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The legal catch 22 – You can’t have your cake and eat it too!

March 8, 2017 by in category News, Speeding with 0 and 0
Home > News > News > The legal catch 22 – You can’t have your cake and eat it too!

You have been sent a Notice of Intended Prosecution (NIP) in regards to a speeding offence. Through one thing or another you have failed to reply to it naming who the driver of your vehicle at the time was. You accept this and have been summoned to attend court as you will be facing 6 penalty points and a fine of up to £1000 for failing to furnish driver details. You intend to plead guilty to failing to furnish driver details, but then are made aware that the CPS are intending to prosecute for the original offence of speeding as well! If you find yourself in this scenario, look no further, as we are highly likely to represent you to secure your acquittal of the “substantive offence”!

the legal catch 22

How does this occur?

When you receive a NIP in the mail for an offence, you have 28 days to reply naming the driver of the vehicle. Failing to do this will result in a charge of failure to furnish being put forward by the Crown Prosecution Service. Failure to furnish driver details carries a much higher minimum penalty than smaller offences such as speeding (3-6 points, or a disqualification depending on your speed), or going through a traffic light (3 points). The whole purpose of a failure to furnish prosecution is to punish the keeper of the vehicle for failing to tell the police who committed the traffic offence.

The CPS will often continue to prosecute for both offences until the day of trial. However, the Crown can’t “have their cake and eat it too”, as the law states that it isn’t right in law to be able to prosecute for both offences. In other words, they shouldn’t prosecute you for not telling them who the driver was when the original offence took place and also seek to convict you of that offence.

You may find, however, that if you attend court for your trial unrepresented, or with poor representation, it is entirely possible that you will find yourself in a situation where you are convicted and receive penalties for both offences.

One of the main problems in representing yourself is the likelihood of your having to give evidence and if you do, any decent prosecutor would ask you if you were the driver when the substantive offence occurred. You must answer questions truthfully and so if you do give evidence and you were the driver, this could result in a conviction for both offences. If you are represented, however, we should be able to skilfully ensure the case is dealt with without you giving evidence and the relevant case law should see off any possibility of a conviction for the substantive offence.

Warning – Not to be confused with Perverting the Court of Justice

Simply not recalling who the driver was on that day, or not replying to a NIP is not the same as Perverting the Course of Justice. People who perverted the course ore justice are usually found to have:

  • Named someone else who was driving when they knew they were not
  • Named someone who doesn’t exist, or who lives abroad to escape penalty points;
  • Claimed you never received the NIP; or
  • Claimed you were the driver and not who was actually driving

If you have done this it could not only result in a conviction of a minor motoring offence, but could also lead to being prosecuted for the much more serious offence of perverting the course of justice, which often carries a prison sentence. The Crown takes a very dim view of those who try to employ unlawful tactics and will prosecute anyone who attempts to avoid conviction using these unlawful means.

Where do I go from here?

If you find yourself in a situation where the CPS are trying to “have their cake and eat it too” we are always happy to discuss your case with you. We frequently resolve this “Catch 22” for people who otherwise don’t realise there is a relatively pain free strategy that can remove at least one if not both offences appearing on the summons you have received.

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