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#Post#: 92439--------------------------------------------------
Need advice please - NIP received
DIR By: Jake Speed
Date: October 1, 2025, 4:02 pm
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Hi,
Any help gratefully received. I read the "Read this first" post
hopefully i've added the required info
- As the registered keeper I got a NIP through the post for the
offence of "Driver not in position to have proper control"
contrary to Section 41D of the RTA 1988
- There was a link to 3 photos (i assume taken by a police
camera), 2 of these appear to show the driver handling a mobile
phone
- The notice demands that i supply the details of the person who
i think was driving the vehicle at the time
- The notice also states that the speed was 33mph (the location
in the notice is in a 30 mph zone)
Looking for any guidance or advice please
- am i legally obliged to respond confirming who was driving at
the time?
- do they need to prove there was evidence of dangerous driving
(swerving etc) or would the photo's be deemed sufficient
evidence?
Thanks in advance for any advice
#Post#: 92443--------------------------------------------------
Re: Need advice please - NIP received
DIR By: andy_foster
Date: October 1, 2025, 4:18 pm
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--- Quote from: Jake Speed link ---
>
>
>
- The notice demands that i supply the details of the person who
i think was driving the vehicle at the time
--- End Quote ---
That is an unusual requirement. The requirement is usually to
name the person who was driving at the time.
--- Quote ---
>
- The notice also states that the speed was 33mph (the location
in the notice is in a 30 mph zone)
>
--- End Quote ---
Does it mention an intention to prosecute the driver for
exceeding the speed limit, or is that merely background
information?
--- Quote ---
>
- am i legally obliged to respond confirming who was driving at
the time?
--- End Quote ---
Failure to do so is a criminal offence, which carries 6 points
and a hefty fine.
--- Quote ---
>
- do they need to prove there was evidence of dangerous driving
(swerving etc) or would the photo's be deemed sufficient
evidence?
--- End Quote ---
Presumably you have been living under a rock since 2003. Using a
hand-held phone while driving has been a specific criminal
offence for over 20 years! Until about 3 years ago, the use had
to be for interactive communications, but the law was tightened
up in (IIRC) 2022 to include any "use".
They would need to be able to prove that you were using it, but
I would suggest that holding a phone while driving very much
raises a presumption of use.
#Post#: 92444--------------------------------------------------
Re: Need advice please - NIP received
DIR By: NewJudge
Date: October 1, 2025, 4:34 pm
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--- Quote ---
> am i legally obliged to respond confirming who was driving at
the time?
--- End Quote ---
The notice probably tells you the maximum penalty for failing to
respond.
If not, it is fine of £1,000, and either six points or a
disqualification. No fixed penalty is available for the offence.
#Post#: 92491--------------------------------------------------
Re: Need advice please - NIP received
DIR By: Jake Speed
Date: October 2, 2025, 5:14 am
---------------------------------------------------------
Thanks for both the replies, i've confirmed the driver details.
([member=97]NewJudge[/member] the 33 in a 30 is just background
information, there is no mention of a speeding offence)
Could anyone please advise how i can confirm the maximum penalty
for the offence of "Driver not in position to have proper
control"
I found this site
HTML https://sentencingcouncil.org.uk/guidelines/3-motoring-offences-appropriate-for-imposition-of-fine-or-discharge/<br
/>but it only has the "Use of mobile telephone" offence
There's conflicting information online, some suggest 6 points
and a maximum penalty of either £1000 or £2000, whereas other
sites suggest "Driver not in position to have proper control" is
an alternative offence to "Use of mobile telephone" and carries
a smaller penalty of 3 points and a fine.
Thanks
#Post#: 92502--------------------------------------------------
Re: Need advice please - NIP received
DIR By: NewJudge
Date: October 2, 2025, 5:53 am
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([member=97]NewJudge[/member] the 33 in a 30 is just background
information, there is no mention of a speeding offence)
I didn't mention a speeding offence. You asked if you were
legally obliged to respond confirming who was driving. I
explained that the notice probably tells you that it is an
offence to fail to do so and what the penalty for that failure
is.
I am certain the maximum number of points for "not in proper
control" is three. I'm fairly sure the maximum fine is £1,000.
It's certainly not £2,000 as there are no offences with that
maximum.
#Post#: 92505--------------------------------------------------
Re: Need advice please - NIP received
DIR By: andy_foster
Date: October 2, 2025, 6:06 am
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The statutory maximums will be listed in Schedule 2 to the Road
Traffic Offenders Act 1988. The Magistrates' Sentencing
Guidelines will be in the Magistrates' Sentencing Guidelines.
#Post#: 92518--------------------------------------------------
Re: Need advice please - NIP received
DIR By: NewJudge
Date: October 2, 2025, 7:34 am
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It's in neither as far as I can see, Andy.
The offence is under Construction & Use legislation (s104)and
there are no C&U entries in Schedule 2 (again, as far as I can
see).
#Post#: 92535--------------------------------------------------
Re: Need advice please - NIP received
DIR By: Southpaw82
Date: October 2, 2025, 8:15 am
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The offence is under s 41D of the Road Traffic Act 1988, and is
most definitely listed in Schedule 2 to the Road Traffic
Offenders Act 1988.
#Post#: 92542--------------------------------------------------
Re: Need advice please - NIP received
DIR By: NewJudge
Date: October 2, 2025, 8:32 am
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Thanks SP.
I was looking under the C&U legislation. I thought it odd that
there were no C&U offences listed in Schedule 2.
#Post#: 92550--------------------------------------------------
Re: Need advice please - NIP received
DIR By: andy_foster
Date: October 2, 2025, 8:50 am
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Criminal statute often sets out what a person must or must not
do in one part, and provides that failure to do so is a criminal
offence in another part. E.g. other than motorway speeding (s.
17(4) RTRA 1984), just about all speeding offences are created
by s. 89(1) RTRA 1984. Sometimes they create the requirement and
the offence within the same section, but that is just lazy and
doesn't create work for the legal profession.
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