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Red Nip
Failure to provide information as to the driver - defending a Section 172 motoring offence in the UK court
Failure to provide information - also known as a Section 172 offence (S172) is a serious motoring offence punishable by six penalty points on your licence and a fine of up to £1000. But in this article a specialist motoring lawyer outlines possible defences open to you if the registered keeper cannot properly identify the driver of a vehicle at the time a road traffic offence was committed and are prosecuted as a result.
Under Section 172 Road Traffic Act 1988 you are legally required to provide information as to who was driving your car or vehicle at the time any offence was committed. Failure to provide information as to who was driving the vehicle at the time is an offence punishable by six penalty points and a fine of up to £1,000.
If you own or are responsible for a motor vehicle you are legally responsible to know who is using it at all times and if necessary provide that information to the authorities. Should you fail to do so you can be severely penalised for what is known as a Section 172 offence (or S172 offence) for "failing to provide information".
The maximum fine for a Section 172 offence is severe (£1,000) and a punitive six penalty points (will be awarded if you are convicted.
These are designed to be especially punitive as this is an deterrent offence aimed at making people think twice before refusing to name a driver who is guilty of a relatively minor offence, but with whom they have connections - perhaps as spouse, a partner or their child.
The offence is particularly relevant to camera enforcement cases when the driver is not stopped at the scene but the offence is based on photographic evidence and the vehicle registration number is recorded.
In most of these cases the camera evidence alone will not be sufficient to identify the driver - for safety reasons camera evidence is usually taken from behind so as not to blind the driver with the flash - but the vehicle will be clearly identified. The purpose of Section 172 is to persuade the keeper of the vehicle to name the driver - and penalise them severely if they do not.
It is important to know the process used to deal with tickets to understand how section 172 offences proceed:
if an alleged offence is caught on camera the registered keeper of the vehicle must be informed that an offence has been committed within 14 days. A Notice of Intended Prosecution (commonly known as a NIP) must be sent to them under Section 1 of the Road Traffic Offenders Act 1988.
If the NIP is not received by the keeper within 14 days it is possible that the offence will fall on procedural grounds - however it is important to note that the NIP does not need to be with the driver within 14 days. Getting it to the employer - or even the hire or lease company - is quite enough.
The Notice of Intended Prosecution will normally be accompanies by a request for information under Section 172 Road Traffic Act 1988 as to who was driving the vehicle at the time.
The registered keeper is usually allowed 28 days to provide the identity, however should they fail to do so a reminder is normally sent. If the reminder is not complied with the police will normally proceed on two fronts, firstly by prosecuting the original offence - on the grounds that the registered keeper most likely committed it - and secondly with he section 172 offence - for failing to provide information as to the driver.
In normal circumstances multiple motor offences committed on the same occasion can only be punished with the penalty points for the most serious offence - so for example if you are caught running a red light and have no insurance, the maximum penalty would be the 8 points for the no insurance offence and the three points for the red light would be included at the same time. But the Section 172 offence is different. If the court decides (beyond reasonable doubt) that you were guilty of the original offence and you also failed to provide information perhaps in an attempt to escape punishment you can be penalised for both the Section 172 and the original offence as the refusal to provide information happened at a different time. Thus say you were convicted for the traffic light offence (bringing 3 points) and the court accepted that you also failed to provide information as to the driver (bringing 6 points) then you could be penalised for both offences with a total of 9 penalty points.
The good news is that this very rarely happens and the even better news is that providing you choose your course carefully -- and are properly advised -- successful prosecutions for failure to provide information are relatively rare. Indeed my own legal firm have a 100% record of success in defending such cases.
However no driver should rely on the highly inaccurate gossip available on the Internet regarding failure to provide information as to the driver. This is a complex area of law with very harsh penalties a possibility and you need detailed advice.
There have been many cases which have questioned whether this requirement? or 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 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 to furnish the information to the police.
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.
- It helps if the road was near to where you live or was frequently travelled on.
- It helps if different drivers insured for the vehicle used that road on several occasions on the day of the offence.
- It helps if several drivers have use of the car (and are insured to drive it).
- It helps if it is a long time since the offence was committed and the police were delayed in contacting you (leased or company car)
- Your position is greatly enhanced if you don't have any previous penalty points.
Faced with a well-prepared defence the fact is that the Crown Prosecution Service will often withdraw the case rather than be humiliated in court. Our record at the free motorist legal advice site http://automate.qualityanswers.co.uk is 86% of Section 172 offence (failure to provide information) cases withdrawn before hearing and 100% cases won in court.
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 - but this can be substantial.
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.
If you assert the Notice of Intended Prosecution (NIP) was served out of date (after the 14 day period allowed by law) then you should still provide the information if you can but should subsequently defend on the procedural grounds that the NIP was not properly served - in which case the naming of the driver will be irrelevant.
The Magistrates and Crown Prosecution Service will have little patience for people who try and raise these arguments with no real foundation. So make sure you know what you are doing and don't make a fool of yourself.
Always remember - if you have a trial and lose you will get a heavier sentence and hefty court costs on top of your fine!
If in doubt you can ask me a question at the AutoMate free motor legal advice website.
I guarantee if it is about road traffic offences I will always know the answer and will respond within one business day.
About the Author
Lucy Bonham Carter is a specialist motor lawyer with AutoMate, the free UK motor legal advice site
can I put 2 baby red ear sliders with 2 juvenile yellow belly sliders? ?
the one yellow belly is fine with the babies but the other one that i think is female keeps nipping at the babies feet. The yellow bellies are 3-4 inches long and the red ear sliders are 1- 1.5 inches long.
Sliders are notoriously territorial and unfriendly. Time to buy another tank.
Mars- Red Planet (W-Ganxsta Nip)