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firefly
Hi all,

Excuse the separate thread, but I think it is important to get this down individually. This is the last I shall post on the Mohindra thread at present. It has already occupied too much of my time!

One or two things have bothered me since first reading the ruling and after careful consideration I have come to (I hope) some final conclusions.

mb1rgw has, I believe, hit the nail on the head in the main Mohindra thread by stating the following :

QUOTE (mb1rgw)
IANAL but IMHO the RK is either the Keeper and is bound by S172.2.a and must show reasonable diligence, or is not the Keeper and is bound by S172.2.b. This means he must inform the police who the Keeper is, as far as he knows, since this is information which is surely in his power - how can the RK not know who has responsibility for the car.


On the face of it, paragraph 11 of the ruling looks like a god-send to all recipients of an NIP.

QUOTE (Mohindra Ruling @ Paragraph 11)
The obvious purpose of the legislation is to discover information about an alleged offending driver. It is plain that until an addressee responds to the requirement to give information, the enquirer cannot know whether the addressee is the keeper or not. The most that may be discovered is the identity of the registered keeper. Section 172 draws a distinction between one who keeps the vehicle and one who is merely the registered keeper (see section 172(10)). One who keeps the vehicle is presumed to know the information required unless he proves otherwise (section 172(4)). One who is merely a registered keeper is not presumed to have such information and the prosecution must prove that the information is in his power to give (see as to the different burdens of proof Blackstone 2004 C2.15).


Easy enough you would think. If you were the RK and received an NIP, it looks like all you have to do is to turn round and say, “I was not driving, and since you cannot assume I am the keeper, all I have to do is to turn round and give you information that is in my power to give and the burden of proof will fall to you.” On reflection, I don’t think this will cut any ice. I shall elaborate.

Information that is in your power to give” would, in my opinion, at least involve writing a letter to the police with a list of possible drivers if you knew one of the supposed drivers happened to be you. If you dispute it was you that was driving, but your letter contains your own name and address as a possible driver then you can no longer rely on subsection 2(B) to bail you out as you have effectively named yourself as the keeper, and as such are now bound by section 2(a)! You see the difficulty? Here is the letter I wrote in the other thread :

QUOTE
Dear Sir/Madam

YOUR REFERENCE NUMBER : xxxxxxxx

Further to the above Notice of Intended Prosecution, I am writing to supply such information as legally required of me by the Road Traffic Act 1991, Section 172, subsection 2(B).

On the date and time stated on the NIP, I cannot state beyond reasonable doubt that I was the driver of vehicle registration xxxx xxx.

Further to the recent high court ruling (Mohindra v DPP : [2004]EWHC 490 (Admin)), the registered keeper of a vehicle is required to "give any information which it is in his power to give and may lead to identification of the driver." Sadly, I am not in a position to give the driver's identity and by giving a list of the potential drivers below, I have given you all the information which is in my power to give.

(Name and address of driver 1 (yourself))
(Name and address of driver 2) etc

I have kept the NIP you issued to me as I am not in a position to identify the driver, and look forward to your prompt reply on how best to proceed.

Yours etc.


How can a RK rely on subsection 2(B) when he has named himself as a possible driver? If he does name himself as a possible driver and is shown to be the RK, then how on earth could he claim he was not the “keeper”? I don’t think he can. By naming himself in this instance he, in my opinion, has almost certainly branded himself the “keeper”. Subsection 2(B) is no longer an option.

This letter would only work for the RK if he did not name himself on the NIP, and instead nominated two or more other drivers than himself. This is where I (possibly) depart from mb1rgw, and it gets even more complicated.

Upon receipt of an NIP, the RK is required to give the driver’s details if he is sure that it was not him that was driving. An NIP expressly asks for the driver’s identity, not the keeper’s. This is where the Mohindra ruling creates a huge problem for the police and CPS in my opinion, and I don’t think there is an easy fix. As an NIP asks the RK directly for a driver’s identity, it follows that the RK has to provide “information that is in his power to give” as per subsection 2(B). At this point the RK is not the keeper, as the enquirer (the police) have had no information back to state as much. Unless the RK nominates himself as a potential driver, then he shall not be considered the keeper.

QUOTE
Dear Sir/Madam

YOUR REFERENCE NUMBER : xxxxxxxx

Further to the above Notice of Intended Prosecution, I am writing to supply such information as legally required of me by the Road Traffic Act 1991, Section 172, subsection 2(B).

On the date and time stated on the NIP, I cannot state beyond reasonable doubt who was the driver of vehicle registration xxxx xxx.

Further to the recent high court ruling (Mohindra v DPP : [2004]EWHC 490 (Admin)), the registered keeper of a vehicle is required to "give any information which it is in his power to give and may lead to identification of the driver." Sadly, I am not in a position to give the driver's identity and by giving a list of the potential drivers below, I have given you all the information which is in my power to give.

(Your wife’s name and address)
(Your daughter/son’s name and address) etc

I have kept the NIP you issued to me as I am not in a position to identify the driver, and look forward to your prompt reply on how best to proceed.

Yours etc.


I believe that this letter may be a perfectly acceptable method of discharging your s172 obligation as you are giving the police information that is in your power to give, as the issue of who the “keeper” is has not arisen. This is the problem (as I see it) for the police and the CPS. The NIP has specifically asked the RK to provide the driver’s identity, not the keeper’s identity. Mohindra has opened Pandora’s Box by stating the RK is not automatically to be identified as the “keeper”, and as such the RK is, in my opinion, perfectly entitled to answer the NIP under subsection 2(B). That being the case, the police would have little option to write back to the RK and ask who the “keeper” is upon receipt of the above letter. The RK will have substantial difficulty in wriggling out of that obligation I fancy.

So, in summary, I believe that if a RK received an NIP and nominated two or more drivers other than himself, the authorities may have difficulty in convicting him of "failing to provide".

Comments welcome! rolleyes.gif
davleigh
'One who keeps the vehicle is presumed to know the information required unless he proves otherwise (section 172(4)). One who is merely a registered keeper is not presumed to have such information and the prosecution must prove that the information is in his power to give (see as to the different burdens of proof Blackstone 2004 C2.15). '

I have to say that I disagree with you completely. I think that, at last, it is up to the prosecution to prove their case, rather than for the RK to prove his/her innocence. This judgement makes it crystal clear that the mug with his/her name as RK is not necessarily guilty; the burden of proof is on the prosecution. Think about this - if you lend a Sabattier knife to a friend, and he lets someone borrow it from him, and the knife is used in a crime - should you be guilty of that crime?
BristolSteve
If the evidence is weak and doesn't show who is driving. Why not start a "NIP loop" You have alluded to it you your letters. It was the same defence that the Hamilitons used. Each potential drivers names another driver but not themselves.

The downside could be alternative charges which are not speeding related, but they would have to proved.

Steve
Nickolarge
I have allways believed that if the RK names someone else as the driver but can't back it up with any hard evidence then that person should ignore the NIP that gets sent to them. The logic is as follows;
RK's say so is not good enough evidence to proceed against named driver by itself.
If RK waits nearly 28 days to reply named driver gets his NIP at least 5 weeks after alleged offence. I dont think 14 day rule applies but by argueing the reasoning behind the 14 day rule the named driver can deny having any memory of the day in questions events.
If you dont like the idea of ignoring the NIP just write back stating that RK is wrong and you have no knowledge of the incident.
The RK should be safe from prosecution for S172 because he has supplied information that he thinks is correct.
Blackbird
Sorry to take this back to basics, but do we actually have a definition of 'Keeper'?
If I borrow a friends car for a couple of months, I am responsible for the conduct of that vehicle when I drive it and I could be assumed to be the keeper.
If I am feeling lazy and borrow a friends car (with his permission) because I cannot be bothered to walk to the local shops, am I the 'keeper' for those 5 minutes?
What happens if the original friend lets me drive to the local shop and I then lend the vehicle to another friend? Is the second friend now the keeper or am I since the original 'contract' was made between the RK and myself.

My point is what actually makes you the keeper?

Best Regards
Mika
Blackbird,

In my opinion, the person that has the keys in their possession or who is driving, after putting those keys in the ignition, is the ‘keeper’.

However, proving who was the ‘keeper’ on a particular occasion and/or who had it in their power to provide the relevant information may be different story all together. rolleyes.gif
Blackbird
Thanks for that Mika

I certainly agree with your definition, but I felt that devils advocate was needed. A keeper after all could be a non driving relative who just happens to have spare space on their driveway. How would they know who was driving the car if it was continually 'borrowed'?

QUOTE
However, proving who was the ‘keeper’ on a particular occasion and/or who had it in their power to provide the relevant information may be different story all together

The mirror image to the direction from which I was coming biggrin.gif

Just covering all the bases!

Best Regards
Mika
Blackbird,

Taking one more logical step:

What happens in the scenario where there are two individuals who live at the same address; one is the “registered keeper”, but both have access to the vehicle, and each has their own set of keys?

Who is the ‘keeper’ of that vehicle?

Not an unrealistic example I would suggest, we have three such vehicles – all registered to one “careful lady owner” – “I have no idea how she managed to destroy that limited-slip dif your Honour”. icon_eek.gif
dave99
Concise OED...
QUOTE
Keeper
A person who keeps or looks after something or someone

Keep
have continuous charge of; retain possesion of



That can surely only mean the person in charge of the vehicle at the time of the offence which must be either the driver or a passenger? (surely you could argue a passenger is in charge even if they dont drive themselves?)
Nickolarge
You have to look back to whenever this term was first used to identify who was in possesion of a vehicle and find out why. The natural term would be owner or registered owner. The term keeper will have been chosen to get round some legal difficulty way back when. In the same way, the offence of taking and driving away was invented because people who nicked a car to get home claimed they had no intent to permanently deprive and were therefore not guilty of theft. Whenever law makers shy away from the obvious terminology there will be a reason.
golfnut64uk
ok, this is the original scenario biggrin.gif

caught on cam speeding, pics dont identify, its a company car, so nip is addressed to my employers, they pass nip directly on to me, I FILL IT IN WITH MY NAME AND ADDRESS, BUT DONT SIGN IT, BUT I ALSO SEND A SIGNED LETTER ADMITTING I WAS THE DRIVER AND DIDNT SEE THE SIGNS! :? , im then sent another nip directly with my name and address on it, i fill it in and dont sign it. so we go to mags ct, they offer no evidence for speeding and i get convicted of s172 icon_evil.gif . i appeal and go to crown ct, and have got to go back to finish the case soon. it was adjourned because of idris case comng up.

so, when i go back, i was gonna just rely on the jones case and state that the letter should have been enough info for them to convict me for speeding and the s172 charge shouldnt have been brought. smile.gif

but now, im looking to use this mohindra case as well laugh.gif . im wondering if, because my employers (who i think are probably the rk) didnt actually nominate me, (and the law says that you should be nominated by the company secretary), even though i subsequently got another nip in my name, did i have any info to give? or should i have been asked to give any anyway? and because it was me that filled in the first nip, which nominated me as the driver, as it wasnt signed can it be used anyway? rolleyes.gif

its all a bit complicated, but im sure there must be something in there i can use! icon_eek.gif

if the first jones part doesnt work, im gonna claim that i just filled the forms in without any info on wether i actually was the driver on that day, as my employers havent sent me any info to prove who actually was driving the car on that day. icon_wink.gif

any opinions??? biggrin.gif
Mika
Dave,

Perhaps the only time that keeper could be the passenger is in the situation of a dual-control car with a learner at the wheel; but even then, the link is a bit tenuous. How can the person ‘responsible for looking after’ something, be someone other than the person driving?

In my opinion, this is not analogous to the Captain of a vessel but Nicolarge makes a good point, and we should find out where the term keeper came from in the first place. My guess is that the term is just a relic from the days when our carriageways were full of things that required a ‘keeper’ – the horses. rolleyes.gif
Nickolarge
I think it comes from the fact that originally vehicles were just owned and not registered like most things you buy. When laws were introduced to control vehicle use they needed to identify each vehicle and its owner. Then people claimed that owning the vehicle did not prove that it was actually in thier possesion or charge at any given time. The term keeper arose from a need to identify who was responsible for road tax, parking tickets etc. As for a distinction between keeper and registered keeper I dont know if one exsists.
Alexander-TG
Hi all ,

From my experience if the person in court is not the RK and cannot be identified as the driver of the car they cannot prove that you had the power to give the information as to who the driver was. Game set and match to you. laugh.gif

Just make sure that its not your picture in the photo. If it is they have the proof required and game set and match to them. icon_twisted.gif


Alec
DW190
QUOTE (Alexander-TG)
Hi all ,

From my experience if the person in court is not the RK and cannot be identified as the driver of the car they cannot prove that you had the power to give the information as to who the driver was. Game set and match to you. laugh.gif

Just make sure that its not your picture in the photo. If it is they have the proof required and game set and match to them. icon_twisted.gif


Alec

And if the photo identified you as a passenger ?????????????
cjm99
In my limited experience, the summons served on other than the Registered keeper, Seems to always say "person other than keeper ----------- information in his power to give"

It seems to me, that a defendant can only reasonably prepare his defence based on the 'detail' supplied by the CPS, and contained in the summons.

The Honourable Mr. Justice Moses tells us that in this circumstance, the prosecution bare the burden of proof.
If the detail is incorrect on the summons, the defendant can hardly be held to account for this, can he?


Chris
Divbad
QUOTE (Mika)
What happens in the scenario where there are two individuals who live at the same address; one is the “registered keeper”, but both have access to the vehicle, and each has their own set of keys?

Who is the ‘keeper’ of that vehicle?

Not an unrealistic example I would suggest, we have three such vehicles – all registered to one “careful lady owner”


OK - Mohindra now sounds a lot jucier in my situation.

I am RK, my partner is, IMHO, the legal "keeper" 'cos she uses it more than I do and gets "company car" payments from her employer for having it available for her / the company to use 24/7 (and yes, we have insurance for that), but the car was borrowed by a 3rd party who got truvelo'd.

On the day in question, I was RK, she was usual keeper, then I was the keeper for part of the day, then matey was keeper for about an hour and allegedly broke the limit.

I named matey on NiP (unsigned) but, as I am not the keeper and, at the time of the alleged offence, neither was my partner; am I required to say anything more?

Is it worthwhile to respond in terms of s172(2)(B):

"Further to the recent high court ruling (Mohindra v DPP : [2004] EWHC 490 (Admin)), the registered keeper of a vehicle is required to "give any information which it is in his power to give and may lead to identification of the driver."

Sadly, I am not in a position to positively identify the driver and by giving the name of the person I allowed to use the car, I have given you all the information which is in my power to give. It is not beyond the realms of 'reasonable doubt' that the person I lent to the car to subsequently allowed another person to drive it, although I have no information either way on this point."
firefly
QUOTE (Divbad)
I named matey on NiP (unsigned) but, as I am not the keeper and, at the time of the alleged offence, neither was my partner; am I required to say anything more?

Is it worthwhile to respond in terms of s172(2)(B):

I am confused. Firstly, why didn't you sign the NIP when you nominated someone else? There is hee-haw to be gained by not signing the NIP when you nominate someone else. In a recent case on PePiPoo (can't remember who icon_redface.gif ), the magistrates convicted someone for a s172 even though they were nominating someone else on the NIP, but failed to sign it. The Francis case would appear to require a signature on the NIP whatever information you are supplying.

Secondly, why would you want to write a letter now to the scammers after you have nominated someone else?? Surely if you know who was driving then why now try to intervene? Unless of course the police have written back to you saying your un-signed NIP is not good enough?

Which is it?
Divbad
I didn't sign the NiP because I saw no reason to sign it. The CTO have not argued that I should have signed the s172 INFORMATION that I submitted.

I provided the name and address of the driver insofar as I could. I believed the information to be true but CTO tell me the "address doesn't exist".

Why do I want to write to them now? Because they have asked for more information & are threatening court action unless I provide "an address at which (Mr named driver) can be traced or documentary evidence showing him/her to be the driver".

I think I have no further obligation - any advice?
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