minimum £34), £85 costs and three points). Driving whilst disqualified would not be initiated via the SJ procedure.
  18. There is a chance, albeit slim. Another possibility (which, if anything has gone astray, is far more likely, in my opinion) is that your response was not received. This means you will be prosecuted for "Failing to supply driver's details". This is a more serious offence than speeding. It carries a hefty fine and six points on conviction, together with an endorsement code (MS90) which insurers hate. So you have a choice: (1) Leave it be. There's three possible outcomes from that: (a) your response was received and your case will be processed in the normal way as I described in my first post; (b) your response didn't get there and the result of that will be as I described above; (c) you case has slipped behind a filing cabinet and nothing more will happen. The order I have written those possibilities is in descending order of likelihood in my opinion. That option leaves you still wondering what has happened. (2) Get in touch to find out what's happening. There are the same three possible outcomes from that: (a) your response has been received and will be processed as normal. You have lost nothing; (b) your response was not received and you can tell them you've sent it and hope they accept a late response. If not you face the outcome I described above. c) you case has slipped behind a filing cabinet and your call may prompt them to look for it. The order I have written those possibilities is in descending order of likelihood in my opinion. That option satisfies your curiosity and you need no longer worry. But it means the slim chance you had of seeing no action is lost. There is a way of having a charge of "Failing to provide driver's details" reverted to speeding but it is aggravation and there is a very slim possibility that it may not work Your call!
  19. Phone up the office where you sent your reply and ask them if they've received it. That said, that speed is too fast for a fixed penalty and your case will be dealt with in court. The police have six months from the date of the offence to begin court action and in many areas they take all of that. The next thing you receive will be a Single Justice Procedure Notice and you might not het that until a week or two after the six month deadline.
  20. Actually her husband needs to do an SD! No. You would have been offered a fixed penalty (£100 and three points) for that speed. The normal prosecution process in these circumstances is to lay charges for both offences. However, it is the RK who would be charged with both. If the RK was also the driver there is a time honoured way to do a “deal” with the prosecution, where the RK offers to plead guilty to speeding on the condition that the “Fail to Furnish” charge (which led to your husband’s MS90 endorsement) is dropped. However, that is not a possibility in your case as your husband was not driving. The prosecution is very unlikely to do this deal on the basis that you plead guilty to speeding. There are procedural risks with that, not least of which is that a prosecution against you for speeding is now “out of time”. In fact I have never heard of it being done even if the speeding charge was in time..That largely renders the speeding charge a dead duck. Unfortunately your husband is in a very difficult situation. There is a case which reached the High Court (Whiteside vs DPP). Mr Whiteside did not receive his s172 notice to provide the driver’s details because he was out of the country and had made no arrangements to have his mail dealt with. Without burdening you with the details, the High Court found that Mr Whiteside did not have a defence. The police properly “serve” a request by posting it to his last known address. The reason your husband he did not receive his was, of course, down to him. If he performs a SD the conviction will be set aside but the prosecution will simply begin it again. He could, at that stage, attempt to do the deal I outlined above, though, since a prosecution against you would have to be raised beyond the six month limit I rate the chances of success with that as near to zero. He has no viable defence to the s172 offence and my view is that guilty plea would be his only realistic option. The offence attracts a fine of 1.5 week’s net income. Where the court has no details of income they use a default figure of £440pw. The sum of £816 you mention is made up of £660 fine, £66 “Victim Surcharge” and £90 prosecution costs. With a guilty plea your husband will be fined a week’s net income, so If his income is less than £660pw an SD will see him better off. Sorry I have no better news, but this situation where the RK was not driving will inevitably lead to a s172 conviction.
  21. No there is nothing to lose (except the stamp). But you should be aware that such a request does not constitute an "appeal" (either formal or informal). This is not like a parking ticket - it is an allegation of a criminal offence and there is nothing to appeal as no conviction has been recorded. It will be simply a request that the police re-examine their evidence and use their discretion to take no further action. I believe there is no reason for them to do this. They have the speed recorded by an approved device and that's all they need. But as you say, you (or rather your relative) have nothing to lose.
  22. Depending on the conditions of his policy he may find his insurers will refuse cover. Many insurers require being told when a provisional licence holder has passed his test as they see them as a greater risk (as they begin driving unsupervised). They are not able to avoid liability to a third party but may attempt to recover their outlay from your son. As an aside, I don't see how you are involved with this. Is the policy in your son's name?
  23. You are not comparing like with like. Your relative's photographs are typical of any seen taken by similar devices. The photographs are not used to calculate the speed. To do that to within 1mph you would need the elapsed time to two decimal places and you do not have it even to one. If your relative doubts the accuracy of the device he will have to decline the offers of a course or fixed penalty and plead not guilty in court. He will have to show that the device cannot be relied upon and he is most unlikely to do that without expert help. If he fails he will face an income related fine and prosecution costs of at least £620. That figure may be higher if the prosecution has to enlist expert help to counter his claims. He can put his claims to the police when he makes his return but they usually prefer any arguments to be tested in court.
  24. For what purpose? The photographs you have posted demonstrate simply that the vehicle has travelled 5.1m within the same second. It could be in 0.1sec (e.g. 08:55:24.01 to 08:55:24.11) , or it could be in 0.99sec (e.g. 08:55:24.00 to 08:55:24.99). They give no clear indication of the speed of the vehicle because you do not know the time elapsed between the two images and they cannot be relied upon to prove the speed. It is unlikely that any other photographs (if they exist) will be any more conclusive. At 38mph 5.1 metres will be travelled in 0.3 sec (near enough) and that ties in with my understanding of the time a mobile speed camera takes to measure speed (as I mentioned earlier). So it is not surprising that the two images were taken within the same second. There is a 70% chance of that - they would only be taken in different seconds if the first image was taken at more than mm:ss.70 (when the second image would be taken after the clock has ticked over to the following second). Your relative should be aware that he is not entitled to any evidence at this stage. He must respond to the "Section 172" request for driver's details within the 28 days allowed or risk committing a separate offence which carries six points on conviction.
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