Failure to Identify the Driver of a Vehicle

The introduction of the Single Justice Procedure and centralised courts dealing with certain non-imprisonable summary offences (speeding, traffic signal contravention, fare evasion, TV licence evasion and the like), means that very few traffic offences appear before the Magistrates' Court in normal session.

Certainly in the courts that I frequent we are only likely to sentence those offences in the rare event that a defendant has been convicted without their knowledge, makes a Statutory Declaration to set aside the original conviction and then admits the offence when the charge is put to them afresh. You might question the logic in doing that, but the court will invariably give them full credit (e.g. 1/3 off their fine) if they admit an offence in such circumstances, whereas they would have received no credit on the first occasion they were convicted without their knowledge.

We do handle quite a lot of trials when the defendant has denied an offence under subsection 172(3) of the Road Traffic Act 1988 - namely that they have failed to provide information as to the identity of a person driving a vehicle at the time of an alleged traffic offence.

Briefly, for the benefit of anyone unfamiliar with the system, suppose a vehicle was clocked by a camera exceeding the speed limit or jumping a red light. For the police to prosecute the driver they would first need to identify who the driver was at the time of the offence. This is achieved by sending a Notice of Intended Prosecution (NIP) and Section 172 Notice to the registered keeper of the vehicle. These documents must be served within 14 days of the commission of the offence and the registered keeper has 28 days from the date of service to provide the information requested. Under subsection 172(3) of the Act, an offence is committed if no information is forthcoming.

The maximum penalty for an offence under subsection 172(3) of the Act is a fine at level 3 (£1,000 maximum) and 6 penalty points. Current Sentencing Guidelines indicate the most appropriate penalty is a Band C fine and 6 penalty points.

If the registered keeper knows they were driving at the time of the offence, they should identify themself as the driver. If they were not driving, but they know who was, they should nominate that person as the driver. The police will then get in touch with that person with a view to prosecution for the offence. Providing a false declaration - e.g. falsely nominating someone as the driver - is a very serious offence, as former MP Fiona Onasanya will no doubt testify.

Occasionally, despite having used reasonable diligence (e.g. checking records and asking questions) to ascertain who was driving at the time of the offence, the registered keeper is genuinely unable to confirm who was behind the wheel. This could happen, for example, in the following circumstances:

• A vehicle hire company is registered keeper of a vehicle which was clocked speeding. On consulting its records the hire company sees that a husband and wife had joint permission to use the vehicle at the time of the offence. On making enquiries with the hirer, they are unable to confirm who was driving at the time of the offence as they are unfamiliar with the camera location. In this case, unless there was further evidence pointing towards a particular driver, it is unlikely the police would pursue a prosecution.
• A car was clocked speeding close to the family home. In addition to the policy holder (the father of the household), there are two named drivers on the policy (his two grown up children). As each person uses the car every day, the registered keeper can't remember who was behind the wheel at the time of the offence. In this case, unless there was further evidence pointing towards a particular driver, it is unlikely the police would pursue a prosecution.
• A small business (referred to as a "body corporate" in the legislation) has a van that jumped a red traffic light close to its premises. Each member of staff is insured to use the van and it is regularly used for running errands during the day. The manager can't remember which of the four members of staff working that day was behind the wheel at the time of the offence. In this case a prosecution could be brought against the company instead of an individual driver, but clearly there would be no penalty points on conviction. It should also be noted that companies are legally obliged to maintain accurate driver records for this very reason, so further action might follow in that regard.

In any of the situations described above, the obligation is on the registered keeper to provide as much information as they can in response to the Section 172 Notice, even if that is a list of possible drivers.

In order to prove an offence under subsection 172(3) of the Act, the prosecution will need to satisfy the court of the following:

• That the NIP and Section 172 Notice were correctly served on the registered keeper within the 14 day time limit. Normally a Certificate of Service is signed by the police staff member responsible for sending out the documents, which confirms they have been posted first class to the address of the registered keeper as shown on the DVLA database. In the absence of a Certificate of Service, it is unlikely the court would convict the registered keeper.

Possible defences against a charge under subsection 172(3) of the Act:

• The registered keeper denies receiving the NIP or Section 172 Notice. This defence will be more credible if the registered keeper has previously complained to Royal Mail about their post being misdelivered, damaged etc.
• The registered keeper claims to have returned the completed Section 172 Notice within time, but it has not been received by the police. This defence will be more credible if a witness is available who can confirm the documents were completed and returned. In the past, registered keepers have presented photocopies of the completed forms and Royal Mail proof of postage certificates to support this defence.

Just to draw this article to a close, it should be noted that an offence under subsection 172(3) of the Act invariably attracts a far greater penalty than the original offence would. That being the case, it would be foolish of a registered keeper to think they can beat the system by being coy about the identity of the driver.