Prosecution Process
Introduction
The process begins with an individuals receipt of a letter (summons/notice of intended prosecution) notifying he/she of the Police
intention to prosecute the individual named. A summons for a road traffic offence will generally contain the allegation that the accused
either used, caused, permitted or, more rarely, aided and abetted the use of a vehicle in an illegal way. If a summons is issued it should
always be checked to ensure the wording corresponds with the facts of the case and that the defendant has been correctly identified.
The following information and the sub-menus from this page will provide some detail into the Prosecution Process, Court Proceedings as well as the Graduated Fixed Penalty Scheme.
Liability
Some areas of legislation impose 'absolute' or 'strict' liability for the breach of various rules. It is the legal
responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent.
This means liability can arise without fault. Therefore, it is often irrelevant whether the accused intended to commit the offence or was
negligent. It is often sufficient for the evidence to show that the prohibited act or omission had occurred. Commonly encountered examples
of strict liability offences include speeding, overloading and the minimum legal requirements for insurance. However, other offences, such
as careless and dangerous driving, are more complex when determining guilt. Some offences do carry special defences, for example:
- Section 172 of the Road Traffic Act 1988 requires that the registered keeper of a vehicle shall provide 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. The Act goes on to say that a person shall not be guilty of this offence if he did not and could not with reasonable diligence have ascertained who the driver of the vehicle was.
- Section 41B(2) of the Road Traffic Act 1988 provides a defence in overloading cases where it can be proved that the vehicle was travelling to the nearest available weighbridge to the loading point or to the nearest point from a weighbridge where it was reasonably practicable to remove a surplus load. It is also a defence to an overload of up to five per cent to prove that the limit was not exceeded at the time of loading and that since loading nobody had added anything to the load (for example, that the load had absorbed water en route).
Common Terms
Use
Many Acts and regulations refer to the 'use' of a vehicle. A driver of a vehicle will normally 'use' it, as will the
driver's employer if the vehicle is driven by an employee in the course of his employment. It is also possible that someone with
control or custody of the vehicle could 'use' it, or allow another to do likewise. 'Use' involves an element of controlling,
managing or operating the vehicle. This also includes when a vehicle is stationary or is being loaded or unloaded either by directly
employed staff or an outside contractor who has been given authority to do so.
If a vehicle is 'used' on a road in breach of a regulation, this is normally an 'absolute' offence.
Permit
This denotes either an express permission or a failure to intervene when someone knows about breaches of the law. Any person legitimately
in control of a vehicle (owner, operator or driver) would have expressed permission as follows:
Express permission
- a driver of a vehicle can permit its use by another person
- a manager can permit the use of a vehicle to the employee of another company, such as an agency driver
Permission by non-intervention
- a manager who is aware of drivers hours infringements and who fails to prevent them
- a manager permiting the use of a vehicle by an employee knowing that the vehicle contravenes C&U Regulations
Remember, it must be proved that the defendant knew of the facts constituting the offence or was wilfully blind to them. Negligence is not sufficient.
Cause
This involves positive action by the person 'causing', either in the form of a specific mandate or express instruction to the other person.
Aid and abet
If a person knows of circumstances which turn out to constitute an offence, and assists in those actions, he may be convicted of aiding and
abetting even though he does not realise any offence is being committed. This could apply to a consignor of goods who loaded a haulier's
vehicle which was subsequently found to be overloaded.
Remember, aiding and abeting is equally the case where someone who knows that an offence is being committed, turns a 'blind eye' and does nothing to prevent it. (see also Permit (above))
Further Reading
For further reading on the Road Traffic Act 1988, please use the link below.
