What is a Notice of Intended Prosecution?
A Notice of Intended Prosecution (NIP) is the mechanism the police usually use to inform a prospective defendant that prosecution for a specified road traffic offence is being considered.
The rationale for serving the NIP is procedural fairness as early warning enables the motorist to preserve evidence, identify witnesses and recall events.
Statutory sources referenced in this article include the Road Traffic Offenders Act 1988 (RTOA 1988) and, where relevant, the Road Traffic Act 1988 (RTA 1988).
The Notification Requirement under RTOA 1988, section 1
For certain specified offences, the prosecution must satisfy one of the following alternatives:
- The driver was warned at the time that prosecution may follow
- A summons (or single justice procedure notice/charge) was served within 14 days of the offence
- A NIP was sent by or on behalf of the prosecutor within 14 days of the offence, addressed to the driver or to the registered keeper
Compliance with any one route is sufficient.
If none is satisfied, a conviction for an offence to which the regime applies cannot stand.
Police commonly issue a NIP even where an at-scene warning was given, but this is not a legal necessity if an adequate contemporaneous warning was delivered.
Form and timing of a “warning” at the time
It is important to understand the form and timing of a warning that is considered valid.
You should know that:
- The warning contemplated by section 1(1) may be oral or written.
- “At the time” is interpreted pragmatically and can include the earliest reasonable opportunity at the scene once officers can attend, provided the parties remain present.
- No set wording is required and it is unnecessary to specify the exact offence label, provided the communication would convey to a reasonable person that prosecution is being contemplated.
- A challenge that the warning was not effectively received (e.g., due to shock or incapacity) is fact-sensitive, with a significant evidential burden on the defence to show it was not heard or understood.
Service of a NIP: Methods and presumptions
- A NIP may be addressed to the driver or the registered keeper.
- Service can be effected in accordance with the Criminal Procedure Rules (currently Part 4), as if the NIP were a document served in magistrates’ court proceedings. Permitted methods include:
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- Personal delivery;
- Registered post, recorded delivery, or first-class post; or
- Leaving it at the person’s last known address or usual place of abode.
- Statutory deeming provisions apply:
- Service is presumed even if the notice is returned undelivered or is not in fact received.
- Compliance with the service provisions is presumed unless the contrary is proved.
- A defendant who contests service must adduce evidence and establish, on the balance of probabilities, non-compliance with section 1; mere doubt is insufficient.
Waiver
A defendant may waive reliance on non-compliance with the section 1 notice requirement. Waiver may arise expressly or by unequivocal conduct inconsistent with taking the point.
Reasonable Diligence Exception (RTOA 1988, section 2(3))
The statutory requirements in section 1 are disapplied where, despite reasonable diligence, it was not possible within the 14-day period to ascertain the driver’s or the registered keeper’s identity in time to serve a summons or send a NIP.
For example, sending a NIP to the address held by the DVLA for the registered keeper will typically evidence reasonable diligence, even if DVLA records were out of date through no fault of the police
Errors and defects in a NIP
Minor inaccuracies do not automatically invalidate a NIP.
The operative test is prejudice and you need to question whether the defect have misled the recipient or impaired the ability to prepare a defence?
For example, slight date/time/location discrepancies that do not cause confusion are often tolerated.
Meanwhile, material errors that obscure what incident is alleged or who is implicated are more likely to be fatal.
Offences to which the NIP regime applies
The section 1 regime applies to offences listed in Schedule 1 RTOA 1988, including (non-exhaustively):
- Dangerous driving (RTA 1988, s 2)
- Careless or inconsiderate driving (RTA 1988, s 3)
- Leaving a vehicle in a dangerous position (RTA 1988, s 22)
- Dangerous cycling (RTA 1988, s 28)
- Careless cycling (RTA 1988, s 29)
- Failing to comply with traffic directions (RTA 1988, s 35)
- Speeding offences, including temporary limits, road works restrictions, and motorway speeding (RTOA 1988, Sch 1, para 1A)
You should also be aware that the regime extends to aiding and abetting these offences, although it does not apply to tramcars or trolley vehicles.
Exceptions
The section 1 requirement does not extend to offences “of a similar nature”, so offences merely similar in character to those listed will not be covered.
Accidents (RTOA 1988, section 2(1)) means that where, owing to the presence of the vehicle on the road, an accident occurs, no NIP is required for an otherwise notifiable offence.
You should note that the threshold is low and even a minor collision can suffice.
If the accident was so trivial that the driver was genuinely unaware an accident had occurred, a NIP may still be required.
Conversely, where the driver knows an accident took place, even if memory of the details is impaired, the exception generally applies.
Where cases are fatal, the rules differ slightly.
No warning or NIP is required for manslaughter or causing death by dangerous driving.
This remains so even if the charge is later reduced to an offence ordinarily subject to section 1.
14‑day time limit: Practicalities and proof
The 14‑day period runs from the date of the offence to the date of posting the NIP (not necessarily receipt), provided proper service rules are followed.
For company keepers or leased vehicles, delays often occur due to multi‑stage identification. Section 2(3) may be in play if the police could not with reasonable diligence ascertain the driver/keeper within time.
Concluding remarks
This article illustrates how a procedural defect can be fatal to a prospective prosecution, emphasising the importance of securing early legal advice if you are charged with a criminal offence.
Procedural defects identified early on and brought to the attention of the prosecution can result in proceedings being withdrawn at an early stage without the unnecessary expense of time and costs.
More importantly, there is always the risk that procedural defects are overlooked by all parties, resulting in a conviction that may have been avoided if an experienced defence solicitor had been instructed and identified said fatal errors.
Our specialist team can support you with compliance awareness so that you do not get caught out. Contact James Edes today for help.