CallumW

Hi all.
Just a quick question on legality

I was on holiday in Scotland and had a hire car. On the day the car was returned (13th Nov), I apparently sped through a camera.

The notification was sent on the 5th Dec (22 days after) and I got it on the 9th Dec (26 days after).

I called the camera unit up on the 9th and said that I wasn't sure who was driving, me or my gfriend ... or if it was us at all (as crooks are known to 'clone' cars).

After hearing this, the guy on the phone says "It was a front facing camera and definately a bloke driving, girl in the passenger seat"

I said, "We never saw any flashes or anything during the 5 days we had the car so I want to make sure it's us"

But they won't send me the picture - claims he can't send it because of the Data Protection Act.

I've asked for it 2 times by phone and also sent a request by letter on the 9th. I'm about to send another letter after visiting http://www.speed-trap.co.uk/ and they state that they have to give me the picture proof on request.

Where do I stand on this.
Do they legally have to provide the pictures even if other cars are in the same pic?

Callum

CallumW

Oops... forgot to say that they said I could visit their offices and see the picture, but they couldn't send it to me????

I said that it's no good seeing I live in London and it'd cost me a fortune to come up, he was like "that's the only way you will see the picture"

CW

IFG

I thought the rules were that they have to supply any evidence that they intend to use in court otherwise they can't use it.

Send them a registered letter telling them that you intend to go to court and insist on seeing any evidence they have (picture and device calibration). If they then send it to you you can always change your mind and pay up before going to court. If they still refuse to send it then go to court with proof of your request and point out that they obviously don't have any evidence to submit.

Cheers, Ian.

===WRX===

They Have to supply a picture....trust me i know.

stick to your guns, the data protection act only covers the transmiting of personal data, and as the photo as such has no data retaining to you personaly on it ( ie the cars reg plate was not yours ) or a copy right attached to it..they can do whatever they wish with it........the police and trafic ****'s need reminding that they ONLY enforce the law..NOT make it..


all the best with your quest



jay

mutant_matt

Sorry to hear that Callers!!

Whatever you do, don't admit guilt unless you have seen the pic. I suspect they are playing difficult in the hope that you will own up rather than go to court.

I'd stick to your guns IIWY!!!

Matt

MattW

The NIp must be sent within 14 days of the offence not incl the offence date itself. Unless an NIP was issued and returned by the hire company the offence is barred.

scooby_si

yeah i did all by letters basically following ukspeedtraps advice & at first they said not co policy to supply till court blah blah i did the demanding money with mnaces letter thing & not a dickey bird since & it's been long enough now so
Si

mutant_matt

That is only if the registered keeper is an individual and not a company. In this case, they have as long as it takes (or is reasonable).

Matt.

bluenosewrx

iTrader: (2)

matt,
visit pepipoo.com and all is explained abour nip's etc and they even give you a example of a letter you can send to explain you don't know who was driving.
good luck,
bluenose

CallumW

Thanks for the replies guys.
They said the Data Protection Act is there - not for me, but for the other cars in the picture. I asked the tithead to send it to me and pen out the other reg numbers, but he said "No". (guess that's tampering with police evidence)

If they can provide the picture then it should show who is driving (front facing camera)

If I was speeding and did get caught, then I'm more than happy to sign the papers and get my 3 points. But I can't say I'm guilty for something I didn't know I did without proof

Robertio

iTrader: (1)

Your problem is they can take it to court and show you the picture just before you go in to court - they are still showing you the evidence before the hearing which means they fill their part of the bargain.

No help I know, but I've heard of this happening to other people.

CallumW

They can't show me the evidence as I won't be in a Scottish court. The can do it down here if they want

[Edited by CallumW - 12/22/2003 9:52:40 PM]

hedgehog

The have no obligation to supply you with their evidence until you plead not guilty. In that case they should provide you with their evidence 7 days before the date set for the court hearing.

In some cases, in some areas, they are being more helpful and supplying the photos when requested.

Even if the photo does show who is driving the cameras are designed to identify the vehicle, using the registration number, and not the driver. I am not aware of a case ever being taken on these lines and so it would likely be difficult and expensive but they would be a possibility of your wining.

Although you will have to plead not guilty to see their evidence you can change your plea at any time right up until you walk into court. Clearly you would want to take individual legal advice on such a matter but there are a range of reasons why it may be in your interests to go not guilty and ask them to produce their evidence. However you need to be very, very, very careful with any communication you have with them. My advice it not to speak to them or write to them if you have any intent of presenting a defence.

Your situation certainly sounds complex as, if they have a clear photo of you driving, defending it in court might be tricky. One possibility is that if you are represented in court then you don't need to be there and so it would be impossible for the court to judge if the person in the photo was you. The fact that you have already said your passenger was a woman critically weakens this defence and, once more, highlights the importance of never, ever speaking to them on any matter. However, you are not beaten yet but you probably need to get a solicitor with experience of defending similar cases in Scotland and you need to brief them on what you have already said.

Good luck.

CallumW

Like I said. If it was me and I can see that i was doing 56 in a 40 (off the A90 toll bridge in Edinburgh) then I'm more than happy to sign the bit of paper.

I just want the proof before I sign the paper

stevebt

iTrader: (8)

do what all the threads say, its law to admit who was driving but its not law to sign then the paper is inadmissable so therefore no good

hedgehog

Idris Francis is about to establish, though appeal, if it is law that the NIP has to be signed. This judgement will only apply in England and Wales and I am not sure of its likely impact in Scotland.

The fundamental point here is that they send you a bit of paper which states "We think you did a bad thing, but have no evidence at all that you were even in the area at the time. We are not going to tell you how we know, but we want you to confess or else we will make things much worse for you."

In view of the state of law and order in this country how long before they just send out random charges to people in the hope of getting away with it? If you don't fight it then in 5 years time this could come through your door: "We are claiming you broke into number 27 and stole their TV last March. Please send us a full written confession within 28 days. Failure to do so will result in you being charged with the more serious crime of murdering Mr. Bloggs in June last year. We have no evidence but the huge legal costs will ruin you and you will be be in prison on remand for 5 years before your case is heard. So it's easier all round just to admit to nicking the TV. Your punishment has already been decided and you will get a fine of £1000."

"Yes indeed Chief Constable the crime figures are falling nicely this year, lots of confessions to all those tricky crimes that annoy government but that we can't be bothered to solve. Oh yes, income rising nicely now that we get 50% of all fines."

With this in mind everyone should demand to see the evidence every time. Apart from anything else police estimate that there are at least 130,000 cars out there on duplicate numberplates. Now, I bet none of the drivers of those cars are being careful to stick to the speed limit! So, what if one of them is your number?

Daz34

The law is an @ss

goonasuk

You are innocent until proven guilty, if they dont want to prove it, yous tay innocent

MattW

Not strictly correct. They still have 14 days to issue the NIP on the company, however as the NIP will then be returned by the company presumably with an individuals detail, they then have 6 months to follow up. IIRC etc etc

Scooby Snacks 23

Ignorant question time:

The picture is front facing - isn't this discrimination against car drivers, as motorbikes don't have front number plates

brickboy

Scooby Snacks -- true, it does favour bikes. Time to get a front plate with velcro attachment, then

Dazza01

Callum,
U say it was a hire car ? in which name was the car hired too ??? if it's ur name and then the "NIP" as been sent out correctly,as it would have gone to the hire comapny 1st, then they would check there records to see who hired that vehicle on that day, but be careful because if u say ur wife was driving and her name wasn't down on the hire document, then, if the police want to get all shirty about it (i doubt it but u never know) they may try for driving without insurance, if u claim it's not you

Im in the same boat at the moment, due in court 23rd Feb 04, as date of offence was 15th May 03, and the police won't let me have a copy of the picture neither, so i said well im afraid i cannot return the NIP as im not sure who was driving me or the wife, as it's an offence to fill in the form giving FALSE information
this is why i got my pimps tinted cos they cannot tell whose driving when one of those nasty camera men snap you

hedgehog

This may be of interest to some and highlights how your current situation can work to your advantage:

http://www.pepipoo.com/NewForums2/viewtopic.php?t=707

Please note the use of a combination of approaches here, including not signing the NIP, to deliver the killer punch. Should the defendant have been asked the killer question (Were you driving?) or the photo have clearly identified the driver then it would have been better if the driver had not been in court but was represented. Don't tell lies in court, ask Jeffery Archer why that is important :-)

Dazza01

just here

22BUK

Photographs (or video in the case of the scamera vans) CAN NOT be used as evidence as to who was driving. They can ONLY be used to identify the vehicle.

Fatman

22BUK: why do you say that? I'm not arguing the point, just wondering why/how that's the case.

hedgehog

22BUK might be correct as I don't have the text here but my reading was that it said words to the effect of "camera evidence is not intended to be used to identify the driver..."

As I stated in an earlier post I am not aware of any test cases relating to this but I would say that it is a grey area and in practise in a Mags Court where the picture clearly showed the defendant driving my guess is that it would go against the defence. If, in the opinion of the Magistrate, the photo established identity beyond reasonable doubt then, no matter what the intended purpose of the photo, this would be sufficient grounds for conviction. Such a conviction would then require an appeal to the High Court on the point of law but, to be honest, most people on a normal income would give up at that stage.

If the defendant was not in the court room in the first place then it would be impossible to determine the identity of the driver from the photo and it is impossible to ask the defendant direct questions about whether they were driving at the time, or to reach negative conculsions based upon any refusal to comment. This may be an easier and more cost effective defence than depending on them not making the personal identification thing stick on appeal.

As the number of forward facing cameras increase, due to people fighting against convictions, my feeling is that the CPS believe they can get convictions based upon personal identification from these cameras. I suspect that, certainly in the lower courts, they are correct in their belief.

The simple solution to this is that we all get face masks made up making us all look like our local Chief Constable. We wear these at all times when driving. When the NIP appears through the door fill it in saying that the CC was driving your car at the time of the offence. Next year they aim to dispatch 3 million NIPs, imagine the nightmare of paperwork if everyone names the same person as driving and there is photographic evidence to support it :-)

[Please note: the last bit was just a joke, under no circumstances lie to a court or in any evidence to be presented to a court. However, nothing illegal about the face mask!!]

22BUK

The legislation regarding them not being able to use the photograph/video comes from the "Regulation of Investigatory Powers Act 2000".

Full description here

For those of you who don't want to read it all, it basically states that if the surveillance is COVERT (that is, you
cannot be expected to know that you will be under surveillance by
camera) then the evidence (video) so gathered can NOT be used against
an individual if that individual is either:
A. In their house or,
B. In their CAR

This would seem to preclude the use of the video for identification.

To get round this, the surveillance would need to be OVERT. That is
to say, big signs stating clearly that there is a camera in xxx yards
and that you may be filmed. This clearly wouldn't help them.
Especially since they like to hide.

*Sonic*

Might be worth reading this

Here are some points that may assist with regards the law

Naming The Driver

Under the provisions of Section 172 of Road Traffic Act 1988, the person who is registered as the keeper of the vehicle, has a legal obligation to provide the police with the name of the person who was driving their vehicle at the time of the alleged motoring offence.
If the registered keeper fails to name the driver, then they may be guilty of an offence and could be liable to prosecution. This link has an example of such a case

SECTION 172

If you receive a Notice of Intended Prosecution (NIP) through the post, it is important that you deal professionally and knowledgably when corresponding with the police.

The registered keeper of the vehicle has a legal obligation, under Section 172 of the Road Traffic Act, to provide the name of the person who was driving their vehicle at the time of the alleged motoring offence. If the registered keeper cannot remember who was driving their vehicle, they may be liable to prosecution.

If the registered keeper writes to the Constabulary concerned and requests a copy of the photographic evidence, "in order to help them to identify the driver", they will probably get one of the following responses:
· They will be provided with a copy of the photographic evidence - or;
· The Constabulary may write back and state that "the photographic evidence is not intended to identify the driver, it is simply a means of identifying the offending vehicle".

If the Constabulary makes the above statement, or if the evidence that they provide proves to be inconclusive, the registered keeper may still guilty of an offence unless they discharge their legal obligation under Section 172 of the Road Traffic Act 1988 by:
· Providing the name of the driver, or;
· By Providing a list of possible drivers

However, there may be a legal loophole and this link has the details.

If the registered keeper fails to name the driver, then they may be guilty of an offence and could be liable to prosecution - and the punishment may be the same as or worse than for the speeding offence, i.e. points, a fine and costs.

This is what Section 172-3 of the Road Traffic Act 1988 says:

"A person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle or, as the case may be, the rider of the cycle was".

The key here is "with reasonable diligence", and it is up to a court to decide whether or not the register keeper has shown due diligence.

The Section 172 notice has nothing to do with the alleged motoring offence, so there is no point in writing to the police requesting any of the following information at this stage:
· A copy of the calibration certificate for the speed detection equipment;
· A copy of the guidelines and manufacturer's instructions for the use of that equipment;
· A copy of the relevant pages of the operator's notebook, detailing the entire chain of events starting from when, for example, he parked the van to when he packed up and drove away.

The above information will only be disclosed at a later stage if the "named driver" decides to contest the allegation.

Company Cars and Section 172

For a limited company, RTA 1991 Section 21(2) requires the keeper of the vehicle to identify the driver. Subsection (3) makes it an offence for the keeper to fail to comply. Subsection (4) provides a defence if the Keeper shows that he did not know whom the driver was and could not have found out by using "reasonable diligence".

The sting in the tail for limited companies is in Subsection (6) which provides that for a company to establish the Subsection (4) defence it must prove that in addition to the matters in (4) the Company did not keep a record of who was driving the vehicle and that the failure to do so was reasonable.

It is being suggested that companies ought to keep such records. For example if pool cars are used, there should be a system of signing in and out. If the company does have such a system but it didn't work on a particular occasion that might suffice. There is also the sting in the tail in subsection (5), which says that where a director or senior manager of the company caused or connived with the failure to identify the driver, that person is also guilty.

The problem is that companies can be fined but can't get points - however, Directors can. We believe that most forces prosecute the company and not the Directors for failing to identify as this leads to a conviction and fine without any effort. If they also prosecuted the Directors (solely to get points put on a licence), most would fight.
This Constabulary "company" was successfully prosecuted under Section 172 for failing to provide the name of the driver

A possible Legal Loophole when completing the NIP
· Further to the High Court ruling in the Yorke and Mawdesley case (31st July 2003), you should ensure that you study this link carefully before you complete the Form.
This article appeared in the Times newspaper on Friday the 26th February 2003:
· You should read this section carefully, because some Constabularies may be suggesting that the "loophole has already been closed" and this link has more details.

A motorist from North Wales has escaped a motoring ban after a court clerk discovered a legal loophole and police fear it could open the floodgates to thousands of other motorists across the UK to get out of speeding tickets.

The North Wales police have admitted that a change in the law is needed to plug this new loophole, which was discovered by a magistrates' clerk dealing with speeding charges against a Mr Phillip Dennis, age 34, of Gwibnant Farm, Downing Road, Whitford, near Holywell, North Wales in his absence. Magistrates said that they had no option but to find the case against him not proved.

The loophole involves a form (the NIP) sent by police to the registered owner of a vehicle caught on speed cameras or guns, which asks who the driver/rider was at the time. It is an offence not to fill in the form and name the driver - but significantly there is no requirement to sign it. However, for it to be used as evidence in court the form has to be signed, otherwise a court cannot take any notice of it!

Flintshire magistrates' clerk Paul Conlon realised Mr Dennis' form was filled in but not signed, and so could not be used as evidence. It was, said Mr Conlon, a loophole in the law. Magistrates said they were not happy but had no option but to find Mr Dennis not guilty.

Chairman John Beard suggested police should go back to defendants and ask them to sign the form. But he was advised that as the law now stood, the only requirement was to stipulate the name of the driver/rider and that there was no legal requirement to sign it even if police did go back and request a signature.

One legal expert said later: "Yes, I can confirm that vehicle owners asked to confirm the name of the driver must complete the form but there is no legal requirement to sign the document. On the other hand it is true that it cannot be admitted as evidence unless it is signed. This will need a change in the law. Some people simply pay the fixed penalty and that is the end of it. This only affects those people whose cases go to court and where the prosecution are asked to prove their case. If the form is not signed then they cannot do so."

"It would be unfair for the police to go back and ask people to sign the form without first cautioning them that the law does not require them to sign it."

A spokeswoman for north Wales Police said later that there was no-one available to comment at present but one police source said that the loophole had been known about for some time and there was concern that once it became known "it could open the flood gates".

The source said, "The police generally have been waiting for someone to appeal against a conviction on this point but no one had yet. We have basically been keeping our heads down. Some of my colleagues say we should just make sure people sign the forms but others are a bit concerned that to do that is tricking people into something they do not have to do.

The trouble is when this is highlighted they will all be sending the forms back unsigned!"

Here is a link to the this article and the Safe Speed website has more information on this topic

How this "Lacuna" may work in practice

· Further to the High Court ruling in the Yorke and Mawdesley case (31st July 2003), you should ensure that you study this link carefully before you complete the Form.
Assuming that an unsigned NIP is NOT admissible as evidence in court: The registered keeper returns the NIP, with the name of the driver but without signing it, and doing so discharges that individual's legal obligation under section 172 - to "provide the name of the driver".

The "named driver" will then either receive a Conditional Offer (Fixed Penalty Notice) or a court summons, and they would need to decline the Conditional Offer and request that the case be dealt with by a court.
The "named driver" then pleads NOT guilty and asks for the prosecution to "prove the cast against them" which, as the above case demonstrates, they may NOT be able to do!

If our understanding is correct, this may explain why the police are referring to the Broomfield case and trying to force the registered keeper into sign the NIP. It may in fact be that this "lacuna" in the law prevents prosecution for all motoring offences, where the motorist was NOT stopped at the time by a police officer - but only until they change the law of course!

However, not signing the NIP may not work in the case of a company car as the company [registered keeper] may have already sent back a completed and signed NIP, which may be admissible for the purpose of identifying the driver.


Hope this may shed some more light




[Edited by *Sonic* - 12/23/2003 7:15:11 PM]

Diesel

VERY interesting thread. It seems only common decency to show proof - surely the burden of proof should always be on the accuser? Cloud cukoo land in the ever so civilised UK it seems...

As for no numberplates on the front of motorbikes, well, I rely on that every day to use the bus lane to get to work. My slim 900 will NEVER hold up a lumbering red behemoth, and it is so much safer than weaving through traffic (esp if traffic is liable to take an un-indicated right). But then no one gives a stuff about increasing bike safety at the expense of potential fine revenue gemerated from the odd rear facing bus lane cam... Spotted every one so far (should really be looking ahead though, and not up!!!!)

I hope I dont digress too much & please keep us posted if you decide not to roll over on this one - there is good advice here to help you defeat them!!!!