Failing to Give the Details of a Driver Following an Alleged Motoring Offence.
If you receive a notice warning you of possible prosecution and asking you to identify the driver of the vehicle involved in an alleged motoring offence, you have an obligation to respond to it. If you do not respond or do not provide the details of the driver, you are potentially guilty of failing to give driver details. Normally the police will send a combined Notice of Intended Prosecution together with a requirement for the recipient to identify the driver of the vehicle involved.
Failing to give driver details (individuals)
The offence carries 6 penalty points or a discretionary disqualification and a financial penalty of up to £1000. This offence occurs if you fail to give details of who was driving the vehicle on the date of the offence within the requisite 28 days time period. The defences are:
- if you did not know and could not with reasonable diligence have ascertained details of the driver or,
- if it was not practicable for you to give the information.
If you are not the keeper of the vehicle, you do not need to show reasonable dilligence. The 'keeper of a vehicle' is not necessarily the same as the registered keeper.
Failing to give driver details (companies)
Companies are usually expected to keep records of who is driving its vehicles. Therefore a company may not necessarily be able to rely on the first defence above unless it can show that it was reasonable for the business not to keep records. Of course a company cannot hold a driving licence so cannot receive penalty points for this offence.
Section 1 of the Road Traffic Offenders Act 1988 requires that for certain offences:
(a) the defendant must have been warned at the time of the possibility of prosecution for the offence; or
(b) the defendant must have been served with the summons within 14 days of the offence; or
(c) notice of the possibility of the prosecution must have been sent by the prosecutor within 14 days of the offence either to the driver or to the registered keeper of the vehicle.
These requirements only apply to certain offences including:
- Dangerous Driving
- Careless Driving (Driving without Due Care and Attention)
- Contravening traffic signals eg. red light offences
A notice is not required for offences of using a mobile phone or handheld device while driving.
The requirements do not apply to all motoring offences. The full list is quite lengthy and contained in Schedule 1 Road Traffic Offenders Act 1988, but the most common allegations are listed above.
A notice does not need to be sent if:
- the driver was warned at the time of the risk of prosecution - this usually means being stopped at the roadside, or;
- if an accident occurred at the time of the offence or immediately thereafter in which the vehicle was somehow involved.
An accident does not necessarily require more than one vehicle, or that the vehicle in question is damaged. The purpose of the requirements is to draw the attention of a potential defendant to the possibility of prosecution. If the events should have been “sufficiently memorable” a notice will not be required. If however the accident was so minor that the driver was unaware, a notice will be required.
Section 1(1A) of the 1988 Offenders Act requires that a notice required by this section may be served upon a person:
(a) by delivering it to him;
(b) by addressing it to him and leaving it at his last known address; or
(c) by sending it by registered post, recorded delivery service or first class post, addressed to him at his last known address.
The Police most commonly send notices by first class post. It is rare for them to use any other method.
There is a presumption of good service where a notice is sent by first class post. However, it is a rebuttable presumption. This means that where a notice has been sent by first class post to the last known address of the person so that it could have been delivered within 14-days of the alleged offence, proper service is deemed to have taken place unless the contrary is proved.
There is a presumption that letters sent by post will be delivered in the “ordinary course of the post”. For first class mail that is the second working day after posting.
This only applies to the first notice sent. As required by Section 1 Road Traffic Offenders Act 1988, this must be to either the registered keeper or the driver.
Therefore, if you have a lease vehicle, the first notice will be sent to the lease company. There is no requirement for subsequent notices to be sent within 14 days.
If this requirement is not fulfilled, there can be no conviction for the offence to which it relates. There are a couple of exceptions, including where the police could not with reasonable dilligence ascertain either the driver’s or the registered keeper’s identity in time for a notice to be served or sent.
It is a legal requirement to name the driver. Section 172(2) of the Road Traffic Act 1988 where the driver of a vehicle is alleged to be guilty of an offence:
- the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give; and
- any other person shall if required as stated above give any information which it is in his power to give and may lead to the identification of the driver.
The offence can only be dealt with in the Magistrates' Court and carries 6 penalty points or a discretionary disqualification. It also carries a fine of up to £1000.
Case law confirms that it does not apply in these circumstances. The European Court of Human Rights considered whether the requirement of a person charged with a speeding offence to make statements which incriminated him, or could lead to his incrimination, was compatible with art.6 of the Human Rights Act. The court determined that given the potential for motor cars to cause grave injury, those who kept and drove them had to be taken to have accepted certain responsibilities under that regime. This included an obligation to provide information upon request as to the identity of the driver of a vehicle suspected of involvement in a road traffic offence. In all the circumstances, there was no breach of art.6. Any driver faced with criminal prosecution and trial should enjoy all the guarantees provided by art.6, regardless of how heavy a burden that entailed.
There is a defence if:
- you did not know and could not with reasonable diligence have ascertained details of the driver or,
- that it was not practicable for you to give the information.
You must persuade the court that it was more likely than not that either defence applies. It will often be necessary to give evidence at trial, but there are occasions where we can persuade the police not to proceed with the allegation.
This will rarely result in a defence unless you have made some other arrangements to receive your mail. The requirement is for the Notice to be served upon the driver or keeper at his or her last known address. The last known address of the registered keeper will usually be the one on the logbook. Ordinarily, unless you are able to provide evidence that it was not received at that address, you will not be able to use the fact that you did not receive the notice as a defence.
The same principle applies if for example you are out of the country for a period of time and have not made arrangments to deal with your mail.
If you are in doubt, you should get in touch for a consultation before you enter your plea.