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court case for refusing to give details - Cardiff speeding PCN

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Hey everyone, not sure if this is the correct place to post but will give it a try.

 

My Mum and Dad run a family business that I also work at,

in September we were working in Blackpool for a couple of days.

A few weeks later we received a speeding fine through the post from Cardiff central ticket office. No photo was attached just the notice form.

 

My Mum replied saying yes that was our van reg ect but we wanted to see the photo just to make sure it was us and to identify who as driving at the time (me or my farther)

 

We received a reply saying we must provide details of the two possible drivers but still no photo.

 

My Mum replied with the details of the drivers but stated again without a photo we could not confirm who was driving.

 

Then we received a letter saying we had failed to provide details of the driver and the matter may go to court.

 

My Mum sent a message again saying who the two possible drivers were and to send the photo and we can easily confirm the driver.

 

We heard nothing more until a court notice come through in December with the photo attached.

 

Rang the central ticket office tried to explain what had gone on

, but said we should just fill out the court form the court has to deal with it.

 

She said just to put what has happened on the sheet and they will see its a mistake and will return to the ticket office.

 

Now my Mum hasn't kept any of the correspondence with the ticket office as she didn't believe she has done anything wrong,

 

we received a letter from the courts at Cardiff saying we must attend a hearing there on February.

 

Now my questions are

Do we have to travel to Cardiff just for the hearing

or can we have it changed to our local court.

 

Any one got any ideas how we can defend this as they genuinely didn't send a photo until we received the court papers

 

I sent a sar from the library to the central ticket office to just get the info they hold on my Dad hoping for copies of the letters my Mum sent,

they have refused saying we need to prove identification but my dad did sign the form

Thanks in advance for any help

Jay

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you go to Cardiff unless there is a compelling reason to have the matter transferred such a locla court better able to cope with a disability for example.

So, are you beimg prosecuted for failing to say who was driving at the time or for the speeding offence? If the former some evedentail paper trail will be needed and then you might get the matter dismissed and just the driver prosecuted for the driving offence, which can be pleaded guilty by post to save a journey.

If someone had taken this by the horns they would have propbably just got a speed awareness course rather than a couple of convictions unless they have been there before .

as for SAR, you cant get other peoples data so you dad will have had to sign it and send it to get his personal data, you cant.

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Thanks for the reply ericsbrother,

bummer so its a day off work and go there then. They are prosecuting for saying we wouldn't supply name of the driver, but without the photo we were unable to do so as we were up and down the road several times that day.

I wish my mother had kept the receipt for posting mate, because I agree we are going to need a paper trial. I thought after our statement it would be dismissed as well with them not providing the photo. We do have there correspondence tho from there side that will show we were in communication.

I just printed the sar off for him, he signed it sent a cheque with his business name on and signed for it, but they are saying he needs to supply his driving license and utility bill.

 

do we have to supply further evidence as in a witness statement closer to the time or do we just turn up at court with the letters?

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If whoever was sent the form did not identify the actual driver, they will be guilty of the offence - s.172 (3), Road Traffic Act 1988. To be found not guilty they would need to convince the court that they used 'reasonable diligence' and were still unable to identify the driver - s.172 (4) of the same act.

 

They would not be entitled to any evidence of the offence at that stage, but some forces may only send a photograph if it is requested 'to help identify the driver'.

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Yeah raykay we asked for the photo to identify the driver, we gave the info of who the possible ones were but needed the picture as we weren't sure which one it was.

If whoever was sent the form did not identify the actual driver, they will be guilty of the offence - s.172 (3), Road Traffic Act 1988. To be found not guilty they would need to convince the court that they used 'reasonable diligence' and were still unable to identify the driver - s.172 (4) of the same act.

 

They would not be entitled to any evidence of the offence at that stage, but some forces may only send a photograph if it is requested 'to help identify the driver'.

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Yeah raykay we asked for the photo to identify the driver, we gave the info of who the possible ones were but needed the picture as we weren't sure which one it was.

 

 

 

Some forces do not supply the photo, or reply saying that the photo would not help to identify the driver. The photos are only taken to identify the vehicle (some photos don't show the driver), it is the responsibility of the person receiving the s.172 requirement to establish and nominate who the driver was at the time.

Unfortunately giving the information about possible drivers does not comply with that requirement.

They would be expected to show what reasonable diligence they used, other enquiries etc., to establish who the driver was - not just asking for the photo.

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I think the latest thing is that you have to identify any or all possible drivers of a vehicle and decide amongst yourselves who was driving at the time...or the main driver gets the fine/points... a bit like when you were at school and the whole class got detention if the miscreant failed to admit the 'crime'... TB

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Thanks for the reply, we need to show we did even more than I mentioned.

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IMHO, I think you are being disruptive. I know every journey I have ever driven. Are you telling me, two grown men can't decide who was driving on that day?

 

Playing silly buggers won't help you.

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Did the paperwork not state the time of the offence ? You should be able to work out who was driving at that time.

 

And if you really can't remember, just decide between you who should take the hit. One of you might be eligible for a speed awareness course, hint hint.

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Did the paperwork not state the time of the offence ? You should be able to work out who was driving at that time.

 

And if you really can't remember, just decide between you who should take the hit. One of you might be eligible for a speed awareness course, hint hint.

 

And as a Tory MP found out, DON'T LIE!

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IMHO, I think you are being disruptive. I know every journey I have ever driven. Are you telling me, two grown men can't decide who was driving on that day?

 

Playing silly buggers won't help you.

 

Have you ever run a small company before ? If you have, you will realise that we have a little more to worry about than who was driving at that particular time. The notice come 4 weeks down the line and we travel a average of 50,000 miles a year. We traveled 300 miles round trip to get there and another 50 back and forth to the suppliers and drove by the said camera at least 5 times each. We have health and safety, cosh, quality of work and customer service to worry about not who was driving at that exact time. Can you remember what you had for dinner at work 4 weeks ago?

 

We wanted the photo because I was once charged for the dart charges with a car that clearly wasn't mine so I will never pay anything without it been proved first. So if you want to dismount that high perch and give a little constructive critasism rather than make assumptions it will be appreciated

Jay

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Have you ever run a small company before ? If you have, you will realise that we have a little more to worry about than who was driving at that particular time...

As you are operating a vehicle commercially, you have a legal responsibility to know exactly who is behind the wheel of each of your vehicles at ALL times.

 

... back and forth to the suppliers and drove by the said camera at least 5 times each...
So you have delivery/collection notes/reciepts with times on them that you can match up to the PCN time ?

 

Can you remember what you had for dinner at work 4 weeks ago?
If I had a legal responsibility to keep records of my daily food intake, you bet I could!

 

It sounds like you dont keep proper records, like daily vehicle inspection sheets or vehicle handover records for when you change driver or licence check records. There is a reason why these kinds of records are important.

Just pray you don't get stopped by DVSA, they will take a dim view of a commercial operator not keeping proper records.

 

This IS constructive criticism. Hindsight is always 20/20, but that won't help you if your vehicle goes off road and injures someone, or worse, and you can't show the correct records to the DVSA/HSE/Police.

 

But back to your problem: even if you can't work out who was driving, someone will have to admit to it.

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We wanted the photo because I was once charged for the dart charges with a car that clearly wasn't mine so I will never pay anything without it been proved first.

Jay

The initial stage is the service of the s.172 requirement and responsibility to identify the driver - there is nothing to prove at that point.

Once the driver has been identified, that is when the matter of the underlying offence is dealt with. The driver is not entitled to any proof or evidence until a court hearing and a not guilty pleas is made, It is only then that the driver is entitled to the evidence or proof that the prosecution will be relying on.

 

If, as in your case, the driver is not identified, whoever was served with the s.172 requirement would need to satisfy the court that they could not, with reasonable diligence, identify the driver. Which would include all the enqiries etc. made in attempts to identify the driver, not just relying on asking for a photo.

 

Without the identication of the driver, the underlying offence cannot be dealt with, only the s.172 offence of failing to nominate the driver.

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As you are operating a vehicle commercially, you have a legal responsibility to know exactly who is behind the wheel of each of your vehicles at ALL times.

 

So you have delivery/collection notes/reciepts with times on them that you can match up to the PCN time ?

 

If I had a legal responsibility to keep records of my daily food intake, you bet I could!

 

It sounds like you dont keep proper records, like daily vehicle inspection sheets or vehicle handover records for when you change driver or licence check records. There is a reason why these kinds of records are important.

Just pray you don't get stopped by DVSA, they will take a dim view of a commercial operator not keeping proper records.

 

This IS constructive criticism. Hindsight is always 20/20, but that won't help you if your vehicle goes off road and injures someone, or worse, and you can't show the correct records to the DVSA/HSE/Police.

 

But back to your problem: even if you can't work out who was driving, someone will have to admit to it.

 

I'm not going to get into a tit for tat argument as it has no benefit to the case at all. What we do no is that it is impossible to no who is driving a vehicle at every minute of every day with it all logged. We drive a lgv Nissan van with no tacho therefore the paperwork to do such a task is simple unfeaseable hence why I asked if you have ever run a small company.

Now on the argument of legality we simple shouldn't of been speeding but like I said I don't live in a perfect world.

Now on the receipt side, yeah I actually can get the receipts if you think that would help us?

I a also requested the photo because we simply could of identified the driver from the cargo been carried. Once we got the picture we identified it to be my father, he would of simple done the speed awareness course and job done. We were just simply trying to make the task easier for us and not risk illegally naming the wrong driver.

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You just need to remember not to stand up in court, as a commercial vehicle operator, and say that you don't know and don't have a record of who was driving. That's a no-no. It's acceptable for a private individual in their own vehicle, but not a commercial vehicle operator.

 

I asked about the receipts so you could match up the times with the PCN and find out if anyone remembers carrying certain cargo.

 

The photo only helps you, not the police, so don't expect any help from them. They don't care about making it easier for you, only convicting someone of something, whether it's the original speeding or the S172 offence.

 

Yes, someone who might have been driving and would be eligible for a lesser penalty should have copped for it originally, as long it wasn't a blatant lie and they genuinely think they might have been driving at the time.

 

And for the record, I am responsible for 28 vehicles at work; 1 car, 1 tacho'd HGV and 26x 3.5 ton vans so I know about the importance and the burden of correct record keeping, but one day it might keep you out of jail. I get on average 6 PCN's and 1 NIP each month and can deal with each one in less than 5 mins.

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Crappoman can you please point me to some info of the legal responsibility we have with the van been under 3.5 tonne. I've been looking and can't find nothing only for over 3.5 tonne. We have been stopped a few times and never had to produce any driver times or such so we don't ever log it, but maybe we should start. Its a Nissan nv200 van and we are electricians.

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There isn't a list of things you need to do, it varies between companies, but think what information would the HSE/DVSA/Police want in the event one of your vehicles caused an injury/death. You need to show that you are managing any risks, not just with your vehicles but with your drivers and your cargo too.

 

There is some stuff to read,

Driving at work - http://www.hse.gov.uk/pubns/indg382.pdf

Corporate Manslaughter and Corporate Homicide Act 2007 - http://www.legislation.gov.uk/ukpga/2007/19/contents.

Health and Safety at Work Act 1974 - http://www.legislation.gov.uk/ukpga/1974/37/contents

 

Your vehicles are Nissan NV200's, which have an unladen weight of just under 1300kg.

Do you pull trailers ? Maybe generators ?

If so, would they take your combined unladen weight over 1525kg ? Is the trailer over 1020kg ?

If yes to both, you need an operators 'O' licence, and some expert advice and training.

 

Do you licence check your drivers annually ? If they have points do you check them more regularly ? say 6pts - check every 6months, 9pts+ check every 3months. It might sound like overkill, but if they get disqualified and don't tell you, how will you know ? You may still not find out for 3months, but at least you are taking reasonable measures to find out. You will need to use the D796 form to get authority to do the checks.

 

Do you have colour copies of their licence, print outs of the dvla licence check page, category entitlements and points ? A risk assessment for the type of work/driving they do ?

 

Have a lever arch file with all your drivers info in it and if the worst happens you can just hand it over to the authorities.

 

As for your vehicles, have a lever arch file for each vehicle with copies of legal documents (V5, tax, mot), garage repair sheets, daily walkround check sheets, and the folder can be handed over if needed.

 

You must ensure your vehicle is safe to drive before setting off on a journey. You should carry out a walkaround check of the vehicle every day. If something happens, the sheet will show that the driver checked the vehicle before they set off that day and any defects can be put on the sheet for you to rectify.

 

It's all about having the information to hand if the worst happens. Saying 'I don't know' won't be accepted. It's like insurance, if you get to the point of needing it without already having it, it's too late.

 

There have been some court cases over vehicle safety issues, with some lengthy sentences:

http://www.cps.gov.uk/news/latest_news/lansdown_lane_-_men_convicted_of_unlawful_killings/

http://www.cps.gov.uk/news/latest_news/crane_hire_company_is_sentenced_for_corporate_manslaughter/

https://sm.britsafe.org/companies-ordered-pay-%C2%A3794658-over-runaway-lorry-death

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