DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Speeding and other criminal offences
*****************************************************
#Post#: 61501--------------------------------------------------
Defence of suppling information in response to S172 RTA feasible
?
By: Grumpy_chap Date: March 9, 2025, 3:15 pm
---------------------------------------------------------
Hi,
Hoping for a bit of guidance and assistance on behalf of my
brother.
Brother apparently driving 51 in a 40 zone, initially the s172
request to mum as the registered keeper who identified brother
as driving the vehicle. Brother received first s172 notice and
responded by filling out the forms identifying himself as the
driver and posting them via postbox. Didn't hear back from the
police and then subsequently received a s172 reminder and did
exactly the same by posting to the same postbox but has now
received a Single Justice Procedure notice being charged under
s172(3) for failing to provide information of the driver's
identity.
Obviously the police are going to argue they never received
anything back despite sending a reminder and I presume if my
brother decides to defend, what's the likelihood of the court
accepting what he has said? I presume most magistrates have
heard it all before so I would expect them to side with the
police on this but wondering if using this as the only defence
(even if he is able to describe the date, location of the
postbox, time he posted it etc.) is worth it instead of pleading
guilty.
Also I have other questions I'd like to understand for my own
benefit:
1. The SJP Notice refers to a charge relating to S172(3) RTA, is
that the correct section to reference? Would the charge not be
under s172(2) instead?
2. What would be the chances of my brother contacting the local
CPS and asking them to drop the charge under s172 if he pleaded
guilty to the speeding offence and take the speed awareness
course? This falls under Northumbria Police and from looking at
their website it says you are eligible if driving up to 53 in a
51 zone. This is also his first offence. I think he would be
willing to accept the points and fine for the speeding offence
if it came to it.
3. Does S7 of the Interpretation Act apply to responding to a
s172 notice? S172(2)(b) doesn't explicitly state that the
response must be given by post but it does say that the person
shall 'give' any information that may lead to the identity of
the driver. And s7 of the IA includes the expression 'give' and
I'm not familiar with the law to know whether this applies or
not, though I'm sure it may have been argued in a court case
before.
#Post#: 61503--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: andy_foster Date: March 9, 2025, 3:28 pm
---------------------------------------------------------
[quote author=Grumpy_chap link=topic=5461.msg61501#msg61501
date=1741551355]
Hoping for a bit of guidance and assistance on behalf of my
brother. [/quote]
Is there any reason why he can't post a first hand account
himself? With all the relevant details.
[quote]
1. The SJP Notice refers to a charge relating to S172(3) RTA, is
that the correct section to reference? Would the charge not be
under s172(2) instead?[/quote]
No. Not that it matters.
[quote]2. What would be the chances of my brother contacting the
local CPS and asking them to drop the charge under s172 if he
pleaded guilty to the speeding offence and take the speed
awareness course? This falls under Northumbria Police and from
looking at their website it says you are eligible if driving up
to 53 in a 51 zone. This is also his first offence. I think he
would be willing to accept the points and fine for the speeding
offence if it came to it.[/quote]
Whether he can plead guilty to the speeding offence depends on
whether or not he has been charged with it - a detail you have
chosen not to trouble us with.
The court cannot sentence him to a course, so in that regard
absolutely not.
[quote]3. Does S7 of the Interpretation Act apply to responding
to a s172 notice? S172(2)(b) doesn't explicitly state that the
response must be given by post but it does say that the person
shall 'give' any information that may lead to the identity of
the driver. And s7 of the IA includes the expression 'give' and
I'm not familiar with the law to know whether this applies or
not, though I'm sure it may have been argued in a court case
before.
[/quote]
The Interpretation Act provides that proof of posting creates a
rebuttable presumption of service (delivery). The police's case
will presumably be that no response was received - and provide
evidence which rebuts any such presumption. Not entirely sure
how you think this would help your brother.
Unless your brother can persuade the court that there is a
problem with the police's mail system, he's going to struggle to
get the bench to believe that he responded twice and that both
responses were lost in the post.
#Post#: 61511--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: NewJudge Date: March 9, 2025, 4:19 pm
---------------------------------------------------------
As Andy has said, he needs to establish whether the SJPN lists
both charges.
If so, he should respond to the SJPN by pleading “Not Guilty” to
both charges. In the “Reasons for pleading Not Guilty” box he
should state that he is willing to plead guilty to the speeding
charge providing, and only providing, the s172 charge is
dropped. This is a tried and tested method to deal with the
problem and is almost always successful.
Before the pandemic it was necessary to attend court to do this
"deal" because it needs the agreement of the police prosecutor.
During the pandemic courts made every effort to have as few
people as possible attend and they began doing this deal under
the "Single Justice" procedure without the defendant's
attendance. Some courts have carried this procedure on whilst
others have reverted to a personal attendance being necessary.
If he is required to attend, his case will be taken out of the
SJ procedure and he will be given a date for a hearing in the
normal Magistrates' Court. If that is the way they do it in the
area involved he will have to attend, see the prosecutor and
offer his "deal" in person.
The alternative is to defend the s172 charge on the basis that
he did respond. Assuming he has no proof of posting (you have no
mentioned it) that will rely on his testimony to counter the
police who will probably produce evidence of their "robust" post
monitoring system. In those circumstances the speeding charge
cannot succeed as there is no evidence he was driving.
#Post#: 61513--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: Grumpy_chap Date: March 9, 2025, 4:28 pm
---------------------------------------------------------
Thanks for responding Andy. In short, no he can't he's working
away in an area with next to no signal for the next week or so
and wants to try and get a head start.
Responding to some of your points:
1. The only charge is s172.
2. I understand the IA creates a rebuttable presumption but can
you explain what reason/arguments the Police might give as to
why it wasn't received? Simply saying that they didn't receive
is not sufficient to overcome the rebuttable presumption. I
suppose postal disruptions or strikes might count as rebuttal
evidence but have already checked in or around those dates it
was posted and nothing occurred.
[member=97]NewJudge[/member], you are indeed correct as to the
proof of posting. No witnesses were in the car at the time, nor
is there any CCTV in the area that he is aware of and even if
there was, the alleged offence happed back in September almost 6
months ago. There is a witness statement and it does mention
their robust post monitoring system (though it doesn't seem to
describe this system except a bit of blurb about how they issue
notices) but it reads as if the system is perfect running
smoothly 100% of the time. As we all know, things can go missing
or get misplaced or otherwise lost so it is not beyond all
realms of possibility that processing a substantial number of
correspondence, thing could go missing, lost or misplaced.
Happens at HMRC, HMCTS and other executive agencies, so why not
Northumbria Police?
I appreciate there's an uphill struggle with this one and he now
knows if something similar occurs again to ensure it is sent
recorded delivery and keep copies of the documents that were
sent. As this is outside my area of expertise, if you think the
the best course of action is to simply plead guilty then it is
what it is and I will let him know.
#Post#: 61515--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: Southpaw82 Date: March 9, 2025, 4:34 pm
---------------------------------------------------------
[quote author=Grumpy_chap link=topic=5461.msg61513#msg61513
date=1741555705]
Simply saying that they didn't receive is not sufficient to
overcome the rebuttable presumption.
[/quote]
Says who?
#Post#: 61521--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: Grumpy_chap Date: March 9, 2025, 5:18 pm
---------------------------------------------------------
[quote author=Southpaw82 link=topic=5461.msg61515#msg61515
date=1741556057]
[quote author=Grumpy_chap link=topic=5461.msg61513#msg61513
date=1741555705]
Simply saying that they didn't receive is not sufficient to
overcome the rebuttable presumption.
[/quote]
Says who?
[/quote]
The courts say so.
#Post#: 61522--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: andy_foster Date: March 9, 2025, 5:20 pm
---------------------------------------------------------
Can't argue with that.
#Post#: 61525--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: Southpaw82 Date: March 9, 2025, 5:34 pm
---------------------------------------------------------
[quote author=Grumpy_chap link=topic=5461.msg61521#msg61521
date=1741558718]
[quote author=Southpaw82 link=topic=5461.msg61515#msg61515
date=1741556057]
[quote author=Grumpy_chap link=topic=5461.msg61513#msg61513
date=1741555705]
Simply saying that they didn't receive is not sufficient to
overcome the rebuttable presumption.
[/quote]
Says who?
[/quote]
The courts say so.
[/quote]
Please cite your authority (for what is a question of fact).
#Post#: 61526--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: NewJudge Date: March 9, 2025, 5:51 pm
---------------------------------------------------------
[quote]Simply saying that they didn't receive is not sufficient
to overcome the rebuttable presumption[/quote]
That would be for the court to decide. They will weigh up the
evidence the police give regarding the reliability of their
system which records incoming post and their assertion that
neither of your brother’s responses were received, against his
testimony that he sent them. The police cannot be expected to
explain why they were not received. All they can do is give
evidence to say they were not. The court will decide whether or
not that is sufficient.
Nobody on here can predict with any certainty how it would go,
[mod edit - I think that we can, with much certainty]
#Post#: 61528--------------------------------------------------
Re: Defence of suppling information in response to S172 RTA feas
ible?
By: Grumpy_chap Date: March 9, 2025, 6:00 pm
---------------------------------------------------------
Calladine-Smith v Saveorder ltd:
HTML https://www.bailii.org/ew/cases/EWHC/Ch/2011/2501.html
para. 26 (see underlined)
The second question focuses on the word 'proved' in the phrase
'the contrary is proved.' As I already set out, the question is:
is an addressee of the letter required only to show on the
balance of probabilities that the letter was not delivered or
served or received by him, or does the burden on the addressee
go further? Is it a requirement to lead positive evidence as to
what happened to the letter? Is there a burden on him to show
that the sender of the letter was aware that the letter had not
been delivered or served or received? In the absence of
authority and basing oneself on the statutory language alone, it
seems to me quite clear that the reference to something being
proved in this context is a reference to something being proved
on the balance of probability. Accordingly, if the addressee of
the letter proves on the balance of probability that the letter
was not served upon him then that matter has been proved and the
section should be applied accordingly. Of course it is not
enough simply to assert that someone did not receive the letter;
the court will consider all the evidence and make its findings
by reference to the facts which are established including issues
as to the credibility of witnesses. That is the ordinary way in
which a court goes about making findings of fact.
The common law position also applies a rebuttable presumption (a
good case on this one is Newcastle NHS Trust v Haywood Court of
Appeal decision) but I am yet to see any case law that has
accepted a letter has not been received by that individual
simply denying receipt of the letter. It usually requires
something more.
*****************************************************
DIR Next Page