Failing to Name Driver - Section 172 Road Traffic Act 1988
Have you got a Defence to failing to name the driver?
Would you like more detailed information regarding Driver Identity Offences?
S 172 Road traffic Act 1988
What should you do if you are not sure who was driving at the time of an alleged offence;- Ask to see the photographs. You are entitled to see them - See Here
- Check relevant diary dates.
- Check your work schedules
- Check that any other person that might have been driving the vehicle are insured to do so.
- Name all potential drivers when you respond to the police as well as providing full contact details for each of them - never lie - the police have heard it all already - so they are very unlikely to believe it was a friend's, friend from Poland that was driving and that you coincidentally have no address for!
- Make sure you confront all the potential drivers and discuss the situation with them to see if they accept the offence. If the offence was at a strange location or time of day - you are far less likely to be believed if you state that you don't know who was driving at the time.
- Write to the police explaining the difficulties you have had identifying the driver and the efforts you have made to track them down. Or instruct us to do that for you - we succeed in persuading the police to take no further actions over 93.84% of the time (30.3.11). Fixed fee £400 plus vat.
- Then you must sit and wait. You will either get a letter saying the police are going to take no further action (probably unlikely if you make the representations yourself) or you will receive a letter stating that you are going to be summonsed to court.
Call us immediately if this happens to you.... and ask for Emma Patterson.
See our Failing to Name Driver FAQ's for more information.
Failure to Identify Driver - The Law
Under S 172 Road Traffic Act 1988 the request for driver identity information is often incorrectly referred to as the NIP. This isn’t the case. The NIP is actually a Notice of Intended Prosecution which is sent under section 1 of Road Traffic Offenders Act 1988.
These are two completely different notices.
The NIP is sent as a warning that a person may be prosecuted.
The request for information under Section 172 is a totally separate issue.
That said however, the two are often combined by the police.
The allegation of Failing to Identify the Driver comes up when the registered keeper of the vehicle – or anyone who is in a position to also provide the necessary information – fails to provide the driver’s identity after an alleged road traffic offence has occurred.
The majority of police speed detection methods in use currently fail to provide driver identification evidence themselves, which is why the vehicles registered keeper is required to name the driver.
The bulk of speed detection devices take photographs from the rear of the vehicle, or the photographic evidence is not clear enough if the image is taken from the front. Speed detection devices concentrate on recording the speed of the vehicle and not the identity of the driver.
Registered Keepers Responsibility to Provide Drivers Identity
S172 places the responsibility on the vehicles registered keeper (or anyone who can also provide the relevant driver information) to provide the details of the driver at the time of the alleged offence.
The obligation to provide this information goes against the principle that members of the public shouldn’t be required to incriminate themselves of others unless they volunteer to do so.
Penalty for No Providing the Requested Information
The penalty for failing to provide the driver’s Identity information is 6 penalty points and a fine of up to £1,000.
This means that not providing the drivers details has serious implications.
Many cases have been brought to question this requirement for information because it is in breach of self-incrimination, or in breach of a person’s human rights.
To date, all of these cases have failed at the European Court of Human Rights as well as the Higher Courts of the UK because the courts formed the opinion that the information request is proportionate to the need to effectively manage UK road safety.
Therefore it is a legitimate requirement for police officers to request this information & at present, the only realistic way to defend the allegation is to argue that the police did not send the notice to you in the correct form, or alternatively by raising one of the statutory defences.
Requests to Name Driver and How They Affect You
Providing the identity of the driver when requested does not prevent you from defending the original allegation. By admitting that you were the driver of the vehicle is not the same as admitting that you committed the alleged offence.
S172 (4) Road Traffic Act 1988 provides a statutory defence on the grounds that the registered keeper of the vehicle was unable to provide the identity of the driver at the time of the offence, BUT has used reasonable diligence in order to try to establish who was driving at the time of the offence.
In order to use this defence you would need to demonstrate on the ‘balance of probabilities’ that you have done your best to determine who the driver was.
At the point when the prosecution have to prove their case, they have to show that the case has been proved beyond reasonable doubt.
For the defendant, you need to prove the facts ‘on the balance of probabilities’ which means in effect that you need to demonstrate that it is more likely than not that you have done your best in order to provide the drivers details.
Reasonable Diligence
Because there is no specific definition for what constitutes reasonable diligence, each case has to be decided by the court on its specific circumstances.
Crown Court Judges have previously stated that reasonable diligence means doing your best in order to establish who was driving, not that you have go to ‘exceptional’ lengths in order to figure it out.
S 172 (7) (b) Road Traffic Act 1988 offers an additional statutory defence.
Section 172 (7) (b) states that a person is not guilty if it was not reasonably practicable for them to provide the necessary drivers identity information. Once again, it is up to the defendant to prove on the balance of probabilities (making this more likely than not) that it was not practicable to give the drivers identity information.
This defence is most commonly used when a person is able to demonstrate (on the balance of probabilities) that they did not receive the police request to provide the name of the driver in the first place.
More information about Reasonable Diligence
Some other interesting facts Failing to Provide Driver Identity.
A company can legally be the registered keeper of a vehicle and should a company be summonsed for failing to provide drivers identity information, this is a non-endorsable offence. The company is only liable for a court fine.
If this instance occurs, a company can argue that it used reasonable diligence to ascertain the name of the driver at the time of the offence, but it can only make this argument if the company can show that it keeps records of who was driving the vehicle at any given time.
If the company hasn’t kept a record of the drivers of a vehicle it will be very difficult to argue that reasonable diligence has been used.
When you receive a request to name the driver of a vehicle under it is vital that you reply using the correct form. Defendants have been prosecuted for replying to the request using a separate letter instead.
If you have a court hearing date call 01626 359800
A new client came to us after being banned by the Magistrates for 6 months. He had accumulated 12 points within 3 years and the Magistrates court banned him for 6 months. The client tried to argue exceptional hardship on his own and the court rejected his argument.
Our client instructed us to represent him at court when he was charged with overloading a hired minibus. He had hired the minibus as he had his extended family visiting for a holiday. At the same time builders were refurbishing his house and asked him if he could help them collect some extra sand and cement. Our client agreed and they went with him to the DIY shop to collect the materials.
Our client was stopped on the way back home for overloading. He was devasted by the charge and the subsequent court proceedings, due to the fact that it was an innocent mistake and he was in the process of applying for an indefinite leave to remain in the UK visa.
He approached many so called motoring lawyers before us who told him to plead guilty and take the fine and points. We acted on his behalf and made a special reasons argument and also an argument under s.48 RTOA 88. The court agreed not to give any points and to impose an absolute discharge meaning that the conviction was imediately spent.
At Patterson Law we think outside of the box and we go the extra mile to try and achieve the results you need. Contact us now on 01626 359800 or email e.patterson@pattersonlaw.co.uk if you want lawyers who represent an island of excellence in a sea of mediocrity!
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