Validity of Notices of Intended Prosecutions

Have you received a Notice of Intended Prosecution (“NIP”) from the police? This article explains what you are legally obliged to do and examines the circumstances in which you may be able to examine the circumstances in which you may be able to challenge the notice.

What is a NIP?

A NIP is issued by the police under Section 1 of the Road Traffic (Offenders) Act 1988. It acts as a warning that you may be prosecuted for a driving related offence, such as:

• speeding (various sections of the Road Traffic Regulation Act 1984)
• careless driving (section 3 of the Road Traffic Act 1988)
• failing to comply with a traffic sign (section 36 of the Road Traffic Act 1988)

The full list of offences that fall under a Section 1 warning can be found in Schedule 1 of the Road Traffic (Offenders) Act 1988.

In most cases, you must receive a NIP or verbal warning by the police in relation to a potential prosecution. However, if there has been an accident, or the potential prosecution is in relation to the following offences, no such warning is required:

• drink driving (section 5 of the Road Traffic Act 1988)
• driving while using a mobile phone (section 41D of the Road Traffic Act 1988)
• failing to provide a specimen for analysis (section 7 of the Road Traffic Act 1988)
• causing death by careless or dangerous driving (sections 1 and 2B of the Road Traffic Act 1988).

Validity of a NIP

There is a requirement that a person is warned in relation to an intended prosecution, and they cannot be convicted unless one of the three points below has been complied with:

1. they were warned at the time the offence was committed that prosecution for a specified offence would be considered; or
2. a summons for the offence is served on them within 14 days of the offence; or
3. Within 14 days of the offence, a notice of intended prosecution is served, specifying the nature of the alleged offence and the time and place where it is alleged to have been committed –this can either be served on them or on any person registered as the keeper of the vehicle at the time of the offence.

In relation to point a, the warning can be carried out verbally by the police at the roadside, so long as that warning has been understood. The warning must also be given ‘at the time’ the offence was committed, which is viewed as a matter of fact, and be judged to be reasonable in the circumstances of the case.

The 14-day time limit in points b and c initially applies to the registered owner or keeper of the vehicle. If the vehicle is registered to a company, the NIP will be sent there in the first instance and it must be received within 14 days. If the driver of the vehicle or registered keeper of the vehicle receives a copy of the warning or NIP after the initial 14-day period, it does not invalidate the NIP or the warning but any prosecution against the driver would likely have difficulties.

Again, looking at point c, the NIP must contain the following details:

• the nature of the alleged offence
• the time of the alleged offence, and
•  the place where the alleged offence occurred.

On occasion, one of these points is interpreted as ‘misleading’, which can invalidate the NIP and lead to the police or Crown Prosecution Service reconsidering whether they will proceed with a prosecution. An example of something that may deem the NIP to be misleading is that the place where the alleged offence is said to have occurred is either wrong in its entirety or too generic – an example would be, ‘the M25’ instead of ‘between junction 24 and junction 25 of the M25’. 

Even if the NIP is received after the 14-day time limit the recipient is still under a legal obligation to identify the driver of the vehicle if required to do so under Section 172 of the Road Traffic Act 1988. If the registered keeper of the vehicle fails to respond to such a requirement, he or she may still be charged with an offence under Section 172, which carries six penalty points and a financial penalty of up to £1,000.

If the registered keeper of the vehicle is a company, the company must supply information as to who the driver was at the time of the incident unless it is not reasonably practicable to do so or they have been unable to ascertain who was driving at the time despite reasonable diligence.

What to do if you receive a NIP?

If you receive a NIP, you must respond within 28 days even if you were not the driver of the vehicle. It is therefore important to seek legal advice as soon as a NIP arrives. We can help ascertain whether you have a valid defence to the alleged offence and advise you on the best way forward. 

For any further advice on NIP, please call Zoe Hosking on [email protected]