What is a Notice of Intended Prosecution?
Tuesday, 31st May 2016
In the vast majority of speeding or red traffic light contravention offences, the driver will see the stomach sinking flash from the enforcement camera in their rear view mirror, which instantaneously initiates a period of concern that they are now about to receive penalty points and a fine. This period of worry is normally followed by the question, is there a way out…?
So what are the rules the Police have to follow for issuing a Notice of Intended Prosecution?
A Notice of Intended Prosecution is simply notice from the Police that an offence has been recorded and that they intend to prosecute the person responsible.
If an offence has been recorded without you being stopped by a Police Officer, the, Police must serve a Notice of Intended Prosecution within 14 days of the date of the offence (for certain offences only), to the registered keeper of the vehicle. This will be the person or company named as the keeper on the vehicle registration document (V5) at the time of the offence. Once the Police have complied with this, there is no time limit for them to issue further Notices, to other people in the event that the registered keeper was not the driver of the vehicle at the time of the offence. If the Police fail to serve this within the statutory 14 days, and the offence alleged requires them to do so, it simply means that they will be unable to secure a conviction in Court for the offence detailed in the Notice.
In the event that you as the driver of the vehicle have been stopped by a Police Officer, then the Officer can either give you a verbal Notice of Intended Prosecution, serve a Notice of Intended Prosecution within 14 days to the driver or the registered keeper or serve a summons within 14 days, requiring the driver to attend Court.
A Notice of Intended Prosecution is usually sent with a Request for Driver Information. This request places a legal obligation on the registered keeper to provide the details of the driver of the vehicle at the time of the alleged offence. Although these documents are sent out together, they should be treated as completely separate documents for legal purposes. If you as the registered keeper of driver of the vehicle receive a request for information, you must respond within the 28 day period, regardless of whether the Notice of Intended Prosecution has reached you within the 14 day period. Failing to respond to this request within the 28 day period creates a completely separate criminal offence of failing to provide driver information and will put you at risk of 6 penalty points and a fine of up to £1000.
Can the Police really force someone to provide the information if they were the driver? Isn't it against the privilege of self-incrimination?
This issue has been taken to the European Court where it was decided that the requirement to provide driver information does not contravene privilege against self-incrimination and that the obligation to provide such information is proportionate to the need to maintain road safety. Responding to the request merely identifies the driver of the vehicle at the time of the alleged offence and does not specifically confirm that guilt is accepted.
What happens after I respond to the request for information?
If you have nominated another person as the driver, the Police will contact them with a Notice of Intended prosecution and request for information. This person will then be under a legal duty to provide the details of the driver, or to provide any information, which is within their power to give, which may identify the driver.
If you nominate yourself as the driver of the vehicle then, the nature of the alleged offence and the details of it, will govern the options available for the Police to offer. Generally the Police have the discretion to offer an educational course if the offence is considered to be minor. For certain offences and where the speed is not hugely in excess of the speed limit, the Police may offer a fixed penalty. You will not however, be eligible to accept the offer of a fixed penalty if you currently have 9 or more penalty points on your driving licence, therefore the matter will need to go to Court. For the more serious offences, the Police may opt to simply move straight to Court proceedings.
How long do penalty points last?
For criminal purposes, penalty points remain on your driving licence for 3 years from the date of the offence for which they were endorsed. You can apply to the DVLA to have these points removed from your driving licence after a period of 4 years. If you accumulate 12 or more penalty points on your driving licence within a 3 year period, you will be at risk of a minimum mandatory 6 month disqualification under the totting rules.
If it has been less than 2 years since you first passed your full UK driving test, you will be subject to the New Driver provisions. This means that you will automatically have your driving licence revoked by the DVLA if you accumulate 6 or more penalty points within the first two years of driving. Please note that it is not the Court that revoke your driving licence, therefore if you have 3 points on your licence and accept an offer of a fixed penalty, your driving licence will be revoked automatically and you will have no route of appeal, meaning you will have to take and pass both the theory and practical elements of your driving test again before being able to drive.
Should I seek legal advice before responding?
Seeking out expert legal opinion is always the best course of action. In the first instance a legal adviser who is an expert in this field will be able to provide a free initial assessment of your case and provide advice tailored to your circumstances about the best way forward. Please beware of the online websites suggesting you purchase their letters to send to the Police. In my experience letters such as these are very likely to fail and may result in the person sending them suddenly finding themselves the subject of much more serious proceedings and at risk of a custodial sentence, if they actively mislead the police.
Navigating your own way through the minefield of road traffic legislation can be very difficult, and costly, if you get it wrong. There are a number of occasions where I have spoken to clients who come to me at risk of penalty points or a lengthy disqualification, when had they spoken with me at the outset, I would have provided free advice, which would have enabled them to completely avoid any liability for the offence. Unfortunately at the stage that clients usually seek advice, this option is no longer available. So what do you have to lose by making that initial call for legal advice?