Document type Title Date Committee

Magistrates Association Guidance Prosecutions under S.172 Road Traffic Act 1988 1 June 2010 Road Traffic Committee

The list for a traffic court will often contain a fair number of s.172 prosecutions. Many defendants may be non-attenders from whom nothing has been heard, and against whom the court is likely to proceed in absence, for these as well as for those pleading guilty by post and attenders, the court will need to satisfy itself that proper procedures have been followed. Attenders pleading not guilty may raise a variety of matters that need to be considered. It is useful to consider the section clause by clause: (1) [Simply states the offences to which the section applies, which is most traffic offences.] (2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver. (3) Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence. So there is no need to prove that an actual offence took place, but it must be shown that there was an alleged offence. This is often done by a record produced by a prescribed device, such as a camera, admissible under s.20 RTOA 1988. DVLA records of the name and address of the registered keeper at the time of the alleged offence will be evidenced by a VQ5, admissible under s13 RTOA 1988. The registered keeper is not necessarily the same as the keeper, as for instance in the case of a company car used by a single employee, where the registered keeper is likely to be the company and the employee will be the keeper, as he has every day control of the car. In this case the registered keeper should give the information that it is in his power to give, which is the name and address of the keeper, who should then receive an s172 notice himself. The keeper is assumed to be able to name the driver, but see below. It is possible that there will be a chain of notices, for instance if the vehicle is registered to a leasing company, operated by a hire company, who have hired it to a company who have assigned it to a driver. Someone who is not the keeper may have little information to give, but anyone will be able to give some, even it is only that he knows nothing of the vehicle, he cannot lawfully remain silent (DPP v Grant). If the issue is raised, the prosecution must prove that the request was made by or on behalf of a chief officer of police, but if it is not raised it will be taken as accepted. Service (7) A requirement under subsection (2) may be made by written notice served by post; and where it is so made

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June 2010

(a) it shall have effect as a requirement to give the information within the period of 28 days beginning with the day on which the notice is served, The prosecution must prove service in accordance with the Criminal Procedure Rules, the relevant rules being: 4.11. The person who serves a document may prove that by signing a certificate explaining how and when it was served. 4.10(2) Unless something different is shown, a document served on a person by any other method is served (b) in the case of a document sent by first class post or by the equivalent of first class post, on the second business day after the day on which it was posted or despatched; See also s7 of the Interpretation Act 1978, which deems first class post to be good service, unless the contrary is proved. There should be available a witness statement from the Fixed Penalty Support Unit employee who was responsible for sending the notice out. It should say that an employee of the Royal Mail collected it on the date printed on the notice, and that should be within his personal knowledge. There should also be a statement that so far as the FPSU is concerned there has been no satisfactory response (Note: this has been held not to be hearsay evidence, if the employee were present he would state that he had personally checked the computer system) Defences (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. (7)(b)the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it. Courts tend to construe reasonable diligence very restrictively as meaning everything practically possible, including requesting any photographs, questioning anyone with access to the vehicle, insurance arrangements, normal patterns of use, movements on the day concerned, expenditure on petrol, mobile phone calls etc. Companies are expected to keep adequate records: (6).subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable. A common defence is that the notice was never received, either through a failure of the mail or for some other reason. Most police forces now send a reminder, and a court may be reluctant to believe that the postal service failed twice. The standard of proof is the balance of probabilities. If the motorist says that the reason he did not get the notice is that he did not notify DVLA of a change of address, and therefore relies on (7)(b) he is admitting another offence, and some guidance as to how the higher courts might regard the situation may be provided by the case of Durham County Council v North Durham Justices [2004] EWHC 1073, although this was on an entirely different subject: Lord Justice Moses: it is the responsibility of any holder of a licence to notify the DVLA of any change in address, or change of name, pursuant to Regulation 18 of the Road Vehicles (Registration and Licensing) Regulations 2002. The research of my Lord, Leveson J has
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also enabled me to point out that a failure to comply with that requirement is an offence contrary to the Vehicle Excise and Registration Act 1994 section 59(2)(a), so that the registered keepers who failed to respond to the notices, and who might say that they were no longer at the address on which those summonses had been served, have no legitimate complaint since it was their responsibility to ensure that the address recorded at the DVLA was the correct address. The CPS may also argue that it was reasonably practicable for him to have notified the DVLA, although of course that was prior to receiving the notice. If a person has disposed of the vehicle concerned but the DVLA record has not been updated, he should be able to respond to the notice with the name and address of the purchaser. The completion of an s172 notice by someone else is not evidence that the person named was the driver at the time of the offence, the person named should receive their own notice in due course, until someone sent a notice identifies himself as the driver. The notice is personal to the addressee, and it cannot be completed by anyone else, even his solicitor. Companies who give the notice to the employee concerned, and spouses who give it to their partners to complete, will almost always be committing the offence. The police are entitled to make reasonable requirements as to in what form a response must be provided, but the response does not have to be on the actual form sent by the police provided that the defendant had provided all the information requested (Francis v. DPP). There is also case law that the response must be in writing and must be signed ( DPP v. Broomfield and Jones v. DPP). Human Rights/PACE The request for information does not violate the European Convention on Human Rights on the grounds of self-incrimination (OHalloran and Francis v United Kingdom) and a caution under PACE is not required (Mawdesley v. Chief Constable of Cheshire; Yorke v DPP) Notice of Intended Prosecution A Notice of Intended Prosecution (NIP) is usually sent out with the s172 notice and often a conditional offer of a fixed penalty as well. The NIP must be served on the registered keeper of the vehicle concerned within 14 days of the alleged offence and must specify the nature of the alleged offence and the time and place of its commission. The 14 days is a strict requirement, and the NIP must be served within 14 days, not just sent. First class post on day 13 or 14 (or day 12 if it is a Friday) cannot be said to have a reasonable expectation of arriving on day 14. It is only the first NIP that has this 14 day rule; it does not apply to subsequent NIPS sent out if it is a chain case. The requirements for service of the NIP are deemed to have been complied with unless the contrary is proved. A NIP sent by registered post or recorded delivery (which is not usual) is deemed served even if not received, the presumption is irrefutable. A NIP is not required if the driver had been warned at the time, or if an accident has occurred. A NIP is only required for those offences listed in Sch 1 RTOA 1988. An error in a NIP is significant only if the defendant has been misled by it. The law in relation to NIPS is contained in s1 RTOA 1988.

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June 2010