Notice of Intended Prosecution

Speeding offences and traffic light offences which are proved by way of photographic evidence do not require the driver to be stopped at the time of the offence. In such circumstances, the normal method is to serve a "Notice of Intended Prosecution" on the registered keeper of the vehicle. This document has to be issued within 14 days of the offence. It gives the keeper 28 days in which to identify the driver who would then normally receive a Fixed Penalty Notice.

You cannot be convicted of certain road traffic offences unless you have been warned that the question of prosecution would be taken into consideration by way of a notice of intended prosecution (Section 1 Road Traffic Offenders Act 1988).

A notice of intended prosecution can be given:

  • either orally or in writing at the time the offence was committed. Such a warning need not be specific but may refer to some one or other of the offences to which section 1 applies. Whether such a warning was given `at the time' is a question of degree and the High Court will not interfere in a Magistrates' Court finding on the point if there is evidence to support that finding.
  • By serving the defendant with a summons within 14 days of the offence; or
  • By sending a notice within 14 days of the possibility of prosecution and specifying the nature of the alleged offence and the time and place where it is alleged to have been committed to the driver, registered keeper of the vehicle or rider of the cycle.
  • The offences to which section 1 RTOA applies are listed in schedule 1 of that Act. They are, under the RTA:
    • Section 2 (dangerous driving)
    • Section 3 (careless driving/driving without reasonable consideration)
    • Section 22 (leaving the vehicle in a dangerous position)
    • Section 28 (dangerous cycling)
    • Section 29 (careless cycling)
    • Sections 35 and 36 (disobeying certain traffic signs and police signals)
  • And under the Road Traffic Regulation Act:
    • Sections 16, 17(4), 88(7) and 89(1) (speeding offences)
  • or aiding and abetting any of the above.

Section 2 RTOA 1988 states that the prosecution does not have to comply with section 1 if, owing to the presence on a road of a vehicle in respect of which the offence was committed, an accident occurred at the time of the offence or immediately afterwards. However, a notice is still required if the defendant was unaware that there had been an accident: see Bentley -v- Dickenson [1983] RTR 356.

Under section 1(3) RTOA 1988 the requirements of that section are deemed to have been met unless and until the contrary is proved. The prosecution will not have to call evidence that section 1 has been complied with unless the defendant proves, on a balance of probabilities, that no effective notice was given. The issue can be raised at any relevant stage of the proceedings or decided as a preliminary point.

By virtue of section 2(3) RTOA a failure to meet the requirements shall not prevent conviction where the Court is satisfied that:

  • It arose because the name and address of the accused or the registered keeper could not with reasonable diligence be ascertained within the statutory time; or
  • The defendant contributed to that failure by his or her own conduct.

A claim that the requirements of the section have not been complied with is a popular technical defence. There are many decided cases on various aspects of the provisions.

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