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Unsure of driver, roadside camera
sterlingmoss
post Sun, 12 Aug 2018 - 17:57
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My mrs and i have a company lease car that we both use. Our company correspondence address is not our home address so the NIP arrived in the company name and at the correspondence address. The offence is for 37 in a 30 and was on 29th June. The NIP was received in the post at our correspondence address on 3rd August. We do not know which of us was driving the car at the time of the offence - what happens?
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post Sun, 12 Aug 2018 - 17:57
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The Rookie
post Sun, 12 Aug 2018 - 18:05
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If you don’t name a driver the company will be taken to court for failing to provide drivers details, that will be a fairly large fine. It’s also possible (although vanishingly rare) to take an officer of the company to court where they could get points (6) on their licence as well.

To defend against that you would have to show that the company could not, despite excercising reasonable diligence, identify the driver, sceptical courts aren’t easy to convince on that.

Meanwhile if you name the most likely driver if your in England or wales will result in the offer of a speed awareness course for circa £100 and 4 hours of your time.

Why can’t you name the driver? Do you have location service on either phone, checked diaries, call logs (mobile and home) to see if it places anyone, card receipts?


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Redivi
post Sun, 12 Aug 2018 - 18:50
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If the S172 has arrived in the company name, it must be filled out by somebody in the name of the company

You mustn't do it yourself unless you make clear it's in the company's name
It probably says on the form DO NOT PASS TO DRIVER

37 in a 30 will result in an offer of a course as long as everyone acts promptly

Your company should therefore ask for any photos "to identify the driver"
If they don't show the driver, and Rookie's suggestions don't help, pick the more likely person

If your company names two people, at best both of you will receive your own S172 forms
At worst the company will be prosecuted

If you and your wife can't agree, you will both be prosecuted for an S172 offence and the burden to show you couldn't name the driver is very high
It's why naming the more likely person when you can't be proved wrong is the pragmatic solution

We've seen a lot of threads where somebody has been prosecuted because they tried to be honest and admit when they weren't 100% sure
One of my friends was convicted for precisely that reason

This post has been edited by Redivi: Sun, 12 Aug 2018 - 18:50
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Logician
post Sun, 12 Aug 2018 - 20:15
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QUOTE (The Rookie @ Sun, 12 Aug 2018 - 19:05) *
It’s also possible (although vanishingly rare) to take an officer of the company to court where they could get points (6) on their licence as well.


Can they get points?



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notmeatloaf
post Sun, 12 Aug 2018 - 20:19
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It's also worth saying that companies only have a defence that they have used reasonable diligence to identify the driver if they also can show that it wasn't reasonable for them to keep some sort of record of who is driving the vehicle.

On the one hand one could argue that if only a husband and wife are using the car it is different to numerous employees.

On the other hand for whatever reason you aren't able to name the driver, and if that was due in some way to the day to day activities of the company then there may be an argument that it is still unreasonable for you not to maintain records.

Either way you have a weaker position in terms of a defence, but an advantage in that you will almost certainly not get points if you can't name the driver.
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The Rookie
post Sun, 12 Aug 2018 - 20:27
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QUOTE (Logician @ Sun, 12 Aug 2018 - 21:15) *
QUOTE (The Rookie @ Sun, 12 Aug 2018 - 19:05) *
It’s also possible (although vanishingly rare) to take an officer of the company to court where they could get points (6) on their licence as well.


Can they get points?

That’s my understanding yes.

https://www.pattersonlaw.co.uk/motoring-off...ame-the-driver/
Under Penalty Points.

This post has been edited by The Rookie: Sun, 12 Aug 2018 - 20:29


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
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Logician
post Sun, 12 Aug 2018 - 20:46
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QUOTE (The Rookie @ Sun, 12 Aug 2018 - 21:27) *
QUOTE (Logician @ Sun, 12 Aug 2018 - 21:15) *
QUOTE (The Rookie @ Sun, 12 Aug 2018 - 19:05) *
It’s also possible (although vanishingly rare) to take an officer of the company to court where they could get points (6) on their licence as well.
Can they get points?
That’s my understanding yes. https://www.pattersonlaw.co.uk/motoring-off...ame-the-driver/ Under Penalty Points.


I suggest that Patterson Law for all their unmatched record of success in traffic cases, may have got that wrong. It is s.172(5) and (11) that create the offence, and Sch 2 RTOA 1988 gives the penalties for s.172 as follows:

RTA section 172Failure of person keeping vehicle and others to give police information as to identity of driver, etc., in the case of certain offences.Summarily.Level 3 on the standard scale.[F92 Discretionary, if committed otherwise than by virtue of subsection (5) or (11).][F92Obligatory, if committed otherwise than by virtue of subsection (5) or (11).][F936]

So subsections (5) and (11) are excluded from disqualification and endorsement.

Formatting does not make that easy to read, original HERE







This post has been edited by Logician: Sun, 12 Aug 2018 - 20:55


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The Rookie
post Mon, 13 Aug 2018 - 05:29
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It’s been discussed on here before and I thought the Patterson line accepted, it section 5 seems to create an offence with no punishment, need to take some more time on that.
Another
https://www.ashfords.co.uk/news-and-events/...ver-information

This post has been edited by The Rookie: Mon, 13 Aug 2018 - 05:35


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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Logician
post Mon, 13 Aug 2018 - 10:52
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QUOTE (The Rookie @ Mon, 13 Aug 2018 - 06:29) *
It’s been discussed on here before and I thought the Patterson line accepted, it section 5 seems to create an offence with no punishment, need to take some more time on that. Another https://www.ashfords.co.uk/news-and-events/...ver-information


The punishment would be fine only. I do not think the qualification in Sch 2 can just be disregarded.



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The Rookie
post Mon, 13 Aug 2018 - 10:58
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though badly written it seems to rule out a fine as well.....making the section meaningless?


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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Logician
post Mon, 13 Aug 2018 - 13:59
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I do not believe so, you have to look at the column headings which are several pages away but read:

(1) Provision creating offence

(2) General nature of offence

(3) Mode of prosecution

(4) Punishment

(5) Disqualification

(6) Endorsement

(7) Penalty points


So we have:

(1) RTA section 172

(2) Failure of person keeping vehicle and others to give police information as to identity of driver, etc., in the case of certain offences.

(3) Summarily.

(4) Level 3 on the standard scale

(5) Discretionary, if committed otherwise than by virtue of subsection (5) or (11).

(6) Obligatory, if committed otherwise than by virtue of subsection (5) or (11).

(7) 6


So the punishment is always Level 3 on the standard scale, disqualification is discretionary except if the offence is committed by virtue of subsection (5) or (11), endorsement (ie points) is obligatory except if the offence is committed by virtue of subsection (5) or (11), and the points are always 6. The only confusing aspect is relating the distant column headings to what is written on that page, in my view.

I seem to remember Southpaw, or another mod, putting me right on this in my early days on the forum.






This post has been edited by Logician: Mon, 13 Aug 2018 - 14:01


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The Rookie
post Mon, 13 Aug 2018 - 14:19
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I read the headings...

The fine is discretionary except by virtue of 5, so does that default to nil (as you think it does with points) or obligatory?

The points are obligatory except by virtue of 5, so does that go to nil or discretionary?

That’s my issue with how it’s written, if you are right about the points then an argument is the fine must be nil as well, making para 5 a nullity, which is illogical.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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southpaw82
post Mon, 13 Aug 2018 - 14:28
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QUOTE (The Rookie @ Mon, 13 Aug 2018 - 15:19) *
The fine is discretionary except by virtue of 5, so does that default to nil (as you think it does with points) or obligatory?


What on earth makes you think the fine is discretionary?

QUOTE
The points are obligatory except by virtue of 5, so does that go to nil or discretionary?


Points (actually endorsement) are obligatory if the offence is committed otherwise than by ss (5) or (11). If endorsement isn’t obligatory then points can’t be imposed - see s 28(1). The answer is therefore “nil”, or more accurately, “neither” as endorsement is not in issue.

QUOTE
if you are right about the points then an argument is the fine must be nil as well, making para 5 a nullity, which is illogical.

Again, what makes you think the fine is discretionary? The only words that appear are “Level 3 on the standard scale”, without qualification.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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Logician
post Mon, 13 Aug 2018 - 14:37
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No, (5) is not mentioned in relation to the fine, so that is always Level 3 on the standard scale (as a maximum of course). How can you read (5) as applying to it when it only appears in the next two columns?

The points are obligatory except by virtue of 5, therefore in relation to 5 that column is a blank. If were to go to discretionary then it would have to say so, but throughout the whole schedule there is no instance of points being discretionary, they are either obligatory or not applicable, and if obligatory they are either a fixed number or a range of numbers. The whole schedule is written in exactly the same way, and exceptions or other provisions inserted where appropriate, I really do not understand your difficulty with this particular section.

This post has been edited by Logician: Mon, 13 Aug 2018 - 14:38


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The Rookie
post Mon, 13 Aug 2018 - 16:55
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argh, sorry, just realised I’d got myself one column out while scrolling.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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Redivi
post Mon, 13 Aug 2018 - 17:50
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It's not clear if the Op and his wife own the company or if one of them is an employee and the lease company only has the company address for correspondence

If it's the latter, the discussion about company liabilities and penalties isn't helpful to him

Perhaps he could provide more details about the arrangement the next time he returns to the thread
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Logician
post Mon, 13 Aug 2018 - 20:04
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QUOTE (The Rookie @ Mon, 13 Aug 2018 - 17:55) *
argh, sorry, just realised I’d got myself one column out while scrolling.


Those damned headings are the problem.



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