Nominating a driver pursuant to section 172 of the Road Traffic Act 1988 is not a guessing game

Posted by Barry Culshaw 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

G consulted Blake Morgan's Driver Defence team with regard to a postal requisition which had been served upon her by Thames Valley Police. The proceedings were pending before Oxford Magistrates' Court. G was facing two allegations.

The first concerned a charge that G had failed to give information relating to the identification of a driver of a vehicle which was registered in G's name in circumstances where the driver of that vehicle was alleged to have been guilty of a speeding offence. The second count was the speeding allegation itself. G was alleged to have been driving the vehicle in question at a speed of 35 mph along a road in Wootton, Oxfordshire which was subject to a 30 mph speed limit.

At the time of the alleged speeding incident G and her husband were living in temporary accommodation whilst their home address was being renovated. As the driveway at the rented accommodation was narrow, G and her husband were constrained to park their respective vehicles in single file along the driveway. In normal circumstances, G's vehicle would be first in line at the entrance/exit. This meant that as G and her husband drove each other's vehicles on a regular basis, on this particular occasion the driver at the time of the speeding incident could have been G or her husband.

Following the speeding incident and upon receipt of the request for driver details, neither G nor her husband could with certainty confirm which of the two of them was actually driving the vehicle at the time of the speed check. Both of them were insured to drive the vehicle and whoever was driving at the material time would have taken G's vehicle as being the first vehicle parked in line in the driveway.

As G was in difficulty responding to the request for driver details, G telephoned the police explaining the difficulty. At the suggestion of the police, a copy of the photographic evidence of the speed check was sent to G in the hope that G might then be able to identify the driver. The photographic images supplied comprised a photograph taken from the front of the vehicle at the time of the speed check and a further image showed the vehicle which by that stage was much closer to the camera operator.

Unfortunately, despite the fact that the vehicle was approaching the police camera operator throughout, neither of the photographic images assisted in identifying the driver. Indeed, the interior of the vehicle was so indistinct that it was not even possible to say with any certainty whether there were one or two people in the front of the vehicle at the material time. When studying the photographic images, G had initially been under the impression that there might have been two people in the front of the vehicle and that the driver was taller than the passenger.

Accordingly, G responded to the police request nominating her husband as the driver of the vehicle at the material time, but G was constrained to qualify this nomination by pointing out in a covering letter that it was impossible to be sure who the driver of the vehicle was from the photographic images. The police responded to G's correspondence explaining that the nomination of G's husband as the driver could not stand as evidence in court as it was contradicted by her covering letter. G was informed that court proceedings would be instituted against her.

How our Driver Defence team helped

Following commencement of the court proceedings, G sought the advice of Barry Culshaw, a consultant and road traffic law specialist in Blake Morgan's Driver Defence team. Barry had conduct of the case throughout. Pursuant to Barry's advice, G tendered not guilty pleas to both counts. In regard to the speeding count, the thrust of the defence was that the prosecution could not prove to the usual criminal standard that it was G who was driving the vehicle at the material time.

In regard to the count of failing to provide driver details, the defence was based upon the statutory defence pursuant to section 172(4) of the Road Traffic Act 1988 ("the 1988 Act") in that over the material time G did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. Case law has determined that the material time is a 28 day period commencing with the date of receipt of the request for driver details.

The matter came before Banbury Magistrates' Court for trial. The Crown Prosecution Service ("CPS") had conduct of the prosecution case. All of the prosecution evidence was agreed in terms of the speed check and the correspondence passing between G and the police whilst attempts were being made to identify the driver.

The outcome

G gave evidence in her defence and her husband also gave evidence as a defence witness. At the conclusion of the trial, the court (which comprised three justices) found G not guilty on both counts. The main factor that the court took into consideration was that G and her husband were both found to be very credible witnesses. The court expressly concluded that G was not trying to hide anything from the court. The court came to the conclusion that G had tried her best to identify the driver. A defence costs order was made in G's favour.

This case study demonstrates the importance of seeking specialist legal advice when confronting proceedings of this nature. The case also demonstrates the need for caution when seeking to nominate the driver of a vehicle who is alleged to have committed an offence. Replying to a request for driver details is not a guessing game and there have been a number of high-profile and reported cases where those who falsely nominate others have resulted in severe sentences being handed out by the courts for attempting to pervert the course of justice.

If there is genuine uncertainty as to who was driving a vehicle at any given time, it is important to convey that uncertainty to the police. Unfortunately, it is normal police procedure to leave it to the court to decide and uncertainty in this type of situation often results in court proceedings. It is important, however, to bear in mind that due to a High Court judgment handed down in 2011 despite what the police may allege in correspondence over the issue of the identification of the driver, there is in law no express duty on the owner or keeper of a vehicle to know the identity of a driver of that vehicle. 

The position in the light of the case law is now clear. An offence under section 172(3) of the 1988 Act is triggered by the request for information. Accordingly, the issue of knowledge of the keeper of the vehicle in section 172(4) refers to what was known by the keeper at the date of receipt of the request for information and the reasonable diligence issue as to seeking to ascertain the driver details relates to the 28 day period thereafter. In the High Court case, the CPS had sought to argue that the issue of knowledge and reasonable diligence extended from the point of the user of the vehicle and was a continuing duty throughout even up to the date of trial.

Those companies who employ drivers and operate vehicles should, however, beware of the specific provision relating to companies in the context of section 172(6) of the 1988 Act. Where a company is facing a section 172 allegation, the reasonable diligence defence is inapplicable unless, in addition to the criteria for establishing the defence, the company must also show that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable. Accordingly, a company employing drivers and operating vehicles must always ensure that there is a paper trail which enables those running the company to identify the driver of any vehicle at any given time.

About the Author

Barry Specialises in road transport law within our Driver Defence team. He represents clients facing allegations of careless/dangerous driving, driving with excess alcohol and speeding.

Barry Culshaw
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023 8085 7209

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