Speeding in Scotland is often signalled by the fhe flash of the camera is often the first indication that criminal proceedings are to be contemplated by the Procurator Fiscal (Similar to the CPP). That is probably when the worry sets in.

There is, however, no need to worry if no formal notice, termed a Notice of Intended Prosecution is received within 14 days. (Exceptions being where it is a company car or a hire car)

In the event that the Procurator Fiscal s office seek to simply initiate proceedings in the absence of any NIP (Notice of Intended Prosecution) then objection should be taken at the first calling of the case. A lawyer would be able to advice you on how to take a proper objection but you must explain to the lawyer when the incident occurred and that you did not receive the NIP. If you didnt spot the flash, then you will be none the wiser.

The NIP can be issued verbally by Police Officers if you have the misfortune of being stopped by the Police at the time. In cases were injury or damage to property has occurred then the requirement does not apply.

Make no comment when questioned by police, beyond formal details, for example name and address. In road traffic cases, the accused person, if required under Section 172 of the Road Traffic Act 1988, is obliged to give information within his knowledge about the identity of a driver of the vehicle involved in any such incidents. Remember that it now well established that if you are the registered keeper then you are obliged to inform the police about who was driving even if this means you incriminate yourself. You DO NOT have a right of silence. Contravention of s172 carries a higher penalty than a simple speeding charge where the points start at 3 and go to 6. In relation to s172 you receive a 6penalty point endorsement.

Failure to provide such information constitutes a separate offence. Many people are aware of the recent case dealt with at the European Court of Human Rights regarding the right of silence debate in this area but as yet it a judgement has not been issued to guide the judiciary in this country.

After the matter has been reported to the Procurator Fiscal then proceedings are likely to be initiated by way of Summary complaint. The validity of a complaint depends upon a number of factors. Typographical errors can generally be disregarded, however more fundamental errors can bring the case to an end before it has even got off the ground. A fundamental nullity can not be amended and will vitiate proceedings. Complex issues such as jurisdiction, time bar and competency all require to be investigated.

Road traffic cases are subject to strict time limits and, in some cases, even if proceedings are initiated within the requisite time period, the complaint can still be challenged on the basis of “undue delay” which can be as little as a matter of days. It must be stressed these preliminary matters require to be stated at the first calling of the case and we would therefore advise that legal advice is sought at the earliest opportunity.

The dramatic rise in the speeding prosecutions and the increasing number of cameras and traps peppered around the country are blatantly apparent to every motorist. It is however, important to realise that these prosecutions are open to challenge from a number of angles.

Mistakes can be made at the most basic level: In one of our recent cases, it became apparent the distance allegedly travelled had been underestimated by approximately one third, thus producing an enhanced speed measurement. The Crown deserted the case on the basis of the evidence presented by us in discussion with them. No need for the expense of a trial!

More complex issues can arise in terms of certification and calibration of speed measurement devices. For example, a number of modern devices operate with reference to the measured half mile it is from that distance the device is calibrated and performs its functions. The Crown require to prove the measured half mile has been measured and is indeed a half mile. Failure to prove this essential fact is fatal to the prosecution case.

There are, of course, numerous other charges that can be brought under road traffic legislation ranging from dangerous driving and drink driving to minor construction and use infringements.

The key to defending road traffic cases is to explore all possible avenues of investigation. The complex nature of statutory road traffic charges makes it imperative to have a full and comprehensive understanding of the law.

If all seems to be lost, then other factors can come into place. The legislation permits further opportunities for a motorist, after conviction, to retain his licence. If what the court terms as “Special Reasons” apply to the circumstances of the offence, the Court can refrain from disqualification or endorsement. Furthermore if the Court finds that “Exceptional Hardship” would ensue if the motorist were to loose his licence then, again, the Court will refrain from disqualifying.

It must be stressed that these are complex areas of the law and legal advice should be sought at the earliest juncture.






By: Graham Walker