THE 14 DAY TIME LIMIT FOR NOTICES OF INTENDED PROSECUTION – LOOPHOLE OR GENUINE DEFENCE?
Back in 2018, David Beckham was reported as having relied on this ‘loophole’ to avoid a speeding conviction.
Whenever there is a report of someone in the public eye escaping a driving conviction, it frequently elicits a tirade of comments from readers.
Such comments often suggest that the individual only avoided conviction because of who they are and that such ‘loopholes’ are only available to the rich and famous, but that is not always the case.
WHAT IS THE 14 DAY NIP RULE?
The law is contained in Section 1 Road Traffic Offenders Act 1988. A summary is that:
Certain driving offences require a warning of possible prosecution to be served on either:
- The driver at the time of the offence, or
- The driver or registered keeper within 14 days of the alleged offence,
The requirement to warn of prosecution does not apply if there was an accident.
The requirement does not apply to all driving offences. For example, it does not apply to offences of using a mobile phone while driving. The full list of offences is contained in Schedule 1 Road Traffic Offenders Act 1988
Otherwise, for many driving offences the driver is usually stopped at the roadside and warned verbally by the police, or, they receive the NIP through the post.
The consequence of not complying with the NIP requirement is that there cannot be a conviction for the offences to which it applies. Eg, if the NIP was sent to warn of prosecution for speeding, but the requirements were not met, there can be no speeding conviction.
THE RULE IN PRACTICE
In criminal cases, the burden is usually on the prosecution to satisfy the court of a fact ‘beyond reasonable doubt’ or to put it another way, so that ‘the court is sure’.
However, in these cases, there is a ‘presumption of conformity’ with the NIP service requirement.
This means that the prosecution doesn’t have to give any evidence that its requirements have been fulfilled. It is for the defence to allege that they have not, and to call evidence to that effect. The burden of proof is on the defendant on the balance of probabilities ie. more likely than not. The defence must show that the driver and the registered “keeper” of the vehicle have not had the notice.
When the defence of non-conformity is raised, they tend to fall into two categories:
- Cases where the NIP has been served late;
- Cases where the NIP has not been received at all.
Late service can often be easier to prove than non-receipt. If the postal date suggests that the 14-day rule has not been complied with, the task of proving non-conformity is relatively easy. But where the notice is not received at all, the only way to prove this may be to give evidence in court. It is then up to the court to decide whether they believe you or not.
With cases of late service, bear in mind that notices are not deemed served until two working days after the offence. Also, note that the date of the alleged offence is not counted in the calculations.
REQUESTS FOR DRIVER INFORMATION
This is where it gets a bit technical. These requests for driver information should not be confused with Notices of Intended Prosecution. They are often combined in the same document as a NIP, but they have different legal status. There is no requirement to request driver details within 14 days.
The power to request driver details is contained in s.172 Road Traffic Act 1988 and for this reason, they are often referred to as s.172 notices. If you do not comply with s.172 and give the information, you could be prosecuted for failing to provide driver details which usually carries 6 penalty points plus a fine.
What this means is that if you receive a combined NIP/ s.172 notice which has been served late, you should still give the details of the driver. You can then argue that there can be no prosecution for the offence to which the notice relates but avoid the risk of prosecution for failing to give details.
Of course, if you don’t receive the NIP you will not have received the s.172 Notice either. Therefore you should not be convicted of failing to give driver details as you have not received a request to do so.
DEFENCE OR LOOPHOLE?
Everyone will have their view on this. The term ‘loophole’ suggests something slightly dodgy or morally wrong which may not be representative of the facts.
The law requires us to abide by the rules and provide information within certain time limits. If we do not, we will normally be prosecuted.
By the same token, the police must abide by their own rules and time limits. If not, the driver will have a legitimate defence. Why should a driver be criticised for relying on a defence set out in law?