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Breach of Sections 94 and 174 – Road Traffic Act 1988 (R011906)

Breach of Sections 94 and 174 – Road Traffic Act 1988 (R011906)

Thank you for your e-mail of 7 December 2015 under the Freedom of Information (Scotland) Act 2002 (FOISA).

For your ease of reference, your request is replicated below together with the response.

 

 

  1. Information regarding any policies or guidance in place in relation to prosecuting drivers for breaches of sections 94 and 174 of the Road Traffic Act 1988. This request would include but not be limited to, internal staff memos, staff guidance and staff email which advises on how to treat these breaches.  If this guidance has changed since 1 December 2014, please also provide previous guidance.
  2. Any case marking guidance given to prosecutors examining breaches of sections 94 and 174 of the Road Traffic Act 1988.

I consider that the information requested in points (1) and (2) is exempt from release under sections 35(1)(a), (b) and (c) of FOISA as I consider that the release of such information would, or would be likely to, prejudice substantially, the prevention or detection of crime, the apprehension or prosecution of offenders and the administration of justice. 

These exemptions are not absolute and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemptions. 

I consider that release of this information into the public domain could seriously undermine the ability of COPFS to prosecute offenders by allowing individuals to adapt their offending behaviour accordingly in order to circumvent the due process of law and to take measures to avoid prosecution by the Procurator Fiscal, which would not be in the overall public interest.  

I also consider any internal guidance/staff memos/staff emails are exempt from release in terms of section 30 of FOISA, namely that it is not in the public interest to disclose because it would inhibit substantially the free and frank exchange of views.  I have considered what effect disclosure would have on the provision of advice or the exchange of views including whether it would be more likely that persons offering advice would be unwilling to do so in the future and whether it would it make it more likely that advice would be given in the future would be materially different because of the possibility of disclosure. Given the often confidential and sensitive nature of communication between Procurators Fiscal we have taken the view that it is not in the public interest to disclose this information. If COPFS staff are to take decisions on the basis of the best available advice and guidance, they need to be confident that such is given without reserve. 

  1. Any correspondence relating to concerns or complaints about how the DVLA treats or has treated breaches of sections 94 and 174 of the Road Traffic Act 1988. I would like to request this information for the period between 23 December 2014 and 7 December 2015.

    I’m afraid I have been unable to consider whether the information requested under point (3) is held and suitable for release under FOISA as it is not clear what recorded information you seek. 

    I would be grateful if you would clarify what is meant by ‘complaints or concerns’ about how the DVLA treats or has treated breaches of sections 94 and 174 of the Road Traffic Act 1988.  

    It might be helpful if I provide some further information about the role of COPFS.

    COPFS is the independent prosecution authority in Scotland and considers allegations of criminality (or criminal ‘complaints’) reported by the police and other specialist reporting agencies.

    The Procurator Fiscal also values feedback and deals with any complaints which relates to the work of COPFS. A link to our Complaints and Feedback Policy can be found below. Sometimes COPFS receives complaints about the roles and responsibilities of other agencies. We cannot deal with complaints which do not fall within COPFS remit. Accordingly, if we cannot deal with a complaint (or parts of a complaint) for that reason, we will try to provide details of the appropriate agency that may be able to assist.

  2. The number of prosecutions which have been taken for breaches of sections 94 and 174 of the Road Traffic Act 1988 between 23 December 2014 and 7 December 2015.
In considering your request, we undertook a search in our electronic case management systems for cases containing any charges under section 94, which includes charges under sections 94(3) and s.94(3A), and section 174(1)-(5) of the Road Traffic Act 1988. We have understood ‘prosecutions’ to mean court proceedings being raised on summary complaint or on indictment. 

I can advise proceedings were raised in relation to a total of 3 charges of breaching section 94(3A) of the Road Traffic Act 1988 between the period 23 December 2014 and 7 December 2015.

In relation to breaches of sections 174(1)-(5) of the Road Traffic Act 1988, proceedings were raised in relation to a total of 13 charges between the period 23 December 2014 and 7 December 2015.

Please note this does not include charges which were ‘not separately prosecuted.’ This is where no action was taken under the charge reported, but action was taken under an alternative charge or in relation to other charges reported by the police in the same case, for example, because the prosecutor took the view that an alternative charge was more appropriate or because details of the charge were included within the body of another charge for evidential reasons.

The figures also do not include charges where a decision has yet to be reached on what action, if any, to take in the public interest nor charges in which an alternative to prosecution has been offered.