Notice of Intended Prosecution – A Guide
A Notice of Intended Prosecution is a warning issued to persons suspected of certain road traffic offences. It is also know as a “section 1 warning”. This stems from the fact that a Notice of Intended Prosecution is sent under section 1 of the Road Traffic Offenders Act 1988. This Guide covers what a Notice of Intended Prosecution is, to which offences it applies, what form it has to take and the required time-frames. Some detailed information in respect of certain offences is contained in our “learn more” boxes below. Finally we deal with some frequently asked questions.
What is a Notice of Intended Prosecution?
A Notice of Intended Prosecution (also known as a section 1 warning) is a warning issued under section 1 of the Road Traffic (Offenders) Act 1988. It needs to be made clear that this is separate and distinct from a requirement to identify the driver of a vehicle under section 172 of the Road Traffic Act 1988. The confusion arises because the two matters are often included in the same letter. A motorist caught on speed camera should receive a written warning, for example. Contained within the same letter is a requirement to identify the driver. The two issues, although contained in the same letter and relating to the same incident, are quite separate.
The Notice is simply what the name suggests. It is a warning that you may be prosecuted for a certain offence or offences. It can be in oral or written form and we say more on this below. We have found that the written warnings received by drivers caught on speed camera (i.e. the offence of Speeding in Scotland) often cause a high degree of alarm. This is because the letter usually also warns the driver that they may be prosecuted for Dangerous Driving in Scotland or Careless Driving in Scotland. In the vast majority of cases, such a prosecution will not happen. The letter is simply a base-covering style letter sent out irrespective of the seriousness of the alleged Speeding in Scotland offence.
To Which Offences Does It Apply?
A Section 1 warning is not required for every alleged road traffic offence. The offences to which it applies are found in Schedule 1 of the Road Traffic (Offenders) Act 1988. The most common offences for which a warning is required are:
- Careless Driving in Scotland(Road Traffic Act 1988, section 3)
- Dangerous Driving in Scotland (Road Traffic Act 1988, section 2)
- Speeding in Scotland (various sections of the Road Traffic Regulation Act 1984)
- Failing To Comply with Traffic Signs (Road Traffic Act 1988, section 36)
Some common offences which do not require a Notice of Intended Prosecution include:
- Drink Driving (Road Traffic Act 1988, section 5)
- Failure to Provide a Sample (Road Traffic Act 1988, section 7)
- Causing Death by Dangerous or Death by Careless Driving (Road Traffic Act 1988, sections 1 and 2B)
- Using a vehicle in a dangerous condition (Road Traffic Act 1988, section 40A)
- Driving While Using a Mobile Phone (Road Traffic Act 1988, section 41D)
What Form Does It Take?
A section 1 warning takes two main forms – oral or written. This is usually determined by whether you have been stopped by the police or not.
Oral Warning
If the police have stopped you at the roadside and charged you with the offence of Speeding in Scotland or Dangerous Driving in Scotland, it is likely you will receive a verbal section 1 warning. From feedback we have received, our clients are not always sure if they have been issued with such a warning. This is because the police sometimes do not always use the words “speeding” or “careless driving” or “dangerous driving”. Instead they sometimes say that they are warning you that you may be prosecuted (for example) for a contravention of section 2 or section 3 of the Road Traffic Act 1988.
It is also common for the police to charge you with one offence and warn you that you may be prosecuted for another. For examaple the police may charge you with Speeding in Scotland but warn you that you could be prosecuted for careless or dangerous driving in Scotland. This is perfectly competent but it can also create confusion. It should also be noted that a section 1 warning does not require a particular form of words. If, for example, the police charge you with Dangerous Driving in Scotland, the charge also constitutes the Section 1 warning. The police will often do both. They do not, however, require to do both. One will suffice.
Written Warning
A written Notice of Intended Prosecution will usually be issued in one of two circumstances. The first, and most usual, is where a motorist has been captured by a speed camera. In these circumstances a written Notice, issued by Police Scotland, will be sent to the registered keeper outlining the circumstances of the alleged offence. Within the same letter will be a requirement to identify the driver. The second is where the police have receive a report from a member of the public of a relevant offence or the police have witnessed an incident but not warned the driver at the time. In such cases a written warning must, subject to certain exceptions, be issued within 14 days.
A written Notice of Intended Prosecution must include the nature of the alleged offence and the date and place it was alleged to have been committed.
Time Limits
The time limits are the same irrespective of the offence. The same time limit applies for Dangerous Driving in Scotland as for Speeding in Scotland or Careless Driving in Scotland.
The time limit for an oral warning is strict. It can only be issued at the time of the offence. “Time of the offence” is not defined by statute and it is, of course, impossible for such a warning to be issued 100% contemporaneously. While a degree of latitude will be allowed, however, the evolution of the law makes clear that such warnings must be issued soon after the alleged offence – 24 hours later, for example, will be too late.
14 days?
The time limit for a written warning is 14 days from the date of the offence. It is important to note, however, that only the registered keeper requires to receive such a warning within 14 days. For example, if you lease your car, the lessor will be the registered keeper. It is this person that must receive the warning within 14 days. That person should then identify you as the driver. It is very common, therefore, for the driver to receive his own warning after 14 days has elapsed. This does not invalidate the warning. If, however, you are the registered keeper and you receive a written Section 1 warning after 14 days have elapsed then the prosecution against you may be fatally flawed.
Finally, it is very important to note that a late Notice of Intended Prosecution in no way removes the legal obligation upon a person to identify the driver of a vehicle when required to do so under section 172 of the Road Traffic Act 1988. If a driver fails to respond to such a requirement then he can still be charged with a contravention of section 172 which carries a punishment of 6 penalty points.
What if the warning is issued late?
If the Section 1 warning is issued late – or not issued at all – then this may be a defence against the charge. There are certain exceptions, the most common of which is that no warning is required is if there has been an accident. See the “learn more” section for more details. These rules apply irrespective of whether the alleged offence is Speeding in Scotland, Careless Driving in Scotland or Dangerous Driving in Scotland. We discuss the issue of the Section 1 warning relative to these three offences in more detail below.
LEARN MORE ABOUT NOTICES OF INTENDED PROSECUTION
Section 1 warning – Careless Driving
A person cannot be convicted of careless driving in Scotland unless, subject to certain exceptions, they have received a timeous warning that such a prosecution may occur. This is made clear in section 1 of the Road Traffic (Offenders) Act 1988.
Therefore a driver MUST receive either a verbal warning at the time of the alleged offence or receive a written notice of intended prosecution within 14 days. The warning at the time does not require a specific form of wording so long as the meaning is clear. Being charged with careless driving at the time of the incident will also fulfil the purpose of a “section 1 warning”. In practice the police will usually do both – provide a verbal warning of intent to prosecute and caution and charge the driver.
What will not suffice, however, is a verbal warning and/or charge delivered, for example, the next day. Such a subsequent warning must be delivered (a) within 14 days and (b) must be in writing.
Here is an example:
- someone is seen by civilians contravening a solid white line or witnessed undertaking or tailgating, all classic examples of careless driving in Scotland.
- The civilians report the matter to the police who visit the accused 10 days later.
- In those circumstances a verbal warning will not suffice.
- Unless a written notice of intended prosecution is provided, the accused will have a legal defence to the charge.
It should be noted in terms of section 2 of the Road Traffic (Offenders) Act 1988 that there are exceptions to this rule. The main exception is if there is an accident.
The law surrounding careless driving in Scotland and notices of intended prosecution is, therefore, a complex area of the law for which specialist legal advice should be sought.
Section 1 warning – speeding
We often get calls from people worried they havebeen caught by a speed camera. However if a Notice is not received by the registered keeper within 14 days, you can stop worrying. It is important to remember, however, that this time limit ONLY applies to the registered keeper who may or may not be the driver. The Notice requires to give details of the nature of the alleged offence as well as the time and place of the alleged contravention. A certain latitude can be allowed. however significant errors as to time and/or place can potentially cause issues for the prosecution.
In the event that the Procurator Fiscal’s office seek to start proceedings in the absence of a timeous NIP (Notice of Intended Prosecution) then the driver may have a defence in terms of section 1 of the Road Traffic (Offenders) Act 1988. It should be noted that the warning can be issued verbally by police officers if you have the misfortune of being stopped by the Police at the time.
Section 1 Warning – Dangerous Driving
A person charged with dangerous driving cannot be convicted unless, subject to certain exceptions, they have received a timeous warning that such a prosecution may occur.
Therefore a driver MUST receive either a verbal warning at the time of the alleged offence or receive a written notice of intended prosecution within 14 days. The warning at the time does not require a specific form of wording so long as the meaning is clear. What will not suffice, however, is a verbal warning and/or charge delivered, for example, the next day.
It should be noted in terms of section 2 of the Road Traffic (Offenders) Act 1988 that there are exceptions to this rule. The main exception is if there is an accident. In those circumstances there is no need for a warning. Near misses, or evasive action, may constitute accidents but it will depend on the precise nature of the event. It should also be noted that the burden of proof lies with the accused. It is for the accused to prove that he did not receive a warning (or the correct warning). In our experience, the police tend to be honest about such errors and the necessary evidence can be obtained in cross-examination.
The law surrounding Dangerous Driving in Scotland and notices of intended prosecution is, therefore, a complex area of the law for which specialist legal advice should be sought.
Frequently Asked Questions (FAQs)
Q: Do the police need to issue a warning?
A: Yes, subject to certain exceptions. There is no requirement for a warning if there has been an accident, for example, or the police failure is due to deliberate evasion on your part.
Q: Does it matter that my is spelled incorrectly?
A: No. Typographical errors are excusable. It is another matter, however, if your name is completely incorrect.
Q: I was stopped by the police but haven’t received my written warning?
A: If the police have issued you a verbal warning, or charged you with an offence, there is no requirement for a written warning. If the police do neither, however, the failure to send you a written warning may constitute a defence to a subsequent charge against you.
Q: I was warned for speeding. Can I be convicted of dangerous driving?
A: This depends. The ultimate decision on prosecutions lies with the Procurator Fiscal, not with the police. However in certain circumstances the Crown may be precluded from obtaining a conviction. If the police only charged you with speeding and only warned you that you may be prosecuted for speeding then you cannot be convicted of dangerous driving.
Q: I was warned for dangerous driving but am being prosecuted for careless driving, it that legal?
A: You can be convicted of careless driving. The law provides that a warning for the lesser counts as a warning for the greater. Because dangerous driving is a more serious offence than careless driving you have not been prejudiced by the warning. If it was the other way around, however, you could only be convicted of careless driving.
Q: I have received a NIP but the offence was more than 14 days ago?
A: If you are also the registered keeper, this may well mean that you have a defence against the charge. If there is also a requirement to identify the driver you still need to respond to this. Additionally only the registered keeper requires to receive the warning within 14 days. If you are not the registered keeper, this may be why you have received the Notice outwith the 14 days.
Q: I have received a Notice of Intended Prosecution but know for a fact that my car was off the road?
A: It is possible that your car has been cloned. Seek legal advice straight away.
Q: Does the Crown need to prove they sent a Notice of Intended Prosecution?
A: No. Section 1 of the Road Traffic (Offenders) Act 1988 includes a presumption of compliance. It is for the defence to prove that the section has not been complied with.
Q: Do I need to respond to the Notice of Intended Prosecution if I wasn’t the driver/if I received it outwith 14 days etc?
A: There is no legal obligation to respond to a Notice of Intended Prosecution. However there IS a legal obligation to respond to a requirement to identify the driver. The NIP and the requirement to identify the driver are often contained in the same letter. The response form included is for the requirement, not the Notice. You legal obligation to respond applies irrespective of time limits or whether you were the driver.