Failure to provide Driver Identity
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Failure to name the driver
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.
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