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Jo C.
Jo C., Barrister
Category: Traffic Law
Satisfied Customers: 69258
Experience:  Over 5 years in practice.
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I have just received a NiP for a speeding fine. As my wife

Customer Question

I have just received a NiP for a speeding fine. As my wife and I share the driving, we cannot genuinely remember who was driving. How should we respond to the NiP regarding who was driving?
Submitted: 2 years ago.
Category: Traffic Law
Expert:  Jo C. replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

What steps have you taken to ascertain who was driving?
Customer: replied 2 years ago.
None yet, other than to check our diaries and validate we were in the area of the offence on the day in question. as the NiP says it was a manned speed camera van, I'm not sure whether the image would identify the driver, whether we should ask for the image, (not sure whether the police would allow us to see it)
Expert:  Jo C. replied 2 years ago.
No it won't probably and they wont

Can you really not say who was the driver? Bearing in mind this is your domestic car? I know you won't know offhand but we can all ascertain who was driving with some effort.

You are anonymous on here so its safe to be clear with me.

To be wholly honest, the problem is this. People are always saying they can't remember who was driving and Courts tend to disbelieve it.
Customer: replied 2 years ago.
We tend to alternate driving as we drive to work together. So no it wasn't clear. However I have 9 pts and my wife 0 points so not sure of what to do next
Expert:  Jo C. replied 2 years ago.
I am afraid that you misunderstand the law.
Section 172 of the Road traffic act reverses the onus onto you. It does not ask whether you know offhand who was driving. Of course you do not. It does, however, place an obligation upon you to investigate the issue using reasonable diligence and to identify the driver.
With personal vehicles that are usually fairly easy to do is because we can all say with reasonable efforts who was driving our own personal car on any particular day.
“Reasonable diligence" has been considered is by the higher courts and it means doing things like checking your diary, retracing the journey etc.
If you genuinely cannot do so then it is a defence to say that you had used reasonable diligence and cannot say. Sometimes haulage companies are in that position.
Generally speaking, “reasonable diligence" at the magistrates court means doing everything humanly possible. Any imperfection or failing will be used as an excuse to convict you.
Also, you should remember that the law reverses the burden of proof on to you to show, on the balance of probability, that you have used reasonable diligence.
The reversal of the burden of proof has been considered at Europe and has been held the within reasonable limits.
Moreover, if you really cannot identify the driver then you must not guess. That is potentially perverting the course of justice and people go to prison for that.
If you can't identify the driver then you need to use a particular response to bring yourself within the caselaw. You must staple the letter that you write to the nip. Do not use a paperclip. If you do they may seize on that and use it to convict you as they will differentiate it from the leading case. On that letter write the words
“The driver of this vehicle was either A (name and address)
B (name address)
Obviously, you can only name the 2 genuine candidates.
The case of DPP v Jones says that if you respond in this way it is for the police to investigate which of the 2 candidates are responsible and it gives you a defence to failing to identify.
This case is relatively little-known and if you respond in this way they could charge you with failing to identify. You may have to go to court and argue the point. They will send you some quite intimidating letters. Overall though, if you respond in this way you bring yourself within the caselaw and have a much stronger chance.
Can I clarify anything for you?
Jo C., Barrister
Category: Traffic Law
Satisfied Customers: 69258
Experience: Over 5 years in practice.
Jo C. and other Traffic Law Specialists are ready to help you
Customer: replied 2 years ago.
If I was driving, and being on 9 points, can I assume that I will get an automatic ban, and if so, how long? Will there be a fine as well?
My 9 points was a CD10 conviction in sept 2011
Expert:  Jo C. replied 2 years ago.
You will be rendered liable to disqualification for 6 months for being a totter.

The only way to escape that is to argue that there are exceptional hardship issues that you would suffer if you were banned.
Customer: replied 2 years ago.
What about a fine? What hardships could be used as an exceptional defence?
Expert:  Jo C. replied 2 years ago.
You will be fined as well as banned.

Usually there must be something really substantial to amount to exceptional hardship. Even loss of job alone is not sufficient. You have to show usually that your loss of job will impact upon others who are innocent - like other employees.
Customer: replied 2 years ago.
Ok finally, does the type of offence make a difference , the NiP states Speeding - exceed 30mph on restricted road - manned equipment (40mph). I'm not sure what "restricted road" means?
Normally they say something like " contravening a local traffic order". Is there any difference?
Expert:  Jo C. replied 2 years ago.
No, makes no different at all.

A restricted road just means a 30 mph zone.

Customer: replied 2 years ago.
What happens if I receive a further speeding fine between now and when I get a disqualification?
Expert:  Jo C. replied 2 years ago.
If you are disqualified then it won't make any difference. They will just add the nominal points to your licence upon the ban.

If they find exceptional hardship then that would be a problem but the thing to do is to try to get the court to hear both together.
Customer: replied 2 years ago.
Why does hearing them both together make any difference? Sorry I don't understandIs there a risk if these are heard together that I might get a long ban than 6 months? E.g. A 12 month ban.
Expert:  Jo C. replied 2 years ago.
No, they won't give you a longer ban.

The problem is that a second matter would negate the exceptional hardship finding.
Expert:  Jo C. replied 2 years ago.

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