Safe Speed Forums

Fisherman: If you mean magistrates court as ‘motoring courts’, if I remember correctly the Hamilton’s were in Magistrates Court so no precedent has been set. So just because it worked for the Hamilton’s and may be a handful of others, there is no guarantee and the risk is higher penalties (and costs) if such a defence fails.

Whilst I don’t want it to rain on anyone’s carnival, I don’t want anyone to foolishly embark on a reckless action. Every case turns on its own facts and I must advise that anyone should seek advice from a qualified lawyer for specific advice.

Fisherman, I understand that you are a lay-person acting as a Magistrate and I was wondering how many Hamilton Cases your bench has presided over and the outcomes. If you could be kind enough to advise me of the court I can review the register and seek further details. Thanking you in anticipation.

P.S. Abundans cautela non nocet.

My apologies, I had assumed you have a basic knowledge of the way courts work, I will explain what I meant. It is common practice, for reasons of administrative convenience, for magistrates courts to set aside days when only motoring cases are dealt with. Such days are informally known as motoring courts.


I have already pointed out that the so called Hamilton defence is set in statute and, therefore does not arise from precedent. Specifically it is contained in the Road traffic Act 1988 as modified by the Road traffic Act 1991. Section 172, sub paragraph 4






This defence has worked for a great many people, the site I directed you to has details of far more than a “handful” of successes and they only report what happens to their own posters. I have never said that it would work for everybody, I have simply put the truth forward to correct your mistaken belief that this was a one off freak of the justice system that only ever worked for, or applied to, the Hamiltons.


I couldn't agree more, which is why it is so important that people don't allow your incorrect understanding of this matter to influence any decision they may need to take.


In common with other responsible positions suitable people are recruited, trained, tested and finally deemed to be fit to practice. At which point they are no longer lay people but motor mechanics, joiners, doctors, pilots or whatever it is that they have trained for. In the case of some occupations, Justice of the Peace among them, there is a requirement for continuing professional development education and appraisals in order to retain the position. Some years ago the Lord Chancellor announced that, in view of the high standards achieved, he no longer considers magistrates to be lay people. This was confirmed when the magistrates courts service was discontinued, individual magistrates became members of the judiciary and our courts became part of HMCS.


I have already told you that magistrates courts are not courts of record. The register, therefore, contains memoranda of adjudication and not full records. A memorandum of adjudication will show you the charge that was preferred, the plea that was entered, the verdict and the sentence. It will not show the defence used. Any register, anywhere in England or Wales will contain numerous s172 cases.

In view of the fact you seem unwilling to accept that reality may differ from your view of things I see no point in responding further to your posts on this matter.



PS Audi alteram partem

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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.

Gosh Fisherman, another out of context analysis!

Well I do have a basic knowledge of court hence I sought confirmation that Mags and Motoring were the same for the benefit of others who may be reading this thread but stopped short of a detailed explanation of the administration of the courts as I felt it was unnecessary to the matter.

The “Hamilton Defence” is certainly not “set in statute”!! That is not what s172 says, which is correctly quoted and I would strongly advise anyone reading this to look at s172 with a clear head and take note of the words in their legal context and not what they would like them to mean. However I would be grateful if you could name your Court as I imagine that defendants would like to know which courts and benches have the balance of justice tipped in their favour where the bench does know the difference between Audi alteram partem and Vorsprung durch Technik!

Sorry if I touched a nerve using the expression lay-person but you are certainly not a Stipendiary Magistrate (or do they now have some euphemistic new title?)

The upshot, it would seem to me, is that you have claimed that your court has seen many Hamilton Cases yet can not point to one on the register that could be researched. Your hostile approach to this was to suggest that I was implying that the register was full court report when I clearly said (and you quoted me) “I can review the register and seek further details”.

I would suggest that readers consider Fisherman’s claims and abstinence to offer any evidence to support all these cases that apparent pass through his court and would therefore appear on the register, and then decide if they would rather seek profession advice from a qualified lawyer rather than pin their hopes on internet blogs from an unqualified lawyer who has now gone off in a huff now that he has been rumbled and if fact the inference of the absence of the above evidence is that he has not been telling the truth – not a comfortable situation if it is believed that Fisherman is a lay-magistrate!

For some reason, unknown to me, your comments seems to have been hostile towards me since I first arrived on this site, whereas it would be more professional, courteous and helpful, if you challenged my reasoning rather than my character. I will leave it as that, as the least said, the sooner healed.

Perhaps if I can end on a lighter note and challenge you (and anyone else) to a Latin conundrum and ask why the German car manufacturer, Audi, is so called? Isn’t Audi a Latin word? Sorry no prize offered or correspondence entered into. For full competition rules……

Lucy/Fisherman - TIME OUT please

I have every respect for both of your posts.

Lucy - Fisherman has good reason not to render public his position, much the same as any professional who could be seen as "blowinbg the gaff" by his fellow professionals, there has to be a distance from reality. You have been brave enough to bear your past. I take my hat off to you for that.

I can confirm that I have (legitimately and successfully) helped at least two works colleagues to be rightfully acquitted from a S172 charge, in both cases through being unavble with reasonable dillgence to identify the driver of the car at the time of the alleged speeding offence. In one case this went to a hearing, while another timed out following the victim's appropriate response (ie ignoring) the bluff and bluster letters that followed the initial in-time response to "name that driver" letter.

I think just a little step back and coming back to the ring - you'll both find you're not a milion miles apart after all.

Happy new year to you both.

Lucy.

With the greatest respect I think that the hole you are in is deep enough for you to stop digging Fisherman is a professional law-man and you should respect his opinion. I don't think that he is being hostile toward you. His attitude might be described as weary which is very common when professionals try to explain things to laymen. Been there myself.

Now for your light hearted quiz. AUDI could stand for Auto Union Deutschland Ingolstadt. the cars being build in Ingolstadt. Bu that is too boring and predictable so try this: August Horch founded an Autombile company in 1899 but moved on in 1901 to form another company. However, for copyright reasons he was unable to use the same name and had to find a new one. {i]Horch[/i] in German means "Hark" or "Listen" and the Latin translation of that is "Audi" as in Audio.

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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 forgot to mention I like Latin idioms a lot - and have yet to need to resort to Google for any placed on here

My favourite is actually not real - Nil illigitimis el carborundum

Dcbwhaley: Didn’t think anyone would get it that quick! I even did a Google search to make sure it wasn’t sitting out there! I am intrigued to how you knew that?

However, Re Fisherman, as I had said before, the least said, the sooner healed.

Nevertheless just what hole have I dug? Surely Fisherman has dug the hole here claiming that he sees Hamilton Defences regularly in his court yet can’t point to one!

Whist you use the word professional-law man, which could mean different things to different people, the fact is he can not claim to be a lawyer, yet implies that as a magistrate his advice and opinion is the law! I would respectfully remind you that the Clerk of the Court advises the bench on the law and its interpretation while the bench’s role is to consider culpability.

I feel that Fisherman’s opinions should carry some caveats, just as I did when I reasoned your extremely interesting thoughts on Registered Keepers and the age of Criminal Liability.

As for being a weary professional trying to explain to a lay-man, you know how I feel with Fisherman.

It is Fisherman’s entrenched attitude that makes defendants chose to be tried by a jury of their peers when they have a reasoned defence, whenever possible.

Thank you for sharing this with us. Together with the posts on pepipoo that amounts to more than a handful of freak cases.


For the benefit of any newish posters here. My posts are intended to combat misunderstandings about the justice system and are an accurate account of the way things are. I rarely express personal opinion and when I do so, I make it very clear. With the assistance of those who run this forum my status is clearly shown in my avatar and I have never pretended to be anything else.

An example of a correction of a common misunderstanding can be seen here.
viewtopic.php?f=5&t=19288
Hopefully teabelly will accept that my correction of his (her?) post is not a personal attack and that thread will continue to be informative and not descend to sniping in the way that this one has.

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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.

"Her" is correct.

I am sure that that thread will not degenerate. You have been most civil and - crucially - discussed the points at issue, and not the poster or the manner in which they were placed (notthat there was anything to challenge in either of those aspects )

I'm so glad that this post has regained its footing on reasoning.

As I originally said, I would be genuinely interested if anyone could provide a reference to a court where a Hamilton Defence has succeeded so that I could make further enquiries.

Two of those who I have assisted with Hamilton defences no longer work at the same place. One does - I forget if he went to court or the Scamerati backed down. If the former I'll PM you (I'll ask him in the next week or so - unless he's extedned his holiday).

It is a complete travesty of justice that S172 even exists.
When Hong Kong was presented with all the facts to the injustices of this they threw it out, and they are amazed that the UK / Euro had not done so.
The UK & onto Euro Court threw out the evidence. (Case Euro Court -v- Frances)
To have to name yourself for a crime it appalling. Guilty until proven innocent, not forced into 'committing an offence'. A sad and sorry day for justice in this Country when they threw out the evidence.
For interest -
ref 1 Magistrates
ref 2 Pickford
ref 3 Unsigned Forums
etc.

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Safe Speed for Intelligent Road Safety through proper research, experience & guidance.

I make no comment either way about the desirability or otherwise of s172 other than to say it generated a lot of discussion on various magistrates websites. Little of it favourable.

For the benefit of anybody currently dealing with an s172 request I do need to point out that replying to the request does NOT convict you of any offence. It does complete part of the prosecution case in that it establishes the ID of the driver. The prosecution still have to prove the other elements of whatever offence provoked the issue of the s173

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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.

My wife and I find ourselves in a similar position to candyblue (Thur 11 Dec '08), except that we did not receive the initial notification of the 'offence' (possibly lost in the Christmas post) and the first we knew of this was five weeks later with a threat of prosecution for failing to supply the details of the driver!

From the beginning:

The alleged offence is of driving at 36 in a 30 zone at 09:50 on Sunday 21 Dec '08. Since then we have had Christmas, a disasterous leak on the kitchen, New Year and a two week holiday. We then received the first correspondence, dated 21 Jan '09 with the threat of prosecution for failing to supply the details of the driver. My wife (the registered keeper) replied that we both drive on this road and as nothing untowards must have happened, there was no reason to remember.

Next we received a copy of the initial letter we didn't receive, and she again replied that we couldn't remember who was driving on that day but gave both of our driver details and asked them to guess as it would be no better than our guess!

After numerous returns of correspondence, each one demanding the driver details, today we received the photographic evidence, which consists of three photographs of the back of the car... and request for the name of the driver!

We are at our wits end, we can't remember who was driving as the drive was uneventful, the camera 'evidence' doesn't help in the slightest.

Advice required; should we risk six points and upto £1000, or give in and one of us say 'it was me' even if this is not true (we honestly don't know) and accept three points and £60, with a 50% chance it will be on the wrong licence?

Pepipoo will guide you better than we can. However, my approach in this situation would be to reply listing both possibilities - but only after verifying that neither had an obvious alibi for the period at issue. I would state in the letter the diligence that had been applied attempting to establish the driver, including seeking their phorographs, checking diaries etc - and then leave it to them.

Firstly an appology to CandyBlue for hitching a lift on his blog, I thought I was setting up a new thread, but I may as well continue as I can see an end in sight (though which way I don't know as yet).

Roger

Thank you for your reply, I tried the Pepipoo NIP wizard and it came up with:
"If you can show that after reasonable diligence you have been unable to determine the identity of the driver, you will not be guilty of S172 failure to provide."

My wife has replied again that neither of us can remember who was driving on an uneventful drive four days before Chrismas, and also other more pressing domestic subsequent incidents that were far more important. I think the next step is either they will press ahead for a prossecution or drop it. I'll reply with the outcome.

I hope you have proof of posting (and within the prescribed 28 days from the first time you received notification). If not post another copy and get a "proof of delivery" receipt from the post office.

Roger

Yes, all of our replies have been returned by recorded delivery. It's a pity the police have stopped using the same, then this situation could not occur.

Thanks
SailorWay

Recorded/registered have the advantage you can trace on-line.


However, it goes in the normal post. You have to use Special to guarantee delivery.

We use the normal post as it's usually reliable. We do not have the budget to send everything recorded/special anyway. The issue of who was driving when more than one person entitled to drive a vehicle is perhaps a serious flaw in the 14 day NOIP system.


I can only suggest keeping a log of who drives what and when. I do so with my own wife when we share the drive. I think we have to keep records these days.

Let us know how you get on Sailorboy anyway. Fully understand your dilemma. Wish you well.

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Take with a chuckle or a grain of salt
Drive without COAST and it's all your own fault!

A SMILE is a curve that sets everything straight (P Diller).

A Smiley Per post
FINES USfor our COAST!

Approach love and cooking with reckless abandon - but driving with a smile and a COAST calm mind.

In your profession, I.G., you may have some obligation. In the case of a husband and wife sharing the driving, keeping such records, whilst not mandatory to do so, increases enormously the chances of either party being charged.

At the risk of contrasdicting your advice, I think for the first time, I would certainly not keep a log, and would advocate adopting a strategy of several stops and random driver swaps on a long journey, purely to avoid fatigue of course..