Blake Morgan helps Manager wrongly prosecuted instead of his employer
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.
F Ltd ("the Company") operates a fleet of vehicles. S is the Company's fleet coordinator. One of the Company's vehicles was involved in a speeding incident when a speed reading of 61 mph was recorded along a section of the A55 Colwyn Bay subject to a 50 mph speed limit.
The incident was investigated by North Wales Police Safety Camera Process Unit ("SCPU"). The Company was the keeper of the vehicle at the material time and as such were requested by the SCPU to provide details of the driver pursuant to the provisions of section 172 of the Road Traffic Act 1988 ("the 1988 Act"). S was tasked to respond to the request. Regrettably, he was unable to identify the driver and in his reply, S apologised on the Company's behalf for the failure to be able to identify the driver.
S detailed how more robust procedures had been put in place by the Company with a view to ensuring that a failure to identify driver details for a Company driver would never arise again.
A Single Justice Procedure Notice was received at the Company's address returnable before Mold Magistrates' Court alleging one count of failing to provide driver details contrary to section 172(3) of the 1988 Act. Although the Notice was addressed to S, it was also addressed to the Company and was sent to him at the company address.
S and the Company were under the impression that it was the Company facing the proceedings rather than S personally. The Company secretary tendered a guilty plea by post on the Company's behalf to the Court. The Court imposed a fine but alarm bells started to ring when S personally received a communication from the DVLA requesting his driver licence number and his date of birth so that his licence could be endorsed with six penalty points imposed by the Court.
At this stage, both the Company and S sought legal advice from Blake Morgan's Driver Defence team. Barry Culshaw, a consultant and road traffic specialist within the team, advised throughout.
How our Driver Defence solicitors helped
It was evident from the correspondence with the SCPU that S was purporting to act throughout on behalf of the Company and not in his personal capacity. It should have been evident to the SCPU that it was the Company who was the keeper of the vehicle and not S personally.
Barry advised S to apply for the conviction and sentence to be set aside by the Court pursuant to section 142 of the Magistrates' Courts Act 1980.
The application was granted and S' unblemished driving record was restored. The company pleaded guilty to a new allegation alleging failure to provide driver details and a reduced fine was imposed.
Key point about this case
If proceedings are taken as a consequence it is vital to make clear to the court that there is a distinction between the way in which companies are dealt with and private individuals are sentenced pursuant to this legislation.
The considerations for the court are different when dealing with a company rather than an individual. A defence known as "the reasonable diligence defence" provides that a person shall not be guilty of an offence of failing to provide driver details if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was at the material time. However, the reasonable diligence defence does not apply where the defendant is a company unless the company shows on the balance of probabilities that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.
Furthermore, section 172 (5) of the 1988 Act provides that where a company is guilty of an offence of failing to provide driver details and the offence is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of a director, manager, secretary or other similar officer of the company, or a person who was purporting to act in any such capacity, he, as well as the company, is guilty of that offence and liable to be proceeded against and punished accordingly.
Where a company is facing prosecution for this type of offence or where an individual is facing prosecution by virtue of the provisions of section 172 (5) of the 1988 Act, the normal penalty of a fine not exceeding £1,000 is applicable but unlike the sentencing of individuals where six penalty points would be endorsed on the driving licence or a disqualification imposed the court has no power to endorse penalty points or to disqualify where a company is facing prosecution and/or where an individual is facing prosecution only by virtue of the provisions of section 172 (5).
S was, of course, pleased to have been able to extricate himself from this problem without a conviction against his name and with his unblemished driving record reinstated.
This case demonstrates that it is important for specialist legal advice to be taken at an early stage during the investigation of offences of this nature.
If you have questions about a driving offence, please contact our Driver Defence team.