CPS and Police procedures

[The utility cyclist]

Fear for ones safety even if just in the mind is an assault under UK law, it is very explicit about this and is referred to as a common assault. On the high street this could possibly be at the least a public order offence where someone is threatened/feeling fearful or worse.
Or are you of the opinion that striking fear of death or serious injury is all okay. just curious? If someone is swinging a baseball bat within inches of your head for 15 seconds whilst you go about your business down the street how would you/police react, how is that any different to using a motorvehicle which can and does do much worse damage than a baseball bat?

So you didn't actually read my post ?
Transient Assault describes all the points you have made.
Before you post maybe you should actually read the post you are commenting on.
Why didn't you ? Just curious......

So is an assault an assault or not? I read what you wrote and it makes no sense, you were basically trying to say that the OP hadn't being assaulted,

Your description "The crashing airplane nearly hit the school full of children" ... it didn't.
The train nearly hit the bus full of pensioners, it didn't" isn't a description of an assault unless there was a deliberate act on the part of the pilot or train driver, in both instances to think that an assault occured would be fantastical.
Maybe it's you who maybe needs to understand what an assault actually means and then write after you've had a think on the post you are commenting on?

[nosmarbaj]

Surely a prosecution in cases like this is VERY much in the public interest. Surely if motorists/people behind the wheel of a motorvehicle think there is a likely chance of being prosecuted then they're less likely to offend in the first instance,isn't that what a deterrant punishment is about, to keep the peace which the police have all sworn to do on oath/attestation?

"I will to the best of my power cause the peace to be kept and preserved and prevent ALL (my highlight) offences against people and property"

Well yes, but... the police have limited resources as we all know. They simply can't pursue every crime that's reported to them. The only way to change this is in the long term, by enough people voting for a governement which will raise enough tax to increase police funding sufficiently to allow all reported crimes to be followed up. And there's the CPS and Scottish/N Irish equivalents to be considered too.

In the short term, as landsurfer said upthread, there has to be a decision as to which crimes are pursued.

(The quoted police oath includes the words "...to the best of my power..." which implies sometimes it won't be possible.)

To be clear, I'm not specifically saying they shouldn't follow-up the OP's cases, just that they can't pursue everything

[The utility cyclist]

At what point do you say it's 'not in the public interest'? Finite resources are being stretched ever further because of the inaction on crimes such as this, if by disuading crimes being commited in the first instance you then aren't having to commit more time/money that really could be used on more serious stuff so isn't it always in the public interest both from a safety POV and financially to actually do something solid like a prosecution?

It's a circular problem, allow the crime to slide, and joe public think they can get away with it so carry on as before and in some cases getting worse, this in turn costs more money/time to police as well as all the angst, fear and as seen on our streets serious injury and death and the misery that follows...all because it wasn't in the public interest.

We either want crime to be reduced or we don't, by not acting the police/CPS/judges and indeed ourselves are all complicit in making an unruly society edge toward anarchy.
Good luck for you to get the outcome you want/deserve.

[mjr]

Very much in the mould of ..
"The crashing airplane nearly hit the school full of children" ... it didn't.
The train nearly hit the bus full of pensioners" ... It didn't.
and so on....

Yes and in the case of airplane near-misses or train Signals Passed At Danger, nothing would be done to reduce the risk of repeats and ones that aren't "nearly"?

We either want crime to be reduced or we don't, by not acting the police/CPS/judges and indeed ourselves are all complicit in making an unruly society edge toward anarchy.

It isn't anarchy if there's a hierarchy determinedly not enforcing laws - it's far worse, a sort of dystopia.

[thirdcrank]

I highlighted the importance of the NIP procedure only because it is time-critical. It's no good trying to get a decision reversed if proceedings are barred. Also, the early service of an NIP suggests to me that a report is being taken seriously.

There's loads about NIP's in shootist's thread (some of it from me) explaining the legal twiddly bits and linking to the CPS Guidelines. My experience of the subject is not recent but the suggestion that an exchange of views between two disgruntled road-users will suffice is something I've not heard before. I can see the reasoning, but if somebody suggested it to me, I'd be keen to know which decided case (legal precedent) they were depending on. One of the alternatives to a written NIP within 14 days is a verbal NIP given at the time. There are decided cases on whether a verbal NIP given after an alleged offender had been stopped a bit further down the road was "at the time." It's easy to deny that a verbal NIP was given, and so on. Around here at least, we were issued pads of NIP's printed on NCR paper, so we could issue written NIP's at the scene. If the memorable event of being stopped by the police is not, in itself, sufficient to remove the need for an NIP, it's not easy to see how a brief tiff is sufficient.

jatindersangha:-

If you speak to the same person again about NIP's, I'd urge you to ask them for the detailed source of their information, then share it on here. If the law has changed in this regard, it's important to anybody reporting bad driving.

Constables (everybody from police constables to chief constables) have wide discretion about which offences they investigate and deal with. The leding case used to be R V METROPOLITAN POLICE COMMISSIONER, EX PARTE BLACKBURN (1980) I've linked to it before. The police cannot enforce everything. When a PC excercises discretion, it's "good practical bobbying" or "Nothing better to do with your time" depending on whether the speaker has been on the receiving end.

It's been suggested that the level of decisionmaking in these summary Road Traffic Act cases should be higher than sergeant. I did it as a process sergeant as long ago as 1978 and it seems normal to me. The problem is what guidelines they are following. In any case, the tendency for some years has been to push decisionmaking levels downwards.

I'm unaware of anything which says that a file covering the investigation of a complaint must be submitted to the CPS for a decision. The police can no longer conduct prosecutions so it follows that if they feel a case should be prosecuted, then they can only achieve that by submitting the file, when the CPS will use make their statutory decisions over adequacy of evidence and public interest. It's worth noting that the CPS public interest test is only applied after the sufficient evidence test has been passed. OTOH, the police will often decide whether it's in the public interest to look for evidence in a case of a type which is not a current priority.

Что делать? as Vladimir Illych liked to ask. What is to be done?

Let me tell you a story (as Max Bygraves liked to say.)

During the long hot Summer of 1975, I was on nights in the part of Leeds dubbed Sleepy Valley by colleagues in the rest of the city. In an attempt to make it a bit busier, we had even been given a slice of Leeds 4 on the other side of the River Aire. We received a call about somebody being a nuisance outside a Women's Refuge, a type of establishment which was a bit of a novelty in those far off days. Short staffed as usual, and as the only supervisor, I found a PC from somewhere and set off with him to deal with it. Not a sergeanty sort of matter in those days, but if somebody is arrested, it needs a driver and escort to get them back to station. Only three bridges over the river in our bit of the city so we went over Wellington Bridge, which locals will remember is next to the then-new, now-demolished Yorkshire Post building. Anyway, my sharp-eyed collegue spotted smoke along Wellington Street and aware of the old saying about smoke, we went to look for the fire in what was in the next sub-division - Millgarth (which locals will remember had a brand new, now-demolished police station.) We found that there was indeed a fire at the Salvation Army hostel on Lisbon Street, a large one of its type, with plenty of residents. Happily, as locals will again know, this is just a short distance from a then-new fire-station, so the firemen (for such they all were) had barely come down the pole and jumped into their clean machines when they were jumping out again and fire-fighting. I took charge of closing roads to protect the firemen from traffic as they opened hydrants etc.

Inevitably, the police response to the refuge was delayed. A complaint was received and my own explanation, a more official version of my tale so far, had me in the clear. It didn't satisfy the complainants about the slow police response more generally and I think the correspondence continued for some time. Ultimately, the bottom line, if not expressed so bluntly, was that domestic violence was not much of a priority in those days.

Leap forward some four decades and priorities, which are now decided by others, such as the Home Office and Police and Crime Commissioners, and are more formally defined than was once the case, have changed. I think it would be reasonable to suggest that the increasing priority given to domestic violence is in direct proportion to the reduction in that assigned to bad driving.

How did this come about?

One major force for change has been persistant campaigning, including relentlessly lobbying politicians and complaining to and about bodies such as the police at every opportunity.

Check back over some of my other rambling posts and you'll find I told you so. FWIW, I think the opportunity to make much difference has passed, but that may because I'm getting past it myself.

[jatindersangha]

I asked the manager about the 14 day NIP rule...

His response:

There are no exceptions to the 14-day rule for Notice of Intended Prosecution. However, under Section 172 of the Road Traffic Act 1988 we have the authority to request that a registered keeper provide details of the driver of the vehicle at the time of the alleged offence. Failure to do this is a separate offence.

The registered keeper has 28-days to respond. If someone other than the registered keeper is nominated, they will also be sent a requirement under Section 172. Once the driver is identified, an account from them will be requested. Once all of the information has been gathered, a final disposal option can be decided. This will either be – No further action, a warning letter/words of advice sent to the driver, an offer of a Driver Alertness Course or a direct summons to court.

There are still many things to consider with the Public Interest criteria being one of them. Consideration will also be given to anything that may undermine any case for the prosecution. For an offer of a Driver Alertness Course or a direct Summons to court, it also has to be satisfied that there is a reasonable prospect of a successful conviction. Once a decision has been made, you will of course be notified.

--Jatinder

[thirdcrank]

Jatinder

Thanks for following this up and updating the thread with what you have been told.

It seems strange that somebody ever mentioned the line that a tiff between the parties would do as a substiture NIP if they knew it would not suffice.

It seems to me that the stuff about the registered keeper is something of a red herring here.

The NIP has to be served, to arrive within 14 days (all sorts of legal twiddly bits) on either the driver or registered keeper. If the full reg is available, the police can get the reg keeper immediately from the DVLA computer. If they do serve on the reg keeper that's often the owner/driver, but it may not be eg, fleet vehicle, vehicle rental or, of course, owner has lent vehicle to wife, son, whatever.

If it's something like a speed camera case, the NIP would be accompanied by the notice requiring the ID of the driver. There have been all manner of "loopholes" here which don't directly affect the matter of an NIP, but the main point is that if a notice is served and there's no satisfactory reply, then the addressee of the letter risks prosecution and the court will sentence as though they had been guilty of the original offence. (Obviously, a limited company can't be disqualified from driving etc.) When a recipient of a notice replies, then the person they finger will be sent a further NIP and a notice asking them for the identity of the keeper.

If somebody eventually puts their hand up then they get the summons, offer of a speed awareness course, or whatever.

In short, there are two separate but related things here: a timely NIP is vital (with exceptions.) No NIP = no proceedings. Then, there is a system enabling the police to require the registered keeper and others to name the driver. The police cannot just send out notices requiring driver details and then serve the first NIP at the end of that chain.

For the second time in only a few days, an expression used by grizzled DCI's comes to mind:

For anybody who remembers the remarkably true-to-life character of Detective Inspector Grim (in Thin Blue Line) my response would be straight from his script, "Don't try to fanny a fannyman."

I think it's worth mentioning that a run-of-the-mill speedcam case can be dealt with entirely by post. The investigation of an allegation of bad driving would probably require a face-to-face interview to give the suspect the opportunity to deal with everything that was being alleged. As a sort of logistical point, it's a lot easier for a police officer witnessing bad driving to deal with it there and then than interviewing a complainant and any other witnesses, looking at other evidence such as helmetcam footage, and then interviewing the suspect. OTOH, Martin Porter in his blog mentions the handicap for a private prosecutor who has not had the opportunity to interview the suspect before they become a defendant.

[jatindersangha]

Hi thirdcrank,

Are you saying that they have no intention of prosecuting as the NIP wasn't served and they're just fannying about to make me believe they're doing something?

Thanks,
--Jatinder

[irc]

I asked the manager about the 14 day NIP rule...

His response:

"There are no exceptions to the 14-day rule for Notice of Intended Prosecution."

Looks like the manager is avoiding the question. Has an NIP been served on the reg keeper or not? If it hasn't by the 14 day limit then A direct summons is not a option.

And there is an exception where there has been a road accident.

(1)The requirement of section 1(1) of this Act does not apply in relation to an offence if, at the time of the offence or immediately after it, an accident occurs owing to the presence on a road of the vehicle in respect of which the offence was committed.

http://www.legislation.gov.uk/ukpga/1988/53/section/2

[EddyP]

Anyone who engages in violence or intimidation towards a cyclist or a pedestrian should face the wrath of the law. The same goes for cyclists who engage in abuse towards other cyclist, car drivers and pedestrians.

[thirdcrank]

... Are you saying that they have no intention of prosecuting as the NIP wasn't served and they're just fannying about to make me believe they're doing something? ...

I'm saying that unless an NIP has been served (or there's an exception which isn't obvious from your account) then no proceedings are possible for bad driving. (NB, NIP's are only necessary for a handful of offences, all related to driving or cycling.)

I'd be slow to accuse anybody of anything, especially based on somebody else's account of what happened. It's not impossible that somebody who doesn't understand what they are talking about will inadvertently say something silly. eg If you plough through shootist's thread to which I linked in my first reply somebody posted (p2, IIRC) that they had been told by the person dealing with them at the police station that the police had six months, rather than 14 days. I can only assume that they were talking about the time when an information may be laid (ie a summons may be applied for) before it is statute barred (ie proceedings are no longer possible.)

I've posted loads before about the race to get NIPs served. If there was some sort of word-association test and somebody said "careless driving" I'd snap back "N.I.P" It's as ingrained as that.

I think what I'm really saying is that no matter has happened here, it's just a sign of the times: bad driving - although it didn't used to be called that - used to play a large part in the work of the police but it doesn't any more.

Let me say I'm wearing a couple of different caps here. One is as a cycling campaigner who became disheartened. The other is as a former police officer who retired over nineteen years ago. The two are linked: just before I retired, New Labour swept to power with what I thought was a promise but later downgraded to an "aspiration" to promote cycling. In retired policeman mode, I'm not yearning for some golden age, just noting that "traffic" is no longer a priority, and that's the big issue. That was the reason for my rambling tale about the fire 40 years ago. An occasional missed NIP would be no big deal: NIP's going out of fashion is a worry.

Finally, to avoid possible Mod trouble, I've tried to think of a synonym for fanny in this context: "flannel" might be one, since my dictionary suggests it can include covering up for ignorance. "Prevaricate" means "to avoid stating the truth or coming directly to the point." I'd be slow to accuse anybody of that: "falsehood or prevarication" used to be a police disciplinary offence, although that's all changed since my day.

[jatindersangha]

Timeline:

02/08/2016 - incident happened, forms and DVD created
03/08/2016 - handed into police
09/08/2016 - police send out response
13/08/2016 - I receive response in the post
15/08/2016 - I contact police asking for it to be reviewed again (they only work weekdays)
16/08/2016 - they say no change, and I ask for details of who I can complain to...police decide to review again
22/08/2016 - police say they've re-opened the case.

I don't believe a NIP could have been sent until at least 21 days after the initial incident. I'll ask them outright if a NIP has been sent...

--Jatinder

[thirdcrank]

I fear there's a risk of not seeing the wood for the trees: IMO the problem is that bad driving is no longer an enforcement priority. Indeed, I'm a bit surprised that the police dealing with this seem not to have made that point from the outset, rather than doing a bit of beating about the bush, if I may extend the trees metaphor.

Against that leafy background, I'd emphasise that in my first reply, I only highlighted the requirement for an NIP because it's a showstopper.

I linked to shootist's thread on reporting bad driving and here's the relevant bit about an NIP:-

3. Insist that (if there was no accident as defined in the road traffic act) the incident includes a requirement that the officer it is allocated to sends a written Notice Of Intended Prosecution (NIP) immediately he receives the report. Ask the call handler to confirm that this has been included in the incident report. (My emphasis)

Why "immediately" ? Tempus fugit. As I've already noted, with the DVLA computer, identifying the registered keeper is quick process. I presume that the 14 days in the legislation is not to allow the police some rumination time, but rather that when the system started, vehicle registration details were kept on card index systems in local taxation offices. "When I was a lad" we had a dedicated phone line to the Local Taxation Office, which was in any case, just across the road from police HQ. Otherwise it would be an enquiry card to the relevant LTO, based on the vehicle reg. If they had been notified of a change of ownership, they'd reply, saying they had posted it on to wherever. And so on.

Here's my timeline

2 August - incident occured
3 August - NIP clock starts to run, ie this is the first of the 14 days.
12 August - Arguably the last day for posting the NIP
16 August - NIP clock runs out: this is day 14

ie There's fourteen days to serve an NIP starting on the day after the alleged offence, but for postal service to be effective, the NIP has to be posted to arrive by day 14, in the normal course of the post. (All from memory and in my words.) Would posting first class on Monday do, with a less than 100% next day hit rate? I don't know, but there are countless loophole merchants ready to give it a try (see my earlier mention of "technical defences" in the CPS Guidelines.)

If I may modify the well-known phrase or saying, it used to be "Send the NIP first, ask questions later." But times, and more importantly, priorities have changed.

[Abradable Chin]

you have been fobbed off, which is by no means unusual

Clearly, the legal system does not work well for cyclists.
Could we hit bad drivers in the pocket, instead? Credit Reference agencies seem to legally mine all sorts of information about a person, so how about a vehicle reference website where reports, videos and photos can be uploaded? Insurers could inform themselves from it before quoting? The identity of the driver would not be needed, since insurance could be based on the risk of the vehicle being driven dangerously. Just a thought.

[jatindersangha]

Hi all,

One of the responses I had to my allegation of bad driving was that the police had to look at 2 areas laid down by the CPS.

The first is evidence - of which the police agreed there was good quality evidence.

The second was "public interest". In this case, the police said that the public interest criteria had not been met and they mentioned that cases of minor traffic offences or minor misjudgements - may be too insignificant to merit prosecution. Hence their initial decision to not do anything.

What is the correct procedure here? Should the police be deciding public interest criteria - or should they just be collecting evidence and forwarding to the CPS who may elect to do nothing?

Thanks,
--Jatinder