When Idris Francis lost his appeal, the unsigned forms loophole was closed.
Forms loophole closed.
Details to follow.
Breaking news - 21st August 2003 - Pace and problems - maybe Mr Justice Owen broke the law completely...
We've been sent a copy of the following
letter containing a skeleton argument which is being submitted in a SIGNED
forms case by a solicitor:
If this is correct, it's game over for the cameras for a while at least.
Bluff and Bluster class complaint:
We are organising a class complaint against "Bluff and Bluster" letters. If you have received such a letter (click here). Deadline 31st August 2003.
Yorke and Mawdesley:
Convictions of both Yorke and Mawdesley have both been set aside in the High Court unsigned forms case.
Download the complete judgment in Word format (here).
Read the complete judgment online (here)
Top advice for new cases:
If a brown envelope arrives, don't open it. Hand it to another member of the household saying: "please deal with this and ensure that my legal obligations are met." The form should not be signed to ensure that it is not admissible under s12 of the RTOA 1988. It is important that you do not give instructions about how the envelope should be dealt with. This will ensure that your rights are the same as Yorke's. (this advice kindly provided to us over the telephone by Fin Ó Fathaigh of The White Dalton Partnership - solicitors specialising in motorbike cases) [revised 1.8.03 at 16:50]
new 17.8.03 There's an advantage in running Yorke's defence as recommended by Fin (above) if the person who fills in the form can't testify against you. This applies to spouses and to legal representatives who are bound by "client privilege".
2. 8. 03: Advice for existing cases
Those of you with existing unsigned forms cases are intended to be captured by Judge Owen's ruling in Yorke and Mawdesley. However:
There is this:
Having just been reading the judgment again, it is quite clear that Judge Owen did not consider the difference between "information" and "confession" in relation to the Brown-v-Stott ruling. In 39 Judge Owen reports:
"The third argument advanced on behalf of the Appellants was that the admission of the section 172 forms would have infringed their rights to a fair hearing under Article 6 of the ECHR. In this context Mr Laprell drew my attention to Brown v Stott  2WLR 817, in which the Privy Council addressed the admissibility of an admission obtained in response to request under section 172."Thereby clearly recognising that a legitimate Human Rights objection might arise.
Since he has made no ruling on the matter of a fresh objection on the grounds that "confessions" are outside the scope of Brown-v-Stott the way is clear for everyone with an unsigned forms case to raise this objection.
In Scotland we do not believe that PACE applies, so we expect that the judgment has no effect in Scotland and the loophole is unchanged.
Many questions remain. Watch this space.
Our Initial observations (may be subject to revision):
Since Dwight Yorke was acquitted after someone else had provided the information on his behalf and that information could not be said to amount to a confession under PACE, it follows that folk receiving NIPs now should follow Mr Yorke's example.
We do not believe that PACE applies in Scotland. So far we have no idea what the effect of the judgment is in Scotland.
Judge Owen avoided commenting on S172 and any requirement to sign the form to meet the requirements of S172. He did however create the additional question: If an agent provides the information, has S172 been complied with? In this way the main loophole has been opened wider.
Judge Owen confirmed that RTOA 1988 S12
could not apply to an unsigned form, and therefore an unsigned form would
not be become admissible as evidence under this section. However Judge
Owen suggests that an unsigned form could become admissible as a confession
Analysis by John Josephs [minor revisions 4th August 2003]
The Judgment lays down the following principles:
1. An unsigned form is not a statement for the purposes of Section 12 of the Road Traffic Offenders' Act 1988 and is thus inadmissible as evidence under that Act
2. The unsigned form can amount to a confession under PACE if, after considering all the surrounding circumstances, the Magistrates are satisfied that it was the Defendant who completed it. If a third party completed it, (as in Yorke's case - it was his agent) it cannot be a confession which is why his conviction was overturned.
3. Writing one's name in BLOCK CAPITALS in the "Name" box while leaving the "signed" box blank is not a signature for the purposes of Section 12 which is why Mawdesley's conviction was quashed. BUT, it may still amount to a confession under PACE (see 2 above) which is why his case has been returned for retrial.
4. The Judge, quite deliberately, did not address the question as to whether someone who returns the form unsigned has complied with his obligation to identify the Driver under S 172, because that was not an issue in the case.
That issue remains open for further litigation.
5. Forcing the registered keeper to give the information (whether in writing or otherwise) does not fall foul of the Human Rights Act as even if it is a breach, it is necessary and proportionate.
SO my view is:
1. All those people who returned forms themselves but did not sign them are probably liable to be found guilty on the basis of Yorke's case provided that the Magistrates are satisfied from all the surrounding circumstances that it was the Defendant who returned the form and that it amounted to a confession.
It is open to a bench to find that in the circumstances they are not "Sure" that he completed it but, given that many Magistrates' Courts are partners in the "safety camera" scheme, it is unlikely to happen, but perhaps it's worth running one or two.
2. As to the future, you must return the form but
(a) Get someone else to fill it in for you (such as your solicitor) preferably using a typewriter.
(b) Don't sign it.
(c) Get the person to make a contemporaneous statement that he completed the form as your Agent.
(d) Don't send that statement at the time but keep it until the trial.
It can't amount to a confession, nor is it admissible under Section 12 but you will have to call the person who filled in the form to give evidence that he did so.
When you challenge the admissibility of evidence there has to be a trial within a trial. The person who filled in the form must only be asked questions as to who completed the document. Under no circumstances should they cover things such as whether the information was true.
BUT, there is a possibility that the CPS will try to bring a charge of failing to comply with S172 as the Act says that it is the Registered keeper who must give the information?
(a) Yes, because you cannot delegate the responsibility.
(b) No because you can
get someone else to write for you. What if, for example, you can't
read or write or have your arm in plaster.
The judgement has clarified some issues but has clouded more. The law is clearly in a mess.
In a recent court case Phillip Dennis escaped conviction for a speeding offence detected by camera because he had not signed the form identifying the driver.
Section 172 of the Road Traffic Act 1988 requires the owner of a vehicle involved in certain traffic offences to identify the driver at the time or face a penalty.
However, it appears that Mr Dennis identified himself as driver at the time, but failed to sign the form. Because the form was not signed it was inadmissible as evidence. The court could not legally identify the driver and Mr Dennis was found not guilty.
The case was recently heard by Flintshire Magistrates at Mold in North Wales.
SafeSpeed has been reporting this loophole since 2001, on page (click here)
full judgement NEW
We've received information today (4th March 2003) about a case in the High Court, and it appears that the judgment in the case might have closed the loophole. The case is DPP -v- Broomfield 8th August 2002.
Apparently Broomfield gave information orally, was convicted, appealed and succeeded, and then the DPP appealed to the high court.
The High Court judgment contains the following:
"HELD: (1) The statement of the law as it is applied to s.112 Road Traffic Regulations Act 1984 in Boss -v- Measures (1989)  RTR 26 was equally applicable to s.172 1988 Act. That was supported by the provisions of s.12 1988 Act. Thus, the requirement in the notice of intended prosecution should be given in a written form and be signed was not merely a whim of those who produced the form, but was specifically directed at enabling the document to be accepted as evidence that the recipient was the driver of the vehicle at the relevant time. (2) The Crown Court was wrong to find that the provision of information orally was sufficient to meet the requirement of s.172 and was wrong to allow the appeal"
This judgment obviously does refer to signing the form, but was given in a case where the concern was about information supplied orally. (see 31st March update below)
And yet more... In a more recent case: Bristol Crown Court affirmed that the loophole (the Judge called it a "lacuna" in the law) does exist and works. Decision 13th December 2002. HH Judge Ticehurst. See 18th April update below.
6th March 2003: We're informed by several sources that the loophole is still open.
31st March 2003: We now have it from four independent sources that DPP-v-Broomfield should only apply to verbal replies and therefore does not close the "unsigned form" loophole. Here's one of them available on-line (click here).
18th April 2003: We now have the full ruling from the Bristol Crown Court case (Pickford-v-Crown). It does not directly confirm that DPP-v-Broomfield is inapplicable, although significantly the police / CPS did not appeal against the section 172 acquittal. We've given the case its own page. (click here)
9th May 2003: We have been informed that an RAC legal adviser confirmed the loophole in a telephone conversation today - in no uncertain terms. If you have any doubts, AA and RAC legal advice is usually excellent. We have written to a number of organisations requesting clarification of the law, including the AA, ACPO and the Magistrates Association. We'll publish their responses. The was a short article in Auto Express claiming that the loophole had been closed, but it was just nonsense. Another article in Redline Magazine (May Issue) confirms the loophole.
14th May 2003: We wrote to various bodies last week. The Magistrates Association has replied by email confirming the nature of the loophole and informs us that the matter will be discussed in their next appropriate meeting on the 22nd May 2003. (click here) to read the correspondence.
14th May 2003: We have seen a copy of a recent letter from Durham Constabulary to a motorist containing the following statement: "Please note that under section 12(b) Road Traffic Offenders Act 1988, the unsigned statement requesting you to identify the driver (sent to you under section 172 of the RTA 1988) is of no evidential value to the prosecution or the court." They are clearly confirming that they cannot use the unsigned form as evidence of the driver at the time of the offence. And if there's no evidence of the driver, that's the end of that.
21st May 2003: We have just discovered that the proposed fixed penalty for "S172" offences was before parliament on 8th May 2003 and will be law on 1st June 2003. It certainly does not change the law about unsigned forms, but has the potential to considerably alter the way that they are dealt with. See the legislation (here) and (here). We understand that the fixed penalty notice will be £120 and 5 penalty points.
21st May 2003: Apparently an appeal is ongoing today at the High Court for unsigned forms cases. It's possible that there could be a ruling which will affect all unsigned forms cases. However, as far as I can tell from the BBC report (click here) these two cases involve magistrates "accidentally" convicting motorists of the speeding offence with no legal evidence. The test case that's really needed is one where it is tested if s172 can be complied with without a signature.
22nd May 2003: Following the meeting of the Magistrates Association Road Traffic Committee, Elliot Griffiths gave me the following official statement: "Because the law is evolving we do not think it appropriate to make any comment at this time".
2nd June 2003: Presently in the High Court before Judge Owen is the Case referenced above (21st May) of Yorke and Mawdesley. We understand that the ruling due shortly might have an impact on all unsigned forms cases. Accordingly the current advice must be: do nothing and await the ruling. This applies at any stage of any case unless a deadline is about to expire. If a deadline for returning a NIP is about to expire, the law still states that you must provide information, and still does not mention a signature. We hope that Judge Owen will confirm that the law is as it is written. Either way, it can still be appealed to the House Of Lords, and as I understand it the House of Lords are empowered to consider the wider implications of their ruling. This would be a good thing, because our side gets the chance to make the "speed cameras don't save lives" and "human rights are violated" cases.
11th June 2003: We've heard today that the ruling in Yorke and Mawdesley is due on the 2nd July 2003. We wonder what might be going on behind the scenes in preparation for the ruling.
2nd July 2003: We'd heard nothing about the Yorke and Mawdesley judgment due today by 2 o'clock and rang the Court. The Clerk told me that Judgment had been delayed until the 15th July "to give the Crown time to find someone who knew what they were talking about". Yes really. Our best advice remains to try to sit tight until the judgment is known.
15th July 2003: Yorke and Mawdesley judgment delayed again until an unspecified date next week according to Yorke's Barrister. Our advice remains as before.
28th July 2003: Yorke and Mawdesley judgment due to be given in written form in open court on 31st July 2003. Anyone in London should be able to attend. No further legal argument is expected.
We assume that unsigned forms are going to become rather commonplace, and we wonder what the authorities are going to do about it. The current analysis is that they must change the law. In the meantime the standard legal advice appears to be: "Don't sign anything which you do not have to sign."
We'll have to wait and see what changes in law are proposed, and there's the chance that they will try and use another part of the law in the meantime. We've taken some advice, and so far no one has been able to identify any other law that could be used.
If they move towards "attempting to pervert the course of justice", then you would probably wish to provide evidence that you were not attempting to pervert the course of justice. It seems a simple matter to say: "My legal advisers told me never to sign anything that I do not have to sign."
If they asked you to court to defend a charge of failing to identify the driver, perhaps in the hope that you might make a legal admission that you were the driver at the time of the offence, the following appears to apply: "An accused who gives evidence loses his shield and must answer questions which may tend to implicate him of the offence charged (Section 1(e) of the Criminal Evidence Act 1898). He may choose not to give evidence at all and, even when he elects to be a witness, he retains the right to silence when an answer may tend to incriminate him of another offence on which the court is not then trying him."
31st March 2003. The rules of evidence which require the form to be signed to be admissible come from the "Road Traffic Offenders Act 1988 S12", and the "Magistrates' Courts Act 1980 (S144 we think)". It has been suggested that in court you might incriminate yourself, but you will be under no obligation to give evidence under oath and cannot be forced to do so. If you were prosecuted for "failure to provide information" you could legally take the witness stand, and give evidence, but invoke your right to silence if asked specific questions about driving the vehicle at the time of the alleged offence.
24th April 2003. We have received a fairly formal 7 point dismissal of the relevance of the Broomfield case prepared by a solicitor specializing in motoring cases. Since this information has commercial value and could be of benefit to the CPS etc, we have been asked to hold it private until it has been tested in court. We have to respect that request. Take it from us that it looks pretty strong. If anyone is due in court to defend against claims which might be based on the Broomfield case, I expect we could arrange for the information to be available.
26th April 2003. Recent correspondence leads us to the judgement that the authorities are becoming increasingly desperate about the situation. One Safe Speed visitor reports "...I have received a rather threatening letter stating that a "prosecution file" has been started for the offence "failing to furnish"." and "A summons may be expected at a later date." Despite the threats, we find the letter to be very weak, not least because they could just have issued a summons instead. We have to ask: Why did they bother with the letter at all? We think it's just the usual bluff and bluster.
24th May 2003. The police and the CPS continue to quote the Broomfield case. In fact there's no longer any other argument commonly offered. Broomfield is weak weak weak, and all the legal opinions we've received except those from the police and the CPS suggest that Broomfield is not "authority" on the issue of signing the form. So much so that we commissioned this cartoon to illustrate the CPS's embarrassment.
April 2003 Press reports
We have moved the original press reports to their own page. (click here)
|Section 172 of the Road
Traffic Act 1988 (applies to all of the UK)
To see the whole section or indeed the entire Act (click here)
Section 2 reads as follows:
(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section appliesó
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.There's clearly no mention of an obligation to sign or provide legal evidence.
31st March 2003 Section 172 of the Road Traffic Act 1988 has been superseded as follows:
April 2003 Here's the law that says the statement won't
be valid legal evidence unless signed:
Road Traffic Offenders Act 1988 (click here)
Section 12 (click here)
(1) Where on the summary trial in England and Wales of an information for an offence to which this subsection appliesó
(a) it is proved to the satisfaction of the court, on oath or in manner prescribed by rules made under section 144 of the [1980 c. 43.] Magistrates' Courts Act 1980, that a requirement under section 172(2) of the [1988 c. 52.] Road Traffic Act 1988 to give information as to the identity of the driver of a particular vehicle on the particular occasion to which the information relates has been served on the accused by post, and
(b) a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion,
the court may accept that statement as evidence that the accused was the driver of that vehicle on that occasion.
March 2003 Sample NIPs and something funny...
We've put on-line some sample NIPs.
(Thames Valley) a perfectly ordinary NIP
(Devon and Cornwall) an unusual design of NIP which has no space for the usual declaration signature. We don't know how this NIP could be used in court, but presume that they have come up with something. Perhaps it relies on the "Driver's Signature". Perhaps the driver has no obligation to sign. Perhaps they know something we don't. Information from anyone who knows would be welcome. In the mean time we're investigating.
24th April 2003 (West Yorkshire) Another unusual design of NIP, where they appear to hope you will select the correct option by signing the form. We recommend typing your replies onto forms like these. There's still no legal requirement to sign the form that we can identify.
|What do I do?
If you receive a "notice to owner" (usually part of a notice of intended prosecution (NIP)), you must fill it in in accordance with RTA 1988 Section 172 above. Present understanding is that you are under no obligation to sign the form. There might be multiple places to sign. We don't know of any obligation to provide ANY signature. Return the form by recorded delivery and keep a copy if at all possible.
31st March 2003. If you receive a letter from the Police explaining that they cannot accept an unsigned form, we think they are exaggerating the truth. We suggest that you write back as follows: "While I am keen to comply with all my legal obligations, I do not wish to sign the form. If you would be kind enough to advise me exactly where in law it states that I have an obligation to sign the form I will be pleased to comply."
10th May 2003. The police are sending out a great many threatening letters. We've seen many samples of them. Some of the threats and claims are outrageous and are clearly designed to intimidate folk into giving up and caving in. We call these letters "bluff and bluster" letters, and you are quite likely to receive one. As every day goes by the status of the loophole becomes more certain, and the Police tactics appear increasingly desperate. Don't forget, if they had anything concrete they could send us an email which we would immediately publish and their unsigned forms nightmare would stop. Since we started this page no one has reported being summonsed for either the speeding or the S172 offence. Perhaps it is early days.
10th May 2003. When you write to the police and include the NIP, it is vaguely possible that a signed letter might be associated with the enclosed NIP and the signature on the letter could make both documents admissible in court. So to be on the safe side, whenever you are enclosing a NIP in an envelope, do not include any signed documents in the same envelope. Naturally you should never admit the offence in a signed letter. By the same logic, aim to restrict the content of letters to points of law and procedure and avoid discussing the facts of your individual case.
24th April 2003. It's possible that the Police will turn up to interview you. Be ready. You cannot be forced to answer questions. Answer "no comment" to any questions they might ask. It is absolutely your right to answer in this way. In a speeding case it's extraordinarily unlikely to reflect badly in the future. (the sort of cases where it can reflect badly would be for example if you failed to mention when questioned an alibi which you later relied on in court.)
If you receive a summons for speeding you should plead not guilty. The unsigned form is not admissible as evidence, so there is no legal evidence of who the driver was at the time of the offence and the court must find you not guilty. We can't imagine that they are going to be sending out many summonses to owners who have not signed the forms. What would be the point?
If you receive a summons for failing to identify the driver you should plead not guilty. You have provided the information required, and you have a copy of the form and a record of delivery of the information to prove it. The court must find you not guilty.
If you are in any doubt you should consult a solicitor before taking any action.
March 2003 Case Histories
A number of you have had letters from the Police (usually quite rude ones) saying that they cannot accept unsigned forms. Replies have been sent asking the Police to specify the legislation which requires the form to be signed and replies from the Police are awaited. We'll update this section with any developments to unsigned forms cases.
A NIP from Lancashire Constabulary was accompanied by notes including:18th April 2003 At least 6 folk have sent us information about replies from the Police to letters including the following: "If you would be kind enough to advise me exactly where in law it states that I have an obligation to sign the form I will be pleased to comply." In no case have the Police clearly specified a legal basis for the requirement for a signature, although in a couple of cases the DPP-v-Broomfield case has been mentioned. The Police appear to bluff, threaten and bluster instead, and in one case threaten a fine up to £1,000 and 12 penalty points. We presume that they were imagining 6 points for the speeding offence and 6 points for the S172 offence. We say: "on what evidence, exactly?"
April 2003 Risks
Suppose you are involved in an unsigned forms case. What could possibly go wrong?
The court could decide that DPP-v-Broomfield was applicable and find you guilty of "failing to provide information" under S172.
So far we have seen letters and emails from the CPS and the Police suggesting that DPP-v-Broomfield would apply in an unsigned forms case, but have seen no such statement made by any authoritative independent source.
You could accidentally incriminate yourself in court.
Our received advice is that you cannot be compelled to incriminate yourself unless you elect to give evidence. Electing to give evidence in defence of a speeding charge would be unwise. Electing to give evidence in defence of an S172 charge would be fine, but not if you are also charged with speeding.
There could be a clarification in the law before your case.
We think you should be able to defend yourself on the basis of having complied with the law as it was at the time, but if the clarification is in interpretation, then you might not be entitled to the benefit of the loophole. If the clarification is a new Act or Statutory Instrument we think it cannot be applied retrospectively.
They might come up with something presently unknown or unnoticed.
Obviously the law is pretty vast and it's possible that something might be found within it that could be applied to these cases. We don't rate this as likely.
24th April 2003 What if the photo identifies me?
We've been unable to find information about a single case where the photo has been used to identify the driver. The cameras are not set up for good facial photos. It's possible that they might try to use the evidence of the photo in a few cases. They appear to be fairly desperate about the unsigned forms thing and it's possible that they'll try anything.
10th May 2003 What if I confess in a signed letter?
That would be bad. So don't do that. Be aware of the slight risk and don't enclose a signed letter with a NIP. Restrict your letters to points of law and procedure and do not write about the facts of the case.
10th May 2003 What if the owner has sent in a signed NIP identifying me as the driver?
It's possible that a court would erroneously accept the document as evidence of the driver at the time of the offence. But we don't rate it as likely because it isn't suitable evidence. If you happened to be found guilty in such circumstances an appeal would be required, and you could expect to win easily on appeal. In a case where the owner was a passenger in the car, the owner could possibly provide legal evidence of the driver at the time, but with normal procedures they would never discover that the owner was present at the time of the offence.
This page is causing a lot of emails. Too many for us to cope with.
NEW 8th May 2003 For confidence checks of information use the new mailing list. (top right of this page)
Many folk have emailed to ask questions. It's our intention to add all the information we have to this page, and if anything changes we promise to update the page within 24 hours. We cannot advise you not to sign the form because to do so might in itself be illegal.
We really want to hear about how the authorities react to your unsigned forms. When we get news of reactions we'll add them to this page. If you get a similar reaction to one already listed, then there will be no need to tell us.
If you have news that's not on the page, please email us. If you have a specific problem that the page cannot answer, please email us. Otherwise, please think carefully before you send us yet another email asking questions that this page already answers, and bear in mind that these pages contains effectively all we know about the subject.
Comments on the above are welcome. If there is a demand we will create a comments page. We will be delighted to publish all suitable emails including those whose content we disagree with. Email comment.
It's come to our attention
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Page last updated 7th April 2004