Failing to respond to a notice under s.172 of the Road Traffic Act where you don't receive the notice.

Posted by Simon White on
Blake Morgan's Driver Defence team is the leading team of specialist road traffic lawyers in the South of England.  We have been recognised by legal directory Chambers and Partners: A Client's Guide to the Legal Profession 2017 as a Band 1 firm in this field.  Our team of specialist lawyers travel all the country to help motorists facing a driving ban or having penalty points put on their licence. Our work has taken us to Magistrates and Crown Courts all over the country.  Many of our cases have reached the Higher Courts. 

The case

Simon White represented CB who had been convicted in his absence of an offence of failing to give information relating to the identification of the driver contrary to section 172 (3) of the Road Traffic Act 1988.

The initial incident which gave rise to an intended prosecution was a road traffic accident involving a vehicle belonging to a friend of CB. CB's vehicle was off the road and so he had arranged to borrow his friend's vehicle if he needed it. He added the vehicle to his existing insurance policy. Once his own vehicle was fixed, he ceased using his friend's vehicle. At some stage, his friend's vehicle was involved in a road traffic accident. CB became aware of this when he was contacted by his insurance company asking him to confirm if he was the driver. He responded by stating he was not driving the vehicle at that time and that he had no knowledge of the accident. There was some further communication with his insurance company and that is the last that CB heard of the matter.

The next communication that CB received was notification from the court of his conviction, fine and endorsement of six penalty points on his driving licence for the offence of failing to give information relating to the identity of the driver. CB stated that he had no knowledge of the proceedings and had not received any notice requiring him to give information relating to the identity of the driver.

How our Driver Defence team helped

Simon White therefore arranged for CB to make a statutory declaration that he had no knowledge of the proceedings, in order to overturn the conviction and reopen the proceedings. He then entered a not guilty plea on the basis that it was not reasonably practicable for him to provide details of the driver as he had not received the notice requiring him to provide the information. It appeared that CB had been nominated as the driver by the registered keeper of the vehicle.

Although CB denied being involved in the accident, this led to the police sending out a notice to CB requiring him to confirm if he was the driver and if he was not, to nominate who the driver was. However, it appeared that the police had sent this notice to an address at which CB was no longer living (his former matrimonial home). When CB did not respond in the required period, he was prosecuted for failing to give information relating to the identity of the driver.

The case of Whiteside v DPP [2011] EWCA 3471 (Admin) establishes the principle that in an appropriate case a defendant may be able to show in certain circumstances that it was not reasonably practicable for him to have been aware of the notice.

This is harder to prove where the notice is sent to a registered keeper at the address where the vehicle is registered with the DVLA. In those circumstances, a defendant who does not receive a notice (for example, because they work away from home for extended periods) would need to show that they had used all due diligence to ensure that they have put in place suitable systems for receiving such post properly sent.

However, in this case, CB was not the registered keeper of the vehicle and so it was not clear that the police had sent the notice to the appropriate address for CB. Indeed, for the same reasons, it was not clear that the prosecution could prove that the notice had been properly served in accordance with the criminal procedure rules.

The outcome

Simon White made representations to the prosecution about the apparent weaknesses in their case and the Crown Prosecution Service offered no evidence on the morning of trial.

The case is a reminder to individuals that vehicles registered in their name must be registered to an address where they are living and able to receive any notices of intended prosecution that may be sent.

If an individual is away from their address for an extended period of time, they must ensure that they put a system in place to receive mail in a timely manner to allow them to respond to notices within the requisite period. In the case of CB, there was little he could do as the vehicle was not registered in his name and he did not know that he would be nominated (incorrectly) as the driver. In such a case, it is important that expert legal advice is sought at the earliest opportunity.

About the Author

Simon is a Criminal and Regulatory lawyer, with significant experience in defending individuals and businesses under investigation by the Police and Regulators.

Simon White
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