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Under Section 172 of the Road Traffic Act 1988, where the driver of a vehicle is alleged to have committed an offence, the keeper of the vehicle commits an offence if they fail to provide information about the identification of the driver at the time of the offence and; any other person commits an offence if they fail to provide information which it is in their power to give, which may lead to the identification of the driver.
Failing to provide information about the identification of the driver, s.172 offences, are often complex and require careful consideration.
If a driver of a vehicle is alleged to have committed a motoring offence and they have not been stopped by the Police, the authorities will be unable to identify the driver, so will initially refer to the Registered Keeper of the vehicle. A Notice of Intended Prosecution (NIP) will be sent to the Registered Keeper of the vehicle within 14 days of the alleged offence. The Registered Keeper is then given 28 days from receipt of the notice to respond with the requested information identifying the driver of the vehicle. Providing these details doesn’t mean you have admitted to an offence, it merely means that the police have evidence of an alleged offence and the police would like to identify the driver at a particular time and date.
If you fail to furnish the driver details as requested and fail to name who was driving the vehicle at the time of the alleged offence, you will be guilty of Failing to Provide Driver Details. The penalty for failing to provide driver details is six points and a fine of up to £1,000.
The power to request the driver details, applies to most road traffic offences. The law draws a distinction between what the Registered Keeper must do and what ‘any other person’ must do, when providing information, so your response depends on which category you fall into:
The person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give;
Any other person shall if required give any information which it is in his power to give and may lead to the identification of the driver.
So, if you are the Registered Keeper of the vehicle described in the notice, your obligation will be to provide what is asked for, and that is usually the name and address of the driver. Alternatively, if you are not the Registered Keeper, you are only required to provide information that is in your power to give, which could assist in identifying who was driving the vehicle at the time of the alleged offence, which is an arguably less onerous burden. You would only have to show that it was ‘not reasonably practicable to give it’, which would involve showing why the information could not be given.
If you are the Registered Keeper and unable to establish who was driving the vehicle at the time of the alleged offence, you may have a defence, if you can demonstrate to the court that you exercised ‘reasonable diligence’ in trying to establish who was driving. ‘Reasonable diligence’ isn’t defined, so it would be a matter for the court to decide, whether or not your actions amounted to ‘reasonable diligence’.
If you don’t know who the driver was, then the onus is on you to show that you did not know and could not with ‘reasonable diligence’ establish the identity of the driver. Effectively this passes the evidential burden onto you, the keeper, to show both elements, that is to say, you did not know and could not have known who the driver was. What you shouldn’t do is guess or provide incorrect details, naming the wrong person for example, as this could lead to a more serious charge of Attempting to Pervert the Course of Justice, which could potentially result in a Prison Sentence.
If you are genuinely unsure who was driving, you could consider asking the police for help by requesting any photographic evidence; some Police Forces will assist, but if you decide to do this, you need to act quickly. If you provide inadequate information or none at all, a summons for a Section 172 offence will normally be issued.
The legislation provides for several defences depending on the circumstances of each case. For example, you shouldn’t be convicted of failure to provide driver information if you can prove that it was not ‘reasonably practicable’ to supply the information within the 28 days allowed. So, you will potentially still have a defence if you can show that you provided the information ‘as soon as reasonably practicable thereafter’ outside of the 28 days, for example, if you didn’t receive the request for information, as it never arrived in the post or it arrived late.
The notices are usually sent by first class post, but sometimes they don’t always arrive due to postal errors. If you didn’t get the notice in the post, you can challenge the presumption of service by introducing evidence of previous postal errors or request evidence from the police from their records of exactly what they did. For example, you may have had previous issues with your post that have affected you or your family, or you may have been away from your address for a long period of time. Both these examples may provide you with the defence, that it was not reasonably practicable for you to respond, but you will need clear evidence of why you didn’t receive your post or why you were away and not available to receive your post; what system did you have in place to deal with post in absence? Did you have your mail redirected to another address? It won’t be enough to turn up at court and say the notice didn’t arrive in the post, or you were away from your address, you will need to provide some real detail, documentary evidence or even a witness to support your assertion.
You might have received, and you complied with the requirement, but the police allege that they haven’t received your response. This could also provide you with a defence, if your response was effectively lost in the post. If you’ve retained a copy of the papers or have a witness who can testify that you posted it, this will strengthen your case.
Where this situation has arisen and the police allege that they haven’t received a response, some Police Forces will send out a Reminder Notice, but this isn’t a legal requirement.
Corporate bodies can also be found guilty of Failing to Provide Driver Details, where it is proved that the offence has been committed with the consent or connivance of, or to be attributable to neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity. This situation normally arises if the vehicle is a company vehicle and the company is the registered owner. The defences available to companies are slightly different, as are the potential penalties as companies and partnerships do not have driving licences that can be endorsed.
If the company fails in its duty to furnish the required information, then the company can be summoned to court, where they will potentially face a hefty fine unless the matter is successfully defended. As previously mentioned, the company cannot receive penalty points however, an individual within the company can still be held personally responsible for example the company secretary or a director, who may have failed to name the driver due to their negligence or connivance as an individual within the company.
If the company can show on the balance of probabilities that it did not receive the request for driver identity or it can show, on the balance of probabilities, that it has used reasonable diligence to ascertain who was driving at the time of the alleged offence, then this could also provide a defence for Failing to Provide Driver Details.
If the company allege that they did use reasonable diligence to ascertain who was driving, the company would normally have to show that it was reasonable in the circumstances for the company not to have kept any records of who was driving the vehicle at the time. For example, due to the nature of the work and circumstances, it was not reasonably practicable for the company to keep detailed records, or despite there being a system of record keeping, that system failed through no fault of the senior managers in the company.
Whether your personal or company circumstances amount to one of these statutory defences, or not, you should always seek legal advice to check whether there are any deficiencies in the prosecution’s paperwork.
If, for whatever reason, you or your company still don’t know who the driver was and you respond confirming this, in all likelihood, the police will issue a summons for Failing to Provide Driver Details and potentially also for the original offence as well. If this is the case and you want to challenge the case, you will need to produce evidence of what you did. Every case turns on its own facts, so the more evidence you can provide to support your case the better. Quite often, the CPS will continue to prosecute you for both offences up until the day of trial.
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