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  • Writer's pictureLeah Hester

Have you been convicted in absence?


Convicted in Absence

It wouldn’t happen to me, right?


Actually, you might be surprised to learn that it is becoming increasingly common for motorists to be convicted of offences they knew nothing about and/or as a result of a procedural mistake. The effect of a conviction in absence can be an extremely expensive and drawn-out affair. Often for very minor offences.



We recently represented a driver who, following a routine check of his driving licence online, found out that, not only had he been convicted of a speeding offence in absence, he had also been disqualified without his knowledge!


How? Simply because he never received the notice to attend court so he knew nothing about it. The police had issued the postal requisition (summons) to an address the driver had not lived at for 2 years. This, despite his licence being kept up to date with the DVLA.


The client disputed the speed alleged (145mph in a 70) and wished to challenge the prosecution case to get the disqualification lifted. He ran an MOT testing centre and was also subject to a child arrangement order in which he collected his daughter twice weekly. Being unable to drive had a catastrophic effect on his personal and work life, and therefore we had to act quickly to re-open his case and get his licence back.


In another case, our client never received the notice of intended prosecution (NIP) and so did not respond. She was convicted in absence of Failing to Provide Information under Section 127 RTA 1988, an offence carrying 6 penalty points. She had 6 existing points on her licence and was summoned to attend court pending potential disqualification.


The above cases were the result of police error. They are more common than you might think. However, the rest of the time, these situations arise because of a break in the procedure following an offence. Let’s say you have been flashed speeding. Ordinarily a notice of intended prosecution (NIP) would be sent to you (provided your address is up to date with the DVLA) You complete the NIP and return it within 28 days. You would be sent a conditional offer of 3 points and a fine of £ 100. You confirm acceptance of the conditional offer and the case is then closed.


But what if you were on an extended holiday or busy travelling with work when the NIP landed on the doormat? Or perhaps you were having building work done and some post got thrown out? Or maybe you put the NIP on a “to do” pile and simply forgot about it. It’s easy to see how a break in the sequence can land you in difficulties. Even when a matter has been re-opened it may not be possible to deal with the case immediately. In case 1 above, because of repeated prosecution failures, the client spent 8 months back and forth trying to have his case properly heard.


There are two methods of re-opening a case in the Magistrates’ Court. The first is where the case ought to be re-opened in the “interests of justice” due to a mistake or error and the second by making a statutory declaration to confirm that you knew nothing about the court proceedings.



Reopening the case at the Magistrates’ Court in the interests of justice


If you knew you’d committed an offence but then heard nothing more about it, later to find that you had been convicted in absence, then you can apply for the case to be reopened. Section 142 of the Magistrates’ Court Act 1980 enables the Magistrates' court to correct limited mistakes and errors if it is found to be in the interests of justice to do so.


The court will consider how and why the mistake has come about and whether there are any other appropriate appeal routes. A formal application must be made to the Court and representations made in person at a hearing. The court may not grant an application and so it is important to ensure that you obtain specialist legal advice and representation to give yourself the best chance.



Statutory declaration


A statutory declaration is a formal application to the court to have a case re-opened where you knew nothing about the prosecution.

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Unlike the re-opening of a case above, there is a strict time period to make a statutory declaration and a form to complete for the court. The purpose of a statutory declaration is to reverse decisions that have been made without your knowledge and it effectively resets the proceedings back to the beginning so that you can deal with them properly. Any penalty will be reversed and the case is re-opened for you to plead guilty or not guilty to the offence.



Prevention is better than a cure


Of course, nobody wants to have to go to court unless they really have to! The type of offences that typically wind up at court following a conviction in absence tend to be lower-level driving offences which could easily have been dealt with by way of a fixed penalty.

What can you do to protect yourself?


  • First, ensure your DVLA details are up to date. Even if you don’t commit an offence, you could land a £ 1000 fine if you do not update the DVLA when you move home.

  • Be diligent at dealing with post received. Read it properly and respond to any formal notices in time.

  • If you are going away for an extended period, maybe arrange for someone to check your post.

  • Periodically, check your driving licence online.


Deploying the correct mechanism to re-open a case is often not straight-forward and an application may not succeed. When things go wrong, it is absolutely crucial to seek the expertise of a specialist driving offence solicitor.

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