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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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The Rookie
post Wed, 14 Jan 2004 - 10:53
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Thanks FF,

My parents are in just this boat, my Mums car was snapped on their moving day, both drove it back and forth the 20min journey between houses.

Pic ambiguous as a blob driving and no pax, but then they only had pax for one trip each way that day!

Usual B&B letter from scameraship which they are not rising to! (its even a prewritten job that actually bares no relationship to the defence they have put! Just insists that there is a legal requirement to identify the driver (which is true) and that not to do so is an offence (broadly true) looks like its written for those that question whether they have to give the info!

They had an ex-Mag to dinner over the weekend, he confirmed that if you stick to one story, and have shown 'reasonable dilligence' they can't touch you, he also said that he would be more likely to believe the case where its the RK and spouse than where its an RK and somone who drove the car more rarely! He even suggested my mum write to say she was willing to pay the fine anyway, as they can't legally accept it! (shame he's off the bench on health grounds really, not that he can obviously sit for a case involving a personal freind, but 'enlightened' magistrates seem a little rare!)

Simon
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firefly
post Fri, 16 Jan 2004 - 11:43
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Hi Simon

QUOTE (The Rookie)
he also said that he would be more likely to believe the case where its the RK and spouse than where its an RK and somone who drove the car more rarely!


As I suspected. Not all Magistrates will share this view I am sure but I think the vast majority will.


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poweller82
post Sun, 8 Feb 2004 - 13:03
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Hi
I am going down this route, my parents recently got caught, however, the car is registered to a local skoda dealership, not my parents. i have written off requesting the photo, and then will proceed with the letter stating we are unable to identify who the driver was. will the police then write to the skoda dealership as registered owners? do you think this is a good idea, is it likely to work, my mother/father dont really want to go to court!
cheers
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firefly
post Sun, 8 Feb 2004 - 15:29
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Hi poweller82,

QUOTE (poweller82)
i have written off requesting the photo, and then will proceed with the letter stating we are unable to identify who the driver was. will the police then write to the skoda dealership as registered owners?


Who is the NIP addressed to?


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poweller82
post Sun, 8 Feb 2004 - 16:04
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I am guessing the NIP first went to the garage, they phoned my dad, told him about it, then a couple of days later the NIp came to our home address, addressed to my dad..does this mean hes already admitted it, ie the garage have told the police he was driving? :?
cheers Firefly

poweller
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The Rookie
post Sun, 8 Feb 2004 - 20:28
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AS RK, all the dealer has done is identified who was 'kepping' the car at the time, this is not any form of evidence, and as far as para4 goes, its exactly the same for your parents as if your dad was the RK.

Simon
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firefly
post Sun, 8 Feb 2004 - 21:53
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Hi poweller82,

QUOTE (poweller82)
then a couple of days later the NIp came to our home address, addressed to my dad..does this mean hes already admitted it, ie the garage have told the police he was driving?


I assume that the POLICE issued you with a new NIP with your father's address or did the garage simply pass on the NIP that they received? I would imagine the former is the case.

Just because the police have issued your father with a new NIP does not mean he is guilty. He has to prove that he did not know who was driving at the time. Things have started to get awfully complicated with the paragraph 4 interpretation. Check out these postings for information.


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poweller82
post Sun, 8 Feb 2004 - 22:52
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yeah, he got issued a totally new NIP with our address on, no sign of garages address. i'll check those posts out
cheers firefly
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Mika
post Fri, 13 Feb 2004 - 09:25
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HAYES v DPP
(Filed: 12/02/2003)

Divisional Court
Buxton LJ, Curtis J
February 4, 2004

Criminal procedure - Road traffic - Human rights - Identity of driver -
Burden of proof - Privilege against self-incrimination not absolute

FACTS

H appealed by way of case stated against the decision of the Crown Court on 27 November 2002 to refuse his appeal against his conviction for failing to identify the driver of a speeding vehicle registered in his name contrary to the Road Traffic Act 1988 s 172. H raised a defence under s 172(4) of the Act on the basis that neither he nor his wife could remember which of them was driving at the relevant time. The court rejected his evidence without giving reasons for so doing. On this appeal H argued that: (i) the Crown
Court had erred in placing the burden of proof on him in relation to a defence under s 172(4) of the Act; (ii) the court should have but had failed to give reasons for not believing his evidence; and (iii) the requirement under s.172 of the Act to provide details of the identity of a driver was incompatible with Art 6 of the Human Rights Convention as it was contrary to the privilege against self-incrimination.

ISSUES

(i) Whether the court erred in placing the burden of proof on H.

(ii) Whether the court was required to give reasons for not believing H's evidence.

(iii) Whether s 172 of the Act was incompatible with the privilege against self-incrimination under Art 6 of the Human Rights Convention.

HELD (dismissing the appeal)

(i) Insofar as it had considered the matter at all, the court had not erred in placing the burden of proof on H. H's argument was misconceived. The Act made clear that a defendant "must show" that he did not know or could not with reasonable diligence ascertain the identity of a driver. In any event, the issue of burden of proof had not in fact arisen as the court had simply disbelieved H's evidence.

(ii) The court was not required to give reasons for not believing H's evidence. The court had heard H and had not believed him. It did not have to set out that which was apparent and/or obvious. Its decision could not be challenged.

(iii) Section 172 of the Act was not incompatible with the privilege against self-incrimination under Art 6 of the Human Rights Convention. The issue had been considered in Brown v Stott (2003) 1 AC 681 by the Privy Council, which held that the privilege against self-incrimination was not absolute and that s 172 of the Act was part of road traffic legislation that was a proportionate response to the serious social problem of road safety. Whilst the decisions of the Privy Council did not stand in the same hierarchy as those of the House of Lords or the Court of Appeal, it would have to be a truly exceptional case for the Divisional Court to depart from a decision of the Privy Council in a Convention matter. Brown had been heard by the Privy Council not because it had come from an exotic jurisdiction but because that was the appropriate forum for devolution issues in the United Kingdom.
Moreover, the judges of the Privy Council were the same as those of the House of Lords. In any event, if H had wished to raise the issue of incompatibility, he should have sought a declaration to that effect and in all those circumstances his appeal could not succeed.

Nigel Ley (instructed by Byrne Frodsham & Co, Widnes) for the appellant
Matthew Dunford (instructed by Crown Prosecution Service) for the respondent.


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andypandy
post Fri, 13 Feb 2004 - 12:58
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not good news, is there any more details about how diligent he had been?

andypandy
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Mika
post Fri, 13 Feb 2004 - 13:42
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Andy,

That is all the information that we have and, what happened, will have depended on the particular circumstances in the case. This is why it may be wise to lay a very polite paper trail, which demonstrates how 'reasonable' and 'diligent' you have been.

Furthermore, in my opinion, it is not a good idea quoting the ECHR as it was in this case, and I would be more inclined to argue as follows:

The legal system has treated me differently to Christine and Ian Hamilton; therefore I may have been discriminated against. rolleyes.gif


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firefly
post Mon, 16 Feb 2004 - 15:19
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Hi Mika et al,

QUOTE (Ruling)
(i)Whether the court erred in placing the burden of proof on H

The ruling is spot on here. The argument is mis-conceived. It isn't the court that places the burden of proof here it is the law of the land.

QUOTE (Ruling)
H raised a defence under s 172(4) of the Act on the basis that neither he nor his wife could remember which of them was driving at the relevant time

Reading between the lines, it appears that Hayes' defence was, "can't remember who was driving" in which case his appeal (on that point) was weak and was bound to fail. The subsection 4 requirement, ambiguous though it may be, extends to more than amnesia.

QUOTE (Ruling)
(ii) The court was not required to give reasons for not believing H's evidence. The court had heard H and had not believed him. It did not have to set out that which was apparent and/or obvious. Its decision could not be challenged.

This was the only part, in my opinion, that H had any grievance on. To be told, "We don't believe you." is one thing but to be told, "We don't believe you and we cannot/will not tell you why." is a tad annoying.


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gilly
post Mon, 1 Mar 2004 - 20:42
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I am going along the route of unsure of driver as the person driving at the time of the alleged offence could have been myself or my wife.
I have written to the ticket office naming (with addresses) the two possible drivers but unable to state which one for sure as we were both driving that morning and had switched drivers after pulling into service stations to satisfy our young childrens urgent needs.
I sent the letter off registered post on the 25th Feb due 27th Feb and received today a letter dated 27th Feb from the ticket office stating that they had not received from me the driver details and that if i do not reply within 7 days of the 27th Feb consideration will be given to instigating proceedings against me for failing to supply the required information contrary to section 172 road traffic act 1988.
Do I need to copy onto them my letter of the 25th Feb for which I have postal records or should I wait for them to charge me with not disclosing driver details even though I have proof that I did?


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firefly
post Tue, 2 Mar 2004 - 09:18
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Hi gilly,

What has probably happened is that the ticket office have written to you, unaware that you have responded to their "demands". The dates on the letters would seem to suggest this.

It probably wouldn't do any harm to re-send your letter with an additional note referring to their correspondence about not receiving any information from you.

Have you asked the ticket office for photographs in order to identify the driver?


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cjm99
post Tue, 2 Mar 2004 - 11:33
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Gilly

I would be inclined to do nothing. If, as is quite possible, the CTO send details to CPS for "failure to supply any info". and as is also very possible an s9 statement will say "nothing received" Then game over, see played 3 won three' posting by john josephs..

Chris
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gilly
post Tue, 2 Mar 2004 - 12:42
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Thanks for your replies. I will not reply to this demand as I do have proof that I supplied the names of possible drivers. In answer to Firefly I did receive photo's and whilst they show the number plate front and rear it was dark when the photo was taken at 0617am and I cannot even make out an outline of the driver and passenger.
Incidentally the nip also has incorrect details on it as the photos are from specs cameras and not a manned camera as stated.


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Scameravictim114...
post Tue, 16 Mar 2004 - 17:15
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QUOTE
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.
Actually, I'm wondering whether we can show that - at least in the case of a GATSO camera - they are in fact obliged to give you a copy of the photograph.

From the Data Protection Act 1998:

QUOTE
1. - (1) In this Act, unless the context otherwise requires-

"data" means information which-

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose


GATSO cameras would surely fall under this paragraph?

QUOTE
"personal data" means data which relate to a living individual who can be identified-
(a) from those data, or
(B) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
QUOTE
2. In this Act "sensitive personal data" means personal data consisting of information as to-
(g) the commission or alleged commission by him of any offence



QUOTE
7. - (1) Subject to the following provisions of this section and to sections 8 and 9, an individual is entitled-

(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(B) if that is the case, to be given by the data controller a description of-
(i) the personal data of which that individual is the data subject,
(ii) the purposes for which they are being or are to be processed, and
(iii) the recipients or classes of recipients to whom they are or may be disclosed,
© to have communicated to him in an intelligible form-
(i) the information constituting any personal data of which that individual is the data subject


I'm hardly an expert but this seems pretty clear to me.

Of course, the only reason I can see for demanding a copy of the photograph or film under the Data Protection Act would be to annoy and inconvenience the Scameraship - I can't see that it would actually help you in any way.

Fun, though. wink.gif
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DW190
post Tue, 16 Mar 2004 - 18:22
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SV wrote
QUOTE
GATSO cameras would surely fall under this paragraph?

Quote:
"personal data" means data which relate to a living individual who can be identified-
(a) from those data, or
(B) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,


How do you identify someone with a photo from the rear?

Would be ok if from a front facing camera with a clear Mug Shot.

DW190
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peanuts
post Thu, 18 Mar 2004 - 19:22
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Peanuts
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