Notice of Intended Prosecution – what should you do if you receive one?
If you are a professional driver (such as an HGV driver) or drive for social, domestic and pleasure use, you need to know what to do if a Notice of Intended Prosecution (NIP) comes through your letter box as it can be confusing as to what action to take.
What is a NIP?
A NIP is issued under Section 1 of the Road Traffic (Offenders) Act 1988 and is a warning to a driver that they are suspected of having committed a certain offence and may be prosecuted. Offences that require a NIP to be served in law are as follows:
·careless driving; and
·disobeying traffic signs and traffic signals.
A NIP is usually issued where a speed camera or camera on traffic lights has caught an offence and the driver was not stopped at the time. It is not required for other road traffic offences including driving whilst using a held-hand mobile telephone or a hand-held device or following an accident where a Fixed Penalty Notice is given by the police.
A NIP may be given verbally (usually by a police officer at the time of an alleged offence) or in writing. It will detail the alleged offence and request the identity of the driver of the vehicle at the time of the offence.
Legal requirements for a NIP to be valid
Section 1 sets out strict statutory requirements for any NIP. If the requirements are not met, a driver shall not be convicted of an offence. Put simply, it provides the driver with an opportunity to respond to an allegation.
A NIP must be given:
·at the time the offence is committed; and the driver must be informed that prosecution for the offence would be considered; or
·by summons within 14 days of the offence; or
·by a NIP within 14 days of the offence, specifying the nature of the alleged offence and the time and place it was alleged to have been committed.
If the offence alleged is one of careless, inconsiderate or dangerous cycling it must be served on the cyclist.
If the offence relates to any other offence under the Road Traffic Act, it must be served on the alleged offender or on the registered keeper of the vehicle at the time of the commission of the offence.
Service of the NIP
A notice may be served by delivery to the relevant person (such as the driver or registered keeper) by:
·addressing it to their last known address; or
·sending it registered post, recorded delivery or first-class post addressed to their last known address.
The ‘Postal Rule’ applies to service of the NIP as the Act states that service will be deemed valid if sent by registered or recorded delivery to the last known address, even if it is returned undelivered or not received by any other reason (for example where the driver has moved house without updating the DVLA or the NIP has been lost in the post).
Presumption in favour of the Prosecution
The Act states the legal requirements regarding service of the NIP will be presumed to have been complied with by the police/prosecution unless and until any contrary argument is proved. The onus would therefore be on the driver to prove to the Court that a NIP was not served in accordance with the Act (for example within 14 days)
Failure to comply with a NIP (Section 172 requirement)
Failure by the registered keeper to respond to a NIP within the 28-day time period could result in a separate charge for failure to provide information about the identification of the driver at the time of the offence (Section 172 RTA 1988).
The following penalties may be imposed unless a registered keeper could satisfy the Court that they did not know who the driver was using reasonable diligence:
· 6 penalty points; and/or
· a fine up to £1,000; and/or
· a period of disqualification
Hauliers and other businesses should therefore maintain accurate records in order that they can readily identify a driver if required to do so. If a registered keeper was not the driver at the time of the offence but they fail to disclose who the driver was, they may have their licence endorsed with 6 penalty points. This can include company directors.
If a false name is provided, charges may follow for an offence of perverting the course of justice which is serious enough that it can only be dealt with by the Crown Court. The maximum penalty for this is life imprisonment and/or a fine, though something in the region of a 12-month prison sentence would be more likely.
Points to consider
·It is important to ensure the DVLA are kept up to date with vehicle and licence details to minimise the risk of receiving a NIP when a driver is no longer the registered keeper or failing to receive one as address details have not been updated.
·If a NIP is received, check the validity of the NIP and that it was served within the 14-day period.
·If the registered keeper was not the driver at the time, they must identify the driver within 28 days or risk a separate charge of failing to provide information. Ensure driver details are therefore kept up to date if you are a company and that the DVLA has correct details if you are an individual.