Notice of intended prosecution

[dazer]

Hello - I have received one of these in regard to an alleged traffic accident. I was not the driver at the time, so i will have to identify who was. my question is this - in part 1 of the form i have to insert my name, address, DOB and occupation - does anyone know how much of that info i am obliged to give? Why should i disclose my occupation - I am not the alleged offender.

 

thanks

[dazer]

This NIP says that under s.112 of the Road Traffic Regulation Act 1984, i am required to identify the driver within 7 days of service of the NIP. However looking at section 112, there is no such time limit. Reading around the forums, it seems that 28 days is often cited as the relevant response period. Has anyone come across this 7 day period in a NIP, and might it invalidate the NIP if what is stated in the NIP is wrong?

 

thanks

[patdavies]

The 28 day time period is from s.172 of the Road Traffic Act 1988. It does not apply to s.112 of the RTRA 1984.

 

What is the alleged offence? From whom has the NIP be sent?

 

For a traffic accident, I would have expected the information to be required by the Police under s.172.

[lamma]

I agree. we need more information. The issues are not yet clear.

[dazer]

The alleged offences are careless driving, leaving the scene of an accident and failing to report an accident. my wife was using the car at the time and she says she cannot recall being involved in, causing or witnessing an accidnet. So we are mystified at present. The NIP comes from the local police force.

[lamma]

was she driving the car in that location on that day and at that time (on the NIP) ?

[dazer]

She was either driving it or had it parked up - so she was definitely in the area at the time - but she says nothing happened as far as she is aware - nothing at all.

[patdavies]

Sorry, I need to do some investigating as to whether those offences come within the ambit of s.112.

 

I will try and get back to you tomorrow.

[dazer]

Having had a quick look at the Road Traffic Regulation Act 1984, there is no obvious reference I can find to the charges mentioned in the NIP (indeed in the NIP those charges refer to various sections of the Road Traffic Act 1988). Section 112 begins "This section applies to any offence under any of the foregoing provisions of this Act...".

 

If their initial request for the identity of the driver should have been made under s 172 RTA, can this be used to defeat the charge (if one is brought) - or can I use this argument now to stop the process in its tracks.

 

thanks

[patdavies]

Offences extant within the RTRA 1984 are those related to non-compliance with road traffic regulation (ie TROs, non-decriminalised parking, etc.)

 

The alleged offences in this case are both within the RTA 1988. Careless driving (s.3) and failing to stop and/or report (s.170).

 

Therefore, any demand for information relating to these offences requires that s.172 of the RTA 1988 be used.

 

RTRA 1984 s.112 (10 is as follows:

112. Information as to identity of driver or rider.

— (1) This section applies to any offence under any of the foregoing provisions of this Act except— (a) sections 43, 52, 88(7), 104, 105 and 108;

 

(b) the provisions of subsection (2) or (3) of section 108 as modified by subsections (2) and (3) of section 109; and

 

© section [F461 35A(5)] in its application to England and Wales

 

None of the offences alleged in the NIP is "any offence under any of the foregoing provisions of the Act"; thus a s.112 request for information is not valid.

 

I would write back to them in a week or so, via special delivery, as follows:

Dear Sir,

 

You NIP ref. NNNNNNNN

 

I have recently received the above reference NIP from yourselves alleging offences of careless driving and failing to stop and failing to report an accident.

 

As these offences are not within the ambit of the RTRA 1984, an s.112 request under that Act cannot be valid. The alleged offences fall under the RTA 1988 and thus any request for information regarding the driver should have been made under s.172 of that Act.

 

Please note that I am not trying to avoid my legal duty to provide such information when properly and lawfully requested, but I am sure that you will agree that the current request under s.112 of the RTRA 1984 is not such a request as there is no allegation of any offence within the RTRA 1984.

 

I would also question your authority in requiring information within 7 days. I am aware that statute allows 28 days for a response to a postal s.172 RTA 1988 request, but I can discover no statutory authority for any time scale to apply to a postal s.112 RTRA 1984 request.

 

Yours faithfully,

 

Dazer

 

When they correct the situation and send a NIP and s.172 request, then you can complete this with impunity as for a prosecution to be successful, such a NIP must be served within 14 days of the alleged offence

Edited June 26, 2009 by patdavies

[dazer]

Thanks alot for that. The 7 day period expired earlier in the week and before it did I returned the completed NIP.

 

Your research though I think might allow me now to say that their section 112 request for driver id was invalid (for the reasons you give in your message) so the evidence of driver id was obtained improperly. Do you know what the consequences of that are - are they out of time for re-issuing a new request for driver id (alleged offence date is 11 June). What is the best way to use their mistake against them? Maybe if it goes to court - we use it then - but I would prefer to use it now if that will make the matter go away.

 

thanks

[patdavies]

Thanks alot for that. The 7 day period expired earlier in the week and before it did I returned the completed NIP.

 

Your research though I think might allow me now to say that their section 112 request for driver id was invalid (for the reasons you give in your message) so the evidence of driver id was obtained improperly. Do you know what the consequences of that are - are they out of time for re-issuing a new request for driver id (alleged offence date is 11 June). What is the best way to use their mistake against them? Maybe if it goes to court - we use it then - but I would prefer to use it now if that will make the matter go away.

 

thanks

 

It doesn't affect you now, if they wish to prosecute, your wife will get her own NIP.

 

Your signed statement (s.172) is an allegation; only her own signed s.172 is evidence.

 

When she gets hers, she can use the letter suggested.

 

It might also be worth posting on Pepipoo and see what the experts there think.

[dazer]

Thanks. My wife got her NIP today - she has just opened it. It refers to the same 3 RTA 1988 alleged offences and requires her to respond within 7 days under s112 of the RTRA 1984. So we will use your draft letter and see what happens.

 

Yes I have asked the question on Pepipoo.

 

thanks

[dazer]

I am told that s.1 of the Road Traffic Offenders Act (the bit that imposes the 14 day period for the NIP) does not apply in the case of accidents. However on the net there are numerous references to the 14 days continuing to apply if the alleged offender was not aware an accident had occurred - as in my case. Does anyone know if this is correct?

 

thanks

[dazer]

I think I have the answer -

 

"There is an exemption (for the prosecution to serve a NIP) under section 2 (1) of the RTOA if an accident occurred as a result of the presence of the vehicle either at the time or immediately afterwards. The NIP would not be required for even the most minor accidents which did not involve a third party, but a NIP is required if the D is unaware of an accident taking place (Metropolitan Police v Scarlett [1978] Crim LR 234 and Bentley v Dickinson [1983] RTR 356. These cases are now restricted to cases of minor accidents which could have been missed, as opposed to serious accidents which could not have been missed but for post-traumatic amnesia. The rationale is simple – if you are unaware of an accident at the time you would be unable to check the area and gather evidence; the same could not be said of a major RTA. The idea is to save the police having to serve NIPs in a multiple RTA – they have enough to worry about."

 

So I will write to the police saying the original s112 notice to the registered keeper, as well as the NIP my wife has now received which also refers to s112, are both ineffective as the offences alleged are ones under the RTA not the RTRA so they should serve a s172 notice. If they admit the error but argue no prejudice was suffered, i will say under 112 they are demanding replies in 7 days, when under 172 we should have 28 days.

 

Also the NIP description of the offences is so vague as to be useless. It states a time and place, but what is the nature of the accident - in a case like ours where we are not aware of any accident the NIP should in my view have more detail as the purpose of the NIP is to alert us to a specific incident so we can gather evidence whilst it is fresh in our minds.

 

thanks

[dazer]

Update - we replied to the NIP sent to my wife and enclosed a short statement saying she is not aware of any accident. Police replied saying there was a witness to the alleged accident and that my point about the effectiveness or otherwise of their s112 notice had been referred to their legal dept (presumably the CPS). The next day they sent another letter saying they intend to take no further action. My wife was never asked for interview or even to produce any driving documents.

 

Now I have the insurance side of it all to deal with as the owner of the other car wants to talk before reporting to insurers. I have posted on the insurance forum about this aspect.

 

Thanks for all comments on this thread.