by Claire Quinlan
Most traffic offences require the police to give a written or verbal notice of intended prosecution, to advise that they are investigating a possible offence. Where the police are unable to attend the scene to stop and speak to the driver, this will be done in writing.
Accordingly the police need a mechanism of forcing individuals to provide details themselves to identify the driver of the vehicle at the material time of an allegation, so that the police can properly investigate the allegation. This mechanism is provided by s172 of the Road Traffic Act 1988.
Providing the details of the driver at the time of the offence is not the same as admitting guilt/liability for the offence. You are simply required to place someone at the scene.
The registered keeper of the vehicle shall give such information as to the identity of the driver as they may be required to give by the police. Any other person (usually a nominated driver) shall if required give any information which it is in his power to give and which may lead to identification of the driver.
A person who fails to comply with a requirement under s172 above will be guilty of an offence. This offence is punishable by 6 penalty points and a large fine of 150% of the person’s weekly income. The punishment for this offence is more often than not more serious that the punishment for the triggering offence. This is so there is a strong deterrent to drivers not to try and avoid prosecution by ignoring the notices and holding back information.
The police are only required to send the notice to the current registered address of the registered keeper of the vehicle. The registered keeper in relation to a vehicle means the person in whose name the vehicle is registered. The registered address means the address recorded with DVLA. It is your responsibility to keep this up to date by updating the V5 document if your address changes. Simply updating your driving licence address alone is not sufficient. If your address is not kept up to date and you do not receive the notice this will not amount to a defence.
You may be able to avoid liability for a s172 offence where you can successfully employ one of two statutory defences:-
(i) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
(ii) It was not reasonably practicable to provide the information
Only the registered keeper at the time of the offence can raise a reasonable diligence defence. You will not be convicted if you can prove that you used reasonable diligence to ascertain who was driving at the time of the offence. Every case is different and is decided on its own facts but ultimately it goes down to being able to show the Court that you did everything you could to try and find out who the driver was.
If you can show that it was not reasonably practicable to supply the driver details within the 28 day period provided then you may have a defence.
The most common way this defence arises is where it can be shown that no request for information was received due to postal errors or where a request for information is received late. Where you can show that the information was provided as soon as practicable after the expiry of that period then the defence may apply.
The defence may also apply where there has been a delay in receiving the request, through no fault of their own and accordingly it has now been so long since the offence they cannot remember who the driver was at the time. This might apply for example where a husband and wife are using a car in an area very near to their home, outside of work hours and they are both insured on the vehicle.
What if I did respond providing the details and I am still charged with an offence?
If you did respond with accurate details of the driver and no response was received by the police then this will not amount to a special statutory defence, however it may throw reasonable doubt on the case at trial. In light of this, we always recommend that replies to such notices are sent by recorded delivery.
What if I never received a notice requiring me to provide details, I did not receive a Court summons and I have now been convicted of an offence:
Don’t panic. This can be undone by making a statutory declaration to the effect that you had no knowledge of the proceedings against you, giving you the opportunity to restart the proceedings and put forward a defence to the charge.
What are my chances of defending an allegation of a s172 offence?
We have had over 95% of our s172 cases this year either withdrawn prior to court or dismissed at trial, so if you have been convicted of a s172 offence call us on 0800 046 3066; our experienced transport team are on hand to discuss your case and provide the best advice for your circumstances.