We recently had a client who came to us after he represented himself in the Magistrates Court and was convicted of two counts of failing to provide driver information, for which he received 6 penalty points each meaning that he accumulated 12 points and, having that number of points on his licence, he should be disqualified from driving for at least 6 months.
Our first job was to ensure he could keep his licence despite the fact that he had these points and therefore should be disqualified. We were able to do this successfully by arguing Exceptional Hardship before the Magistrates Court. An Exceptional Hardship application involves a hearing before the court where a defendant with 12 or more penalty points appeals to the court that were he or she to lose their licence they would suffer Exceptional Hardship. Such an application is not restricted to purely financial hardship and if you are in such a position please ensure you contact us to see if we can help you to keep your Driving Licence.
Once we had successfully argued Exceptional Hardship, we were able to turn our minds to the original conviction that the client received when unrepresented. We managed to successfully appeal against his convictions, meaning the 12 points were removed from his licence.
Notice of Intended Prosecution
There are many features of this case which are important for all motorists to understand when they are alleged to have committed traffic offences carrying penalty points:
- When certain driving offences (e.g. speeding, driving without insurance, driving without a seat belt etc.) have been committed, a request for driver information is sent to the registered keeper of the vehicle. There is a time limit of 28 days to respond to this, otherwise an offence is committed; if you are unsure how to respond then seek advice sooner rather than later.
- Even if our client had responded and declared who the driver was, he would not have received any penalty points at all because the original offences were not “endorsable” (which means that they were not offences for which he could have received points). All the points given to him came from him failing to respond to the request, not from the original offence. It is important that drivers appreciate that failing to act in response to a Notice of Intended Prosecution (NIP) will often make matters worse. On this occasion no penalty points could have been imposed for the original offence yet 6 can be imposed if the notice is simply ignored. Most NIPs are sent out to drivers who have been speeding, which normally attracts only 3 points, rather than the 6 points that may end up being imposed on those who ignore the notice.
- For most (but not all) offences, the Notice of Intended Prosecution (NIP) and request for driver information must be served within 14 days of the date of the offence. If it is served late then you must still respond otherwise you will be guilty of the offence. Responding to a NIP which has been served late will not necessarily mean you receive the penalty points for the original offence, but failing to respond will mean you do receive 6 penalty points.
Before the appeal was heard in court, we drafted a skeleton argument and sent it to the court and the prosecution. A skeleton argument is where lawyers set out in writing the legal points they wish to advance in support of their client’s position. In this case, the original offence was not described properly on the NIP and therefore it was impossible to work out exactly what offence had been committed. We argued that the failure to give sufficient detail was a breach of the legal obligation placed on the prosecution and that the original notices should be deemed invalid. Furthermore, we argued that the prosecution did not have the authority to send out a NIP because of the rules regarding the offences for which a NIP can be sent, those rules being contained in the Road Traffic Act.
Alongside this, the defendant denied ever having received the NIP and therefore disputes that he would have ever been able to send it back, and we were able to locate a witness to confirm that the post in the area was unreliable and therefore it was likely that this was true. Ultimately, we did not need to call this witness to give evidence, because the prosecution did not contest the appeal on the basis of our legal argument submitted before the court appearance.
This case highlights the importance of instructing a solicitor early – had this client done so, we could have saved a lot of time, stress and money. Had our client been found not guilty originally then there would have been no need to make an application for exceptional hardship and no need to appeal this conviction.