What is a Notice of Intended Prosecution?

A Notice of Intended Prosecution (also known as a section 1 warning) is a warning issued under section 1 of the Road Traffic (Offenders) Act 1988.  The Notice is simply what the name suggests. It is a warning that you may be prosecuted for a certain offence or offences. It can be in oral or written form. We have found that the written warnings received by drivers caught on speed camera (i.e. the offence of speeding) often cause a high degree of alarm. This is because the letter usually also warns the driver that they may be prosecuted for dangerous driving or careless driving. In the vast majority of cases, such a prosecution will not happen. The letter is simply a base-covering style letter sent out irrespective of the seriousness of the alleged offence.

To which offences does it apply?

A Section 1 warning is not required for every alleged road traffic offence. The offences to which it applies are found in Schedule 1 of the Road Traffic (Offenders) Act 1988. The most common offences for which a warning is required are:

• Careless Driving (Road Traffic Act 1988, section 3)
• Dangerous Driving (Road Traffic Act 1988, section 2)
• Speeding (various sections of the Road Traffic Regulation Act 1984)
• Failing to comply with traffic signs (Road Traffic Act 1988, section 36)

Some common offences which do not require a Notice of Intended Prosecution include:

• Drink Driving (Road Traffic Act 1988, section 5)
• Failure to Provide a Sample (Road Traffic Act 1988, section 7)
• Causing death by dangerous or careless driving (Road Traffic Act 1988, sections 1 and 2B)
• Using a vehicle in a dangerous condition (Road Traffic Act 1988, section 40A)
• Driving while using a mobile phone (Road Traffic Act 1988, section 41D)

What form does it take?

A section 1 warning takes two main forms – oral or written. This is usually determined by whether you have been stopped by the police or not.

Oral Warning

If the police have stopped you at the roadside and charged you with one of the above offences it is likely you will receive a verbal section 1 warning. The police sometimes do not always use the words “speeding” or “careless driving” or “dangerous driving”. Instead they sometimes say that they are warning you that you may be prosecuted (for example) for a contravention of section 2 or section 3 of the Road Traffic Act 1988.

It is also common for the police to charge you with one offence and warn you that you may be prosecuted for another. For examaple the police may charge you with speeding but warn you that you could be prosecuted for careless or dangerous driving. This is perfectly competent but it can also create confusion. It should also be noted that a section 1 warning does not require a particular form of words. If, for example, the police charge you with dangerous driving, the charge also constitutes the Section 1 warning. The police will often do both. They do not, however, require to do both. One will suffice.

Written Warning

A written Notice of Intended Prosecution will usually be issued in one of two circumstances. The first, and most usual, is where a motorist has been captured by a speed camera. In these circumstances a written Notice, issued by Police Scotland,  will be sent to the registered keeper outlining the circumstances of the alleged offence. Within the same letter will be a requirement to identify the driver. The second is where the police have receive a report from a member of the public of a relevant offence or the police have witnessed an incident but not warned the driver at the time. In such cases a written warning must, subject to certain exceptions, be issued within 14 days.

A written Notice of Intended Prosecution must include the nature of the alleged offence and the date and place it was alleged to have been committed.

Time Limits

The time limits are the same irrespective of the offence.

The time limit for an oral warning is strict. It can only be issued at the time of the offence. “Time of the offence” is not defined by statute and it is, of course, impossible for such a warning to be issued 100% contemporaneously. While a degree of latitude will be allowed, however, the evolution of the law makes clear that such warnings must be issued soon after the alleged offence – 24 hours later, for example, will be too late.

The time limit for a written warning is 14 days from the date of the offence. It is important to note, however, that only the registered keeper requires to receive such a warning within 14 days. For example, if you lease your car, the lessor will be the registered keeper. It is this person that must receive the warning within 14 days. That person should then identify you as the driver. It is very common, therefore, for the driver to receive his own warning after 14 days has elapsed. This does not invalidate the warning. If, however, you are the registered keeper and you receive a written Section 1 warning after 14 days have elapsed then the prosecution against you may be fatally flawed.

Finally, it is very important to note that a late Notice of Intended Prosecution in no way removes the legal obligation upon a person to identify the driver of a vehicle when required to do so under section 172 of the Road Traffic Act 1988. If a driver fails to respond to such a requirement then he can still be charged with a contravention of section 172 which carries a punishment of 6 penalty points.

What if the warning is issued late?

If the Section 1 warning is issued late – or not issued at all –  then this may be a defence against the charge. There are certain exceptions, the most common of which is that no warning is required is if there has been an accident. See the “learn more” section for more details. These rules apply irrespective of the alleged offence.

Legal Advice in Scotland

• We are road traffic law experts. It is all we do every day – nothing else – making us a leader in our field. But don’t take our word for it. See our independent TrustPilot reviews. We have the highest satisfaction rating of any road traffic firm in the UK. This position is based upon our outstanding track record and commitment to client care.

• Our founder Mr Walker has been invited to provide member training for the Law Society of Scotland, Glasgow Bar Association, The Royal Faculty of Procurators, and Scottish courts. Our managing director Steven Farmer is a gifted academic who graduated top of his year from Glasgow University. All of our legal team formidable and committed trial lawyers.They have featured on TV, Radio and National Newspapers and have represented fellow solicitors, advocates, barristers, Queens Counsel, sports stars, members of the Royal Family and even police officers.

• We are invited, founder members of the Association of Motor Offence Lawyers.

For peace of mind contact us today. We are friendly and approachable. We do not charge for initial consultations and often provide free advice especially in the early stages of a case.

Disclaimer

The information provided on this website is true and accurate to the best of our knowledge and belief. The information is intended to provide a basis for understanding the legislation. The information provided is not a substitute for professional legal advice and should not be relied upon without first seeking professional legal advice from a registered road traffic specialist. References are provided for informational purposes only and do not constitute endorsements of any websites or other sources.