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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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Posts in this topic
- firefly   Paragraph 4 (Unsure of Driver) Defence   Fri, 19 Dec 2003 - 13:49
- - The Rookie   Thanks FF, My parents are in just this boat, my M...   Wed, 14 Jan 2004 - 10:53
- - firefly   Hi Simon QUOTE (The Rookie)he also said that he w...   Fri, 16 Jan 2004 - 11:43
- - poweller82   Hi I am going down this route, my parents recently...   Sun, 8 Feb 2004 - 13:03
- - firefly   Hi poweller82, QUOTE (poweller82)i have written o...   Sun, 8 Feb 2004 - 15:29
- - poweller82   I am guessing the NIP first went to the garage, th...   Sun, 8 Feb 2004 - 16:04
- - The Rookie   AS RK, all the dealer has done is identified who w...   Sun, 8 Feb 2004 - 20:28
- - firefly   Hi poweller82, QUOTE (poweller82)then a couple of...   Sun, 8 Feb 2004 - 21:53
- - poweller82   yeah, he got issued a totally new NIP with our add...   Sun, 8 Feb 2004 - 22:52
- - Mika   HAYES v DPP (Filed: 12/02/2003) Divisional Court ...   Fri, 13 Feb 2004 - 09:25
- - andypandy   not good news, is there any more details about how...   Fri, 13 Feb 2004 - 12:58
- - Mika   Andy, That is all the information that we have an...   Fri, 13 Feb 2004 - 13:42
- - firefly   Hi Mika et al, QUOTE (Ruling)(i)Whether the court...   Mon, 16 Feb 2004 - 15:19
- - gilly   unsure of driver   Mon, 1 Mar 2004 - 20:42
- - firefly   Hi gilly, What has probably happened is that the ...   Tue, 2 Mar 2004 - 09:18
- - cjm99   Gilly I would be inclined to do nothing. If, as i...   Tue, 2 Mar 2004 - 11:33
- - gilly   Thanks for your replies. I will not reply to this ...   Tue, 2 Mar 2004 - 12:42
- - Scameravictim11459   QUOTE Writing to the ticket office in question and...   Tue, 16 Mar 2004 - 17:15
- - DW190   SV wrote QUOTE GATSO cameras would surely fall und...   Tue, 16 Mar 2004 - 18:22
- - peanuts   Peanuts   Thu, 18 Mar 2004 - 19:22
- - Scameravictim11459   QUOTE How do you identify someone with a photo fro...   Fri, 19 Mar 2004 - 12:20
- - DW190   QUOTE Quote:   How do you identify someone wi...   Fri, 19 Mar 2004 - 14:04
- - Alexander-TG   Question What if I am not the RK and the photo ...   Sat, 20 Mar 2004 - 17:42
- - firefly   QUOTE (Alexander-TG)Question   What if ...   Sat, 20 Mar 2004 - 19:23
- - Alexander-TG   Firefly, Question Do you know who was driving m...   Sat, 20 Mar 2004 - 23:10
- - firefly   Alexander-TG, I am unfamiliar with your (or your ...   Sun, 21 Mar 2004 - 00:10
- - Odd Job   QUOTE (firefly)Alexander-TG, I am unfamiliar with...   Sun, 21 Mar 2004 - 01:01
- - firefly   QUOTE (Odd Job)Firefly,   I think Alexandrer...   Sun, 21 Mar 2004 - 09:58
- - immy   What are the penalties if the court decides to say...   Sun, 21 Mar 2004 - 17:40
- - Blackbird   Monster posted on another thread QUOTE The S172 f...   Sun, 21 Mar 2004 - 17:56
- - Alexander-TG   Firefly and Blackbird, This what happened, Yes m...   Mon, 22 Mar 2004 - 13:40
- - firefly   Leaving aside the issue of an unsigned NIP for now...   Mon, 22 Mar 2004 - 15:36
- - Alexander-TG   Firefly, Steady on a minute, I think you are read...   Tue, 23 Mar 2004 - 10:58
- - firefly   QUOTE (Alexander-TG)If I read between the lin...   Tue, 23 Mar 2004 - 12:24
- - Alexander-TG   Firefly, Let me get this right Hypothetically ...   Tue, 23 Mar 2004 - 19:03
- - Odd Job   I agree with you entirely Alec................Sorr...   Tue, 23 Mar 2004 - 23:58
- - firefly   Firstly, QUOTE (Odd Job)Thr RK is a hire company ...   Wed, 24 Mar 2004 - 09:39
- - Alexander-TG   Firefly, Why my son nominated me is between me an...   Wed, 24 Mar 2004 - 18:15
- - firefly   Hi Alec, QUOTE (Alexander-TG)Why my son nomi...   Thu, 25 Mar 2004 - 07:55
- - Alexander-TG   Firefly, I have sent you a PM Regards Alec   Thu, 25 Mar 2004 - 19:17
- - firefly   Spookily quiet here this afternoon. Could it be, ...   Fri, 26 Mar 2004 - 15:14
- - immy   Ive had my charge for section 172 dropped by Cumbr...   Fri, 16 Apr 2004 - 11:41
- - Fireblade   PACE rules and regulations ignored by the Police !!!!!!   Mon, 19 Apr 2004 - 20:42
- - joker2004   shafted   Fri, 7 May 2004 - 10:20
- - firefly   Hi joker2004, Start at the beginning. It may b...   Fri, 7 May 2004 - 10:25
- - joker2004   Thanks Firefly. We were driving down to Bournemou...   Fri, 7 May 2004 - 10:35
- - firefly   Hi joker2004, More like it . Just to be a pain...   Fri, 7 May 2004 - 10:50
- - joker2004   absolutely ff 05/12/03 - flashed by mobile camera...   Fri, 7 May 2004 - 12:13
- - joker2004   and another thing   Fri, 7 May 2004 - 12:16
- - DW190   [quote]10 Phone call from Kent Police saying "..we...   Fri, 7 May 2004 - 12:26
- - joker2004   dw190 The Kent Police quote was an example I thin...   Fri, 7 May 2004 - 12:42
- - firefly   Hi joker2004, Right. So far so good. For what i...   Fri, 7 May 2004 - 13:02
- - joker2004   Many thanks ff There was myself and my wife in th...   Fri, 7 May 2004 - 13:47
- - seylectric   I'm at a loss to understand how a still photograph...   Mon, 17 May 2004 - 00:01
- - joker2004   You're absolutely right of course. Unfortunately, ...   Mon, 17 May 2004 - 13:51
- - firefly   Hi joker, QUOTE (joker2004)If they want to find y...   Mon, 17 May 2004 - 14:12
- - joker2004   Hi firefly QUOTE (firefly)Don't be too hasty howe...   Mon, 17 May 2004 - 14:18
- - seylectric   QUOTE I thought that 2 photos were taken to establ...   Mon, 17 May 2004 - 15:45
- - dave99   and it costs you to see the evidence against you t...   Mon, 17 May 2004 - 20:54
- - seylectric   QUOTE Surely it is also an offence to admit to a c...   Wed, 19 May 2004 - 09:56
- - joker2004   QUOTE but how can it be an offence, or at least no...   Wed, 19 May 2004 - 10:03
- - cjm99   Please read the Mahindra Browne judgement The ...   Wed, 19 May 2004 - 10:41
- - seylectric   Yes but "did not" is a world away from "could not"...   Wed, 19 May 2004 - 23:46
- - cjm99   QUOTE could probably argue that you could have not...   Thu, 20 May 2004 - 12:51
- - immy   If the picture is indeed unclear and you are unsur...   Fri, 21 May 2004 - 12:38
- - cjm99   QUOTE "Based on the evidence you have received you...   Fri, 21 May 2004 - 12:49
- - seylectric   QUOTE The law uses the word 'reasonable' It is not...   Sat, 22 May 2004 - 00:19
- - matt1133   hi all, is there a template to send in reply once ...   Tue, 10 Aug 2004 - 19:32
- - DW190   Is this not it from the first post in this thread ...   Tue, 10 Aug 2004 - 20:03
- - matt1133   dw, the thing is, they have not received any phot...   Tue, 10 Aug 2004 - 20:07
- - DW190   QUOTE (matt1133)dw, the thing is, they have not r...   Tue, 10 Aug 2004 - 23:24
- - matt1133   ok, thanks for your help   Tue, 10 Aug 2004 - 23:29
- - NugentS   I understnad that there was a case where a "do not...   Wed, 11 Aug 2004 - 10:13
- - firefly   Hi all, Post updated to incorporate the initial "...   Wed, 11 Aug 2004 - 12:24
- - matt1133   when should the initial letter be sent? is it a ca...   Wed, 11 Aug 2004 - 13:26
- - firefly   Hi Matt, If it were me, I wouldn't leave it to th...   Wed, 11 Aug 2004 - 14:35
- - NugentS   My own suggestion is to wait at least a couple of ...   Wed, 11 Aug 2004 - 14:38
- - NugentS   Snap   Wed, 11 Aug 2004 - 14:39
- - matt1133   thanks again ff and nugents 8)   Wed, 11 Aug 2004 - 14:42
- - steve dunn   unsure of who the driver was   Mon, 16 Aug 2004 - 21:24
- - Bluedart   Photograph's   Tue, 17 Aug 2004 - 07:15
- - muffy   ok have been snapped doing 47 in a 40 zone, pictur...   Wed, 18 Aug 2004 - 10:39
- - firefly   QUOTE (muffy)i should now send my NIP back with th...   Wed, 18 Aug 2004 - 10:50
- - muffy   sorry ff meant to copy and paste this one(but i se...   Wed, 18 Aug 2004 - 10:54
- - firefly   QUOTE (muffy)sorry ff meant to copy and paste this...   Wed, 18 Aug 2004 - 11:02
- - muffy   so firstly i will go to the central records and ch...   Wed, 18 Aug 2004 - 11:15
- - firefly   Good. Be as diligent as possible. Let us know ho...   Wed, 18 Aug 2004 - 11:20
- - DW190   Their Letter said: QUOTE The alleged offence is su...   Wed, 18 Aug 2004 - 11:36
- - Mika   Hi, How about something like the following: Eac...   Wed, 18 Aug 2004 - 11:55
- - firefly   QUOTE (DW190)Be careful, If they have not sent you...   Wed, 18 Aug 2004 - 12:22
- - muffy   nope the case is that me and my wife will both go ...   Wed, 18 Aug 2004 - 12:41
- - firefly   QUOTE (muffy)nope the case is that me and my wife ...   Wed, 18 Aug 2004 - 12:50
- - Bob_Sprocket   Hi, Have you read the very long post of the South...   Wed, 25 Aug 2004 - 08:38
- - Mika   Hi Bob, As you say that is interesting but you ne...   Wed, 25 Aug 2004 - 09:26
- - Bluedart   The Judicial Process( Fredom of Imformation)   Wed, 25 Aug 2004 - 09:31
- - Bob_Sprocket   Hi Mika, Even better! Best wishes Bob   Wed, 25 Aug 2004 - 10:06
- - muffy   i dont mind taking the half a day off work and vie...   Wed, 25 Aug 2004 - 10:08
- - firefly   QUOTE (Bluedart)I believe you have a right to the ...   Wed, 25 Aug 2004 - 10:10
- - muffy   i dont mind taking the half a day off work and vie...   Wed, 25 Aug 2004 - 10:13
- - Blackbird   Hi Am I missing something? Half a day off to try ...   Wed, 25 Aug 2004 - 20:52
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