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andypandy
Well I have received a letter from the police saying that they are to proceed with a summons because the information is unsufficient because I cannot/ will not tell them who was driving at the time the car was clocked, and therfore are going prosecute me under sec 172 for failing to notify.

my case history is

I was sent nip early Dec 03 for speeding at 38 mph .
Phoned up after finding info on this site and asked for photographs.
Sent letter requesting photos and received them two weeks later.
Sent back unable to identify letter by recorded delivery.
Received final demand letter and filled in the unable to identify section, signed and returned recorded delivery.


I thought that by giving them two possible drivers at the time of the alleged offence that they might do some good old fashioned investigating. The photos I received, do not give clear images, they have only a silhouette with no facial details.

Are they serious, or is this just another bluff to see if I crumble. I will not give a guilty plea until I have clear photo or video evidence to the contrary.

Is there anything I might be able to do, to put them off a summons


AndyPandy
firefly
Hi AndyPandy

QUOTE (AndyPandy)
I will not give a guilty plea until I have clear photo or video evidence to the contrary.


And neither you should.

I re-read your case history and it seems that you have been thorough in your attempt to ascertain the identity of the driver. I would certainly stick to your guns wait for the court summons.

I would not regard the police's letter as B&B as such. Remember that the police cannot interpret law, they only enforce it. So as the law stands at present, you (the registered keeper) have a legal obligation to provide details as to the identity of the driver at the time of the alleged offence. The fact that you have not done so means the police have little option but to remind you of your obligation.

That being said, it is difficult to see how much more you could have done; but ultimately it will be down to the court to satisfy itself of that claim.

If I were you I would stick with it and wait for the summons, which may be inevitable by now.
The Rookie
With FF, the police are obliged, although the CPS may drop on the basis of 'lack of evidence'...

Simon
Lance
I agree with ff that the police can only enforce the law, but let's have a look at the law again.

QUOTE
(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.


Subsection (4), as we all know, clearly says that you, as the registered keepr, have committed NO offence if you don't name a driver because you don't know and cannot establish who it was. Surely any action against you would therefore be

(a) a waste of the court's time and
(b) malicious prosecution.

If you weren't the RK, then it looks as though subsection (4) does not come into play, as subsection (4) only refers to paragraph (a) of subsection (2). It looks to me as though the issue there would be the actual wording of subsection (2) para (b) that mentions "information which is in his power to give". If you don't know who was driving, then you don't have much info in your power, though to fully discharge your legal obligation it might be argued that you should provide a list of all the drivers who you thought could have been driving to enable further enquires to be made that "may lead to the identity of the driver".

If I am right about this last point, it doesn't seem to require as much diligence by the "any other person" of para (b) as the RK in para (a). I suppose this makes sense if you reckon that the RK should make some enquires to find out who was driving at the date and time in question, but any other person should ony be required to say what they know. An RK would thus have more obligation than a witness, including a non-RK driver. This could be important if you were defending a S172 charge and you weren't the RK as it would surely have to be proved that you knew, not that you could have found out.

And the plot thickens further when you realise that the burden of proof is the wrong way round in subsection (4), as you have to show that you did not know and could not find out - you are guilty unless you can show that you are innocent!! But there is no such stipulation if you are not the RK, so I assume that the burden of proof would be the right way round i.e. you are innocent unless it can be shown that you knew.

This suggests that it is much easier to defend a S172 if you are not the RK.

I've only just worked this out, so let's hear some more opinions!
andypandy
Hi guys

Thanks for your replies. It gives me confidence to keep up the fight.

A point which didnt dawn on me until now, was with the wording on the NIP and place of the alleged offence. It say that the offence at location ***** ST between junction A and junction B. Between points A and B there is a change in the speed limit.

Would it be worth while to get the police to say precisely where the alleged offence took place or should I keep quiet on this point.

AndyPandy
The Rookie
I don't believe that is the case, they have to show that you have NOT used due dilligence (not looking at the pictures could be argued to not be showing due diligence!), but we know the Scameraship will try and B&B everyone. Its not a matter for the police to decide if you have shown due dilligence as that is a subjective not objective situation, but for the courts, however the CPS will use their normal guidelines to determine whether or not it is worth taking to court or not.

Simon
jeffreyarcher
QUOTE (andypandy)
It say that the offence at location ***** ST between junction A and junction B.  Between points A and B there is a change in the speed limit.


-------------------------------------------------------------------------------------
Young v Day (DC) Divisional Court c.1959

(1959) 123 J.P. 317

Summary: The Divisional Court refused to set aside a decision by the justices that a notice of intended prosecution under the Road Traffic Act 1930 s. 21 was insufficiently particular where it stated the place of the offence of dangerous driving as "the Hothfield to Bethersden Road," which was a minor road four miles long. (Pope v. Clarke [1953] 1 W.L.R. 1060 followed).

------------------------------------------------------------------------------------

Pope v Clarke, (DC) Divisional Court, c.1953

Abstract: There is a distinction between the construction to be placed on a statute where the provisions are mandatory and where they are merely directory; thus, the object of the Road Traffic Act 1930 s. 21 which requires a notice of intended prosecution to be served on the defendant, is to bring to the defendant's mind while events are still fresh in his memory the fact that he is going to be prosecuted, so that inaccuracies in the notice served are immaterial if they are not such as to mislead the defendant. A notice of intended prosecution was sent to the defendant under the Road Traffic Act 1930 s. 21 in which the time of the alleged offence with which the defendant was going to be charged was incorrectly stated. The justices considered that this mistake invalidated the notice and dismissed the charge.
Summary: Held, there was no evidence that the defendant was misled; accordingly, the justices must proceed to hear the case. (Venn v Morgan [1949] 2 All E.R. 562 applied; and dicta of Lord Coleridge C.J. in Woodward v Sarsons (1875) L.R. 10 C.P. 733, 746 applied).

------------------------------------------------------------------------------------

So, the point being that in imprecise NIP in itself does not make it invalid; the accused has to be misled.
I would say that you have been misled as the speed limit changes between the junctions.
That said, if there is more than 4 miles between the junctions, it appears that Young v Day has already decided that that is sufficient to mislead, whether or not the limit changed.

QUOTE (andypandy)
Would it be worth while to get the police to say precisely where the alleged offence took place or should I keep quiet on this point.

It's irrelevent for the purposes of determining the driver; you can't change drivers between junctions on a motorway.
So to use this defence, you'll have to name a driver and that person can use it as a defence to the speeding charge. I wouldn't warn them before court, there's lots of case law on the subject and they may find a counter if you forewarn them.
andypandy
Hi Jeffreyarcher


Lets see if i get this right

Assuming that it goes to court and, and lets say for arguments sake, I have to admit to being the driver due to evidence being produced which does clearly indicate it was me. Where can I go to find case law which would help in the defence as to being mis-lead on the nip.

Note From junction A to junction B, is about 1/2 to 3/4 mile long and the last 1/4 is the increased speed limit
firefly
Hi all,

QUOTE (Lance)
If you weren't the RK, then it looks as though subsection (4) does not come into play, as subsection (4) only refers to paragraph (a) of subsection (2)


Not the case I am afraid. Look again at the wording of subsection 2(a) and it states clearly : "the person keeping the vehicle" . The keeper in this instance is not necessarily the registered keeper. All the designation "keeper" means is the person in charge of the vehicle. If the logic you are applying is to be believed then all other drivers of a vehicle except the registered keepers only have to comply with subsection 2(B) which states : "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". This effectively removes the paragraph 4 requirement from all non-registered keepers! If only!

Example : Man goes out to work and leaves his wife the car keys. Wife breaks speed limit and is flashed by GATSO. Man (who happens to be the registered keeper) returns from work 10 days later to find an NIP addressed to him. Returns the NIP with his wife's details on it as he knows it could not possibly have been him. Wife receives new NIP with her details on it. Wife says "no problem, I aint the registerd keeper so I shall provide any information which it is in my power to give and may lead to identification of the driver. as per subsection 2(B)."

Unfortunately this is not the case. As the recognised person in charge on that day, the wife effectively is the "keeper" and is legally bound by subsections 2 and 4.
The Rookie
With FF on this one, para 4 can be used by anyone, it is a rare piece of common sense in the madness that is currently our motoring legislation, and has been used by (among others) Hampshire police when one of their CID cars got photo'd, they could trace who was the keeper at the time, but he couldn't have been driving (he was in court, so the witnesses were pretty uninpeachable!), and no-one owned up, the fact that they had NO PAPERWORK at all at the time was seen as pretty poor, when all companies are now required to have a logbook system for 'communal' cars to try and track accountability in order to show due dilligence

Simon
cjm99
Surely, you must be wrong here.

If the the keeper on that day logic were good, then the CPS would need to evidence that the recipient of the NIP (not the reg. keeper) actually was the keeper on that day.. If a spouse fingerd thier other half, not signed . Then end of case!!!

But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????
firefly
Hi cjm99,

QUOTE (cjm99)
If the the keeper on that day logic were good, then the CPS would need to evidence that the recipient of the NIP (not the reg. keeper) actually was the keeper on that day

Indeed you are correct. The evidence you refer to is the husband nominating his wife.

QUOTE (cjm99)
If a spouse fingerd thier other half, not signed . Then end of case!!!

Not quite that straightforward. There is no reason for a spouse NOT to sign an NIP nominating their partner. What is to be gained? Nominating someone does not mean they are automatically guilty, rather it absolves the registered keeper from blame if he was not the driver on that day.

If a registered keeper knows that only he and his wife have access to the car and he shows that IT COULD NOT POSSIBLY BE HIM that drove on that day then it leaves only one option of nominating his wife. I doubt an unsigned NIP nominating your partner would make much difference to the Scameraship. They would issue the new NIP to the nominee regardless I am sure.

If the scameraship did get picky and returned the NIP saying "you have not signed this" then that leaves the registered keeper (in theory) open to prosecution on "failing to provide".

QUOTE (cjm99)
But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????

So do you believe that paragraph 4 only applies to registered keepers? I am interested to know how you came to this conclusion.
cjm99
Firefly.

I will answer your second question later . No time now


But, My wife did ID me , and unsigned. Scam office's seem to ignore this. and by the time everybody has delayed etc... They go out of time on the s172 to the Reg. Keeper. I am really tempted to press the CPS to evidence that I was the "keeper on the day"..

Chris
jeffreyarcher
Sorry, andypandy, I misread your original post. I mistakenly thought that you were being prosecuted for speeding, not S172.
I don't hink Young v Day is of any help.
Even if it was speeding, it probably still wouldn't because the junctions are so close.
Lance
ff et al,
Interesting points raised!

Surely there are circumstances where the driver of a car is not the keeper at the time? What if both partners are at home for the day and the non-RK nips down to the shops for 20 mins? Does that make the non-RK the keeper for those 20 mins? Surely not!
What if they are both in the car, with non-RK driving?

My understanding was that if the RK carries out his subsection (2) para (a) obligations by fingering somebody else, then another NIP will be sent out to the fingered person who then has subsection (2) para (b) obligations.

I think that the legislation has been deliberately drafted to put extra obligation on the RK, who may or may not have been in the car at the time of an alleged offence. In effect, he has to do the police detective work to find out who the driver is, and furnish the police with that info. But anyone else is only required to give information in their power. I don't like it, but I can see the logic.

Otherwise the RK could always say, "I don't know who was driving", and that would be that, unless the police have any other evidence. Which is as it ought to be - innocent unless proven guilty, without the use of self-incrimination under coercion. But Section 172 is designed to take away this fundamental right that we've had in this country for hundreds if not thousands of years, which is what I hate most about this sort of law. This right is also enshrined in the American Constitution - pleading the 5th Amendment) - and the European Human Rights law. This country is turning more and more into a police state. There are already considerable powers to lock up people without trial, which the government wants to extend, again taking away a fundamental right that was recognised in the reign of King John etc. etc.

Anyway, rant over, where was I? Ah, yes:

In any case, the thrust of my argument is not so much that if the driver was not the keeper that he cannot use the subsection (4) defence, but that he doesn't need it as there is a separate defence implicit in subsection (2) para (b) i.e. that the information is not "in his power". This should be easier than the subsection (4) defence where you would have to show that not only was the info not in your power, but you'd also gone through the motions of the detective work mentioned above to try to establish the identity of the driver with due diligence.

In order to secure a conviction under subsection (2) para (b), the CPS would surely need to show that the information was in your power, but that you didn't give it. If you'd been fingered already by the RK, then presumably this evidence would be introduced to show that the info was in your power.

Questions arising: if this last idea is right, could the court accept a completed NIP from the RK on its own to show that you had knowledge? If not, then presumably they would have to get the RK to act as a witness for the prosecution. But what if the RK was your spouse? We get into this situation again of wondering whether a spouse can be forced to testify against you. And what about a partner? Is there such a thing as a common-law spouse for this purpose? In any case, unless the RK was actually at the scene at the time of the alleged offence, can their evidence prove that you had the information beyond reasonable doubt?



To conclude, here's what I think the CPS would need to do to get a conviction under subsection (2) para (b):

1. They would need to show that they had reasonable grounds for suspecting that an offence had occured.
In the case of Gatsos that surely means doing the secondary time/distance calculation check as well as looking at the speed indicated by the radar gun - which can give a false reading. They need to do everything that the type approval for the device requires, otherwise they are surely sending out NIPs recklessly. If there is something obviously wrong e.g. your vehicle only moved 6 inches between two Gatso photos 0.5 seconds apart and 80 mph is indicated on the first frame, then I would suggest that there are not reasonable grounds for suspecting an offence has occurred, and therefore there are no Section 172 obligations arising.

2. They would need to demonstrate beyond reasonable doubt that the accused had the information in his power.
As discussed above, I'd be interested to know what level of proof would be acceptable for this.
- A signed statement from the RK? Surely not...?
- An unsigned form from the accused? Surely not again, if the CPS are saying that it does not meet the S172 requirements. (A nice Catch 22?)
- A witness appearance by the RK who was not at the scene? Maybe. Might depend on whether anyone else could have had access to the car.
- A witness appearance by somebody who was at the scene? I should think so.

3. They would need to show that the info had not been provided.


What do you reckon?

Lance
firefly
Hi cjm99,

I assume that you are following the logic of subsection 4 making reference to subsection 2?

That is.....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. whereby section 2(a) states.....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


I draw your attention to the postings I made above as to why paragraph 4 applies to the recipient of the NIP and not the registered keeper.

QUOTE (cjm99)
But . If you are correct, then there would be no need for the legislation to discriminate between Reg. Keeper and any other person. As this could never apply????


I believe you are drawing reference to subsection 2(B) which states....(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.

"Any other person" is a more generic term which could, by definition, be any person that could identify the driver. ie. a passenger on the day.
firefly
Hi Lance,

I believe you may have grasped the wrong end of the stick.

QUOTE (Lance)
Surely there are circumstances where the driver of a car is not the keeper at the time?


As far as the scameraship are concerned, the original NIP is sent out in the first instance to the registered keeper. As I have stated previously, if the registered keeper knows with certainty that it was his wife who had charge of the vehicle on the day of the alleged offence and was the only person insured to drive it, then, after discussing the situation with her, he would have little option but to nominate her as having custody of the vehicle.

This is when the registered keeper ceases to be the keeper (as defined in subsection 2(a)) of the vehicle and that title passes to his wife who has been nominated by her husband. Again, as I stated, this is not a declaration of guilt towards his wife. She now has the chance to demonstrate that it may not necessarily have been her that was driving. ie. Exercise her subsection 4 right.

It is possible that the RK's wife (without the RK's knowledge) may have let her sister (or whoever else) drive providing they had appropriate insurance. Again, this is when the RK's wife will have the chance to exercise her subsection 4 right.

As I have maintained throughout, subsection 4 applies to all people (be they registered keepers or otherwise) who have been legitimately named or identified as having custody of the vehicle at a particular time and has subsequently received their NIP.
cjm99
Firefly

sec172 para 1. says :- must be allegedly guilty of a moving road traffic offence. AND have been notified of intention to prosecute. I know I have not used the actual text.


SO. A passenger, as you earlier suggest could not qualify for the above.. Indeed nobody possibly could be "any other person". And the additional legislation in this regard is therefore superfluous. As they would in your view, be either the registered keeper or a temporary keeper :?

Chris
firefly
Hi cjm99

Let us break down the specific legislation :

[quote=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[/quote]

Tell me why the legislation makes reference to "the person keeping the vehicle" and not "the registered keeper". This is because the two are not one in the same. If you look around this site you will find plenty of examples of people who have received NIPs and have subsequently named their spouses who duly receive their NIPs. Once they are in receipt of these NIPs then they are bound by all of the rules that their spouses were before they were nominated. ie subsections 2 and 4.

B)+-->
QUOTE(subsection 2(B))
(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.[/quote]
My reading of this piece of legislation is that it enables the "keeper" of the vehicle to use information from "any other person" in order to identify the driver and, in my opionion, is not for "any other person who is not the registered keeper".

I know where you are coming from when you say that subsection 4 does not apply to anyone but the registered keeper, but I believe that you have arrived at this conclusion because you are of the opinion that "the keeper" mentioned in the legislation is "the registered keeper", which is not the case.
The Rookie
With FF, it says Keeper, not RK, the very fact that the RK and owner can be different implies to me that the Keeper is anyone who has 'posession' of the vehicle at the relevant time in the same way the the RK is assumed to be the keeper with the first NIP, and thus p4 applies.

Simon
Lance
QUOTE
Tell me why the legislation makes reference to "the person keeping the vehicle" and not "the registered keeper".


Perhaps it is to put the onus on the actual keeper, even if the register has not been updated. E.g. Your grandmother ceases driving through ill-health, and you start using her car instead of replacing your own. A reasonable judgement would be that you were now the keeper of the car, not your aged relative. Thus you would have the higher burden of subsection (2) para (a), relieved only by subsection (4). If you named a friend, who used the car perhaps briefly for an errand, then he would have to comply with para (b), which has a lesser burden and doesn't need the subsection (4) defence as ignorance is acceptable under para (b).

I've been looking for a definition for keeper in the law, but could only find "the person who keeps the vehicle". I don't think that it changes with every driver though. For a start, isn't there a requirement to keep the register up to date? You'd have to contact the DVLA each time you changed drivers!

We need an expert to say whether ff is right!!

Lance
firefly
Hi Lance,

QUOTE (Lance)
E.g. Your grandmother ceases driving through ill-health, and you start using her car instead of replacing your own. A reasonable judgement would be that you were now the keeper of the car, not your aged relative.

I could not agree more, although the burden of responsibilty to prove you are the keeper (or driver) would still fall to the registered keeper, in your case, your grandmother. Until she nominates you as the driver (or keeper), she is bound by subsections 2 and 4.

Once she nominates you as the driver (or keeper), she is then absolved from blame as a new NIP is sent out to your good self. Until she does this, the burden is on her as the registered keeper to "provide such information as to the identity of the driver". The Scameraship don't know that she was not driving and that you were the keeper on that day. They rely on the registered keeper telling them this. In this case, your granny singles you out and your receive the NIP. And as I have stated, you then become bound by both subsections 2 and 4.
cjm99
OK.. Granny sends back NIP unsigned. You get NIP. You send back unsigned. Six months pass, due to fairly normal delays.. Granny now off the hook for a s172.

How does the prosecution evidence that you were the keeper on the day??. They do not have a 'statement of witness' from Granny do they??

Equally the same scenario with spouse, and even the option for CPS to call spouse as a witness dissapears. This is increadably close to my situation.

Chris
firefly
Hi Chris

QUOTE (cjm99)
How does the prosecution evidence that you were the keeper on the day??. They do not have a 'statement of witness' from Granny do they??


They do have evidence to say you were the keeper that day because granny's returned NIP fingers you. If the Scameraship were unhappy with the fact it was unsigned they would have sent her a letter to that effect asking her to sign it.

The fact that they issued the NIP signals they are happy that the information provided is satisfactory. The burden of responsibility now falls onto you as the nominee. You will have to argue in court that there is no witness statement to say you were the keeper. I think you are on a hiding to nothing with that one though.

Broomfield anyone........???
Lance
ff,
The difference between our understandings seems to be this:

You believe that: [list]The RK is bound by subsection (2) para (a)
Anyone who the RK nominates then becomes the keeper.
The keeper then is also bound be subsection (2) para (a).[list]
I believe that: [list]The keeper is bound by subsection (2) para (a).
Subsection (4) ONLY applies to subsection (2) para (a).
Anyone else nominated is bound by subsection (2) para (b).
Subsection (2) para (b) has an easier "info not in my power" defence.[list]
If the RK is not in fact the keeper, then I would suggest that they are not bound by subsection (2) para (a), though they may have to demonstrate that they are not to get the police to leave them alone. In fact, isn't there usually a place on the form to put "I was not the keeper" and nominate a new keeper? All this means is that the name on the keeper is out of date, which is potentially a different offence.

I do not believe that if you and I went on a trip in my car, and I let you take the wheel, then you would become the keeper of my car!

But I'd be the first to admit I'm no expert, so I'd love to see a professional view.


On the matter of whether Granny's NIP naming you is enough to give evidence that you had knowledge, I'm sure that I saw somewhere (JJ?) that the NIP nominating someone else was not suitable as a witness statement. It's not designed to be a witness statement, it's designed to be info for the police to follow up their normal enquiries. I shouldn't think that it is important whether it is signed or not. They would need a separate witness statement, and if Granny was not at the scene, how could she provide this?

This is quite different from a signed form nominating yourself. That is a confession that you were driving at the time - in effect you are acting as the witness at the scene against yourself, as a result of very nasty law.
firefly
QUOTE (Lance)
ff,
The difference between our understandings seems to be this:

You believe that: The RK is bound by subsection (2) para (a)
Anyone who the RK nominates then becomes the keeper.
The keeper then is also bound be subsection (2) para (a).


Correct

QUOTE (Lance)
I believe that:  
The keeper is bound by subsection (2) para (a).  
Subsection (4) ONLY applies to subsection (2) para (a).  
Anyone else nominated is bound by subsection (2) para (B).  
Subsection (2) para (B) has an easier "info not in my power" defence.


I believe you are incorrect for reasons I have already outlined. Quite why a non-registered keeper driver should have any less responsibility with regards to section 172 is beyond me. It makes absolutely no sense for someone to have the far easier option of only having to provide "information in his power to give", if he is guilty of the same offence as the registered keeper.
Lance
ff,
I didn't say that the law was sensible! I just said that, in my opinion, that is what the law seems to say.

I think that the law puts extra obligations on the keeper to give the police a starting point for their enquiries. The keeper may have nothing to do with the offence and may know nothing, so without any obligation on him to make investigations to find out who the driver is, the system would be dead in the water. Once the police have that starting point, there is no additional responsibility on anyone else to say anything more than they know. They are not required to make any investigations. And why would they need to, if the keeper has discharged his job? It becomes a simple question to the nominated person as to whether he was driving or not. Hence 2(b) and not (a).

If we can't persuade each other then it's really useful that we have had this debate to distil the different points of view so that we can pose a coherent question to a professional. After all, we are on the same side, aren't we? Perhaps we could ask Mika to take this on when he gets back?

Lance
cjm99
FF

There are times, when a non registered keeper is the keeper
EG. when you take out a lease/hire of a vehicle, you sign to accept responsibility as a temorary keeper..

Earlier, you said you believed that the 'any other person' applied to a reg keeper obtaining info from other eg other potential drivers.. But this can not be the case.. As rk you can not invoke s172 and ask the CPS to prosecute..

I really don't think you can find a logical plausible example of 'any other person' other than everybody other than the reg.keeper qualifying

Chris
cjm99
FF
Just have a read at this post under 'speeding' heading


Section 172....Non speeding offences

This is a company car driver, case dropped because of lack of evidence. His company returned NIP unsigned, Plod tried to get it signed very late . approx 7 months

The CPS in this case seem to agree with my interpretation??

What do you think?
jeffreyarcher
QUOTE (cjm99)
What do you think?

There were three things wrong with that case, none of which was your point.
1) The original NIP was out of time (assuming that the company was the keeper).
2) The summons was out of time.
3) There was no evidence, Banger appears not to have had his own form; he appears to have filled in the company's one, as a director of the company.
firefly
I think we will just have to differ on this chaps. rolleyes.gif

I shall make a phone call to a "friend" in the business to get his slant on it.

Watch this space.
Observer
FWIW, I agree with Lance and think FF's interpretation is wrong. I seem to remember reading somewhere (in statute) that the "person keeping the vehicle" means the "registered keeper" but I can't find the reference now so may be mistaken. However, there is some (circumstantial) evidence supporting this contention to be found in the wording of the summons on s.172 charges. Where the accused is not the RK, this (in cases I have seen) states "failed to give information it was in his power to give" or sometimes "person other than keeper failed to provide information". This indicates that the authorities issuing the summons (police) do draw the line between ss.2(a) and 2(B) at the registered keeper. In any event, I think it is for practical purposes impossible to argue that the "keeper" can be different persons on different days (or even at different times).

The question to be answered is:

is the obligation on the keeper (registered or otherwise) in ss.2(a) more onerous than that on "any other person" in 2(B)?

It seems clear that the draftsman must have intended there should be a different obligation otherwise reference to "any other person" could have been included in ss.2(a). I think Lance's explanation is persuasive. The RK is obliged (impliedly) to make enquiries (in order to kickstart the investigative chain) whilst others are obliged to give information "which it is in their power to give" (whatever that means).

The perverse effect of the distinction is that the law will have a different effect on people whose circumstances are, in substance, identical. For example, employee A who has a compamy car which only he and his spouse/partner drives is, in substance, in an identical position to employee B who owns the car which only he and his spouse/partner drives. But the law treats them differently.

I'm not sure whether the law, in application, will treat the RK and others differently. Even if (and I'm not sure how easy it is to argue the point)there is a lesser obligation on "any other person", if I was in the position of defending a s.172 charge where I couldn't identify the driver, I would prefer to have the ss.4 defence available than defend solely on the grounds "it was not in my power".
firefly
Hi all,

QUOTE (Observer)
However, there is some (circumstantial) evidence supporting this contention to be found in the wording of the summons on s.172 charges. Where the accused is not the RK, this (in cases I have seen) states "failed to give information it was in his power to give" or sometimes "person other than keeper failed to provide information"

I have never seen a s172 summons so will have to accept that interpretation. By the same token, I should very much like to see a s172 summons for a registered keeper to see exactly what the wording of the charge is.

If it follows the lines of "....failed to give such information as to the identity of the driver as was required to give..." (as per subsection 2a) then I shall doff my cap and accept the reasoning of all who disagreed with me icon_wink.gif .

I am not so sure however.....I am not at all convinced that the s172 summons wording is not just plucked out of legislation. By that I mean if a section 172 summons turned up at a registered keeper's address and said "...failed to give information that was in his power to give..." (as per subsection 2b). The two are remarkably similar and it would not surprise me in the least if the two had ever been used for either interpretation.

The question must be asked why there should be any difference in application to identical offences. This is what makes no sense. I don't know if I buy into the idea of the RK giving information so as to "kick start" the investigation chain. Investigation chain? Scameraships? If we have learned one thing it is that (as far as the scameraships are concerned) they are not interested in an investigation chain. That being said I do see the logic behind the argument in theory, but not in practice.

QUOTE (Observer)
I'm not sure whether the law, in application, will treat the RK and others differently

This is the nub of the argument really. In practical terms I feel a magistrate will be oblivious to the subtle art of road traffic legislation.

QUOTE (Observer)
if I was in the position of defending a s.172 charge where I couldn't identify the driver, I would prefer to have the ss.4 defence available than defend solely on the grounds "it was not in my power".

Could not agree more so why on earth would we have such bizarre legislation that differs on whether or not you were the registered keeper or not. It puts (in theory) the registered keeper at an advantage in court should he have to answer a "failure to provide summons". Wouldn't you agree?

I would like very much to see this confirmed one way or t'other, so if anyone can find the statute that defines what Observer has set out then please post it. Until then I remain sceptical, for the simple reason that it seems like a manifestly unfair and biased piece of legislation.

As a final thought, if subsection 2(B) does apply to all non-registered keeper drivers, where is the get out clause? Subsection 2(a) has a "safety net" for the RK in that ss4 can bail them out. Giving information "that is in your power to give" (as per ss2(B)) is one of the most ambiguous pieces of legislation that I have yet come accross and has no such safety net. Certainly none that I can interpret. You could be as diligent as you like with giving information that is in your power to give and it could matter not a jot. Surely something is amiss here?
firefly
Observer,

The plot thickens somewhat........

Below is a paragraph taken directly from my own NIP from Kent Police :

QUOTE (Kent Police NIP)
IF YOU WERE NOT THE DRIVER :
YOU MUST NOT PASS THIS DOCUMENT TO THE DRIVER TO COMPLETE, WE WILL WRITE TO THEM DIRECT
. YOU ARE REQUIRED TO GIVE ANY INFORMATION IN YOUR POWER WHICH MAY LEAD TO THE IDENTIFICATION OF THE DRIVER BY COMPLETING THE APPROPRIATE PART OF THE STATEMENT ON PAGE 4. RETURN PAGE 4 TO US AT THE ADDRESS BELOW
(Their bold and capitals).

This is at odds with what has been said. As I understand you, the registered keeper (myself), should be legally bound by subsection 2(a) in that "...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...".

It appears that the information I have been asked to provide has it's authority in subsection 2(B), which is now removing my subsection 4 defence, even though I am the registered keeper.

What are we to make of this? Kent Police have the wording of their NIPs wrong? Someone in Kent Police has mis-interpreted the law? Kent Police do not actually care about such things?! rolleyes.gif

The rear of the NIP seems to back this up when it states as option B :

QUOTE (Kent NIP)
If you were NOT the driver of the vehicle at the time of the alleged offence you MUST give any information in your power which may lead to the identification of the driver. FAILURE TO SUPPLY THESE DETAILS MAY RENDER YOU LIABLE TO PROSECUTION. You must give the name and address of the driver of the vehicle by completing and signing part 2 on page 4 and returning it to the Central Ticket Office, using Address B on page1. (Their capitals throughout)


So what information is in my power to give? Who knows? What is for sure is that I will not bother trying to exercise reasonable diligence in finding out as that is not an option that is open to me. icon_eek.gif
cjm99
Hi..

The point I have tried to make, is does the prosecution carry a burden of proof in regard to "in your power to give"

This is an extract from my summons :- "failed to give information which it was in your power to give and which might have led to the identification of the driver of a vehicle, etc.."

Surely to prove this offence, there has to be evidence to support that you did indeed have some knowledge??

Chris
Observer
FF,

I don't think you can or should treat the wording of the NIP/s.172 notice as a definitive statement of law. Whatever is contained in the NIP cannot remove a statutory defence to which you are entitled by law.

The NIP/s.172 notice (TVP) in my wife's case makes alternative requests which correspond exactly with s.172:

"You are the RK and you are required to prode full name and address of the driver..." (this is exactly in accordance with law; the COP is stating the information required).

"OR"

"You have been named as the driver...If this is so you are required to provide your full name and address....If you were not the driver you are required to give any information in your power..."

It is hard to argue that the wording in your NIP changes the validity of the request (whether under ss.2(a) or 2(B). I see no help in defending a s.172 charge on the grounds that you were required to "provide information it was in your power to give" when you should have simply been required to provide "information as to the identity of the driver".

There is some uncertainty as to the meaning of "in [your] power to give". If you have the knowledge, it is clearly in your power to give it. If you do not have the knowledge, are you obliged to make enquiry? As the ss.4 defence appears to be unavailable to a "any other person", it could be argued that there is no obligation to "use reasonable didligence" (i.e. make enquiry). On the other hand, if it is "within your power" to make enquiry and, as a result of such enquiry, provide information which "may lead to identification of the driver", perhaps there is an obligation to do so.
firefly
Observer,

QUOTE (Observer)
Whatever is contained in the NIP cannot remove a statutory defence to which you are entitled by law

No problem with that.

QUOTE (Observer)
I see no help in defending a s.172 charge on the grounds that you were required to "provide information it was in your power to give" when you should have simply been required to provide "information as to the identity of the driver".

Someone somewhere dreamed up this ambiguous legislation for a reason. And whilst it cannot be argued that the two (ss 2(a) & (B)) ask for largely the same thing, there is enough of a difference between them to warrant separate legislation. So perhaps in theory you could defend a s172 charge on those grounds. I am not even going to speculate as to what those grounds may be.

Quite why subsection 4 omits subsection 2(B) is, in my opinion, a bit odd to say the least.
Observer
QUOTE (firefly)
Quite why subsection 4 omits subsection 2(B) is, in my opinion, a bit odd to say the least.


Agreed. The only explanation I can offer, for now, is that ss.2(B) does not constitute an obligation to make enquiry so the defence of "reasonable diligence" (which implies enquiry) is unnecessary.

But, as noted previously, a "any other person" could be, substantially, in identical circumstances as a RK. That's the law for you. It's sometimes (often) irrational and has unintended consequences.
r11co
Part of the reason I was worried about passing on my own 'unsure of driver' situation (see http://forums.pepipoo.com/index.php?showtopic=927) was the loss of the defence (or at least a change in how it worked).

So I or someone I know may be in a position to test this in the not too distant future!!

rolleyes.gif
Lance
The reason I think that subsection 4 omits subsection 2(b) is because paras (a) and (b) are different.

Para (a) says that the keeper must name the driver. It is an absolute requirement. Without section 4, if he didn't know and couldn't find out and give a name he would be commiting an offence. He would be damned if he did, and damned if he didn't.

Para (b) just requires any other person to give information in his power. If you don't don't have any information in your power, and you don't give a name, you would not therefore be commiting an offence. So you don't need any other subsections to give you a get-out-of-jail-free card.

If para (a) said that the keeper must name the driver if the information is in his power or he can find out with due diligence who it is (obviously worded a bit better!) then subsection 4 would not be required.

In summary, para (a) implies that the keeper would automatically commit an offence if he did not name the driver, but para (b) does not imply that any other person would commit an offence by not naming the driver. That is why sbusection 4 only needs to apply to para (a).

So subsection (2) para (a) and subsection (4) together define the obligations of the keeper.
Subsection (2) para (b) alone defines the obligations of any other person.
Thus it can be seen that the obligations on the keeper are much more onerus, and therefore harder to defend.

I think that the obligations on the keeper have been split between subsection (2) para (a) and subsection (4) to make (2)(a) shorter and more scary. "You SHALL comply!" instead of "You shall comply unless you can come up with an excuse".
firefly
Hi Lance,

QUOTE (Lance)
Para (a) says that the keeper must name the driver. It is an absolute requirement. Without section 4, if he didn't know and couldn't find out and give a name he would be commiting an offence. He would be damned if he did, and damned if he didn't.  

Para (B) just requires any other person to give information in his power. If you don't don't have any information in your power, and you don't give a name, you would not therefore be commiting an offence. So you don't need any other subsections to give you a get-out-of-jail-free card.


But the difference here is that in para (B), any other person does not necessarily know if they have complied with the law or not. What is in his power to give? How can he be sure if he has supplied all the information as may lead to the identity of the driver? At least a RK has the luxury of reasonable diligence. Any other person does not have that luxury. They have an ambiguous piece of legislation. As Observer states....
QUOTE (Observer)
if I was in the position of defending a s.172 charge where I couldn't identify the driver, I would prefer to have the ss.4 defence available than defend solely on the grounds "it was not in my power".


QUOTE (Lance)
I think that the obligations on the keeper have been split between subsection (2) para (a) and subsection (4) to make (2)(a) shorter and more scary. "You SHALL comply!" instead of "You shall comply unless you can come up with an excuse".

Interesting theory! What you are inferring is that a law was drafted in such a way so as the Police (or whoever) could selectively dip into it and use it as a scare tactic, "...you are legally obliged to provide us the identity of the driver as per section 172, subsection 2(a) or you will be charged on failure to provide..." or such similar approach, without mentioning subsection 4.
Lance
ff,
QUOTE
But the difference here is that in para (b), any other person does not necessarily know if they have complied with the law or not. What is in his power to give? How can he be sure if he has supplied all the information as may lead to the identity of the driver?


I had wondered about this too. I think that supplying a name and address should do it, but obviously you might know other things like, "the driver's hair was brown". Perhaps it's designed that way so that if you really didn't know the driver's name, but you were at the scene and did witness the incident, you might be compelled to give as much of a description of the person as possible.

But I don't see the reasonable diligence defence as a "luxury". To get a successful defence you have to show that you have been diligent. The court may decide that you haven't done enough investigation to qualify for the subsection (4) defence of 2(a).

Whereas a conviction on 2(b) surely relies on the prosecution proving that you knew something that you did not mention - much harder for them. To defend myself I don't have to show any diligence. Of course, I could mention investigative work that I have made to try to demonstrate that I have gone beyond the statutory requirement and tried to find out who the driver was, to no avail, and that may strengthen my case that the info was not and is not in my power, but I don't have to do this to get off, and the court could not decide that my efforts had been inadequate, as in the subsection (4) defence to (2)(a).


Yes, I agree it means that (2)(a) can be used as a scare tactic. I think of (2)(a) as being the eyecatching headline - "YOU MUST PROVIDE" with a footnote that says, "er, actually there may be circumstances where you don't have to." I don't suggest that was the only reason why it was drafted like that though.
cjm99
but you were at the scene and did witness the incident, you might be compelled to give as much of a description of the person as possible.
QUOTE
No, Sec 172 para 1 lists moving road traffic offences AND state tha you must have been NOTIFIED etc of intention to prosecute YOU.

As a witness or pasenger, you could not possibly qualify for use of a sec 172 prosecution

Chris
firefly
Hi Lance,

QUOTE (Lance)
I think that supplying a name and address should do it

Would you go to court and defend a s172 "failure to provide" charge on the strength of this? I know I wouldn't. icon_eek.gif

Subsection 4 may not be a "luxury" exactly, but it is certainly a comfort. I suggest that diligence can be demonstrated by (i)discussing the situation with other drivers, (ii)viewing photographic evidence and (iii)asking for a map reference of the camera in order to re-trace your steps. I did all these things and still the ticket office hounded me for the driver details.

But......I will now go to court safe (!) in the knowledge that I have exhausted all avenues of enquiry and have been, without question, diligent.

Imagine being asked (under subsection 2(B)) to give information in your power to give as may lead to the identity of the driver, and you supply a name and address. I really don't know if I could go to court and defend myself with this alone, despite having no legal obligation (or so we believe) to make enquiries. Do you think a magistrate will make the distinction between subsections 2a & b? I very much have my doubts.......
Odd Job
Perhaps the following will help to settle the arguement. This is the wording on a summons for a s172 from another thread


QUOTE
Alleged Offence:
[number] PERSON OTHER THAN KEEPER FAIL GIVE DRIVER IDENTITY
On 08.11.2003 at THE CITY OF MANCHESTER , having been required by or on behalf of the Chief Officer of Police for GREATER MANCHESTER, failed to give information which it was in your power to give and which might have led to the identification of the driver of a vehicle, namely motor vehicle (Car), VAUXHALL -------------, who was alleged to have been guilty of an offence Contrary to Section 172(2) and (3) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.



As you can see, the wording at the begining of the summons is very specific as to which section of 172 the accused is being charged with.
firefly
Lance, Observer et al

What are we to make of Lothian and Borders' requirement for any other person they believe may have information to provide it?
Observer
QUOTE (firefly)
Lance, Observer et al

What are we to make of Lothian and Borders' requirement for any other person they believe may have information to provide it?


It's a straight lift from s.172 ss.2(B).
firefly
Hi all,

Am beginning to have doubts that the registered keeper, in his quest to prove reasonable diligence, has to provide the names and addresses of the potential drivers on the day of an alleged offence.

The reading of the legislation appears to say that you are unable to be charged (registered keeper) under subsection 2(a) if you demonstrate reasonable diligence in trying to ascertain the identity of the driver.

The inference of subsection 4 is that you are required to make enquiries. As previously stated, this involves : asking for photographs (or viewing them), speaking to other drivers, back-tracking your movements on a street map etc. The requirement to give such information as to the identity of the driver is, in the first instance, a way of enabling the police to charge an individual. That is, it allows the police (lawfully)(!) to pin the blame on an individual.

Where ambiguity exists as to the identity of the driver, and the RK feels he cannot complete the NIP, subsection 4 comes into play. As we know and have stated, subsection 4 infers enquiry. Does it require you to provide a list of names and addresses of potential drivers?

It looks as though subsection 2(B) however, does make that requirement of you. As Observer has stated :
QUOTE (Observer)
The only explanation I can offer, for now, is that ss.2(B) does not constitute an obligation to make enquiry so the defence of "reasonable diligence" (which implies enquiry) is unnecessary.

It follows that in the absence of an enquiry obligation, the non-registered keeper (who is bound by subsection 2(B)) has to supply information which is in his power to give, ie. names and addresses of potential drivers.

In reality, a magistrate is unlikely to make such a distinction, or even be aware of it.

I promise to shut up over subsections 2(a) & (B) once this is put to bed! rolleyes.gif
Observer
ff,

I think you're trying to construct 'angels on pinheads' arguments which, in a trial situation will be at best ignored as worthlesss or, at worst, regarded as argumentative and will thus be counterproductive.

All of the arguments and explanations I have posted on this subject are directed at the following simple principles:

1. If a s.172 addressee (RK or "any other person") is genuinely unsure who was driving, he has or should have a good defence (under ss.4 or otherwise) if he can show he used reasonable diligence to establish the identity of the driver. That is a subjective test so it is impossible to define precisely what it means. People have to decide for themselves on the basis of the facts and circumstances of the individual case.

2. If a s.172 addressee does know, with reasonable certainty, who was driving, it is, imo, unwise to purse a ss. 4 or "not within my power" defence because there are many pitfalls and obstacles on the path to success at trial of a s.172 charge.

This view is supported by the recent case reported on unsigned_forms:

QUOTE
Just to let you know that despite a great defence, a brilliant barrister, I lost today in ashford mags. It was basically a 50:50, and they decided (after about 25 minutes deliberation), to find me guilty on the grounds I didn't make enough effort to determine who the driver was…

So… 3points - £500 fine, £150 costs, £500 barristers bill - expensive day out!
and by John Josephs:

QUOTE
Section 4 defence isn't easy to prove especially when the attitude of most police forces is that it is up to the Registered Keeper to know who was driving his car, bus or lorry at any hour of the day or night.

I regret however that in my experience, the vast majority of people who say that they don't know who was driving are lying.  Of course there are exceptions and I have won some but I have found that when I have really pushed them most people are either lying or haven't bothered to check properly.
Lance
I think that some worthwhile issues have come out of the debate, so I don't think that it has to be put to bed!

I agree. Why name anyone for s172(2)(a) unless you can be sure? But I assume you are going to have to show the police or the court what steps you have taken to find out i.e. what the nature of your enquiries have been. Can you do this without naming your suspects? Possibly..?

For s172(2)(b), the problem I have is with the definition of "any information". Are you supposed to volunteer everything you know? Or are you supposed to answer truthfully any questions put to you by the police? A list of possible drivers might be one solution, but is it required?
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