Notice Of Intended Prosecution

Section 1 of the Road Traffic Act requires that for certain offences:

The Defendant must have been warned at the time of the possibility of prosecution for the offence.
OR
The Defendant must have been served with the summons within 14 days of the offence.
OR
Notice of the possibility of the prosecution must have been sent to the prosecutor within 14 days of the offence either to the driver or to the registered keeper of the vehicle.

Notice of intended prosecution applies, for example, to the following offences:

Driving a vehicle dangerously.
Driving without due care and attention.
Speeding offences.
Failing to comply with traffic directions.

If the prosecution fail to comply with section 1, it would mean that the prosecution case can not be brought against you.

When notice does not have to be served

There are many instances when a notice of intended prosecution does not have to be served, therefore if you have not received the NIP it does not necessarily mean you will have a defence on that basis.

One has to understand that the purpose of the NIP, which was described by Lord Justice Donaldson in the case of Gibson v Dalton [1980] RTR 410:

“The obligation on the prosecutor is to warn the accused, not merely to address a warning to him or to a give a warning. The mischief to which this section is directed is clear. It is that motorists are entitled to have it brought to their attention at a relatively early stage there is likely to be a prosecution in order that they may recall and, it may be, record the facts as they occurred at the time…But a warning which does not get through to the accused person is of no value at all”.

The notice of intended prosecution does not have to be given for example:

1) when the suspect was warned at the time by the police there would be a prosecution
2) if there has been an accident and the driver is aware there could be a possibility of proceedings
3) when the name and address of the accused, nor the name and address of the registered keeper could be ascertained
4) when the accused by his own conduct contributed to the failure to serve the notice in time.

The notice of intended prosecution does not apply to fixed penalty notices. e.g. parking offences.

Late Service & Errors

The day of the offence is not counted when computing the 14 days.

The notice will be deemed not to be complied with if the notice arrives outside the 14 day period i.e. if it was posted on the 14th day.

One cannot object if the notice was sent on time but arrived late due to postal reasons.

The notice of intended prosecution may contain errors on it. It is a question of fact and degree whether these errors void the notice of intended prosecution.

For example if the notice of intended prosecution gives a different place where the incident occurred, one has to consider has the accused been misled. The Defendant should not be in any doubt what the notice of intended prosecution actually refers to.

The notice of intended prosecution may also have the incorrect licence plate number. The accused could write back to the prosecution saying that the vehicle mentioned is not his or her vehicle. However should the matter proceed to Court the Judge will have to decide whether or not the error on the notice can be or should be corrected. The Judge can hold in the Defendants’ favour, or not. In the majority of cases the Judge would allow the errors to be corrected by the prosecution.

The NIP can also be sent to you after 14 days if the prosecution had to first contact your company or the hire company.

Notice of Intended Prosecution Not Received

The notice of intended prosecution can be served by

by delivering it by hand
by addressing it to the accused and leaving it at his last known address; or
by sending it by registered post, recorded delivery service or first class post, addressed to the accused at the last known address.

As long as the prosecution can prove that the NIP was sent out within 14 days it will be deemed to be served even though the notice was undelivered or for any other reason not received by the accused. This is known as an “irrebuttable presumption of service”. i.e. as long as the prosecution can show that they sent a notice within 14 days, they will have complied with their duty.

However, if the NIP was sent by first class post, and not recorded delivery, it is for the accused to prove that the NIP was not received, thereby creating a “rebuttable presumption of good service”. For example, a letter from Royal Mail confirming there was a postal strike would be good evidence to prove that the NIP was not received.

If the accused is not at home when the NIP is sent, but a family member is, it is still deemed as good service.

If you have recently changed residence, and the NIP was sent to your previous address, the prosecution would only have to prove that they sent the NIP to your last known address.

Reasonable Diligence

More often than not, the NIP will have been sent out correctly. For speeding matters the next step is to inform the authorities who was driving. If you fail to do so, you would probably be charged with failing to identify the driver, a separate offence that now carries 6 points and a fine.

There will be occasions when it is not possible to say who was driving, and you should not pick a name out of a hat if you cannot honestly say who was driving at the material time. You should only plead guilty if you are guilty. Your task at this stage is to exercise your reasonable diligence to ascertain who was driving. If you cannot remember, do not write a letter back to the authorities simply saying, for example, “ I do not know who was driving at the time [full stop]” Such a short response does not show how you have exercised your reasonable diligence and you would be charged with failing to provide the drivers information.

You must complete the NIP correctly, filling in all sections as required, and giving the names of all possible drivers. Next you must explain, in detail, how you have exercised your reasonable diligence. Unfortunately this is not easy, and this is where we can help you, by preparing your case to the standard required. If this is done correctly, the authorities have a discretion not to charge you for either speeding or failing to identify the driver. If they do not exercise their discretion in your favour, the matter will proceed to court where the judge will consider if you could not with reasonable diligence have ascertained who the driver of the vehicle was.

Section 172(2) states that the person keeping the vehicle shall give such information as to the identity of the driver, which is in his power to give and may lead to the identification of the driver.

Section 172(4) states a person shall not be guilty of an offence…if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

Section 172(7)(b) states that “the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it”

Common mistakes

Not replying to the NIP within the time specified.
Not completing the NIP properly.
Not showing your reasonable diligence to the standard required.
Not signing the NIP.
Failing to understand that once you have been charged with s.172 the speeding matter is brushed aside, and evidence such as calibration certificates etc are not relevant to the charge of s.172.