Lots of people have asked, “what are the benefits of using the PACE statement” or, “what are the pros and cons of the PACE statement” etc. It is with this in mind that I’ve drafted up this little essay...
In the dim and distant past, people who were intent on avoiding a speeding charge used to send back their NIP/s172s unsigned. The law (
section 172 of the Road Traffic Act 1988) apparently required information as to the driver’s identity, but no requirement to actually sign the notice. Because of this, there was no (admissible) evidence of who was driving a vehicle at the time of an alleged offence. Thousands of people avoided points on their licences by going down this road. The powers that be were obviously not going to let that rumble on for very long, so they had to come up with a way of getting round this “lacuna” or hole in the law.
Arguably, the single most important judgment handed down from the High Court was the case of
Mawdesley v DPP. The Honourable Justice Owen, in paragraph 28 of the judgment, mentions the magical word PACE. No-one had previously thought that PACE (Police and Criminal Evidence Act 1984) applied to the Road Traffic Act. PACE was ostensibly set up to
”provide the police with the powers they need to combat crime.”
Without going into too much detail about the case,
Mawdesley v DPP told us that an unsigned form, completed by the accused, is a “confession” within the meaning section 82(1) of PACE. In practical terms, it meant that you'd get the points and fine even if you didn't sign the s.172 form.
However…it didn’t shut the door on the unsigned option altogether. Later in the judgment Justice Owen went on to say that someone who has the form filled in on behalf of themselves by an agent (wife, solicitor etc) cannot be prosecuted for speeding as
section 12(1) of the Road Traffic Offenders Act has not been satisfied; i.e.
“a statement in writing is produced to the court purporting to be signed by the accused that the accused was the driver of that vehicle on that occasion” hasn’t been satisfied.
Indeed, PePiPoo had a
sticky thread at the top of the Judicial Process forum (:sniffs: those were the days) which advised people to get someone else to fill in the form on their behalf. This rumbled on until one fateful day in March 2004...
In what can only be described as "unconventional", Lord Justice Kennedy in
Francis v DPP handed down the most incredible dismissal to an appeal we've yet seen. Again, without going into the nuts and bolts of the decision, it is sufficient to say that Lord Justice Kennedy's reading of the law meant that every form had to be signed. Failure to sign now would result in a s.172 prosecution for "failing to provide the driver's identity".
The motorist now faced a stark choice if he received a NIP: either admit it was him driving and sign the notice, or fail to sign and be prosecuted for s.172. In no other area of law is there such a system in place. The driver is legally compelled to sign a notice which amounts to a confession.
The idea was then hatched to play the police at their own game: the PACE statement (PS).
The basic premise, and the philosophy behind the PS, is to provide the police with the information they require, but in a form that cannot be used as evidence as to the driver's identity in a court of law.
Jones v. DPP had already stated that the information that is demanded on the S172 notice can be provided on an alternative document to the form sent with the NIP, as long as it's signed. In
Francis v DPP (which stated that all forms had to be signed), LJ Kennedy said this:
QUOTE(Lord Justice Kennedy)
18. That leaves only the argument that a caution was required. Mr Laprell submitted that the exemption spelt out in Code C: 10.1 cannot be relied upon because it only applies "if questions are for other (his emphasis) necessary purposes e.g. to obtain information in accordance with any relevant statutory requirement." Here the question was not for another purpose. It was to provide the evidence which the prosecution required to complete its case. Mr Parker submitted and I accept, that read in context the word "other" does not have to be given a narrow meaning for which Mr Laprell contends. It can mean "further" or "additional" and that is how it should be interpreted so as not to give rise to the sort of unhappy self-contradiction now apparent on the face of forms used in Cambridgeshire and apparently in Essex. Paragraph 10.9 of the Code is simply not applicable to the sort of situation with which we are concerned in this case.
Accordingly, in my judgment, Owen J was right to decide as he did in Mawdesley and Yorke as to the need for a caution.
Mawdesley v DPP 37. But in any event I am satisfied that the requirement to provide information under section 172 falls within the exceptions to the need for a caution contained in the second part of C.10.1, which provides that a person need not be cautioned if questions are put "…to obtain information in accordance with any statutory requirement…". The section 172 forms were sent to the Appellants for that purpose. It follows that in my judgment C.10.1 of the Code does not impose an obligation to caution in such circumstances. The same applies to the current edition of the Code which came into effect on 1 April 2003.
So a caution is not required when the police are asking the registered keeper for the information as to the driver's identity, but the Mawdesley and Francis rulings don't deal with the issue of a caution being given prior to the PS being submitted to the court as evidence of the driver. This is the crucial distinction.
We contend that in order for a PS to be allowed into court, the defendant (i.e. YOU!) must be cautioned before his statement is admissable in a court of law. This is the philosophy behind the PS. So if you receive a NIP:
"Yes, I'll give you the information you require under s.172 of the Road Traffic Act, but I give it to you on the condition that this information is not to be used in court as to the driver's identity unless I am first cautioned for the alleged offence that I am suspected of."