If you are caught speeding, you could be issued with a fixed penalty or a summons to attend court. Speeding can carry a driving disqualification or up to six penalty points on your licence. This page considers the most common defences used by our solicitors to defend motorists.
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Have you been caught speeding?
Speeding is, in our view, one of the most over-prosecuted criminal offences in the country. Most motorists simply 'roll over' and take the points. But for those who know their rights, they may want to check the evidence first.
Speeding will result in 3 - 6 penalty points and a fine up to £1000. Depending on the speed, the court may impose an immediate driving ban. If you ‘tot-up’ to 12 points within a three year period then you will be subject to a minimum 6 month ‘totting-up’ ban unless the court finds ‘exceptional hardship’. You can read more about exceptional hardship below.
Any person charged with speeding has the right to check the evidence against them. Speeding offences begin in one of two ways;
You were stopped by the policeIf the police pulled you over, you were proabably given a verbal NIP. This would involve the officer cautioning you for the alleged offence and explaining that you would be reported for speeding. The officer may tell you that you can expect a Fixed Penalty through the post or a summons to attend court. This, of course, depends upon the speed alleged. Check the sentencing guidelines below.
If you were pulled over by the police you have probably been caught on a hand-held laser device or a follow-check. You can read more about speeding devices below.
You were not stopped by the policeThis is by far the most common starting point for most motorists. It may be that the first you learn of the offence is the letter that comes through the post. It would be completely impractical to stop every motorists suspected of speeding (particularly where the device was 'unmanned'). Whatever device was used, there are ways to defend the case.
The first letter to arrive is the Notice of Intended Prosecution (NIP). This will also be accompanied by a ‘s.172 notice’ requiring you to provide driver details. You should respond to the NIP as soon as possible as it is usually time-sensitive. Always seek legal advice before returning the NIP.
Why you should check the evidence
A summary by Marcus A Johnstone (Solicitor).
Remember, you are innocent until proven guilty! It is for the prosecution to prove the case against you, not for you to disprove it. The police and the Crown Prosecution Service are there to prosecute you. They are not going to do you any favours. You will only ever see the documents that the CPS wants you to see at the early stages of your case. You may not receive anything that could damage the prosecution's case against you - unless you ask for it.
As a specialist motoring defence solicitor, I regularly spend time in court speaking to prosecutors. It's no secret that the CPS financial budget is not big enough for evidence to be sent out to every motorist accused of speeding. I'm often told that there is no point in the CPS wasting time and money disclosing the evidence to you if you are going to plead guilty. I obviously take the opposite view; how can anyone plead guilty to a crime without first seeing the evidence?
Incredibly, even if you enter a not guilty plea and go to trial you may still not receive proper disclosure of the evidence. And believe me, the CPS is very reluctant to disclose anything to you that it does not want you to see. I have recently had one case – an ordinary speeding matter – where it took over 2 years trying to force the CPS to disclose documents that I wanted to see. It took numerous letters, faxes, court orders and 5 court hearings before the CPS finally dropped the case. The reason given by the CPS for dropping the case was “a lack of evidence”!
The fact that the vast majority of people plead guilty without obtaining and checking the evidence can actually work in your favour. In my view the police often take short cuts in the documentation and production of evidence. In other words, they don't always follow the rules!
If you take the time to check the evidence against you, you may uncover mistakes made by the police and the CPS. I am often accused of winning cases on a technicality or by finding a ‘loophole’ in the evidence. So what! If a mistake has been made and the evidence is unreliable then you should not be convicted. Simple.
How to challenge a speeding offence
Suspected of speeding? All our time is spent fighting for motorists charged with driving offences. We defend cases all across England and Wales, and have first hand knowledge of most Magistrates' Courts. We would never recommend defending a criminal case without the help and guidance of a specialist solicitor. If you think any of the defences below might apply in your case, please call us immediately for free advice.
The defences below apply to the following speed cameras;
- Gatso Cameras (yellow box)
- Average and Variable Cameras (found mainly on motorways)
- Hand-held laser devices (including camera vans)
You should be aware that some radar devices are manually operated by the police whilst others, such as the Gatso Camera and motorway HADECS cameras, are automatic. Either way, the police should follow the procedures laid down in the guidelines issued.
Consider carefully the list below - it will help you determine whether the police and the CPS can prove the case against you.
The secondary check
If you were ‘flashed’ by an automatic Camera, have you seen the independent secondary check? Automatic unattended devices operate without a police officer being present. These cameras only provide primary evidence of an offence. As such there is a requirement for the police to provide secondary evidence - a secondary check - as to the accuracy of the device. The secondary check is usually two photographs clearly showing the distance travelled by the vehicle. The photographs must contain clear images of the white line measurements along the road. It is then possible to undertake a manual calculation of the physical distance travelled over a given time, thus determining your alleged speed.
Please note. In our experience it is difficult for the police to prove the accuracy of the speed by the secondary check when the alleged speed is only marginally over the limit, even where the white lines are clear. This is because of the spacing between the white line measurements on the road and the margin of error built into the devices.
In addition, our team have seen many photographs where the white line measurements cannot be seen clearly, or at all. This could be as a result of other vehicles in the way, bad weather, road resurfacing, etc. If the lines are not clear, and therefore no secondary check can be established, there should not be a conviction irrespective of the alleged speed.
The police are often reluctant to disclose the photographs of your vehicle, often stating that you are not entitled to see such evidence. This may be a tactic to place pressure on a motorist and force a guilty plea. However a refusal to disclose the photographs can work in your favour providing you have raised this as a defence issue with the CPS. You should take legal advice on this particular point as it involves complex law relating to admissibility of evidence. It can be used as a ‘loophole’ by solicitors to prove that the CPS do not have enough evidence for a conviction.
Is there any evidence of the white line measurements being laid to engineering standards?
It is vital that the white line measurements painted onto the road surface are accurate. The police are not responsible for painting the lines and therefore evidence should be produced from the company or agency responsible. This may be the Trading Standards Department of the local council or a separate engineering company. Please note. The requirement for the CPS to prove the accuracy of the white line measurements is often overlooked. It may involve the CPS obtaining additional evidence from the person or agency who originally measured and laid the lines. However, unless you raise this as a defence point and require the CPS to prove the accuracy of the white line measurements then the court will simply presume everything was correct. As with the point above, it is certainly beneficial to discuss this issue with a solicitor.
Did the police undertake a risk assessment before choosing the location and operating the radar device?If you think that the officer may have been stood or parked on private land it is worth checking if the officer had permission to be there. In addition, if the officer was parked on a grass verge or pavement, did he have authority from the Highway’s Agency?
Have you seen evidence to prove that the officer was properly trained to use the radar device and, where relevant, video equipment?You may be surprised to learn how little training some police officers have before being allowed to operate speed equipment. The majority of officers I have spoken to had between 2 and 4 hours training. In one case I found that the officer (traffic officer with several years experience) had not been trained at all in the use of the particular device.
Have you received a ‘section 20 certificate’?Please note. In cases involving a Gatso Camera where there is no direct police involvement at the time of the alleged speeding offence, the CPS will often seek to rely on section 20 of the Road Traffic Offenders Act 1988 to prove its case. The quotation above, contained in the ACPO Code, makes clear that the device must be type approved if the evidence produced from the device is to be admissible. The CPS may therefore supply you with a statement confirming that the device was type approved in accordance with s.20, or words to that effect. However, it is important to check the statement from the CPS carefully as, in several cases I have been involved with, the CPS did not provide the information in the correct format, or at all!
It is vital that you approach this area with care and, ideally, you should seek advice from a solicitor. If the CPS does not provide you with a s.20 certificate in the correct format, or at all, then you should win your case at court. Be careful not to tip off the CPS that the s.20 certificate does not contain the correct information. Within seven days of the trial date it is too late for the CPS to serve the certificate and the CPS may be persuaded to drop the case.
If you do receive a s.20 certificate you should check that it contains all the correct information. I have personally won numerous cases where the CPS failed to supply the correct information within the certificate.
How wide is the laser beam?The police will often take great pleasure in explaining that the laser device is so accurate because it has such a narrow laser beam and therefore it only ‘hits’ your number plate before being reflected back (the police usually aim at the number plate as it is a flat surface with a reflective material). I have personally had a number of cases where the police have explained that the laser beam is only a few centimetres wide when hitting the car.
However, laser devices are subject to beam ‘spread’. By the time the laser ‘hits’ your vehicle the width of the beam can be considerably wider than the few centimetres the police may have led you to believe. As an example, at just 400 metres the laser beam can be up to 1.2 metres wide! At 800 metres it can be up to 2.4 metres wide! Even if the laser device has been aligned correctly (and it may not have been - see below) the laser is therefore being reflected back from several different objects and angles – and possibly not even your vehicle.
In a recent case, my client was 2057 feet from the laser. The laser beam would be over 8 feet wide at this distance!
I have dealt with hundreds of cases over several years and yet there has only been one case where the police officer acknowledged in his initial statement that the laser beam was subject to considerable beam spread. This indicates that the police will not tell you this – either because they don’t want you to know or because they don’t know.
Was the laser aligned with the sight?Did you ever fire an air rifle as a kid and wonder why you missed the target? You could be looking through the sight, aiming directly at the target, but miss completely. Why? Firing a laser device is, by analogy, like firing a gun. Every laser device will have a separate aiming device mounted on the top – similar to a sight on top of a gun. Have you seen films on television where the assassin trains his telescopic sight onto the target – usually with cross-hairs or a red dot in the sight to assist with aiming? It all looks so simple, doesn’t it? In fact it is incredibly easy to miss and great care needs to be taken to ensure that the sight is aligned with the precise spot where the bullet, or laser beam, will hit. An added problem is that the laser beam is invisible! If you miss the target with a bullet from a gun you know immediately – because there is no bullet hole in the target and you can see the damage caused by the bullet nearby! But if the laser beam is invisible, and does not create any mark, how can the officer know it has actually ‘hit’ your vehicle? He doesn’t!
The police should follow a precise procedure for aligning the sight with the laser – both before and after it is used to detect an offence. It is also recommended that this set-up is carried out at the site where it is to be used. In addition, the police should record and document this procedure and supply evidence that it has been carried out correctly. Have you been provided with such evidence? My guess is that you have not – because, in my experience, the police do not always have it! Beware of being misled by wording usually inserted in police witness statements saying: “the device was aligned in accordance with manufacturer’s instructions”, or words to that effect. This is automatically generated by computerised witness statements and does not mean that it has actually been done. I have personally had numerous cases where the police officers using the laser devices did not know how to carry out a correct alignment check, even though they made statements that it had been done. What’s more, not only does that alignment check have to be carried out accurately and in accordance with manufacturer’s instructions. In our experience the police do not document this procedure correctly, or at all!
Notice of Intended Prosecution (NIP) for speeding
What is a notice of intended prosecution?
If you are believed to have committed a speeding offence, you must be presented with a Notice of Intended Prosecution (NIP) within 14 of having committed the offence. Service of the NIP can be by hand, by first class post or recorded delivery. You may receive the NIP directly from a police officer if you are stopped at the time of committing an offence, or you may receive one through the post. If a notice of intended prosecution is not received then a summons must be issued within 14 days.
TIP: The NIP must be signed on behalf of the Chief Constable (an electronic signature will suffice). A NIP should also contain the name of the authorised officer, a date and sufficient information for the offence to be identified.
Remember that you must also sign the NIP before returning it. If you don't sign the form, the police could charge you with failing to identify the driver.
Failing to comply with the above should result in the prosecution failing. The only exception is where you are not the registered keeper of the vehicle. If you lease your vehicle, for example, or it's owned by the company you work for, the NIP will not come directly to you. Instead, it will be served on the owner of the vehicle who is then required to identify the appropriate person. It could then take many months before an NIP is issued in your name.
There is no require on the police to prove that the NIP was received by the registered keeper within 14 days, only that the believe that it was. You may have a defence if you can persuade the court that the NIP did not arrive in time, or at all. This is known as 'non-receipt'.
If the vehicle is owned by a company the NIP will be issued in the company's name. Make sure the company name is correct on the NIP. If the company name, or any other details, on the NIP are wrong, the NIP may be invalid.
You can read more about a company's obligations below.
Do I have to respond to an NIP?
If the Notice of Intended Prosecution is addressed to you and you fail to respond within 28 days, you could commit a separate offence. This offence is known as 'failing to identify the driver', contrary to Section 172 Road Traffic Act 1988. It is punishable by a fine of up to £1000 and 6 penalty points. The CPS may also lay the original speeding allegation alongside this offence. Although, in reality, the chance of you being convicted of both is very low.
If you fail to ID the driver you might have a defence if you can show that reasonable and diligent enquiries could not determine who was driving at the relevant time.
It is clearly important to check if the Notice of Intended Prosecution you have received is valid. An invalid NIP could mean that the court cannot legally charge you for the alleged offence. Below we’ve listed a few common situations in which charges are often dropped due to an invalid NIP.
- No NIP given
If you were stopped by the police you probably received a fixed penalty or a ‘producer’. Sometimes this document, typically handed to a motorist at the roadside, has a notice of intended prosecution attached, warning you that you may be prosecuted. However, there may have been no NIP attached. You cannot be charged if you were not warned of the intention to prosecute.
Police rely on the fact that most motorists are ignorant of the law and just plead guilty, often preferring to accept a fixed penalty rather than challenge it.
- Verbal NIP
If your ‘speeding ticket’ did not include a NIP, the only realistic chance of a successful prosecution is if the officer gave you a verbal NIP. This raises an interesting point: what happens if you do not recall the officer giving you a verbal notice of an intended prosecution? How can the officer prove that he did, especially if no document was handed to you containing a NIP?
In fact, in the above situation you may not need to do much challenging at all. It is for the police (via the CPS) to prove the speeding allegation (not for you to disprove it). If your evidence is that you did not receive a NIP, the onus is on the CPS to prove that one was given to you within 14 days. If they cannot prove this, the case should fail.
No NIP = no conviction.
- Late NIP
Many speeding cases arise where the motorist was ‘flashed’ by a Gatso camera or caught by a laser device from a camera van. In these situations the motorist is not stopped at the scene and therefore the driver or registered keeper must receive a written NIP (along with a requirement to identify the driver) by post within 14 days.
This raises a practical problem for the police and the CPS and gives rise to a possible ‘notice of intended prosecution loophole’ for the motorist. If you claim that you did not receive the NIP in the post, the police must prove that they posted it. If they cannot do this, then charges are often dropped.
Even if the CPS can prove that the NIP was posted, can they prove that you received it? This is unlikely as NIPs are rarely sent using recorded delivery. Whilst there is a ‘presumption’ of delivery if the NIP was posted correctly, it is always open to the defendant to reject this presumption by giving evidence of non-receipt.
- I sent back the NIP
It may be that you complied with your duties under Section 172 Road Traffic Act and returned the NIP, identifying yourself as the driver. But what happens if the police didn't receive your response? You may receive one or two reminders to complete the NIP. Perhaps you assumed that these just 'crossed in the post'.
This type of scenario is often resolved by the motorist attending court to confirm that they returned the NIP by post. If the motorist has a witness who can confirm that the form was posted, or perhaps a scan of the completed NIP, this would certainly help. In our experience, motorists are likely to be believed by the magistrates and acquitted of the offence.
If a motorist who runs this line of defence is convicted, they have an automatic right of appeal to the Crown Court.
- NIP for more than one offence
If you have been charged with more than one offence, you should receive a Notice of Intended Prosecution for each offence. For example, if you received a NIP at the roadside for speeding but, several weeks later when the summons arrived it also charged you with careless driving, you should not be convicted of careless driving because no NIP had been given to you for this particular offence.
- Errors with the NIP
Errors in the way that the NIP is addressed – for instance a misspelling of your name – sometimes provide an adequate reason that you may not have received the NIP, and as a result charges are dropped.
If there is an error relating to the time and place of the alleged offence, the case against you may also fail. For example, an alleged offence on “the Hothfield to Bethersden road” may not be sufficient enough information to identify the precise location of the offence, and the prosecution may fail as a result.
A company charged with speeding
Many companies provide company cars for their employees. Some companies own the vehicles, others lease them. As we have discussed above, this distinction will determine who first receives the Notice of Intended Prosecution.
If the company is a registered keeper of the vehicle, the NIP should be issued within 14 days.
If the company is not the registered keeper, the NIP will first be sent to the owner of the vehicle (usually a lease company). There could be three or four NIP's issued in different names before the driver actually receives his.
There is a duty on a company to keep adequate records of who drives its vehicles. You can read more about criminal charges against a company on our Failing to Identify page.
Please contact us for help and advice on how to deal with and defend a notice of intended prosecution.
For an informal discussion of your case please telephone Marcus on 07808 553 555. If you would prefer not to telephone, please complete the online assessment form.
Speed Cameras - What you need to know
Average Speed Camera Fines
If you are accused of speeding, and found guilty of the offence in court, then you will be convicted. This conviction includes a speeding penalty of 3-6 points on your license, and a fine of up to £1,000. The exact penalty that you receive will depend on the offence committed – for instance, how fast you were going, what the speed limit was, whether you’re a first time or repeat offender, etc.
If you get a total of 12 points on your license within a 3 year period, then the court has the power to impose an immediate driving ban, lasting a minimum of six months.
Types of speed cameras
There are over 50 different types of speed cameras, including:
- Laser speed cameras
- Radar speed cameras
- Red light traffic cameras
- Mobile speed cameras
- Gatso speed cameras
- Truvelo speed cameras, etc.
Mobile Speed Cameras
|Camera||Info||How to challenge|
|REDFLEX||Enforces speed limits on motorways and major roads with up to six lanes enforced.||Has the device targeted the correct vehicle?|
|SpeedCurb||The tallest camera in the UK, the SpeedCurb uses three sensors embedded into the road which are spaced out by 1 metre.||Has the distance between the sensors been correctly measured? Where is the proof of this?|
Average Speed Cameras
|Camera||Info||How to challenge|
|SPECS||A fixed distance between two cameras allows an average speed check to be carried out.||Have the police applied to '10% plus 2' rule?|
|Siemens Safe Zone||These cameras calculate motorists average speed through a specified 'safe zone' using ANPR.||Is the image provided by the Police date and time stamped? Be aware - these cameras also work at nighttime.|
|SpeedSpike||Using GPRS to monitor an area, these cameras link into a network of over a 1000 separate cameras. They catch motorists in both directions.||Can the camera correctly identify your vehicle or was it targeting a vehicle travelling in the opposite direction?|
|Camera||Info||How to challenge|
|Gatso||Uses radar technology to sense the speed of passing vehicles. White lines on the road can be used to measure speed.||Has the device been correctly maintained and has the secondary check been carried out correctly?|
|Truvelo and Truvelo-D||Four sensors fitted under the road surface measure the speed of the vehicle. They work in both directions.||Some of these cameras use a built-in Infra-Red flash that some experts consider inadequate.|
|HADECS||Used mostly on smart motorways, these devices use a dual radar system to detect the speed of passing vehicles.||These devices have become known as 'stealth' cameras because they're small and difficult to spot. Do they comply with ACPO (NPCC) guidance?|
All of the above types of cameras, and the way they are operated, are subject to strict rules. Failure by the police to comply with these rules means that any case brought against you that relies on evidence from one of these cameras, may fail.
Defending Against a Speeding Charge
There are a number of ways in which you could avoid conviction and fines if you have been caught speeding by a speeding camera. For instance:
- You cannot be convicted solely on the evidence of one police officer alone
- The speed reading from a camera is only one of two necessary forms of evidence needed
- Often, the police fail to properly fill out necessary documentation
- Police officers sometimes operate speeding camera equipment incorrectly
- Cases may fail if police cannot show evidence of calibration checks.
Any and all of the above situations could be enough to form an adequate defence for you. The police often rely on the assumption that you will simply plead guilty without challenging the charge, and in many cases this means that they do not strictly adhere to all necessary protocol.
Once instructed, we will identify the precise camera used in your case along with all the rules and regulations applicable to that camera. We will then check whether the police and the prosecution have complied fully. The police very rarely supply adequate documentation to you and this may be because they do not have it.
For example, have you seen a photograph of your alleged speeding incident? If so, why only one? In many cases it is not possible to legally prove a speeding case against you unless the police are able to show two or more different photographs. Did you also know that the case may fail if the police cannot show evidence of their own calibration checks (not those from the manufacturer) relating to their use of the camera on the day in question.
Our team of specialists has been involved with cases where ‘experienced’ police traffic officers did not to know how to operate their own speed cameras! More information about our past successes can be found on our Resources Page.
For an informal discussion of your case please telephone our office on 01514228020. If you would prefer not to telephone, please complete the online assessment form.