Failing To Name Driver

failing to name the driver penaltiesFailing to Provide Driver Information

Driver Identity Section 172 (S172) of the Road Traffic Act 1988

We are regularly instructed to defend more allegations of failing to provide driver information than any other offence under the Road Traffic Act.

Offence Code: MS90

This page covers the following;

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Fail To Name The Driver Offence Video:

Legal Requirements

Section 172 of the Road Traffic Act is aimed at forcing individuals (whether they are the day-to-day keeper of the motor vehicle or the registered keeper on the V5 document) to provide the identity of the driver at the time of an alleged road traffic offence.

Section 172 really is a sledgehammer of a piece of legislation. Most road traffic offences are detected by un-manned devices or without actually stopping and speaking to the driver.

This meant that the Police needed a means of forcing individuals to provide relevant driver details if they were in a position to do so.

Nominating either yourself or another as the driver at the time of an alleged offence is not the same as confessing to having committing the offence itself.

You will simply be providing the Police with one piece of evidence specifically in relation to the identification of the driver.

The person nominated is still perfectly entitled to defend the charge itself by either suggesting that they, for example, were not driving without due care and attention or that they were not speeding at the time of the alleged offence.

We get lots of enquiries from people who suggest that the request for driver information is against their human rights and the doctrine against self-incrimination.

There have been many cases that have gone all the way to the European Courts in this regard and we are afraid to say that they have all failed miserably.

European Courts have agreed that the obligation under Section 172 of the Road Traffic Act is proportionate to the need to maintain road safety.

S172 Defences That DON’T Work!

You will find a lot of on-line websites suggesting differently or providing packs of letters that are guaranteed to ‘get you off’ a speeding matter.

From what we have seen and what we know of the response from the Police, these letters are nearly always doomed to fail and often risk getting you into far greater trouble if there is any suggestion that you have actively misled the Police.

Section 172 Has Statutory Defences

When s.172 was created, it was envisaged that it would be innocent people who would be the benefit of a statutory defence.

There are two statutory defences under s172;

The First is a Reasonable Diligence Argument

You can only raise a Reasonable Diligence Argument if you were the keeper at the time of the alleged offence. S172, sub-section 4, states that you shall not be convicted of failing to provide driver information if you can show that you used reasonable diligence to ascertain who was driving at the time of the incident or offence.

Roughly translated, this means trying your best. The Courts will often expect you to have used ‘exceptional diligence’ and if you are contesting one of these allegations, you should resist that suggestion strenuously.

There is no case law in relation to the definition of what does and does not amount to ‘reasonable diligence’.

Every case is different and decided on its own facts. In one of our Crown Court cases on Appeal, a Judge said that in his opinion the phrase ‘reasonable diligence’ simply translated to ‘doing your best’.

Because this is a statutory defence, the burden will be on you to show, on the balance of probabilities (i.e. more likely than not) that you exercised reasonable diligence.

This is a complicated argument and we can help. If you have received a Notice of Intended Prosecution and you are not sure how to respond because you are unable to identify the driver, then contact us before responding to the Police.

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We can help you make sure that you have done your best and suggest various methods of trying to figure out who may have been driving at the time.

We will also give you advice on whether or not you are likely to succeed with a Reasonable Diligence Argument if you maintain your stance that you are unable to identify the driver and thus are incapable of nominating the driver of the vehicle at the time.

Not Reasonably Practicable to Identify the Driver

S.172, sub-section 7.b, states that you shall not be convicted of failure to provide driver information if you can show that it was not ‘reasonably practicable’ to supply the information within the 28 days allowed.

This section goes on to state that if you provide the information outside of the 28 days, you will still have a defence if you can show that you gave that information ‘as soon as reasonably practicable thereafter’.

We tend to advance this defence on behalf of clients who say that they did not receive the request for driver information in the first place and therefore could not respond, or in cases where the delay in sending out a request has been so long that our clients can no longer remember who the driver was at the time of the alleged offence.

This will normally relate to a fairly innocuous journey close to the home address where there are a number of people who are insured to drive the vehicle in question.

We are extremely successful in defending S.172 allegations and over the last 7 years we have defended 93.89 percent of those cases that we have taken on to defend.

We have also managed to get 80 percent of those cases withdrawn without the need for a trial by making detailed representations to the Crown Prosecution Service on behalf of our clients.

I Gave the Driver Information…

A lot of our clients tell us that they did actually respond to the notice and supplied the requested information and they cannot understand why the Police did not receive their response.

This does not constitute a statutory defence. In order to try and defend yourself, if this is your argument, you will need to cast a reasonable doubt on the Prosecution’s suggestion that you did not ‘give’ the information.

In theory, this is a far easier argument. There is no statutory burden upon a Defendant to prove service.

The act of ‘giving the information’ is simply a matter of filling out the form, putting it in an envelope, putting the correct address on the front with the appropriate level of postage and then putting the envelope in the post box.

If the Prosecution or the Court were to accept that you completed all of these steps, then in theory, you should be found not guilty. You should be able to cast that reasonable doubt.

Again, if this is your argument/defence then we need to talk to you. We can explain the argument in more detail and go through the facts of your case in order to give you more specific advice.

There is a lot of case law in relation to S.172 driver identity offences and again, we will be able to apply any relevant cases to your circumstances if you call us and have a discussion about the specifics of what has happened.

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The law is different if you are not the registered keeper/keeper of the vehicle.

If you have been accused of this offence simply because you have a connection to the vehicle in question or somebody else has suggested that you may have been the driver, then the burden upon you is to simply provide information ‘that is within your power to give’.

If your response is that you do not have the information as to who was driving, then the Prosecution would have to prove, beyond reasonable doubt, that you did not provide the information that was in your power to give in order for you to be convicted.

The Prosecution would therefore have to make the Court 90 per cent or more sure that you had information that would have assisted them to establish who the driver was and you failed to provide it.

Again, this is a very strong argument and we have extremely high success rates in defending people using this particular argument.

If you have been accused of failing to nominate/provide driver information, then contact us urgently and we WILL be able to assist.

The penalties for failure to provide driver information are indicated above.

As previously stated, S.172 is a sledgehammer of a piece of legislation. Schedule 2 of the Road Traffic Offenders Act 1988 states that if you are convicted of this offence, you will be liable to 6 penalty points and a fine of up to £1,000.

My Company has been Accused of Failing to Provide Driver Information

The rules for companies accused of not providing a drivers identity are different to those for private vehicles….. please see here for company Section 172 information

If you need advice about failing to name the driver please click here to ASK US A FREE QUESTION and find out how we can help you.

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