Edited 14 Mar 13
READ THIS before deciding how to respond to a NIP!
No one with any sense would buy a house on the basis of a surveyor’s report prepared for the seller, nor should anyone facing a speeding charge – or for that matter any other – base his decisions on advice or information provided by police or camera partnership web sites – they are consistently and seriously misleading. Indeed their consistency across the country imply that someone, somewhere has coordinated them from the beginning.
Further, although I have had a limited degree of success in getting errors removed and omissions corrected, I have often come up against metaphorical brick walls. On one occasion a police force solicitor told me – rightly, I believe – that it would be “quite wrong” for the police to provide advice or information in these circumstances, but had no answer when I pointed out that the words I complained of were accessed on their web site by clicking on “Advice and Information”! In my view police forces and other related bodies should be prohibited by law from providing any information of this kind – it is not their job.
The impression I get, see below, is that this false, partial or misleading information is intended not only to justify the existence of speed cameras but also to secure as much cash flow (Fixed Penalties, court fines or Speed Awareness Course fees) with as little resistance and further expenses as possible.
I am adding URLs of examples of all the points I document below – of you know of more, please copy to me.
1/ Claims of Speed Camera Success.
These claims are much less prevalent than they were in the early days of the hypothecation scheme when it was common to see claims or assumptions that any and all accident reductions at camera sites were necessarily due to the presence of cameras – often without allowing for long term trends, hardly ever allowing for regression to the mean (see topic menu) and invariably without allowing for drivers who divert to avoid cameras, taking their share of accidents with them.
These fanciful claims were not infrequently repeated in glossy, self-justifying annual reports which went on to elevate this nonsense into utter farce by assuming related cash savings for the taxpayer based on the DfT’s fatuous accident valuations (see Bogus DfT Valuations).
That these claims are now less common may be in part due to their decreasing credibility but also because the Partnerships that remain in operation – rather, in business – no longer need try to justify their existence in this way. Not that they ever could.
2/ Legal Responsibility to Identify the Driver.
Most sites seek to give the impression that the responsibility under the 1988 Road Traffic Act for an owner or Registered Keeper to identify the driver is absolute – but it is not. Methods used include false statements such as the responsibility cannot be evaded, that it is the responsibility of Keepers and owners to know at all times who was driving, and almost invariable omission of any reference to Para. 4 S172 which states that:
“(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver was.”
Parliament sensibly decided that no one should be penalised for failing to do what he was unable to do – but the authorities clearly prefer that as few defendants as possible realise that are entitled to acquittal if they do not know and cannot reasonably establish who was driving. I have helped perhaps thirty drivers see charges dropped or prosecutions fail on this basis, but anyone defending themselves in this way needs to documents as fully as possible not only that he does not know, why he does not know and also how hard he has tried to find out. This would necessarily include details of how hard he had tried to find out, for example by asking others who might have been driving. Supportive, credible witnesses would also help.
It is far from unusual when family members for example share the use of a car or share driving on a particular journey that they do not remember a week or two later who was driving at any particular moment. On one memorable occasion when I was on the telephone live on air on Talk Sport radio, the presenter told me that when he had telephoned the police to say that he was not sure whether he or his son had been driving, the officer replied “Toss a coin!” I suggested that this amounted to attempting to pervert the course of justice, entrapment into committing the criminal offence of providing false information and malfeasance in public office. In any case it implied that cash flow, not justice, was his priority.
Some sites and perhaps even some prosecutors have been known to claim that all keepers and/or owners are legally obliged to keep logbooks showing who was driving – but this is simply untrue. Even for fleet owners (other than for HGV’s) – there is no such legal requirement. Of course a fleet owner who repeatedly appeared in court claiming to have no such records might have problems persuading Magistrates that he had used “due diligence” but no court – even now – would consider that Uncle Fred and Aunty Mabel were at fault for failing to keep written records of every journey to the Over Sixties Club or when and where they swopped seats.
Further, it is clearly impossible for hire car companies, businesses with many drivers or parents who allow their children to use their cars always to know a week or two later who was driving at any particular moment and it is seriously misleading to persuade them otherwise.
The law for Corporate Keepers is slightly different, in that Para. 4 does not apply. Instead they are required only to “provide such information as it is in their power to provide” – a very long way from the absolute requirement these web sites would have us believe. It is also worth noting a Corporate Keeper failing to identify a driver cannot be given penalty points as it has no driving license. Nor is the designated person – usually the Company Secretary – who acts for the Company at risk in that way. (If he were, no one would take that job in a company of any size in view of the near certainty of totting up twelve points in short order!)
3/ Misleading Information.
Most or all Notices of Intended Prosecution warn that providing false information can lead to fines of up to £2,500 and/or imprisonment. The difficulty this presents for the driver or Keeper who genuinely does not know who was driving is that he has to chose between the risk of a £2,500 fine and/or prison for providing a name which might later turn out to be wrong (for instance if a witness, photograph or vengeful wife later appears) or defending himself on court on the basis para.4 – “I don’t know”.
If he fails to persuade Magistrates both that he does not know and that he has exercised “due diligence” in trying to find out, he will get 6 penalty points instead of 3, a very much higher fine, court costs and publicity. Even worse if the 3 extra points could cost him the license he would otherwise retain.
It is also interesting here to note that the 2000 Stott v Brown verdict which is the main authority for allowing S172 to demand a name states explicitly that the verdict applies only to offences carrying “modest” fines (usually taken to mean no more than £1,000 or £2,500 on a motorway) and where the penalty for failing to identify the driver is “similar” to the penalty for the original offence. Many might think it odd that a keeper is obliged to identify a driver who has exceeded a speed limit without having an accident but not if the driver caused a fatal accident – which has happened more than once.
Penalties for failing to identify, imposed only after a court hearing, have always been substantially larger than Fixed Penalties and always incurred substantial court costs on top – but a few years ago penalty points were increased from 3 to 6 in a clear attempt, along with official guidance to Magistrates to be less receptive to Para. 4 arguments, to dissuade defendants from using the defence that Parliament rightly provided. It is therefore clear that Stott v Brown is being breached and I wish someone would challenge on these grounds.
Mitigating Circumstances
Although Acpo, under pressure from lawyers, advised all Police Forces several years ago that they are legally obliged to consider mitigating circumstances – medical emergency, escaping from road rage etc. – many Forces, on their web sites or in correspondence, refuse to do so, claiming that this is a matter only for the courts. That this is self-serving nonsense is clear from the fact that on a daily basis Forces do consider mitigation and drop cases for drivers of ambulances, fire engines and police vehicles. One of the documents listed below is a Times article on this point, please use it if you need to argue mitigation in the hope of the case being dropped without going to court – and if they still refuse, use it in court as evidence that the case should never have come to court.
Provision of Camera Evidence
Many but far from all Forces now provide photographs or video evidence on request but some still refuse. Some seek to claim that faces or number plates in the photographs mean that the Data Protection Act prevents release. This has been confirmed as incorrect by the Data Protection Authorities and it is in any case easy for the Police to blur or crop out unwanted areas.
They refuse also by using the excuse that the photographs are not intended to – or don’t – identify drivers but it is surely wrong that defendants are expected to accept or reject a Fixed Penalty – with all that this implies – without being given sight of photographs which confirm, for example, whether it is their vehicle or a clone or a misread number plate, whether the driver was tall or short, wearing a hat or not, all of which could confirm which of a limited number of possible drivers was at the wheel.
Examples of false information are at the following web sites, as of 1st March 12
Dorset
http://www.dorsetroadsafe.org.uk/index.php?option=com_content&task=view&id=13&Itemid=27
claims that responsibility cannot be evaded, that photographs are “not normally supplied” but see below.
http://www.dorsetroadsafe.org.uk/index.php?option=com_content&task=view&id=367&Itemid=130
claims that mitigation is a matter only for the courts, and that applications for documentation relating to the offence is available only from the CPS not the Partnership, and that the Freedom of Information Act is not relevant. As before, I believe these points to be wrong in law – and I complained to Dorset about them a year ago. It also confirms (in contrast to the previous page) that photographs will be supplied on request.
The same page identifies the legal obligation to identify the driver but fails to mention the para. 4 defence for those unable to do so. It advises fleet owners to keep records but in fairness does not say that this is a legal requirement – unlike some other Forces which do.
Further down the page it repeats (wrongly) that the Central Ticket Office is not able to consider mitigating circumstances – but in fact it is required to do so, and inevitably does in relation to emergency service drivers and others. It again states that requests for mitigation may be made only through a court.
The four options for responding to an NIP allow no way to reply that you do not know and cannot find out who was driving.
http://www.dorsetroadsafe.org.uk/index.php?option=com_content&task=view&id=10&Itemid=130
This “Dispelling the Myths” page contains many errors of fact. Since 2007 Partnerships are funded by grants from local not central government. Since the 2010 Acpo-inspired scheme to replace lost or reduced local authority funding by profits from Speed Awareness courses, there has been every incentive to maximise camera and offence numbers to generate cash for the schemes, cash then passing to Police funds. Some Forces ring-fence that money for camera funding, others do not.
Hampshire
http://www.saferroadspartnership.co.uk/
claims that ” Through partnership working we have reduced fatal and serious collisions by 55% and total collisions by 41% on our camera sites.” – there is little or no evidence to show that their cameras were responsible for any of those reductions.
http://www.saferroadspartnership.co.uk/about-the-partnership/
“The number one cause of injuries and deaths on our roads” This is simply a lie – speed above limits – which is what we are discussing here – is a factor in only 5% of slight, 9% of serious and 14% of fatal accidents and is not remotely near to being the number one cause – which is actually drivers failing to pay proper attention. As I say, a downright lie.
http://www.saferroadspartnership.co.uk/what-we-do/safer-driving/speed.html
“The legal speed limit is carefully set as the maximum safe speed for the road.” is simplistic nonsense – the maximum safe speed for a road varies significantly along its length, by weather conditions, whether night or day, by driver ability and experience and by vehicle type. It is therefore not possible to determine a single number (by law in increments only of 10mph) that is “carefully set” and to suggest otherwise is to suggest to gullible drivers that this is the speed at which they should drive. Indeed one infamous road safety advertisement a few years ago instructed drivers that the art of driving safely is to keep the speedometer needle accurately at the speed limit!
“The faster you drive the less time you have to react if the unexpected happens and if a collision does occur the more serious any injuries will be“. Not necessarily the whole truth. Driving more slowly than other traffic is also dangerous, leading as it does to more overtaking, more road rage, more tailgating (a significant causal factor) and more speed differential. Not infrequently higher speed – such as when overtaking – reduces the danger of being on the wrong side of the road and greater power and acceleration helps drivers out of trouble. And faster drivers are usually concentrating more than slow drivers, and avoid accidents in that way.
“ If a pedestrian is hit at 30 mph there is about a 20% chance of them being killed.
If a pedestrian is hit at 40 mph there is a 90% chance of being killed”
Simplistic nonsense – fatality rates for pedestrians show that only the odd few % are killed despite typical urban traffic speeds of 30mph or so, and the reason is that in the vast majority of cases alert drivers brake a great deal before impact or swerve to avoid direct impact. Pedestrians are more likely to be killed in these circumstances if drivers fail to see them because, as one witness said at a North Wales inquest “I was aware that this was a speed enforcement area so I was monitoring my speed carefully. When I looked up, there he was”.
“For every 1mph reduction in average speed there is a 5% reduction in injury accidents. (Finch et al., 1993;Taylor et al., 2000).” Taken out of context and in any case the analysis was very seriously flawed and was exposed as such at least 7 years ago. It failed to allow for the adverse effects of the measures taken to bring about speed reduction. Also, as 49 cars doing 49mph and 1 car doing 99mph have the same average speed as 50 cars doing 50mph, it is perfectly clear that average speed cannot indicate the degree of risk.
“All reliable research into accident causation shows that the factors determining both excessive speed and inappropriate speed amount to about 30% of contributory factors in road accidents. (Speed: Know your limits DFT July 2005)”. Badly worded and serious misrepresentation of the Stats19 contributory factor data, including quoting the for fatal accidents as if they applied to all accidents. I give more detail elsewhere, but only 5% of slight, 9% of serious and 14% of fatal accidents involve (or might have involved) speed above the limit as one of usually many causal factors, often not the most significant factor. In terms of primary causal factors, speeding is in low single figure percentages.
“Overwhelming evidence from TRL studies shows that higher speeds mean more accidents. The message is clear and consistent. “Managing Vehicle Speed for Safety” (TRL 2001) “ Not the first time and probably not the last that TRL issued a seriously flawed report. Data from around the word shows that, for example, there is no significant difference in casualty rates between German motorways with no speed limits and others there and in other countries with 60/70 or 80mph limits. Traffic engineers have known for decades that unrealistically low limits can increase speeds, increase differentials, increase frustration and increase accidents.
I will continue to add to this list of examples as time permits, please tell me of any examples you come across