Failure to give information as to identity of driver (6 penalty points)
This is usually referred to as a section 172, named after the section in the Road Traffic Act 1988. Over 1 million speeding and red light offences are captured on roadside cameras every year. There are over 4000 fixed and mobile cameras on urban roads, major roads and Motorways. When the camera detects a car speeding or going through a red light this triggers a largely automated process resulting in a Notice of Intended Prosecution (NIP) being sent to the registered keeper. The NIP is accompanied by a section 172 which is a legal requirement to identify the driver. The required information is usually provided on a form on the reverse of the NIP which the keeper is obliged to complete with details of the driver and return to the Ticket Office.
Section 172 not received
Sometimes there is a genuine reason for not responding to the section 172. However, the question is whether that reason is good enough in law to provide a defence to the charge of failure to identify the driver. Remember the court will impose 6 penalty points if you are found guilty of a section 172 offence. That is a significant number of points towards the 12 points which could result in a minimum 6 months disqualification under the totting up rules.
Not receiving the section 172 – a defence?
What is the position of a Registered Keeper or nominated driver who does not physically receive the section 172 notice? It would be a mistake to assume that the mere fact of not receiving the form is a defence. It is not.
The law presumes that if the Ticket Office posted out the section 172 in a properly addressed envelope and with the correct postage it will have been served upon the Registered Keeper in the ordinary course of post (two days for a first class letter). However that is a presumption only and if you can prove that the section 172 was not delivered by the postman then you will have a complete defence to a charge of failure to provide driver details.
What happens if you cannot prove that the section 172 was not delivered but nevertheless it did not come to your attention? The mere fact that the document did not come to your attention will not get you off the hook by itself. It all depends on why you did not get to see it. In the case of Director of Public Prosecutions v Whiteside the court held that Mr. Whiteside was at fault for not receiving it. He was away a lot on business and although there was a system in place to ensure he was given official post it failed on this occasion. In order to clear himself Mr. Whiteside had to prove that it had not been “reasonably practicable” for him to respond. The magistrates decided that his system for getting post passed to him was not adequate and the High Court agreed. So even though Mr. Whiteside never in fact saw the section 172 and so was unable to complete the form and provide the required information HE WAS STILL GUILTY OF THE OFFENCE of failure to identify driver!! Harsh? Yes – and he was given 6 penalty points and a fine.
We have been defending section 172 cases for over 15 years and have often been called upon to persuade a court that the failure to disclose driver details was justified. What seems on the face of it to be straightforward i.e. the police send a form and you are required to complete it, is in fact a legal minefield. The courts regard a licence to drive a vehicle as a privilege which comes with certain obligations. The most fundamental obligation is to respond to requests for information from the police and DVLA. Most speeding and red light offences are detected by cameras which do not take photos of the driver and if information as to identity of driver is not given few drivers would ever be convicted of these offences. The consequences for road safety would be catastrophic. Understandably the courts are not quick to excuse a Registered Keeper or other nominated driver even if they had no opportunity to respond to a section 172.
Reasonable diligence defence
In this article we have looked at the situation where the section 172 is not received. There is an entirely different type of case where the section 172 has been received but the Keeper or other person is genuinely uncertain who the driver was. The law does provide a reasonable diligence defence and that will be the subject of a separate blog post in the future.
The best advice if you receive a section 172 but you are honestly in doubt as to the driver’s identity is to consult an experienced motoring lawyer immediately for advice. The questions asked on the section 172 standard form expect you to give the name of the driver. They do not provide for this situation. You will need expert legal advice as to how to complete the form and write the appropriate covering letter to the police. I see far too many cases where recipients adopt a DIY approach and as a result, end up with problems further down the line. It is vitally important to respond to all section 172 requests and that includes making immediate enquiries where the driver could be one of a number of people. How you go about finding out who was driving and how to respond to the Ticket Office even if your enquiries fail to identify the driver will have a crucial impact on how the court views your case.