Failure to provide driver identity
The request for information
under Section 172 Road Traffic Act 1988
is often known as the NIP. This is a mistake.
The NIP is in fact a Notice of Intended
Prosecution, which is sent out under Section
1 of the Road Traffic Offenders Act 1988.
These are two different notices. The NIP
is a warning that a person may be prosecuted.
The Request for Information under Section
172 is a completely different issue. Having
said that, the Police often combine the
Notice of Intended Prosecution with the
request for information as to the identity
of the driver.
This allegation arises
when the registered keeper (or anybody
else who is in a position to provide
the information) fails to provide the
identity of the driver when an alleged
road traffic offence occurs.
Most methods of speed
detection these days fail to provide identification
evidence. This is because the photographic
evidence is normally taken from the rear
or is not clear enough to identify the
driver from the front. Most devices concentrate
on the speed and the vehicle rather than
the actual driver.
Section 172 Road Traffic
Act 1988 puts an obligation on the registered
keeper (or anybody else who can provide
the information) to supply the identity
of the driver.
This obligation goes
against the normal principle that people
should not be required to incriminate
themselves or others unless they want
to. The penalty for failing to provide
this information (since the 24th
September 2007 when the penalties were
increased) is 6 penalty points and a fine
of up to £1,000.
Therefore the obligation
to provide the identity of the driver
has potentially serious implications.
There have been many
cases which have questioned whether this
requirement for information is a
breach of the doctrine against self-incrimination,
or of a person's human rights. All
of these cases to date have fallen foul
at the European Court of Human Rights
and in the Higher Courts of the UK, because
the Court has formed the view that the
request for information is proportionate
to the need to manage road safety. It
is therefore still a legitimate requirement
for the Police to request this information
and currently the only way that you can
defend any such allegation is by arguing
that the Police have not sent the Notice
out in the correct form or by raising
one the Statutory Defences.
If you provide the
identity of the driver then it is still
open to you to defend the original allegation.
Admitting that you were the driver is
not admitting that you committed the offence.
Section 172(4) Road Traffic
Act 1988 provides a Statutory defence
on the basis that the person required
to provide the information is unable to
do so but has used all reasonable diligence
in order to try to work out
who was driving at the time.
If a person raises this
defence then they have to show on the
balance of probabilities that they did
their best. When the Prosecution have
to prove anything, they have to show that
the case has been proved beyond reasonable
doubt. When a defendant has to prove anything
he/she has to show it on the balance of
probabilities and this in effect means
the defendant must show that it is more
likely than not that they did their best
to provide the information.
There is no set definition
of what amounts to reasonable diligence
and every case is decided on its individual
circumstances. Crown Court Judges have
said that using reasonable diligence means
doing your best to figure out who was
driving and that it does not mean that
you have to go to exceptional lengths
to figure it out.
There is a further Statutory
Defence under Section 172(7)(b) Road Traffic
Act 1988.
That states that a person
will not be guilty if it was not reasonably
practicable for them to provide the information.
Again the Defendant has to prove on the
balance of probabilities (so it is more
likely than not) that it was not practicable
for them to provide the information. This
defence is usually used when a person
is able to show on the balance of probabilities
that they did not receive the request
for information in the first place.
Some other interesting
facts about Section 172 and Failing to
Provide Driver Identity.
A company can be the
registered keeper of the vehicle and if
a company is summonsed for failing to
provide information this is a non-endorsable
offence. The company is simply liable
for a fine.
A company can argue that
it has used reasonable diligence to figure
out who was driving but it can only make
this argument if it can be shown that
the company kept records of who was driving
the vehicle at any given time. If the
company have not kept records of who was
driving at any given time it will be very
difficult for the company to argue that
reasonable diligence was used.
When you reply to a
Request for Information under Section
172 of the Road Traffic Act 1988 you must
reply in the manner required by the Police. Defendants have
been prosecuted on the basis that the
information was given on a separate letter
and not in the form requested by the Police.
