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When is a Notice of Intended Prosecution required?

Posted on 3rd February

Under section 1 of the Road Traffic Offenders Act 1988 (“RTOA”), it is possible to escape conviction for certain driving offences if the police do not give the driver prior warning of their intention to prosecute.  This rule exists so that motorists are made aware of any accusations against them at an early stage, and gives them the opportunity to recall and/or record the facts as they occurred before memories have an opportunity to fade.  In this article, we look at when s1 applies, and how it can be used to escape a conviction.

To which offences does s1 RTOA apply?

The police are not required to give warning in relation to all driving offences.  The requirement to give warning applies only to the offences listed below:[1]

Contravention of vehicle speed limit s16 and s17(4)Road Traffic Regulation Act 1984
Speeding offences (generally) s88(7) or s89(1) Road Traffic Regulation Act 1984
Dangerous driving s2 Road Traffic Act 1988 (“RTA”)
Careless and inconsiderate driving s3 RTA
Leaving vehicles in dangerous positions s22 RTA
Dangerous cycling s28 RTA
Carless and inconsiderate cycling s29 RTA
Failing to comply with traffic directions s35 RTA
Failing to comply with traffic signs s36 RTA
Any alternative verdict relating to any of the above offences[2]

One broad exception to the warning requirement in s1 arises in cases where, at the time of the offence or shortly afterwards, the vehicle used to commit the offence is involved in an accident.[3]  In such cases, there is usually no requirement to give a s1 warning unless the accident was so trivial that the driver was completely unaware that it had occurred.[4]  This exception to the general rule under s1 exists for logical reasons: a driver will usually have to recall information relating to the circumstances surrounding the accident for insurance purposes, so any resulting prosecution will usually come as no surprise.

It should also be noted that there is no requirement for the police to give warning where they have dealt with the offence by issuing a fixed penalty notice.[5]

How can valid warning be given for the purposes of s1 RTOA?

This warning can be validly given in three ways:

(a)    The police can warn the driver at the time of the offence (usually orally) that the question of prosecuting him will be taken into consideration; or

(b)   The police can serve a summons on the driver within 14 days of the commission of the offence; or

(c)    The police can serve the driver (or the registered keeper of any vehicle involved in the commission of the offence) with a notice of intended prosecution (“NIP”) specifying the nature of the alleged offence and the time and place where it is alleged to have been committed.

It is important to note that in cases where an oral warning is given under (a) above, the warning must be clear enough to be understood by the driver: a defendant may be able to escape conviction if he can show that he honestly did not understand the warning he was given,[6] although it is anticipated that such cases are rare.

Where warning is given through service of a summons, then (subject to s47 Magistrates Court Act 1980) the usual rules of court relating to service apply.  This is a highly technical area of law, so please call us for advice if you think your summons has been served outside the 14 day period.

Where warning is given under (c) above by serving an NIP, such a notice must be served within 14 days of the alleged commission of the offence.  Service is a complicated legal area, but in the majority of cases service of an NIP under s1 RTOA will be valid if the notice was posted so as to be delivered to the address (or last known address) of the driver (or registered keeper) of the vehicle in the usual course of post within the 14 day period.[7]  It should, of course, be noted that service of an NIP can also be achieved by the police physically giving the notice to the driver (or registered keeper) in person, or by the police visiting the address of the driver (or registered keeper) and leaving it there.[8]

Raising a breach of s1 as a defence

If a driver wishes to raise a breach of s1 RTOA in his defence, the burden of proof is on him to prove (on the balance of probabilities) that the requirement to give warning was not complied with.[9]  This means that, unless the driver can satisfy the court that it was more likely than not that the police failed to comply with s1, it will be presumed that they did so comply.

It must, however, be emphasised that s1 will not operate as a defence in cases where the name and address of the driver or registered keeper could not be obtained in time for a warning to be given under the time limits set out above “with reasonable diligence”.[10]  Similarly, if the driver has contributed to the police’s failure to comply with s1, the defence will not apply.[11]

Conclusion

It is, therefore, possible to escape a conviction for certain driving offences if the police do not give warning of their intention to prosecute in accordance with s1 RTOA.  However it is clear that, in the overwhelming majority of cases, specialist legal expertise is required in order to successfully raise this as a defence owing to the complicated rules surrounding service.

If you have been accused of a driving offence, call us now for a free consultation: with a Road Law Barrister on your side, you may be able to escape a conviction.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.



[1] Schedule 1 RTOA

[2] s24 RTOA

[3] s2(1) RTOA

[4] Bentley v Dickinson [1983] RTR 356

[5] s2(2) RTOA

[6] Gibson v Dalton [1980 RTR 410

[7] Groome v Driscoll [1969] 3 All ER 1638

[8] s1A RTOA

[9] s1(3) RTOA

[10] s2(3)(a) RTOA

[11] s2(3)(b) RTOA