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I have received a form asking if I was the driver - what do I do now?
What is the offence of failing to identify the driver?
Most people, when they are caught speeding, are not stopped by the police. Their vehicle is just flashed by a speed camera and they continue on their journey, often blissfully unaware. The photograph from the camera showing the registration number of the vehicle, will enable the police to write to the registered keeper asking that person to identify who was driving that vehicle at the time of the offence. This person is expected to then either name themselves, or someone else, as the person driving within a 28 day time limit and if they don’t they will be accused of this offence.
If there was not such an offence of “failing to identify the driver”, people could just ignore these written requests and the majority of speeders would not be caught as the police would not know who was driving and would have no way of finding out.
What other names does this offence go under?
The offence of failing to identify the driver, rather confusingly, can be known under many different names, for instance:-
Whichever one of these terms is used they all refer to an offence under Section 172 of the Road Traffic Act 1988. The form that you receive asking for you to identify the driver is sometimes known as “the section 172 notice”.
What punishment could I receive for failing to identify the driver?
If you don’t respond to a request by the police asking who was driving the vehicle at a certain time and location within 28 days, or you do reply but do not name the driver , then you will be accused of this offence. You may then be punished by having 6 penalty points imposed on your driving licence or, in rare cases, you could be subject to a disqualification under the magistrates’ discretion. You also could be fined up to £1,000.
What should I do if I were the person driving the vehicle at the time of the alleged offence?
If this is the case, and you were sent a form asking for the identity of the driver, you should almost certainly return the form naming yourself as the driver within the 28 day time limit. It should be noted that by doing this you are not here admitting to the original offence, you are just saying that you were driving the vehicle at that time and place. You should send the form back by special delivery so that you can make sure it reaches the police. If the original offence was relatively minor, for example a low level speeding matter, you may be offered a course or a fixed penalty. If the matter is more serious, then the possibility of a court hearing will need to be explored and you will receive a Single Justice Procedure Notice asking how you intend to plead to the original matter, whether this be speeding, driving through a red light, using a mobile phone or some other offence.
What should I do if I was not driving the vehicle at the time of the alleged offence but I know who was?
You should complete the Section 172 form yourself naming the person who was driving. You should not get the person who you believe was driving to complete the form, as the form was sent to you and not to them. You should then return the form to the police by special delivery. The police will then contact the person you have named.
What are the possible defences to failing to identify the driver?
- Reasonable diligence: If you are the registered keeper of a vehicle and you are accused of failing to name the driver, you will not be found guilty if you can show that you used “reasonable diligence” to ascertain who was driving at the time but it wasn’t possible for you to name the driver. This means that you have done your best to work out who was driving, but simply haven’t succeeded in this. An example of this would be where a person and their partner were doing a long motorway journey and they took it in turns to drive. During the journey a speed camera recorded their vehicle speed as being over the speed limit. The person who is the registered keeper therefore receives in the post the form asking them to identify who was driving, however despite having a conversation with their partner and making other enquiries, that person still cannot remember whether it was themselves or their partner who was driving the car at that particular point in time. In such a situation, it may be argued at trial that “reasonable diligence” was used to try to find out who the driver was but despite this, the driver could not be named. If the magistrates think that this was the case, then the accused will be found not guilty of the offence. One of the questions that may be put at trial is whether the accused had asked for photographic evidence from the speed camera to see if all avenues had truly been explored and therefore the standard of “reasonable diligence” had been met. If you are going to try to use the defence of “reasonable diligence” you have to prove the defence on the balance of probabilities. This means that you have to show that it was more likely than not that you have done your best to work out who was driving.
- Not reasonably practicable to name the driver: You will not be found guilty of failing to reply to a request for driver’s details if you can show that it was not “reasonably practicable” to name the driver within the 28 time limit. An example of this defence would be where the letter from the police asking for the identification of the driver had got lost in the post and therefore had never reached you. In essence, in this case the defence is simply that if you haven’t received the form then how can you return it? At trial the magistrates would expect to hear other examples of how your post has failed you so that they are more likely to believe that it failed you on this occasion.
What are the myths surrounding defences for failing to respond to a request for the driver’s details?
It simply does not work to argue that naming yourself as the driver is a breach of your human rights because you shouldn’t have to incriminate myself. The magistrates will take a very dim view if this is attempted as a defence at trial.
What must I NOT do if I receive a request to provide driver’s details?
If you have 9 penalty points on your driving licence and you receive a Section 172 form through the post asking if you were driving concerning a further speeding offence then you are at risk of getting 12 penalty points or more on your driving licence. In such a situation the court would have to ban you from driving for at least 6 months unless you successfully argued exceptional hardship. The temptation therefore may be to name someone else as the driver who has less or no penalty points even though you know they were not driving. Even if the other person consents, this is not a good idea. The case of Chris Huhne, ex-cabinet minister and MP, shows why this is the case. He named his wife Vicky Price as the driver after he persuaded her to take the penalty points instead of him. She later confessed and they were both convicted of perverting the course of justice and they each received 8 month prison sentences. It should be remembered that the photo from the speed camera can be of surprisingly good quality and if the police see that this photo doesn’t show the person named on the form the appropriate action may be taken.
What should I do if I am accused of failing to provide driver’s details and the original offence that gave rise to this?
In such a case you may wish to try and strike a deal with the prosecution. For example, if you were caught speeding and then you failed to name yourself as the driver you may wish to ask the prosecution if they would be willing to accept a guilty plea to the offence of speeding in return for withdrawing the offence of failing to identity the driver? In a surprisingly large number of cases, the prosecution will agree to this. If you don’t do this, then you are in danger of being sentenced for both offences.
What if a company is accused of failing to identify a driver?
This normally happens where a company car has committed an offence such as speeding, using a mobile phone while driving, or going through a red light. As the car is registered to the company, the police will write to the company rather to an individual. If the company then fails to name the driver, it could face a large fine if found guilty but obviously no penalty points can be imposed. A conviction for this offence can damage a company’s reputation.
Why should I contact Speeding Law Solicitors if I have been accused of failing to name a driver?
Philip Hatvany, our founding solicitor, is a road traffic expert. He has over 20 years experience dealing with matters of this type. Since 2011, he has an 85% success rate for winning trials of this nature. Ring him now on FREEPHONE 0800 909 8110 for a free consultation.