NOTICES OF INTENDED PROSECUTION

I have done a number of cases recently where the prosecution has failed because the police have failed to issue the appropriate notice of intended prosecution. Notices of intended prosecution are commonly referred to as “NIPS”. The police’s failure to issue these documents now seem to becoming more common and one of the reasons for this is the police are now relying on information held on their own national computer in order to check the status of individuals that they stop. Prior to driver records being held on the police national computer, it was common for drivers to be issued with producers requiring them to go into a designated police station and produce their documents within seven days. These producers always included the appropriate notice of intended prosecution. It would seem that fewer producers are now being issued by the police due to their computerised records. As such, there appears to be more scope for the police to forget about the issue of the notice of intended prosecution.

Section 1 of the 1988 Road Traffic Offenders Act states that no person shall be convicted of an offence to which the section applies unless:

a)they were warned at the time the offence was committed that the question of prosecuting them would be taken into consideration; or

b)within fourteen days of the commission of the offence a summons was served on them; or

c)within fourteen days of the commission of the offence and notice of intended prosecution specifying the nature of the alleged offence, and the time and place where it has allegedly been committed, was served on them or sent to the registered keeper of the vehicle at the time of the commission of the offence.

Section 2 of the same Act, however, states that there is no requirement of a warning or a notice of intended prosecution, if at the time of the offence or immediately after it, an accident occurs owing to the presence on the road of the vehicle in respect of which the offence was committed. This means there is no requirement for notice of intended prosecution to be served on drivers if an accident has taken place.

Notice of intended prosecution should be posted on such a day that they would reach the driver in the ordinary course of post within fourteen days of the commission of the offence.

In the case of Groome v Driscoll which was reported in 1969, the notice was posted on the day after the offence but failed to arrive within the fourteen days. The court decided that it was deemed to have been served within the statutory period.

However, in the case of Nicholson v Tapp in 1972, where on the fourteenth day after the offence the notice of intended prosecution was sent to the defendant by recorded delivery. The dismissal of the case was upheld on appeal by the divisional court.

The purpose of the notice of intended prosecution is to bring to the drivers mind the incident while events are still fresh in his memory. Inaccuracies in the notice served, e.g. as to the time of the alleged offence, are immaterial if they are not such as to mislead the defendant. In addition a notice of intended prosecution which is incorrectly addressed is not necessarily bad because of this error.

A defendant must prove to the court that neither he nor the registered keeper has been served with a notice of intended prosecution. Once he has done this it is then for the prosecution to prove that they posted it.

In a case in 1959 of Leund v Thompson, Leund was involved in a road traffic accident on 11th February. On 14th February notice of intended prosecution was served upon him. On 27th February the police wrote to him saying they have decided to take no further action in the matter, but on 13th March the police again wrote to Leund saying they have decided to institute court proceedings against him after all. The divisional court held that the letter of 27th February did not invalidate the notice of intended prosecution. This being said this is now a rather old case and it is arguably open to challenge on the basis that there has been an abuse of process.