£800 fine and 6 points - statutory declaration tomorrow

[Man in the middle]

Something is not quite right (or I may have missed something)

 

The owner of his car (his mum) received the letters regarding naming the driver which my boyfriend filled in and sent back.

 

Firstly, assuming his mum is the Registered Keeper as well as the owner the notice would have been addressed to her. It says in big bold letters at the top "Do not pass this to anybody else to complete" (or words to that effect, it varies slightly by area). Therefore, if the response was not received the "Failure to Provide Driver's Details" matter would be visited on his mum, not your bf. How did they find out his details if they did not receive the reply?

[Man in the middle]

...when I’ve enquiries for more information they say it refers to a second letter that he did not respond to confirm he was the driver

 

Ah, now it's clearer. So Mum received a request for driver's details (known as a "Section 172 Notice" after the section of the Road Traffic Act that provides for it). That notice was responded to (Mum should have completed it, not your bf. Mum is lucky to not face a S172 offence herself, but no matter). The police then sent a second S172 notice to your bf and this is the one to which they received no response. So:

 

...but if he hasn’t have replied to that letter would the issue still not be addressed to his mum?

 

No. once he has been nominated by Mum she has discharged her responsibility under S172 and the responsibility now becomes your boyfriend's. If a response to this second letter was not received it is your bf who will be charged under S172.

 

Now to the solution. When he appears at the Magistrates Court to do his Statutory Declaration (SD) there is no question of it being successful or otherwise. All he is doing is making a declaration that he knew nothing of the court proceedings where he was convicted. His declaration will be confirmed by the Court and when that is done, his conviction is erased as if it never happened. What happens next is up to the prosecutor.

 

In some areas when SDs are made the charges are put to the defendant there and then and he is asked to plead. If that happens and the S172 charge is put to him again he should plead Not Guilty. If both speeding and the S172 offence is put to him he should say that he will plead guilty to speeding providing (and only providing) the S172 charge is dropped. If that is refused he should plead Not Guilty to both charges. If that happens post it on here and I'll tell you how he should proceed.

 

In other areas the SD is simply accepted and the prosecution will re-issue proceedings against him at a later date and they may "dual charge" him with both speeding and S172. Once again, if that happens post it here. The important point (in either scenario) is that he should not, under any circumstances, plead guilty to speeding without an assurance that the S172 charge will be dropped. They have no evidence that he was driving, so cannot convict him of speeding. If he pleads guilty to it he will get three points for that and the S172 charge will see a further six.

 

This is a common situation and courts are well used to dealing with it. But unless he deals with it as I have said he could end up with nine points.

[Man in the middle]

Would the second s172 notice have related to the second speeding offence?

 

I read it that only one speeding offence is in play at present. If Mum received a S172 notice for the second offence and either she or bf responded to it a second S172 letter would have been sent to bf for that offence. It does not seem that that offence has been actioned. The usual penalty for a S172 conviction heard in the absence of the defendant id £811 (£660 fine, £66 Victim Surcharge and £85 costs).

[Man in the middle]

Is this usual protocol?

 

Yes. It's more usual than not for the matter to be referred back to the original court.

 

What he needs to do now is attend Wirral on 3rd September. Hopefully he will face two charges: speeding and failing to provide driver's details (S172). If that is the case he needs to speak to the prosecutor before the court begins. He should firstly ensure that he faces both offences and if so he should offer to plead guilty to speeding providing the S172 charge is dropped. This is a very common procedure which prosecutors and the courts deal with regularly and it is very rare for such a "deal" to be refused.

 

There may be a complication or two which he should be ready for:

 

Firstly he may not face the speeding charge but just the S172. If so he should ask the prosecutor if he can raise the speeding charge on the day (and then do the deal I outlined above). This may be a little tricky because by 3rd September the speeding matter will be "out of time". Court proceedings have to begin within six months of the offence (so by the appropriate date in August). This is not insurmountable as "out of time" proceedings can be raised with the court's agreement. (The six month provision is primarily designed to protect those accused).

 

Secondly, the prosecutor may either refuse to raise an out-of-time speeding charge or (which would be most unusual) refuse the deal.. If this happens your bf has two choices. He can either plead guilty to the S172 charge. This will see him pay a fine of a week's net income, a surcharge of 10% of the fine and £85 costs. Most importantly he will receive six points and an endorsement code (MS90) that will see a considerable increase in his insurance premiums for up to five years. The alternative is to plead not guilty to the charge (on the basis that he did not receive the request for driver's details). He faces an uphill struggle because notices requesting driver's details are deemed to have been served two working days after posting. The prosecution will provide proof that it was posted and your bf will have to convince the court that it did not arrive (always difficult to prove a negative). He can if he wishes defer the matter to have a think about a possible defence by pleading not guilty. This will see the matter adjourned for a trial (which will be some weeks or even months in the future). He will possibly lose a small amount of discount on his fine if he does this but it will give him breathing space to decide what to do.

[Man in the middle]

This is getting a little complex and (unsurprisingly) you are getting a little confused.

 

Let’s stick to the first allegation only for the moment. Your bf making his Statutory Declaration (SD) has no bearing on the proceedings when they are started again. All the Magistrates are doing when they hear his SD is to witness his undertaking that he knew nothing of the earlier proceedings when he was convicted. They are not accepting or confirming that he was guilty or not guilty of anything, only that he swore before them that he did not know about the proceedings. (Simply being unaware of the proceedings does not make him guilty or innocent of anything). There is no decision for them to make. They cannot refuse to accept his Declaration. The court simply provides confirmation that he has made it in the approved manner.

 

You need to find out what the hearing on Friday is supposed to be about. The only hearings he cannot attend are “Single Justice” (SJ) hearings where a Magistrate sits alone in an office with a Legal Advisor. But SJ hearings do not deal with Not Guilty pleas so you need to establish why there is to be a hearing. It may be what is known as a “Case Management” hearing. If so he is entitled to attend and state the basis of his Not Guilty plea.

 

The deal I spoke of is rarely, if ever declined by the prosecution (provided the issue of an “out-of-time” speeding charge can be resolved). They would far prefer to deal with a guilty plea to speeding (which they cannot achieve without your bf’s co-operation) than run to a trial on S172. But your bf needs to get to a court where his case is being heard to do such a deal. If the worst comes to the worst he has the option of maintaining his Not Guilty plea to S172. At trial he must convince the court that he did not receive the subsequent notice but, as you say, it will be an uphill struggle bearing in mind that now two original notices and the subsequent court notification have been received.

 

The second allegation will have to follow very much the pattern of the first though you say at this stage it is only a “charge” and he has not been convicted in his absence. If that is the case he should attend his first hearing and negotiate the deal.

 

If he is not confident of doing all this successfully (and it will very much mean that he has to keep on top of two lots of proceedings and their hearings) it may be worth discussing this with a solicitor. There isn’t anything particularly complex (for a solicitor) about this but it may cost him a tidy sum if he is to be represented in court. What he must avoid, though, is two S172 convictions. They each carry six points which means he will face a “totting up” ban of six months unless he can show that “Exceptional Hardship” will follow if he is banned. Citizens’ Advice may be able to put you in touch with a solicitor who will provide an initial consultation for a reasonable fee.

But first things first – you need to find out what Friday’s hearing is all about.

[Man in the middle]

It's exactly the same as the first one.

 

Cases are initially heard under the "Single Justice Procedure". This is in effect an "Administrative" court as described. A single Magistrates sits with a legal advisor in an office and deals with matters on paperes alone. Defendants cannot attend. Your b/f's Not Guilty plea will see the matter taken out of that process (the SJ procedure cannot deal with Not Guilty pleas) and referred to a normal court.

 

The difference is that in the first case (if I recall correctly without reading it all through) your b/f was found guilty in his absence. This time he has had the opportunity to enter a plea.

[Man in the middle]

Also would he still be able to be charged with the initial speeding offence even thought it is past the 6 months limit under special circumstances.

Has he not been "dual charged" (i.e. charged with both offences) this time? What does the paperwork say? Could you provide a quick timeline (of just the second offence) starting with the date of the initial speeding offence and going up to the paperwork he has received recently.

[Man in the middle]

Then he needs to attend court as in the first offence and offer to do the same "deal" (plead guilty to speeding only provided the FtF allegation is dropped). Although the speeding allegation has not been charged it can be raised "out of time" with the court's agreement. (The six month rule is primarily to protect defendants so they are usually agreeable to this).

 

That is "Plan A" which should see success as before. If it does not he should maintain a Not Guilty plea to the S172 allegation and the matter will be listed for trial at a later date. He can then consider his position regarding defending that charge.