Opinion on this situation?

Convicted Driver Insurance

BMW2007

New Member
I posted this in the solicitor's advice section but thought i would post it here too if anyone had any opinions on the situation, cheers.

So, a family member of mine's car was caught on a dashcam by someone and sent into the police for poor driving. -The dashcam does not show who is driving or the person driving getting out of the car.

Over an hour later the police turned up at this person's address (they had been in the house for over an hour) and took the person into the station - they blew over the limit.

As advised by a solicitor, they said no comment to every police interview question and were "released under investigation without bail."

Would you say there is enough evidence for prosecution? What else could they be investigating?

Thanks for any opinions/help!
 
As it stands, there is not enough evidence for a prosecution.
What was the reading in breath?
Was the person asked if they had been drinking since they got home as part of the questions that there was a “no comment” answer to?
Was the same answer given when (presumably) the police asked who is insured to drive the car?
The above could have an impact if the police do manage to turn up some evidence that this person was driving. I would imagine that they will now be making enquiries to see if there is any other video evidence which indicates who was driving. This could be from CCTV if the events were in a town centre covered by cameras or the local McDonalds etc.

Should the police turn up evidence that this person, beyond reasonable doubt, was driving, he would have to satisfy the court that he was over the limit only because of what he drank after getting home. The no comment interview was under caution where he was warned “you do not have to say anything but it may harm your defence if you fail to mention something which you later rely on in court.....” so that means that he failed to put forward his explanation about drinking afterwards at the first opportunity and makes it much harder for the court to be convinced of his claim.
The no comment interview was (correctly) advised as a gamble because the police did not, at that time, have enough evidence for a prosecution and would have been relying on a confession from the alleged driver in order to have enough evidence to proceed.
 
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price1367 said:
As it stands, there is not enough evidence for a prosecution.
What was the reading in breath?
Was the person asked if they had been drinking since they got home as part of the questions that there was a “no comment” answer to?
Was the same answer given when (presumably) the police asked who is insured to drive the car?
The above could have an impact if the police do manage to turn up some evidence that this person was driving. I would imagine that they will now be making enquiries to see if there is any other video evidence which indicates who was driving. This could be from CCTV if the events were in a town centre covered by cameras or the local McDonalds etc.

Should the police turn up evidence that this person, beyond reasonable doubt, was driving, he would have to satisfy the court that he was over the limit only because of what he drank after getting home. The no comment interview was under caution where he was warned “you do not have to say anything but it may harm your defence if you fail to mention something which you later rely on in court.....” so that means that he failed to put forward his explanation about drinking afterwards at the first opportunity and makes it much harder for the court to be convinced of his claim.
The no comment interview was (correctly) advised as a gamble because the police did not, at that time, have enough evidence for a prosecution and would have been relying on a confession from the alleged driver in order to have enough evidence to proceed.
Click to expand...

Thanks for the reply!

I think the reading was nearly 3x the legal limit & they did say they had been drinking in their own home during the interview yes, but no comment to every other question & they can’t remember if the question was asked about who was insured to drive the car.
 
Sounds like he had decent advice then. It is a waiting game now to see what the Police turn up.
 
Is the arrested person the registered keeper of the vehicle?

If so and the police obliged them at interview to name the driver under S172, or ask them in writing to do this within 14 days, then they commit an offence attracting six points as they have failed to name the drivers, unless with reasonable diligence they could not do so, which seems very unlikely if the car was driven an hour previously.

If they aren't the RK they still have to give any information that is within their power to give. Again the court may find it very likely they would know who was driving the car an hour previous.

It would seem highly likely the police would prosecute for that if they couldn't confirm the driver if the police did make a S172 request during interview.

Whether a slam dunk S172 conviction and six points vs defending a DD prosecution as a hip flask defence depends on how strong the hip flask defence is I would imagine.
 
The 172 problem is correct yet in my experience the police seem to seldom use this tactic for drink driving cases. I don’t know why, as it is a good way of exacting “revenge” if they are sure that a person was driving but lack the proof to gain a conviction.
It appears that there was no actual accident, just “poor driving”. As such, they would need to give the 172 request to name the driver together with a “notice of intended prosecution” for driving without due care and attention in writing within 14 days. It would not be sufficient to give an NIP in an interview verbally several hours later. If 14 days have lapsed since the incident then he is in the clear for this part.
 
You don't need a NIP to make a S172 request, and it is highly likely at interview the OP would be aware that the police were considering prosecuting them.

In DPP Vs Francis and Broomfield it was found that verbal NIPs can be answered immediately or within a reasonable timescale as determined by the police. So if the OP has had a verbal S172 and they think they have a defence to the DD then they could contact the police and see if they will still accept the nomination.

However with a hip flask defence it may be out of the frying pan, into the fire.
 
Sorry, I wasn’t clear in my past post. You are right, TipseyNurse that you do not need an NIP for a S172 request. But if the police were to want to take action for the “poor driving” as in driving without due care and attention, then they woUld need to serve an NIP within 14 days. Given that the incident happened an hour previous, then he was arrested, then presumably held for a while after the breath test procedure, a verbal NIP during a subsequent interview would certainly not count as being given ‘at the time’, (or shortly afterwards) so there could be no prosecution for that. If they did serve an NIP, then they could prosecute for due care and also the drink driving if they could identify the driver. If his ‘hip flask” defence worked, he could be still convicted of the due care. If they served a proper S172 notice in writing (or verbal, but they have to say more than ‘I want you to name the driver’ in an interview, ) then even if he cannot be identified, he could still be potted and get 6 points as you say.
 
Price, I think you are conflating two things.

A NIP must be received at the time, or by post within fourteen days. I think a court is highly likely to consider being arrested an hour after after the alleged incident to be sufficient NIP for the purposes of S1 RTOA, seeing as the purpose of S1 is to establish the OP to establish a sufficient remembrance of events.

An S172 request can come at any time, even after the fourteen day limit. You are right in that it relies on the police either making a valid S172 request at interview or issuing one afterwards (unlikely).

Of course with a simple speeding ticket S1 NIP and S172 request for driver details (and sometimes more) are combined in one letter, but there is no requirement for them to be combined. As DD cases normally get more police attention, it is important not to (choose) to commit an S172 offence if you choose to defend a otherwise seemingly strong DD defence.

For the OP - if they have formally required you to name the driver, be aware you potentially commit a S172 offence even if you go "no comment" seeing as Francis & Idris vs ECJ has already established you do not have the right to not self incriminate if a S172 request is made, unless in Scotland.
 
TipsyNurse,
We are in agreement on the S172, but not the NIP.

A NIP has to be given at the time of the offence, or VERY shortly afterwards... or by post within 14 days.
I cannot find the relevant case law (Out of the job for quite a while) but I can recall a case that was thrown out because a verbal NIP was given an hour after the alleged offence and was deemed to not be “at the time or shortly afterwards”. By no stretch of the imagination could 4 hours or more after the alleged driving event to be at the time or shortly afterwards.
You have to remember that a verbal NIP is not asking questions about an offence, it must point out the alleged offence of careless driving (which would no doubt have been done in the interview) AND point out that the person is being reported for the consideration of being prosecuted for this offence. (Which I very much doubt was said in the interview because the officer would be focussed on the drink driving. If this part is missing then it is NOT a verbal NIP and a written one would have to be served, or a summons issued, within 14 days otherwise proceedings could not be taken for the due care.
Say a police officer stopped a motorist and spoke to him about speeding and pointed out what the limit was and how fast the motorist was going. The motorist would know what was being investigated so that would suffice as an NIP? NO, the officer would have to include wording (or wording to the effect, the precise wording is not specified) “you will be reported for the consideration of the question of prosecuting you for the offence of speeding ...” if he didn’t do this, and a written NIP or summons was not sent to be received within 14 days, then the motorist could not be prosecuted for speeding because he has not had a NIP.
It might be pedantic, but being pedantic got David Beckham off this week when a written NIP was not received until 15 days had elapsed. Even his solicitor said he was “morally guilty” he admitted speeding but he had to use the wording of the law that parliament had approved and he was therefore acquitted.
 
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I think the case the CPS would rely on is R vs Currie 2007, which found that the interpretation of S1(1) was such that the defendant had "notice of the relevant event in sufficient time to be able to recall it themselves and recall it to others who may be able to give evidence on their behalf". Again I don't think an hour delay would be a deal breaker here, the magistrates will be aware of numerous reasons why a DD may not be arrested at the exact point they stopped driving.

As to whether being arrested and taken to a police station was sufficient to communicate to the OP that they were being considered for prosecution, well only the OP can answer that, but my guess would be generally yes.

That's not to say there isn't a potential defence to no NIP, but in general I think since Currie the idea that small procedural delays invalidate a NIP is a risky defence to take.
 
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