Failing to Provide Driver Details – News article by Simon Morton

Not receiving a notice requesting driver details is not automatically a defence.

Elias LJ said at para 28:

A defendant does not have a defence under section 172(7)(b) Road Traffic Act 1988 merely by virtue of the fact that he has no knowledge that the notices were sent.

In an appropriate case a defendant may be able to show in such circumstances that it was not reasonably practicable for him to have been aware of the notice, in which case the defence will apply.

The defendant was regularly out of the country, he was only at home for approximately 7 days per month, he spent time overseas on business or travel or at his home in Singapore, his post was dealt with by his wife or staff, and if letters could only be dealt with by him personally, they would go to his private secretary.

The magistrates said:

“We take into account Mr Whiteside’s personal circumstances. We do not accept the defence put forward by them that Mr Whiteside acted with due diligence and Mr Whiteside should have ensured that systems were in place to deal with receipt of such important documents as these. In addition, the systems that were in place for post opening at his home address whilst he is absent were not effective on these occasions.”

A case where the magistrates correctly concluded that the defendant did not take reasonable steps to ascertain who had been driving the car.

The High Court gave some guidance as to the type of enquiries that could have been made.

Kenneth Parker J said at para 40:

“Mrs Marshall could, for example, have very carefully and conscientiously gone over the chronology and manner of the driving on the night of 5th March 2013. The following questions could have been diligently explored. At what time did she leave 16 Sloane Street, arrive at Nevern Place and return to Sloane Street to leave for Richmond? The distance from Sloane Street westward along the Cromwell Road to Kenway Road and to Nevern Place can be verified to assist in recalling the likely duration of the journey to Nevern Place and back to Sloane Street.

Section 172 Road Traffic Act 1988 does not create a duty on the registered keeper of a vehicle to be available at a registered address to receive communications.

A failure by the registered keeper to be available was a factor which might make it very difficult, if not impossible, to discharge the burden on him of providing a defence under s.172(7)(b) (i.e. it was not reasonably practicable to respond).

Section 172 Road Traffic Act 1988 does not create a duty on the registered keeper of a vehicle to be available at a registered address to receive communications.

A failure by the registered keeper to be available was a factor which might make it very difficult, if not impossible, to discharge the burden on him of providing a defence under s.172(7)(b) (i.e. it was not reasonably practicable to respond).

A defendant cannot be convicted when the date of the charge does not disclose and offence. If the date of commission of an offence under section 172 Road Traffic Act falls within the 28-day period allowed for a response to be made the defendant cannot be convicted.

If a defendant has been convicted in the magistrates’ court of an offence which cannot have been committed there is no power for the Crown Court to amend the charge on appeal.

The date when vehicle owner must exercise due diligence is the date that they receive the notice, not the date when the road traffic offence was committed.

Providing an inaccurate or misleading response to a requirement to provide driver details does not comply with that requirement.

The defendant had responded to a requirement to provide driver details saying that he did not know who was driving. He sent a letter saying that more than one person had driven the vehicle that day. At trial he said that he could not say whether he or another individual had been driving. The high court said that the defendant’s account could be seen as misleading and inaccurate.

The duty to give driver information is compatible with the privilege against self-incrimination.

When a driver is sent a notice to provide driver details, a reply in a covering letter is permissible provided it supplies all of the required information in a written form.

The response to a notice requiring driver details must be signed. It is not a valid response without a signature.

A defendant can never be convicted on the basis of a reminder about a requirement to provide driver details. The conviction could only be on the basis of the original requirement.

If a court concludes that a defendant did not receive a notice requiring him to provide driver details there can never be a conviction. The presumption of proper service has been rebutted.

Judicial review of magistrates’ decision successful. The court were not reasonable when they did not address the defence that the defendant had put forward in their reasons.

When a person who is not the keeper of a vehicle is prosecuted under s.172(2)(b) Road Traffic Act 1988 the prosecution has to prove that that person has information which is in his power to give.

Any person has power to give to information “I do not know about that vehicle or who was driving it on that particular day.” So, if there is no reply to the notice then the prosecution only has to prove that the notice was sent to the person in question. If that person replies saying that they do not know who was driving then further evidence would have to be adduced by the crown to prove what information was in their power to give.

Where the defendant is the keeper of the vehicle or the defendant remains silent as to whether he is the keeper, the Crown simply had to prove a failure to respond.

Where the defendant asserts that he is not the keeper of the vehicle the Crown also have to prove that there was information in his power to give and that there was a failure to respond.

It was reasonable for a district judge to allow a prosecution application to adjourn so that they could address a “highly technical point” about a notice of intended prosecution. The prosecutor was allowed the adjournment to provide additional evidence to prove service of the notice of intended prosecution.

It is possible to serve a single notice requiring two persons to provide driver details if they both live at the same address.

A notice of intended prosecution was deemed to have been served unless and until the contrary is proved. There is no obligation for the Crown to prove service.

As the requirement to provide driver details under section 172 Road Traffic Act was contained in the notice of intended prosecution there is no need for the prosecution to prove service of the notice requiring driver details.

The defendant (D)’s wife was registered keeper of a vehicle. A request for driver information under s.172 Road Traffic Act 1988 was sent to D’s wife. D signed and returned the notice naming himself.

The police sent another request to D. He did not respond having taken legal advice. His defence that he had already responded to the notice was rejected. He had not responded to the notice sent to him, his response the notice sent to his wife was not a valid response.

Responding to a notice to require driver details via a telephone call is not a valid response.

Evidence of the absence of an entry in a police record of responses to requests for driver details was not hearsay.

A printed signature of the authorised person acting on behalf of the Chief Constable is adequate in a notice pursuant to section 172 Road Traffic Act 1988.

When considering an application for a defendant’s costs order the court should not consider whether there is a public interest in bringing proceedings. The proper test is whether the defendant brought proceedings upon themselves.