The presumption that a vehicle owner has committed an offence may only exceptionally be displaced, says Andrew Church-Taylor
Section 172 of the Road Traffic Act 1988 may not be the most exhilarating subject but the process it sets out for the request for information is the first step to prosecution of many motoring offences. And in most cases that leads drivers to either appear before the court or be issued with a fixed penalty notice. Given that it is a first step, it is often seen as the first line of defence.
The usual scenario that arises is that an offence is alleged to have been committed, ascertained, for example, by static or mobile speed camera, the vehicle is not stopped and the driver is not identified and, therefore, a notice of intended prosecution incorporating a request under section 172 is sent to the registered keeper.
Subsection 2 of section 172 requires the person keeping the vehicle to give information as to the identification of the driver or indeed any other person to give information which is in their power to give and may lead to the identification of the driver. To encourage disclosure, failure to comply with section 172 carries sanction by way of fine but, perhaps more importantly, by way of endorsement of what is now six penalty points. It can also be dealt with by way of discretionary disqualification.
Section 172 provides for a statutory defence where the person who keeps the vehicle shows that he did not know and could not with reasonable diligence have ascertained who the driver was. In Debbie Atkinson’s case, a motor scooter was ascertained to be travelling in excess of the speed limit on 13 November on a road in Warrington.
On 19 November a notice of intended prosecution, incorporating a request to furnish details of the driver, was sent to Ms Atkinson. Her response was that at that time the scooter was up for sale and that she had allowed a potential purchaser to test drive the vehicle. He returned the bike, indicating he would let her know if he wanted it and never got back to her. The police did not accept that response and the case came before the court. The magistrates convicted Ms Atkinson and the matter was then taken to the High Court where the judges accepted Ms Atkinson’s argument that she did not know and could not, by reasonable diligence, have ascertained who the driver was. The judges were of the opinion that the question of reasonable diligence fell to be assessed at the time the request was made by the police and not at the time the test drive took place. The conviction, therefore, was quashed and Ms Atkinson’s licence returned to its original state minus of course the six points that would have been imposed.
One Christopher Whiteside was not so fortunate. It is not presented that the defence advanced on Mr Whiteside’s part was similar to that of Ms Atkinson. Indeed it differs. Under section 172 subsection 7, the person who receives the notice is not guilty of the offence if he can show that either the information was provided within 28 days, or as soon as reasonably practicable after the end of that period, or indeed it had not been reasonably practicable for him to give it. It was on this limb that Mr Whiteside sought to defend the proceedings against him.
On 16 May a car which belonged to Mr Whiteside was ascertained to be speeding in excess of the 70mph. On 23 May a notice of intended prosecution, incorporating a request for driver details, was sent to Mr Whiteside. There was a further letter sent on 23 June which, in effect, served as a reminder.
It was not disputed that the notices were received at the registered address of Mr Whiteside. What was contended, and indeed accepted by the magistrates, was that he had not personally received these notices nor was he informed of them. He was, therefore, personally unaware of the requirement to give information and contended that the information was not provided because it was not reasonably practicable for him to give it.
The reason that this was contended was that Mr Whiteside was regularly out of the country and resident at his home for only approximately seven days in any one month. His post would have been dealt with either by his wife or indeed his staff. All letters which could only be dealt with by him personally would go to his private secretary. A delightful insight into the workings of the household.
The matter fell to be considered by the Administrative Court who decided that the notices were properly served on him and, notwithstanding that they were not received, that he did not have a defence merely by virtue of the fact that he had no knowledge of the fact the notices were sent. There was some concession, albeit perhaps no comfort to the defendant in the Whiteside proceedings, that the court did conclude that there may be an appropriate case where the defendant could show that it was not reasonably practicable and some reference provided, for example letters may have been stolen from the letterbox.
Section 172 does not have the wow factor that some areas of law may have but it does throw up some interesting scenarios.
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