Below is a criminal law blog post regarding notices of intended prosecution based on the laws of England and Wales.
This is one of the questions that a road traffic solicitor is asked most often. The legal obligations of the recipient of a Notice of Intended Prosecution are deceptively simple yet can be frequently misunderstood or confused by the public.
Notices of Intended Prosecution are sent out by the Central Ticket Office or Constabulary where a driver has not been stopped at the roadside and where the offence alleged has not already been pointed out to the driver.
A Notice of Intended Prosecution is not required where a fixed penalty has been issued or where an accident is said to have taken place. They are most commonly sent to motorists accused of speeding and traffic light offences but they can also be sent where other offences (trigger offences such as driving without due care and attention) are alleged.
Notices of Intended Prosecution are initially sent to the registered keeper of the vehicle photographed, following a registration plate match via DVLA computer records. However, the driver and the registered keeper are not always the same person and confusion often arises here.
If the registered keeper was not the driver they are still legally required to name the driver; as the registered keeper is deemed, in law, to have some knowledge of the identity of the driver. Simply, they are unable to say that they don’t know who the driver was and expect to succeed at trial if a prosecution for failing to identify the driver is brought against them. However, if the registered keeper is genuinely unable to say who the driver was at the time in question, due to the passage of time or the potential pool of drivers being large, they are able to claim at Court, once summonsed, that they did not know, and could not, with reasonable diligence, have established who the driver was. The question of whether someone has used their best endeavours to ascertain driver identity will ultimately rest with the trial Court.
If the registered keeper is a company, e.g. a lease company, and there are more potential drivers, it is possible to argue the defence of reasonable diligence but only where it is shown that no record has been kept of the drivers and that the failure to keep a record was reasonable.
The requirement for a motorist to be served with a Notice of Intended Prosecution derives from Section 1(c) of the Road Traffic Offenders Act 1988. This states that a person must be sent a Notice of Intended Prosecution within 14 days of the commission of the offence alleged. Where confusion often arises is when the Notice of Intended Prosecution is served outside the 14 days and road traffic solicitors are often asked to give advice in such cases.
The first thing to say is that even where a NIP is received late, a response must still be sent by the recipient of the Notice of Intended Prosecution to the Central Ticket Office or Constabulary. A response must be sent within 28 days of receipt of the Notice of Intended Prosecution. If the recipient fails to respond, or if they were to write back advising that they were not prepared to identify the driver as the Notice of Intended Prosecution was received late, the recipient can expect to receive a Court summons for failing to identify the driver, which carries a 6 penalty point endorsement (or a discretionary ban) on conviction. In the case where a Notice of Intended Prosecution is received late, the driver cannot be convicted of speeding (or other trigger offences) provided that the driver’s identity has been confirmed to the Central Ticket Office/ Constabulary.
Problems often occur where someone moves addresses and does not notify the DVLA as this will result in the Notice of Intended Prosecution being sent to the wrong, or last known, address. Problems also arise in cases where the Notice of Intended Prosecution does not reach the intended recipient as it gets lost in the post as there is no requirement to send Notice of Intended Prosecution by registered/recorded mail. In either scenario a person can often find themselves either convicted by a Court in their absence, or facing a prosecution, for failing to identify the driver. A motorist is advised to inform the DVLA promptly of address changes to avoid problems arising later.
For further legal advice on Notices of Intended Prosecution, your obligations and available defences, you can speak to a road traffic solicitor. They can assess your situation and determine if you have a defence to a summons.
From the specialist driving offence solicitors at Pannone LLP, for more information visit their website http://www.pannone.com.
For further advice from other criminal lawyers, fill out the enquiry form at the top right of this page.
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