Loophole in Section 172 Loophole, not signing the NIP form.

A loophole does appear to exist, but it is not 100% foolproof as much of the law around the loophole is somewhat cloudy and untried. Section 172 Loophole. This loophole is based upon returning your NIP paperwork unsigned. It is not as straightforward as just returning it unsigned and whilst recent court cases have clarified some parts, they have also clouded others. In summary the situation is (January 2004):

If you return your form unsigned then as you have not signed the documents its contents are not considered a "statement in writing" for the purposes of Section 12 of the Road Traffic Offenders Act 1988. Accordingly it is inadmissible as evidence under the Road Traffic Offenders Act.

BUT

If the form was completed by the defendant then it could amount to a confession under the Police and Criminal Evidence Act (PACE). This has been tested in a number of cases and been thrown out. In Bristol Crown court (Case # A20020257) on 13th December 2002 the case against John Pickford was dropped as the court concluded that as the form was unsigned it could not be taken as a confession as there was no evidence that the defendant had made it. Judge Ticehurst then went on to famously describe the situation as a lacuna in the law and that parliament will need to update the law.

SO to you will need to get someone else to complete the form for you on your behalf. This will need to be someone who can't be called to give evidence against you - so your solicitor or your spouse. You should not give them specific advice on how the form should be completed, other than asking them to ensure the legal requirements are complied with. And don't sign the form. This approach has worked in the past in a number of high profile "celebrity" cases. The person who completes the form should write a brief note explaining that they have filled out the form on your behalf acting as your agent. They should retain this note as it will be needed by you if the case goes to court.

It is highly likely that you will then receive an aggressive letter in response to your unsigned form. It is almost certain that they will refer to a ruling in a case DPP vs Broomfield 2002 and claim that this case confirmed that you must return the form completed and signed. You can read full details of this case here

We would suggest that you write back to them and point out a few key facts and ask them for clarification.

In DPP v Broomfield, Judge Wilkie concluded that a Police "Authority could include reasonable instructions as to the manner in which information was to be provided" in relation to Section 172 and that this could include written information. Judge Wilkie did not state that written information should be signed.

On the 13th December 2002 at Bristol Crown Court in the case of DPP v Pickford, Judge Ticehurst stated that a lacuna in the law does exist.

As neither Judge Wilkie or Judge Ticehurst have highlighted the law that makes it obligatory to sign the form, please can you tell me specifically where in law it states that it is obligatory to sign the form and I would of course be happy to obey. The above text will often make the case go away as they realise that you are aware of the law. In some cases the police will continue and next threaten you with going to court. They could try a number of approaches and most of these enter into grey/untried areas of the law, so you'll need a solicitor to progress further.

For example they could use Section 172 against you as it says that the registered keeper of the vehicle must provide the information.

Or they could use PACE to try and make a case that your form is a confession. However if they take this route then they fall into another grey area as if they try and use PACE then they must comply with it themselves and would have needed to either cautioned you or offered a full explanation of your rights prior to being required to complete a voluntary confession. As they have not done this then you have been deprived of your rights (under PACE) and under Article 6 of the ECHR to a fair trial and that what they are trying to do would fall under the category of a malicious prosecution. We do not believe that PACE applies in Scottish law.

So in summary, if you receive a NiP

Get your legal representative or spouse to complete the form

Get them to write a dated statement confirming that they have completed the form and don't send this back with the form

Return the form unsigned

Await a response and if they refer to DPP vs Broomfield 2002 then send them a response clarifiying this situation

If they still continue with the case you will need a solicitor to support you as part of the next step will be proceeding to court and being represented. This representation will cost you a few hundred pounds and it may not work the first time around and may need to go to appeal before you get the result you are aiming for.

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