PROSECUTION

Road Traffic Offenders Act 1988

In Scotland, it is the Crown Office and Procurator Fiscal Service (COPFS) which is responsible for the prosecution of crime.

Certain offences require prosecution, examples include:

Death by dangerous or careless driving
Drunk driving
Failure to observe certain Highway Code rules
Speeding (if not fixed penalty notice)
Certain construction and use regulations
Aiding and abetting.

Section 1 gives the requirement for notice of prosecution, the full list to which s.1 applies is given in Schedule 1

Generally, a Notice of Intended Prosecution (NIP) is required. This can:
- Be issued verbally at the time and scene of the offence.
- Sent via the post, recorded or otherwise, or delivered to the last known address within 14 days of the offence and is deemed to have been received even if returned as undelivered s.1(2)
A summary complaint is acceptable as an alternative if received within 14 days.
But note section 2 which lists exceptions to the 14 day rule, especially s.2(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.
s.2(4) . . . but a person is not to be convicted of an offence by virtue of any of those provisions if section 1 applies to the offence with which he was charged and the requirement of section 1(1) was not satisfied in relation to the offence charged.
- Essentially this means that unless you fall under a provision of s.2 that exempts you from s.(1) you cannot be prosecuted if you did not receive the NIP within 14 days.

You should be aware that this is statutory law and not common law. There exists in Scotland the common law crime of culpable and reckless conduct. Paragraph 14 of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 allows:

14 Where

(a)any act alleged in an indictment or complaint as contrary to any enactment is also criminal at common law; or

(b)where the facts proved under the indictment or complaint do not amount to a contravention of the enactment, but do amount to an offence at common law,

it shall be lawful to convict of the common law offence.

What this means is that even if you don't get the NIP within 14 days, but the offence can be seen as criminal at common law, then you could get charged under common law rather than statutory law. This is what happened in the case of Ronald Klos who was found doing 156mph in a 70mph zone.

The coverage as it appeared in the press can be found here

The court opinion on appeal is available here

The case makes for interesting reading and gives an insight into how the law can be made to work. The case was reported in the press and the various reports by the BBC can be found here

PROSECUTION

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