Its A Point Of Principle!

Question:

I was in my wife’s car when it was flashed for speeding from behind exceeding a 40mph limit, I would estimate that the speed was around 48mph but this has not been reported on the charge. She has asked for a photo so she can identify the driver – I won’t say whether it was myself or a.n.other – and they have stated that since the photo was from behind it is not conclusive. She has made it clear that she was not in the car and that the car was “in the care of my husband at the time” and has stated my full name and address and also told them that “my husband refuses tell me who was driving”. The ticket office have said that in that case she will be prosecuted. She has replied that “my husband was in charge of the car – ask him”.

Dominic says:

Your wife will get a summons for failing to name the driver. She will then have to attend court and give evidence on oath in order to convince the court that she has used reasonable diligence to figure out who was driving at the time or to show that it was not reasonably practicable for her to name the driver in the circumstances. She will get 6 points and a hefty fine if convicted. She has to prove her defence on the balance of probabilities.

It will help your wife’s argument that she has named you as having possession of the car at the time and the police will be open to criticism for not sending a s.172 notice to you direct.

It’s a gamble. Have you got any penalty points already? Has your wife got any?

Question Reply;

Thank you so much for that information. My wife did tell the ticket office that I was in charge of the car at the time but that I would not tell her who was driving.

They still sent back a notice that in that case they would still send the summons to her and that if not replied to in 7 days, i.e. by this Friday, they would be referring the matter to magistrates court. The only reason that is making me be awkward about this matter is that a few years ago I reported a police officer who was driving a police car, for using his mobile phone, there were other witnesses to it as well. I didn’t get the number of the car, which was traveling in the opposite direction, but seeing that it was the only x that the force had and I was precise about the time and the location, I felt that the number would not be necessary.

The Chief Constable wrote back saying that they had been unable to identify the driver but will remind all drivers of the law ! What a cop-out ! To me it is the principle that counts with this and I do feel inclined to gamble  but not with x’s licence.

I have 3 pts which expire next month and x has 3 from about x months ago.

Dominic’s Answer:

They should write to you based on what she has told them – but they are entitled to reach the conclusion that she has failed to name the driver. The burden then passes to her to establish the statutory defence.

If you accept you were the driver and if you want to avoid her having to go to court then she should name you as the driver – otherwise they will issue the summons and I suspect you won’t be a popular man at home.

Further Question:

Do you mean less popular than I usually am ?

Thanks for the help I know which way this will go now

At least we’ve now got the Central Ticket Office off my wife’s back and they have sent me a Notice of Intended Prosecution.

There are a few questions I would like to ask you if I may.

  1. The letter to me is dated x and the “offence” took place on the x is there as time limit for them to prosecute and has it passed?
  2. If, on replying I state that I cannot recall who was driving at the time, do I have to inform them, at a trial for instance, who else was in the car?
  3. Because they have no photographic evidence from the front of the vehicle they cannot identify the driver, do you think that I may have a chance fighting it?

By the time any points will come through I will have a clean license (my current 3 points will go off on x) and so its just a matter of principle that I am thinking of fighting the case. Just to remind you, the only reason that is making me be awkward about this matter is that a few years ago I reported a police officer who was driving a police car, for using his mobile phone, there were other witnesses to it as well. I didn’t get the number of the car, which was traveling in the opposite direction, but seeing that it was the only x that the force had and I was precise about the time and the location, I felt that the number would not be necessary. The Chief Constable wrote back saying that they had been unable to identify the driver but will remind all drivers of the law! I feel like saying the same!

Thank you in anticipation

Dominic’s Answer;

Sorry but you are not going to win this one unless you are prepared to lie!

They can send out a s.172 at any stage to anyone. They have up to 6 months to issue a summons for the original offence, so they have plenty of time. There is a 14 day rule for sending the NIP to the registered keeper – but that’s a different document.

If you say you cannot remember who was driving you may get a summons for failing to name the driver (6 points) or they may revert to x and state that because you didn’t accept it was you she failed to name the driver (6 points). Going after x is the most likely outcome.

You have no chance of fighting the s.172 if you know it was you driving at the time. You can defend the speeder on the identification evidence issue but you will end up with 6 points for the failure to name the driver instead – which won’t be a good result.

I understand your position but its you that will end up getting stung and you won’t win this battle based on what you have said and you will probably get x into a whole lot more trouble.

Additional Question:

Thanks, I’ll follow your advice and let my wife pay the fine as my Christmas present.

Thanks again & very best wishes for a merry Christmas and a happy, healthy and prosperous new year

Dominic’s Answer;

I just got the feeling that at the end of this process you would end up feeling even more aggrieved than you did at the start. Life’s too short for picking fights that you won’t win. Good decision.



About Dominic Smith

With a comprehensive knowledge of Uk motoring law, Dominic is an invaluable member of the Patterson Law team his specialist areas include; - drink-driving - failing to name driver - failing to stop - failing to report - special reasons arguments
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