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Paragraph 4 (Unsure of Driver) Defence
firefly
post Fri, 19 Dec 2003 - 13:49
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**NOTE** - Section 172 now carries a 6-point penalty, as opposed to 3. This raises the stakes against anyone running this defence. Please be aware of this before deciding on any course of action.

Hi All,

It is becoming obvious that a lot of the questions being asked on this forum relate to "unsure who was driving at the time". It is with this in mind that anyone who has this predicament should read on.....

If you have received an NIP (Notice of Intended Prosecution) through the post and are unsure as to the driver at that time then you (the registered keeper) have a legal obligation to provide the details of the driver at that time.

QUOTE
Road Traffic Act 1988; section 172(2(a))] (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police

QUESTION A REGISTERED KEEPER MIGHT ASK: "That seems really unfair, it could have been any number of people on that given day as it is not just me that can (or is insured to) drive my car".

However............ icon_eek.gif
QUOTE
(4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

This is taken from Section 172 (paragraph 4) and is basically a line of defence if you were genuinely unsure as to who was driving on the day. Basically, you have to prove "reasonable diligence" in trying to ascertain the identity of the driver.

"What is reasonable diligence" I hear you ask and what do I have to do to fulfill this requirement?

Well ultimately it is a matter for the courts, although a great many do not reach that stage.

Seeking evidence is paramount here. Writing to the ticket office in question and asking for photographic ID will usually be no problem although some forces are a bit sticky about this. Remember that there is no legal requirement for the ticket office to do this, although you will find that most will be helpful.

QUOTE
Date

Address of Camera Office

Dear Sir/Madam

NOTICE OF INTENDED PROSECUTION NO : ********
With reference to the above notice number, I would be grateful if you could supply me with any photographic evidence of the alleged offence so that I may identify the driver.

On the day specified, there was more than one driver of the vehicle and unfortunately we are unable to come to any definitive conclusions as to who the driver was.

I look forward to receiving the photographs at your earliest convenience and should there be any problem with this I would appreciate your prompt response.

Yours

You could also check your credit/debit/bank statements to see if you purchased any fuel at/about that time. You could request maps/map references to "back track" your movements if you are unsure as to where the camera was. The trick is to be as diligent as possible.

In a lot of cases, you will find that when any photographic ID does arrive at your address it will be a rear view of the car and is unlikely to give any clues as to who was actually driving. If the ID you receive is from a Truvelo or such like and is forward facing then the chance of positive ID is greatly increased. In light of recent (March 2004) correspondence, it appears that there is nothing to stop the police using photographic evidence in court to identify you as the driver should ambiguity exist.

Any honest citizen that can identify themselves as the driver would do so after being satisfied that this was indeed themselves driving.

If the photographic ID was ambiguous or unclear then there are good grounds to NOT sign the NIP, then a friendly covering letter such as the one written below would be sent....

QUOTE
Re: Notice of Intended Prosecution - *******

Dear

I have done everything in my power to help identify who the driver was at the time of the alleged offence but to no avail. That said, I can confirm that the people who drove the vehicle on or about that time were the following:

· Name and address of driver number 1; and
· Name and address of driver number 2, etc.

Each of the drivers listed above have seen the photographic evidence but none of them are able to be clear as to who it actually is. I acknowledge my responsibilities under section 172 of the Road Traffic Act 1988, but as is required by subsection 172(4) I believe that I have done as much as I possibly can to identify the driver, but that I have not been able, having exercised at the very least “reasonable diligence”, to ascertain who it was.

So other than reiterate what I have said in my previous letters, and having provided the details of the individuals above, there is nothing else I can do. I very much hope that this matter can be avoided from going to court.

Yours sincerely,


One of two things will happen at this juncture :

(i) You will be hounded (bluff and bluster letters) to provide the identity of the driver
(ii) The case will be dropped, as happened in my case.

It would be difficult to see how any reasonable magistrate could reasonably convict a registered keeper after this chain of events. Short of keeping a log book to note the specific times and dates of each journey and who made them (which is not a legal requirement), then it is virtually impossible for the keeper to know who was driving. Much less the magistrate.

For a cracking account of how to defend oneself in court (and for further methods of being 'diligent'), read this excellent post by welshy. Result: not guilty.

This post has been edited by nemo: Mon, 31 Dec 2007 - 22:04


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post Fri, 19 Dec 2003 - 13:49
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Scameravictim114...
post Fri, 19 Mar 2004 - 12:20
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QUOTE
How do you identify someone with a photo from the rear?


They can clearly identify the RK from the photograph, because the RK receives a NIP addressed to him or her by name. It's the RK who's applying for the information under the Data Protection Act 1998 - I'm saying that the RK might do so without knowing who was the driver.
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DW190
post Fri, 19 Mar 2004 - 14:04
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QUOTE
Quote:  
How do you identify someone with a photo from the rear?  


They can clearly identify the RK from the photograph, because the RK receives a NIP addressed to him or her by name. It's the RK who's applying for the information under the Data Protection Act 1998 - I'm saying that the RK might do so without knowing who was the driver
.

I get the gist of what your saying but all you would receive from a section 7 Data Subject Access Request under the Data Protection Act 1998 would be a print out of the information passed from the DVLA to the police. If there is no face on the photo its only use would be to ID the vehicle. Unless the police have some other records relating to the person making the request.

The only ID from a Gatso taking photos of the rear of the vehicle is the registration number. Just seems a waste of money to me.

DW
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Alexander-TG
post Sat, 20 Mar 2004 - 17:42
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Question icon_question.gif

What if I am not the RK and the photo shows that I was not the driver can they still prosecute me for failing to give the information as to who was driving. rolleyes.gif

I have not asked for a photo. Do I wait until I go to court and then ask for it as there is a possiblity it was not me driving. rolleyes.gif


Alec
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firefly
post Sat, 20 Mar 2004 - 19:23
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QUOTE (Alexander-TG)
Question  

What if I am not the RK and the photo shows that I was not the driver can they still prosecute me for failing to give the information as to who was driving.  

I have not asked for a photo. Do I wait until I go to court and then ask for it as there is a possiblity it was not me driving.  


I would say so.

Look at the legislation :

QUOTE (Section 172 @ Subsection 2)
   (2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
(B) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.


   (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

   (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.


In theory, if a non-registered keeper received an NIP, he is bound by subsection 2(B).

I believe there is still a ambiguity as to the exact nature of "the keeper" in subsection 2(a). Is it the registered keeper or is it the person who keeps it? In practical terms I don't know if it will make a huge amount of difference.

Whomever receives the NIP, be it RK or non RK, they would do well to do everything in their power to help identify the driver if they were unsure.


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Alexander-TG
post Sat, 20 Mar 2004 - 23:10
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Firefly,

Question icon_question.gif Do you know who was driving my son's car on the 8th August.

Answer No!

Question Why?

Answer: How can I know who was driving a car owned by someone else. All I Know is that it was not me. The car is not held at my address.

It is unreasonable for you to ask me for that information.

Surely this proves reasonable diligence.

If the photo shows it is not me then I shall put these questions to either the clerk of the court or the CPS. rolleyes.gif

What do you think. icon_question.gif


Alec.
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firefly
post Sun, 21 Mar 2004 - 00:10
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Alexander-TG,

I am unfamiliar with your (or your son's) case.

Why are you facing prosecution for your son's vehicle? Can you fill me in on the specifics?


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Odd Job
post Sun, 21 Mar 2004 - 01:01
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QUOTE (firefly)
Alexander-TG,

I am unfamiliar with your (or your son's) case.  

Why are you facing prosecution for your son's vehicle?  Can you fill me in on the specifics?


Firefly,

I think Alexandrer was asking the question "hypothetically".

i.e. how can a person who is not the RK or keeper of a vehicle, know who is in charge of it at any given time ???
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firefly
post Sun, 21 Mar 2004 - 09:58
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QUOTE (Odd Job)
Firefly,  

I think Alexandrer was asking the question "hypothetically".  

i.e. how can a person who is not the RK or keeper of a vehicle, know who is in charge of it at any given time ???


QUOTE (Alexander-TG)
Question  Do you know who was driving my son's car on the 8th August.  

Answer No!  

Question Why?  

Answer: How can I know who was driving a car owned by someone else. All I Know is that it was not me. The car is not held at my address.


My question still stands. Hypothetically, why would the police be hounding A-TG for the driver details of his son's car? I am assuming that A-TG has been nominated by his son as the driver on the day. In which case, and once he is in receipt of the NIP, he is legally required to provide the driver's details if he felt is wasn't him driving.

In practical terms (and whether you are the RK or not), the law will probably treat a RK and a non-RK the same, even thought the legislation makes different demands on them.


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immy
post Sun, 21 Mar 2004 - 17:40
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What are the penalties if the court decides to say guilty on a sec172 charge?

is it 3 pts and xx amount of fine+court costs?
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Blackbird
post Sun, 21 Mar 2004 - 17:56
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Monster posted on another thread

QUOTE
The S172 fine holds a maximium of £1,000 fine, Discretionary disqualification and 3 points.  
If the origional alleged offence was serious ie FTS / WDC then it is usualy the norm to go to the maximium fine and a disqualification.


I posed a subsequent question
If speeding and s172 are completely different issues and charges, how can 'discretion' be part of the issue?
If no charge of speeding goes to court, it follows that it should not matter if the alleged speed was 31mph or 131mph.

Nobody has tacked this one yet - I am still interested!
The other post is 'Ignore NIP to not get banned'

Best Regards


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Alexander-TG
post Mon, 22 Mar 2004 - 13:40
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Firefly and Blackbird,

This what happened,

Yes my son put my name down as the driver. Yes I do drive the car but I was not sure if I drove it on that day. I just accepted it and went down the usual route of not signing the NIP.

Now the point is: What if a photo is produced and it shows the mug shot of someone, not as good looking as me, driving the car. rolleyes.gif

If I now have proof that it was not me driving how can they expect me to give information on who was driving if I am not the RK and not the person who commited the alleged offence. Is it reasonable for someone under these circumstances to be asked to supply information that he does not or can possess.

Can they go back to my son after the 6 months is up and say who is that in the photo?

Regards,
Uncle Alec
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firefly
post Mon, 22 Mar 2004 - 15:36
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Leaving aside the issue of an unsigned NIP for now.

QUOTE (Alexander-TG)
If I now have proof that it was not me driving how can they expect me to give information on who was driving if I am not the RK and not the person who commited the alleged offence


Irrelevant in my opinion. You will be required (as the RK or non-RK) to supply any information that will lead to the driver's identity. The court is unlikely to discriminate between a RK and a non-RK event though subsection 2 of section 172 makes different demands on them. Can I ask why your son nominated you in the first place? Unless he knew you were driving he had no right to nominate you. I assume you discussed it beforehand?

In practical terms I don't think it matters too much anyway. If you know it wasn't you driving then you are legally bound to give any information which it is in your power to give and may lead to identification of the driver as per subsection 2(B) of section 172. The fact that it wasn't you driving and have proof of it by way of a photograph will not be enough to save you from a s172 (failure to provide) charge.

QUOTE (Alexander-TG)
Is it reasonable for someone under these circumstances to be asked to supply information that he does not or can possess.

Absolutely it is reasonable. Are you suggesting that after being nominated by your son as the driver, and as long as you can prove that it wasn't you driving, the court will not convict you of a "failure to provide" charge? I would say that your jacket is on a very shaky nail. This will be made even shakier if you claim that it is not in your power to give this information. Why would it not be in your power?

Correct me if I have missed anything but I just can't see it.


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Alexander-TG
post Tue, 23 Mar 2004 - 10:58
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Firefly,

Steady on a minute, I think you are reading between the lines and putting two and two together and coming up with five. You have done exactly what they do "Guilty" without knowing all the facts. ohmy.gif

If I read between the lines I assume you think I am taking the points for my son. WRONG both my son and I have a clean licence there is no need for me to take the blame for him. rolleyes.gif

He thinks I am mad for fighting the system and urges me to pay up and have an easy life.
But I am older than him and like my father before me, who fought in the last war for his freedom, I to will fight for my basic rights and my right to silence and for the basic concept of "innocent until proven guilty". icon_twisted.gif

Firefly, I have read most of your posts; can I assume that you have had some legal training?
If you have or not I say well done and keep up the good work. Your posts are very much appreciated by myself and I suspect many others. What I am trying to do is stimulate your mind and that of others into finding some sort of loop hole which I am certain exists. Remember the old saying "seek and ye shall find". smile.gif

My basic point, that I can't get my head around, is how can they ask someone for information that they do not have or can't possibly know . If someone is not the RK and was not the driver how can that person say who was driving the vehicle or is it a crime for not being psychic. Surely its the job of the police to obtain the proof of who committed the offence not for them to force or rely on a confession. icon_twisted.gif

I have read a number of posts where people say they genuinely can't be sure or just don't know, and yet according to your post, quoting part of s172, they are guilty and will be punished accordingly. I believe the legal term is: "That cannot be right!". :x

Or am I missing something here. rolleyes.gif

Regards

Alec.
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firefly
post Tue, 23 Mar 2004 - 12:24
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QUOTE (Alexander-TG)
If I read between the lines I assume you think I am taking the points for my son. WRONG both my son and I have a clean licence there is no need for me to take the blame for him.  

No, not at all. I am just curious as to why your son named you. He should have discussed it with you beforehand. In my opinion, when someone "nominates" a person as a driver, they have to know it was indeed him. I wasn't suggesting anything un-toward. Honest! smile.gif


QUOTE
He thinks I am mad for fighting the system and urges me to pay up and have an easy life. But I am older than him and like my father before me, who fought in the last war for his freedom, I to will fight for my basic rights and my right to silence and for the basic concept of "innocent until proven guilty".
A stance I applaud.

QUOTE
Firefly, I have read most of your posts; can I assume that you have had some legal training?  
If you have or not I say well done and keep up the good work. Your posts are very much appreciated by myself and I suspect many others. What I am trying to do is stimulate your mind and that of others into finding some sort of loop hole which I am certain exists. Remember the old saying "seek and ye shall find

Thank you. I am a humble 20 something engineer and have (unfortunately) no legal training. Any information I contribute is gleaned from various sources and am glad to help anyone who has yet to go through some of the experiences I have.

QUOTE
My basic point, that I can't get my head around, is how can they ask someone for information that they do not have or can't possibly know . If someone is not the RK and was not the driver how can that person say who was driving the vehicle or is it a crime for not being psychic. Surely its the job of the police to obtain the proof of who committed the offence not for them to force or rely on a confession.  
This is where I differ from you. Your son has nominated you as the driver on the day. Fact. That being the case, you have a legal responsibility to provide the driver's identity if you feel it wasn't you. You are now legally bound by subsection 2(B) of section 172 which requires you to provide information as to the driver's identity. If you do not do this then you will be facing a "failure to provide" charge. I believe that if you write back saying "I cannot identify the driver" then the police will not revert back to the RK and chase them, others may differ with me. As the recipient of the NIP, I believe that you will have to prove that it wasn't you. If you don't prove it to the satisfaction of the court then a failure to provide charge is a distinct possibility.

QUOTE
I have read a number of posts where people say they genuinely can't be sure or just don't know, and yet according to your post, quoting part of s172, they are guilty and will be punished accordingly. I believe the legal term is: "That cannot be right!".  

It may not be right but it is the law I am afraid. Guilty until you can prove yourself innocent! Check out my "Paragraph 4" post on the first page of this thread.


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Alexander-TG
post Tue, 23 Mar 2004 - 19:03
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Firefly,

Let me get this right rolleyes.gif

Hypothetically icon_wink.gif

If I return the NIP and say its not me the RK made a mistake, the police will not go back to the RK but will still persue me to give the name of someone I don't know. I might just as well go to the phone book pick a name and let that person carry the can. icon_eek.gif

It cannot be right :!:

Regards

Alec
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Odd Job
post Tue, 23 Mar 2004 - 23:58
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I agree with you entirely Alec................Sorry Firefly I think you are incorrect in your view.

Let's change the scenario just slightly.

Thr RK is a hire company that due to a clerical error, names Alec as the hirer (driver) on the day in question. Somebody else in fact hired (drove) the car when the offence was commited.

How on earth could Alec be expected to know who hired the car on the day in question ?????????????

It is the registered keeper who is expected to know who is in charge of the vehicle at any given time - not the driver.

Firefly, can I point you to one of your earlier posts on this same subject, where you say:

QUOTE (firefly)
Not the most subtle!  But the fact is this : The nominee does not know who was driving.  As far as I am concerned, he/she is not able to fill the NIP out.  If he/she is not prepared to take this a stage further then "hell mend 'em" is what I think jeffrey is getting at! biggrin.gif



However, if you read this [forum link] Then you will see a few differing views on the subject, and as my last post confirms - it is possible to be prosecuted for failure to supply as a non RK.
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firefly
post Wed, 24 Mar 2004 - 09:39
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Firstly,

QUOTE (Odd Job)
Thr RK is a hire company that due to a clerical error, names Alec as the hirer (driver) on the day in question. Somebody else in fact hired (drove) the car when the offence was commited.  

How on earth could Alec be expected to know who hired the car on the day in question ?????????????  

It is the registered keeper who is expected to know who is in charge of the vehicle at any given time - not the driver.


We are not talking about a "clerical error", we are talking about Alec's son nominating him. If it was a clerical error then of course Alec could not possibly know the driver :
QUOTE (firefly)
I believe that if you write back saying "I cannot identify the driver" then the police will not revert back to the RK and chase them
I stand by this statement. If you want the police to back to the RK and chase them, then you will have to write a very convincing letter to the police telling them why you believe the RK has got it wrong, and to ask him again. A simple "I can't identify the driver" is unlikely to suffice. Remember the police are used to dealing with people "blaming each other" in order to try and escape a charge. (And Alec I am not suggesting that this is the case with you and your son).

This is further compounded with the fact that Alec has already returned an unsigned NIP :
QUOTE (Alexander-TG)
I just accepted it and went down the usual route of not signing the NIP.


QUOTE (Odd Job)
It is the registered keeper who is expected to know who is in charge of the vehicle at any given time - not the driver.

Not quite.
QUOTE (Magistrate's Clerks Association)
Note that this defence can only be raised by the "person keeping the vehicle" usually this will be the registered keeper but the defence does not appear to be restricted to a registered keeper, so for example, a student who takes a family car away with him to university may be a person keeping the vehicle even though the registered keeper remains a parent.

See this post for the full transcript. I have long argued that the "keeper" mentioned in subsection 2, section 172 of the RTA is not necessarily the registered keeper. The designation "keeper" is a very grey area.

For example : Mr&Mrs Bloggs go on holiday in the first week of June for a week and leave the car keys with their daughter who has full permission to use it as she pleases. Upon returning from their holiday, the parents (more specifically, Mr Bloggs) finds an NIP addressed to him for the vehicle. Mr Bloggs challenges his daughter about this. The daughter (let us call her Suzi) says, "I can't remember dad, myself and my two friends (who both have their own insurance and are also permitted to drive) drove the car on that day and it could have been any of us."

Two major question arise from this scenario.

(1) Who was the keeper of the vehicle in the first week in June when Mr and Mrs Bloggs were on holiday?
(2) Should Mr Bloggs (as the registered keeper) be held responsible for finding out the driver's identity?

Lastly :
QUOTE
firefly wrote:  

Not the most subtle! But the fact is this : The nominee does not know who was driving. As far as I am concerned, he/she is not able to fill the NIP out. If he/she is not prepared to take this a stage further then "hell mend 'em" is what I think jeffrey is getting at!  


Odd Job, you have taken this completely out of context. I was referring to the fact that a RK has no right to nominate someone else because it couldn't have been him.

In summary, of course there are times when a RK gets it wrong. But the law being the law, you will be sent out a new NIP that makes legal demands on you more or less the same as the RK. It is then up to you to credibly inform the police why you believe this to be the case, and not up to the police to make further enquiries.

I will ask the question once again. Alec, why did your son nominate you?


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Alexander-TG
post Wed, 24 Mar 2004 - 18:15
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Firefly,

Why my son nominated me is between me and him. I have no intentions of stating that I was driving or not driving the car on an open forum. I shall leave that for my day in court. :x

When you said that "It may not be right but it is the law I am afraid. Guilty until you can prove yourself innocent! " What happen to the European Convention on Human Rights, it states quite categorically that I am INNOCENT UNTIL PROVEN GUILTY does it not. Any court that ignores that does so at its peril. icon_twisted.gif

Having said this, we must not take our discussions to personally after all we are all on the same side and trying to reach a common goal. ohmy.gif I would reiterate my previous comments " I am trying to stimulate our minds into find a way around the predicament that most of us are in". I look upon all that post on this web site as allies and firefly's posts are some of the best. If we put our heads together we will beat them.

Regards

Alec
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firefly
post Thu, 25 Mar 2004 - 07:55
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Hi Alec,

QUOTE (Alexander-TG)
Why my son nominated me is between me and him. I have no intentions of stating that I was driving or not driving the car on an open forum. I shall leave that for my day in court.

Fair enough. I suppose you never know who is watching. Again though, bear this statement in mind :

QUOTE (Magistrate's Clerks Association)
Note that this defence can only be raised by the "person keeping the vehicle" usually this will be the registered keeper but the defence does not appear to be restricted to a registered keeper, so for example, a student who takes a family car away with him to university may be a person keeping the vehicle even though the registered keeper remains a parent.


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Alexander-TG
post Thu, 25 Mar 2004 - 19:17
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Firefly,

I have sent you a PM


Regards

Alec
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