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Yes pcr1 it's known as the "Hamilton" defence If you say you don't know who was driving at the itme of the alledged offence & the prosection can't ID the driver then that's it no case to answer.

 

Thier can only be a conviction if the court can find "beyond all reasonable doubt" that you where driving. They can't assume that because it was a pool car your guilty. Nor can they find you guilty even if you where lending it out willy nilly (but it better be to drivers who are legal). They might think you where the driver or even that you know who was but they have to prove it suspicion isn't enough

 

There was a recent case where the police officer who had stopped a speeder went on his hols The defendant denied being the driver & when the defence counsel asked for proof of ID they coudn't give it & the case was dismissed

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True they can't prosecute for speeding but as I said they can instead prosecute the registered keeper for failing to furnish.

 

The only defence to this that works is that you could not reasonably have ascertained who was driving using all due diligence.

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Only if you refuse. If you don't know & have someone who can genuinely say that they were in the car at the time of the offence & at some point drove but don't know when then they can't. Case dismissed. They cant force you to say something which you know is untrue.

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  • 3 weeks later...

I have recently recieved a NIP dated 19/07/06 alleged offence date 13.50 on 18/02/06. This was sent to me by my company HR dept the NIP is addressed to the Company Secretary of Bla Bla Bla. To my callculations this is some 5 months ago should i ignore it ?

 

Or should i go down the PACE letter route if so where can i get a sample letter to follow from anyone please help :confused:

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I have recently recieved a NIP dated 19/07/06 alleged offence date 13.50 on 18/02/06. This was sent to me by my company HR dept the NIP is addressed to the Company Secretary of Bla Bla Bla. To my callculations this is some 5 months ago should i ignore it ?

 

Or should i go down the PACE letter route if so where can i get a sample letter to follow from anyone please help :confused:

 

It's completely valid. It only has to be served on the registered keeper within 14 days; after that they have six months to start proceedings. Failing to identify will get you prosecuted for failing to furnish. By all means try the PACE route if you want, but go to PePiPoo for advice on that.

 

You could also try the Hamilton defence but ask again on PePiPoo for this.

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  • 4 weeks later...

I have just got my summons for speeding on the A2 in kent! A mobile unit got the car I was in (company car) doing 62mph in a 50mph zone (road works), I asked for the picture as there were 2 of us in the car at the time and I could not be sure who was driving at the time! they sent the photo, it showed a lovely silver windscreen of the car I was in, no pic of me or my work mate, just a lovely shiny silver windscreen! the picture of the car was clear enough but due to the suns angle, no picture of the driver!

I sent the police a letter to the above affect and recived a letter back saying that "the case is being returned to the prosicuting officer to deal with"

In british law it clearly states "beyond resonable doubt!"

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Similar has happened to a number of our End-Of-Lease Collection Drivers. (Photographic Evidence not clear as to who is driver.)

 

In 3 cases I am aware of this was dropped outside of court.

 

In each case the suspected driver of the vehicle had responded with similar to: "I cannot be certain as to who was driving this company car, as various colleagues drive vehicles throughout the day."

 

In one particular case the driver and his colleague both said it could have been them, even attached a letter to that effect by the other potential driver !

 

All of these cases were dropped without proceeding to court. (They had all been summonsed on "Failure to Disclose".)

 

Now as far as I'm aware the CPS could press forward with a case against the owner of the vehicle - the leasing company in this case - although they haven't as yet. I'm sure they will do eventually. Then that could result in repercussions at work, or they could press forward with a non-disclosure case against the recorded driver. (The company must maintain records as to who is supposed to be driving.) Again they haven't done so yet.

Prelim Letter Sent 12th June 06

LBA Hand Delivered 23rd June 06 - Standard Responses.

Owed £2193.80

Court Questionnaire Completed.

S.C.& M AQ Received..........19th Sept 06

 

Pending Court Date

 

This is MY MONEY - I want it back !

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In british law it clearly states "beyond resonable doubt!"

 

However, whatever doubt may exist may be negated by the negative inferences that may be drawn from not speaking up. Sadly we can now be punished for exercising our right to silence (despite this being a clear breach of Article 11(a) of the UDHR and Article 6 of the ECHR - you can hardly be tried fairly if inferences can be drawn other than from the facts in evidence).

HSBCLloyds TSBcontractual interestNew Tax Creditscoming for you?NTL/Virgin Media

 

Never give in ... Never yield to force; never yield to the apparently overwhelming might of the enemy. Churchill, 1941

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  • 2 weeks later...

Anyone getting caught by a speed camera should go to the Motorcycle News site. MCN: The UK's number 1 motorcycling magazine then click on Advice and Tips there is a template letter for replying to a NIP. I believe I am correct in saying it was written by a solicitor. MCN have been running a campaign against speed cameras, laser guns etc. for several months.

Hope this helps not had to use it myself - yet but best of luck to all of you who have been caught.

 

Dave44

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Right for some reason it won't let me change it but the above address will take you there. Having arrived click on MCN extra then on new page go to Advice and Tips.

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It seems that the forum software automatically grabs the titles of linked pages. Not sure why, as it's additional overhead to server processing, and you usually want your server to be doing less, not more. It doesn't really help with search engines either.

HSBCLloyds TSBcontractual interestNew Tax Creditscoming for you?NTL/Virgin Media

 

Never give in ... Never yield to force; never yield to the apparently overwhelming might of the enemy. Churchill, 1941

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The Notice Before Prosecution (NIP) is being challenged in the European Court as requiring the motorist to incriminate themselves by demanding, under threat of fine &/or points, they name the driver.

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  • 2 weeks later...

The case being referred to here is O'Halloran and Francis v UK and was scheduled to be heard on Wednesday 27th September 2006. As far as I am aware, it went ahead as planned.

 

These two applications challenge the Convention compatibility of the obligation on a car owner to disclose the identity of the driver. The applicants were the owners of cars caught exceeding the speed limit. They received a notice of intention to prosecute the driver and were asked to provide the name and address of the driver at the relevant time, or to provide information which would lead to the driver's identification. Failure to provide the information is a criminal offence under s. 172 Road Traffic Act 1988.

 

In one case the applicant confirmed that he was the driver and was convicted of speeding on the basis of that admission. In the other case the applicant refused to supply the information and was convicted of failing to comply with the obligation to provide the information under s. 172.

 

The applicants challenge the requirement that they provide information identifying the driver of their vehicle, as being incompatible with the privilege against self-incrimination under Article 6(1) ECHR and the presumption of innocence under Article 6(2) ECHR.

 

The compatibility with the Convention of requiring people to provide information identifying the driver of cars registered in their names is therefore likely to be decided by the European Court of Human Rights. Increasing the penalty for an offence the compatibility of which is currently under challenge before the European Court of Human Rights risks aggravating any incompatibility which may be found.

 

The verdict is expected in some months time.

 

The issue at stake of course is the right to silence, that is the defendants' freedom from threats and intimidation to force them to incriminate themselves.

 

This right to silence has been sacrosanct in criminal law for well over 300 years in Britain, for more than 200 years in America, where it is the 5th Amendment of the Constitution and for similar periods in most civilised countries. As far as Counsel on both sides in the ECHR are aware, the only "crime" in Britain for which the right to silence has been removed is for driving offences - and even then only for modest offences that carry penalties of no more than £1,000 and no possibility of prison terms. Murderers, rapists, terrorists, shop lifters and every other variety of infringement of the criminal law retain that freedom - so why not drivers who, almost invariably, have not caused crashes or injury?

 

Cynics might well believe that it is purely and simply for administrative convenience, to grease the wheels of the speed camera machine, that this right was removed from the motorist.

iGroup (GE Money) - AoS Filed late, defence late, amended defence also late despite extra time requested and granted.

Vanquis - Claim issued, no AoS or Defence received

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There is a large body of evidence and research to suggest that the new Police Caution (well I say "new", but you know what I mean) removes the right to silence because it threatens the accused that their silence may be used to infer guilt:

 

"You do not have to say anything unless you wish to do so, but it may harm your defence if you do not mention, when questioned, something which you may rely on in court."

 

This would apply to ALL criminal offences, because the arresting officer is required to say this caution verbatim during every arrest.

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The Criminal Justice and Public Order Act 1994 allowed a jury “to draw such inferences as appear proper from an individual’s silence.” A jury could therefore take a defendant’s silence into account when making their judgement but does not mean they can automatically infer guilt.

 

However, in practice I would tend to agree, this right has been seriously erroded and continues to be attacked.

iGroup (GE Money) - AoS Filed late, defence late, amended defence also late despite extra time requested and granted.

Vanquis - Claim issued, no AoS or Defence received

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The change in the caution was to stop suspects from giving a no comment interview and then attending court and coming up with a line of defence, thus giving the prosecution no chance to test this defence. If a suspect were to make no comment during interview now, and were to try to introduce a defence during a trial which he/she could have mentioned during interview, then the court can make appropriate inferences. An erosion of the rights of criminals? No. More an attempt to balance up a system where the criminals seem to have the upper hand with regards to their "rights".

 

Of course, if the authorities were really interested in the truth, they would scrap the adversarial system that we have in place now and go for a system that examines the evidence properly without either prosecution or defence trying to score points all the time.

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An erosion of the rights of criminals?

 

Stricly speaking, unless it's not their first time, they may not be criminals at the point they are being questioned.

iGroup (GE Money) - AoS Filed late, defence late, amended defence also late despite extra time requested and granted.

Vanquis - Claim issued, no AoS or Defence received

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The primary idea is that the accused may remain silent until such time as they are able to retain counsel, and then make their defense known. It is reasonable for the court to draw inferences from a last-minute defense that has not been previously presented to the prosecution. On the other hand, I cannot bring myself to believe it is reasonable to draw adverse inferences from an accused person who refuses to testify against themself.

HSBCLloyds TSBcontractual interestNew Tax Creditscoming for you?NTL/Virgin Media

 

Never give in ... Never yield to force; never yield to the apparently overwhelming might of the enemy. Churchill, 1941

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The concept of the right to silence can be traced to the 12th century and became more developed in the following centuries. It was termed the privilege against self-incrimination.

 

The Latin term “nemo tenetur prodere seipsum” remains in use today. It was applied on the Continent before the age of Codification. It was applied in English ecclesiastical courts also. It served as a guarantee that men and women would not be required to become the source of their own public prosecution and it was also a check on over-zealous officials.

 

Maybe we need it today more than ever?

iGroup (GE Money) - AoS Filed late, defence late, amended defence also late despite extra time requested and granted.

Vanquis - Claim issued, no AoS or Defence received

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