Failure to identify driver

By David Sonn  |  19.09.2016

Every year more than a million requests are issued by police pursuant to s.172 of the Road Traffic Act 1988, seeking to identify the drivers of motor vehicles who are alleged to have committed a road traffic offence.

Whilst a proportion are issued following a collision, the vast majority are aimed at identifying the driver of a motor vehicle that has been captured by one of the many Home Office type approved devices – typically committing a speeding offence. Whilst most dutifully respond to such a request, many do not. If there is a failure to respond, the relevant constabulary will almost always issue a reminder and if that fails to yield a response, commence a prosecution for the offence of failing to comply with the request, contrary to s.172(4).

Defending such prosecutions has become an industry and the internet is replete with websites offering the services of road traffic lawyers for such cases.

One can sit in any Magistrates’ Court in England and Wales and watch a procession of such cases. Defendants typically contend either that the request was never received, or that it was returned but never arrived. A conviction attracts 6 points or a disqualification together with such other penalties as arise in respect of non imprisonable offences. The imposition of 6 points will often render the defendant a “totter”, which in turn will lead to a mandatory disqualification for a minimum period of 6 months unless exceptional hardship can be established. Unsurprisingly, many convictions are appealed including very occasionally by case stated to the High Court.

This article briefly analyses some of the defences that may be deployed in these cases.

What’s the status of a response to a s.172 request?

The response to a s.172 request is crucial. Section 12 of the Road Traffic Offenders Act 1988 makes the response a self producing document. Without it, in almost all cases the driver will not be identified and a prosecution cannot be therefore be sustained for the index offence – without an admission at trial.

When a request is not responded to, most constabularies issue a reminder. When that fails to yield a response, a prosecution is inevitable. In many parts of the country, the prosecuting authority will prosecute the person to whom the request was sent for both the index offence and for an offence contrary to s.172. Although the index offence will not be capable of proof, many will happily admit it to avoid a greater penalty for not responding to the request. Not every constabulary adopts that policy. The Metropolitan Police, for example, do not prosecute the index offence as an alternative.

Am I the keeper?

Section 172(2) distinguishes between a requirement made of the “keeper” of the vehicle, the driver which is alleged to have committed an offence and “any other person”. The former must provide the identity of the driver unless s/he can make out the statutory defence in s.172(4), whereas the latter is only required to give such information as is in his/her power to give and which may lead to the identification of the driver. All too often this distinction is ignored (by the Court, the prosecution and the defendant) even though a defendant who is not the keeper of the vehicle may well have complied with the request by stating that s/he does not know the identity of the driver.

The “keeper” is not necessarily the “registered keeper” and defendants and those representing them must give consideration to whether s.172(2)(a) or (b) applies. In DPP v Grant (Michael Anthony) [2001] EWHC Admin 1114 the Divisional Court considered the obligation upon a recipient of a s.172 request who is not the “keeper” of the vehicle. Ouseley J. said:

“Third, the power to provide information is not something which can be regarded as other than an ingredient of the offence. If the phrase “information which it is in his power to give” does not require some proof on the part of the prosecution, those words might as well not be in the statute. They are there for a purpose. But that purpose is satisfied in the case of a person who produces no return at all or produces a blank one in this way: everyone has the power without further or specific proof to provide the minimal information “I do not know who the driver was; I know nothing of this vehicle”. That is information which satisfies the statutory requirement. It is information which it is in that person’s power to give, and which may lead to the identification of the driver. That may happen in a number of ways. It may lead to the identification of the driver by elimination; it may lead to the identification of the driver through the process of showing that there has been an error through a random selection; it may mean that the police refocus their inquiries and retrace their steps over the information which has been given. In that way, an answer which says “I know nothing of the car and I have no connection with it” is both information which it is within the power of any person to give as a minimum and information which may lead to the identification of the driver.
If the answer comes back, pursuant to the requirement, in the way which I have suggested might be regarded as the minimum information, it would then be incumbent on the prosecution, if they wished to make out an offence under section 172(3), to demonstrate that the defendant had the power to give more information than had been given; or it would be incumbent on the prosecution to prove that that asserted absence of knowledge was untrue. In that way, again, the provisions of section 172(2)(b) are given effect. It is an ingredient of the offence that there be information which it is in the power of the defendant to give, and it would be incumbent on the prosecution to prove it. But they do so in a case where the form is returned blank or returned not at all by simply pointing to the fact that every person has the power to give that minimum of information to which I have referred. “

Once a prosecution for an offence contrary to s.172 is underway, it is too late for the defendant to respond to the Notice denying knowledge as to the identity of the driver and claiming that he is not the keeper of the vehicle. Where, however, a letter denying knowledge was sent in response to the original request and there is a basis upon which the defendant can assert that he was not the keeper, the prosecution will have to rebut that evidence in order to secure a conviction.

Where such a defence can be advanced, practitioners must be astute to raise the matter early on in the proceedings in order to avoid the general accusation of ambush and specifically to enable the prosecution to seek to gather evidence that the defendant was in fact the keeper at the relevant time. In practice, they will very rarely seek to do so but will complain if they haven’t been given the opportunity.

Who made the request?

Section 172(2) provides that the request shall be given “by or on behalf of a chief officer of police.” In most cases, the combined Notice of Intended Prosecution and s.172 request will bear the name and facsimile signature of an individual typically followed by the words “on behalf of the Chief Constable of…” or even the facsimile signature of the Chief Constable him/herself. The prosecution evidence will include a witness statement exhibiting the request. The person who caused the s.172 request to be issued may have made that witness statement. The statement may contain the assertion that that person possessed the authority of the Chief Constable.

Depending on the quality of that evidence and the purported identity of the sender of the request, a point may be taken that the prosecution has not proved that the request was made by or on behalf of a chief officer of police. There is no national standard or blueprint for the way in which these prosecutions are prepared. By way of example, prosecutions brought on behalf of the Essex Constabulary are exceptionally thorough. By contrast those brought on behalf of the Metropolitan Police, are conspicuous by their lack of detail. The Divisional Court has acknowledged that the lawfulness of the requirement is something that has to be proved (Mohindra v DPP [2004] EWHC 490 (Admin); (2004) 168 J.P. 448).

Was the request served?

Perhaps the most common defence advanced at s.172 trials is that the defendant never received the request relied upon. By virtue of s.172(7) a requirement to identify the driver of a motor vehicle may be made by written notice served by post, and where it is so made 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 and the person on whom the Notice is served is not guilty of the offence of failing to respond if he/she shows that either he/she gave the information as soon as reasonably practicable after the end of that period or that it is has not been reasonably practicable for him to give it.

Section 7 of the Interpretation Act 1978 provides that where an Act authorises or requires any document to be served by post…… then, unless the contrary intention appears, service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Section 172 requests are sent by first class mail and accordingly are deemed served on the second business day after posting unless the contrary is proved.

The Divisional Court has recently considered the question of service in the case of Krishevsky v DPP [2014] EWHC 1755 (Admin); (2014) 178 J.P. 369. At Mr Krishevsky’s trial, he denied having received the s.172 request but admitted having received the reminder notice which he had failed to return. The prosecution conceded that he did not receive the original request but he was nevertheless convicted on the basis that he had failed to return the reminder.

The Divisional Court found that the service of a reminder is of no assistance to the prosecution if the original request is not served. They found difficulty however, in understanding from the statement of case whether the Justices had found that the original request had been served but simply not received by the appellant or whether it had not been served at all. They ultimately construed the statement of case as recording a finding that the appellant had rebutted the presumption of delivery to the registered address in the ordinary course of post and accordingly allowed his appeal. If the Notice was never served then it followed as a matter of logic that there could have been no legal obligation upon him to respond to it.

When read in conjunction with the case of Whiteside v DPP [2011] EWHC 3471 (Admin), if the defendant can rebut the presumption of service he will be acquitted, but evidentially that will be extremely difficult. If the defendant cannot rebut the presumption of service but is able merely to establish that he/she did not personally receive the request (as in the case of Whiteside where the appellant was out of the country more often in it and had inadequate procedures in place to ensure that important mail was drawn to his attention) the defendant will have to prove that it was not reasonably practicable for him to respond to the request. That too will invariably be difficult but possibly not as difficult as proving the absence of service.

These points and many others demonstrate that in the right circumstances, it is quite possible to launch a successful defence to the offence of failing to identify a driver.

Contact David Sonn to discuss any motoring matter.

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