Safe Speed Forums

Hello
2 months ago i was in my car ( registered to me) in cornwall with the mrs. (i live in manchester)
the car was caught by a speed camera on a duel carriage doing 76mph in a large open country area, myself and wife cant decide who was driving.
this is whats happened to date.

original offence: 28oct
note requesting driver details through post: mid nov (i ignored)
reminder 2 week later (i replied)
basically saying myself and wife dont dispute the car may have been speeding but cant agree on who was driving, its caused no end of arguments and if possible could you please provide photo evidence so we know who was driving then we would be happy to supply details requested as we presume its probably illeagle for the wrong person to take the points and fine, and we really have no idea.

09-12-08 i recieved this reply (the photo's attached only show rear of car, no way of knowing who was driving)

dear sir,I am writing further to your recent correspondence regarding the notice of inteded procicution form sent to you recently in relation to the above alleged traffic offence, detected by the camera technology and supported by photographic evidence.
please be advised that is the responsibility of devon and cornwall constabulary to provide evidence that the vehicle in question as in breech of the speed regulations. It is the responsibility of the keeper of the vehicle at the time of the offence to identify who was driving.
I encole a copy of the photographic evidence as requested and hope this will be of assistance to you.
should you be unable to identify the driver it is standard paractice for the matter to be referred for possible court proceedings where the question of the issue of a summons will be considered
yours faithfully.

SO...what do i do now?, bow down take the points and fine (even tho its prob illeagle and contept of court!!)
or do i take it further and they may take me to court?

Its new to me that its my responsiblity to keep a record of who drives the car at all hours of the day, what if my son and daughter drive it too?? i really dont remember seeing anything about this in the highway code?? surely as a law abiding member of public i cant be prosicuted for not knowing every point in todays law?

any advice on this matter would be most welcome
thanks in advance.

Not advice, but if you really really don't now who was driving I can't see how you can fill in the NIP truthfully.

This is the so called "Hamilton Defence" which was used by Neil and Christine Hamilton a couple of years ago. Take a look here

http://business.timesonline.co.uk/tol/b ... 690244.ece

http://www.timesonline.co.uk/tol/news/u ... 507829.ece

The critical point is that you must return the notice within 28 days

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
When I see a youth in a motor car I do d.c.brown

And I would be lying on it either.

thanks guys for the quick reply, the links make interesting reading, im really unsure what to do now,it will be easy to break the law and fill in a N.I.P, or protest it?
I think i will write to the prosicuter and ask him what he thinks i should do! i will let you know the outcome
regards and thx.

We were in your position last year, with my wife's car, but we did eventually remember who was driving (and that's an interesting story in itself). She did much the same as you - asked for the photograph which was inconclusive, wrote back saying we didn't know who was driving. She had a reply saying that, if she still couldn't remember, the case would go to court where we would have to convince the magistrate and warning us of the penalties of perjury.

Even after we worked out who was driving it was tempting to continue insisting that we didn't. But we are law abiding citizens (and bad liers )

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
When I see a youth in a motor car I do d.c.brown

I suppose that the logical thing in these cases would be to share the penalty between the putative drivers. In your cxase 1.5 points ad £30 each But motoring law has never been logical and I anticipate a new offence of "conspiring to exceed the posted speed limit" with a penalty of 6 points and a £1000 fine for each party. Or legislation requiring us to display a plate showing the drivers ID.

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
When I see a youth in a motor car I do d.c.brown

I should probably add that http://www.pepipoo.com is a far better source of advice on how to deal with NIPs than here.

If its a company car driven by a number of people then there is an expectation that a record will be kept. Failure to do so is not an offence but, if prosecuted for failing to name the driver, it will harm your defence if a record would have helped to ID the driver.

If its a privately owned car then there is no expectation of record keeping. If you can't remember who was driving you should name the possible drivers. That will result in a court appearance for a trial. To get a not guilty verdict you will need to show that you have exercised reasonable diligence to ID the person driving at the relevant time. In my personal experience the majority of such trials do result in a not guilty.

When this requirement came into being every just about case where the owner said they couldn't remember who was driving was dropped. Then one of the forums specialising in getting people off speed camera charges suggested that if you "forget" who was driving the problem would go away. This resulted in a huge increase in people not being able to remember who was driving. The consequence is that just about all cases now go to trial.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

What's the logic in that?

Perhaps in cases of murder where we can't decide who is guilty, all suspects should share the penalty?

Perhaps I can divert peoples attention to the case of Burns v Bidder [1967] 2 QB 227

The driver claimed he ran over a pedestrian on a crossing because of a total brake failure, despite the unexplained fact that the brake functioned normally immediately afterwards! The driver was actually believed and successfully defended any liability with a defence of Automatism (blameless loss of control). However I won't ever try that defence as it is surley a freak of the legal system.

So what has that got to do with with all this I hear you ask. Well its like this, I would suggest that the Hamilton defence was a freak of the legal system. As I recall, the Hamiltons had frequenty swapped driving to the extent they couldn't recall who drove what sections and the court believed them! Is life really like that? hmmm?

Sadly Candyblue and his wife seem to think that what they believe to be true is important in court. The harsh reality is it doesn't matter what they think is true, its what the jury or magistrates believe is true. And as in Burns v Bidder and the Hamilton Defence I deeply sceptical that they will believed a second time.

My personal view point is that I go hunting with my father and who is ever nearest the 4x4 drives as we stop and start all day long. However I can clearly recollect who drove what 14 days ago in a very confusing and illogical scenario. Personally,if a jury member, I would take some convincing that Candyblue and his wife between them couldn't work out who drove what on an organised journey of this type.

I'm not suggesting that Candyblue is trying to pull the wool over anyones eyes, I am merely pointing out the reality of a prosecution as I see it.

Can anyone enlighten me on any futher successful "Hamilton Defences" by the way as I would be genuinely be interested to know.

Welcome to the Safe Speed, Lucy. You sound well informed. Would it be indiscreet to ask if you are qualified in or even practising motoring law?

The fact that there are no restrictions on who may be the registered keeper leads to some interesting speculation and I am surprised that more use has not been made of the potential loopholes offered by this. If the keeper is below the age of criminal responsibility then they can ignore the S172 request with impunity. Indeed, if young enough, they might not be capable of replying. Nor could they be prosecuted for not having road tax.

There is also an interesting thread on PePipoo about a keeper who has succumbed to Alzheimershttp://forums.pepipoo.com/index.php?showtopic=35189

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
When I see a youth in a motor car I do d.c.brown

The specific circumstances of Burns V Bidder may be a freak of the legal system but the defence of automatism, of both insane and non insane varieties, is raised now and again.


As I have already posted in this thread the so called Hamilton defence is regularly raised and frequently succeeds. S172 allows a defence of can't remember and unable, despite reasonable diligence to find out. Its the reasonable diligence that matters not the inablity to remember.





http://forums.pepipoo.com/index.php?sho ... entry27411

and thats just one example, there are hundreds of similar cases that don't get reported because the driver isn't well known in the media.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

I cant speak for the circumstances of the OP, but my own experience of driving and changing drivers is that firstly my wife and I have our own vehicles, and the only time we share driving is on long trips on holiday.
Since we live in Cumbria, this entails a 6 - 6 1/2 hour drive to the ferry port, where depending on the port, we either need to be there by 7.00am (Weymouth) or 11.00pm (Portsmouth) so typically change over 2 - 3 times during the journey.
We usually change on service stations, but dont purchase at them, so no receipts.

On an overnight drive, since I used to work nights, I usually drive until I feel tired, then my wife takes over while I nap - and when I wake up, I take over once more at the next opportunity.
During the day trips, we simply drive for 1 1/2 - 2 hours, then change about.

Given the locations of speed cameras are rarely named on a road atlas, it is nearly impossible to say exactly who drove where or when precisely... and we usually drive to allow for plenty of time, with no expectation of speeding.
The speed camera however only knows precisely when the offense occurred, and requires a precise answer! If the authorities concerned expect to be able to monitor traffic remotely, and with insufficient evidence to secure a conviction when they detect a DRIVER speeding, then they should expect that one or two drivers are going to slip through the net because their timekeeping and memory of who was driving was equally slipshod.

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Time to take responsibility for our actions.. and don't be afraid of speaking out!

Dcbwhaley; Thank you for your welcome. The truth about my legal knowledge is that I spent much of my formative years in various prisons for TWOC. In every prison library there is always a copy of Hansard. So as I moved from prison to prison it was the one book I would be guaranteed to always find. So in those hedonistic days, in between watching Trisha and Neighbours, I would read a few pages a day and I guess some rubbed off (lol).

This Registered keeper business sounds entertaining!
However the owner and registered keeper are not the same thing as we all know. However my first thought is that the Registered has Legal Responsibility for the vehicle and so if unable to be legally responsible due to age or any other incapacity, then they could not be the registered keeper. So if a child is lucky enough to inherit Hitler’s Horch, then his guardian or someone else must take legal responsibility and become the Registered Keeper. This is no different to firearms restrictions where a licence to possession is required rather than a licence to own one.

Of course I could be wrong! Has anyone actually registered a vehicle to someone under the age of criminal liability or even under the age required to use that vehicle on the road? I would be surprised if DVLA would accept anyone as a registered keeper who was clearly not of an age to use the vehicle and certainly not if they didn’t have criminal liability.

However my feelings on this one are supported by the legislation governing the registration and taxing of vehicles on the public highway which is contained in the Vehicle Excise and Registration Act 1994. The Act uses the term 'keeper' of a vehicle throughout, although it is silent on the age of the keeper. However, as the 'keeper' is taken to mean the person who is responsible for taxing the vehicle and also its day to day use on the public highway, I don’t think the DVLA would accept applications to register vehicles in the name of someone who is not a ‘keeper’ in the sense of the Act as they could not be responsible for the vehicles use on the public highway.

However, in my opinion, all this avoidance of Section 172 of the RTA 1988 is something of a folly that so many people believe to be a fool proof loop hole. The reason I say this is because the failure to identify the driver doesn’t stop a criminal investigation that may reveal the identity by other means (and may land the registered keeper right in the rose fertilizer and probably won’t come out smell of roses).

Let us just suppose that Mr X’s car is registered to his dear old Aunt Flo who either looses her marbles, dies, or runs off to live with some tribal community in a country with no extradition treaty. Well section 172 (a) is obviously hypothetical. However, even with no photo ID, if an investigation revealed that Mr X was the insured, he had paid the road tax and the offence was at 08:50 near his normal place of work, then you can bet that Mr X will have his collar felt and section 172 (b) will put him on the spot as “any other person shall if required … give any information which it is in his power to give and may lead to identification of the driver.”

I personally feel that the general public miss the implication of 172 (b) beliveing that (a) is the only hurdle to be jumped. It means the keeper’s spouse, children, employer, colleague or a complete stranger can be asked if they know who was driving and face prosection if they fail to identify or even just give a scrap of information that may lead to an identification when it was within their power to do so. For example, if your employer has car park CCTV footage, then he is obliged to look at it or provide a copy.

The real question you need to know the answer to, is, to what lengths will the police go? Well here in Shropshire a young lad has recently been busying the Magistrates over dropping an empty crisp packet – so your guess is as good as mine.

Oh, any lengths. After all, it's only public money that's being spent on trivia designed to show the public who is "in charge". This is really what it's all about.

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Malcolm W.
The views expressed in this post are personal opinions and do not represent the views of Safespeed.

Fisherman: Whilst I accept the “Liverpool Jury” exists and no doubt there is a magistrates eqivalent (a “Liverpool Bench” maybe?), I am personally still doubtful that the Hamilton Defence really is has any mileage (sorry I’m in a pun mood tonite).

Whilst I haven’t searched vigourously, I am unaware of any other sucessful use of this. I did look at the link to pepipoo.com and was shocked that one of the contributors dishing out legal advice, had a picture of her posterior in frilly knickers! Well I’ve never known any reputable law firm who provides such a service (well at least not to the legally aided –lol).

But to be serious for a minute, the reality is a Hamilton Defence just won’t be believed. I certainly couldn’t advise someone that this defence is widely acceptable on the basis of some internet forums. I would say ‘the evidence against you is strong but your plea is a matter for you own concience.’

Re 172 (3)
“A person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle or, as the case may be, the rider of the cycle was.”

Surley there are two hurdles that must be jumped here?
Firstly – Defendant must show “to the satisfaction of the court” that he DID NOT KNOW.
And Secondly – could not ascertain the name of the driver with reasonable dilegence.

My interpretation is that you can be as dilegent as you like, with petrol receipts, phone records or even down load the cars ECU, but if the court is not satisfied that you genuinely don’t know, all that diligence won’t matter in the slightest.

My personal circumstances are I have a 4x4 registered to me and any member of my family takes it without asking. Say 50% of the time I am oblivious to it being used and by whom. Now if I turned up with a file of diligently collected material, yet claimed that I still didn’t know, I have no doubt that under examination of myself and the other potential drivers a pattern of use would be established. For example my brother would only use it for towing, pulling small trees in his work or a one-off off-road scenarios. They would establish that I only use it for mountaineering trips in adverse road conditions or a specific off-road requirement. And my father only uses it for following fox hounds and is the only householder who does shopping.
Now say the offence is on a hunting day at 3:00pm (end of average hunting day) near a supermarket – well the court is going to wonder why I couldn’t have worked that out when I have so diligently provided so much inconclusive evidence.

All I can say is that’s my experience of the courts, however I would obviously wish to be enligtened by a reading a real case file or law report of a sucessful and unsucessful Hamilton Defence.

Hide the keys!

Doubt all you want. The facts though, are very clear, anybody who spends any amount of time in motoring courts will tell you that this defence is regularly used and regularly succeeds.


As all s172 cases are heard in the magistrates courts and as magistrates courts are not Courts of Record, there will be no official publication of such proceedings. You are falling into the old "absence of evidence is evidence of absence" trap. In other words you have assumed that because you don't know about this, it doesn't happen.


Why does an avatar show lack of knowledge on a forum which does not claim to be a "reputable law firm" ?


Sometimes it is, sometimes it isn't.


neither would I. However I would recommend it on the grounds that it is specifically listed as a defence in the Act itself.


The problem with getting legal information from Hansard is that it is quoting people who make laws and not the people who use the laws on a regular basis and it is easy to misinterpret such text.

In court the defendant will say he can't remember who was driving. The prosecution will say that he can. The bench will consider this. Bear in mind that the CPS must prove their case beyond reasonable doubt and the defendant only has to introduce a reasonable doubt. The bench will side with the defendant in almost all circumstances. The exceptions being when the CPS has provided photograpic evidence which clearly enables the driver to be identified. Which is rare. The second leg, that of reasonable diligence is fairly easily satisfied.

My experience, which covers the whole time since s172 came into being and also covers an awful lot of motoring courts with more than one case being dealt with on each occasion, is different. I have already explained why you won't find law reports for magistrates courts trials and have directed you to a blow by blow account of an actual case. Further searching on pepipoo will show more such accounts of actual proceedings both successful and unsuccesful.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Missed this bit in my previous response.




Life is not often so conveniently arranged and, as I have already said, this defence does not always succeed.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.