Failure to declare driver

[islandgirl]

Is this scottish law?? May make a big difference

[Arcilect]

Yes it is, Scottish law, my apologies for not being clear about this I had no idea there was a difference.

[HandyAndy]

Yes, Scottish law has some crucial differences to that of E & W.

However, with one or two minor exceptions which do not apply here, s172 applies in both jurisdictions. I'm a little puzzled when you say "The charge was made 5 days ago. The officer who played ‘bad cop’ on the day made the charge." Has your son been served with a written request for information concerning the driver, or was it simply a verbal request which he declined to answer? Section 172 provides only for a written notice to be served and the recipient has 28 days to respond. What's the timeline of events for this?

[Arcilect]

Thanks Andy,
Yes, it was verbal, he/we declined to answer as this was an unannounced visit from the police and we had no idea what was going on and felt it best (with no knowledge or representation) to try and figure out what had gone on. My son is autistic, another reason why I needed time to speak to him.
He charged him verbally, i thought it was unusual as I thought time had to be given to provide the details like on a speeding charge. But I’ve little to no experience of these things.

[Arcilect]

Sorry to add, the alleged offence happened sometime in the 7 days prior to the police visit. It’s a bit of a blur the exact details of dates. We haven’t had to deal with police in this way before. But I got a bad feeling from ‘bad cop’ and advised my son not to say much

[islandgirl]

Never speak to the Police without a solicitor. I think my next move in your position would be asking for a meeting with the police and my solicitor to find out what exactly is going on...

[Arcilect]

It’s one of those situations islandgirl, where experience isn’t something you have until the minute after you need it unfortunately.
Obviously we somewhat fell into the trap of trying to be a respectful and law abiding as a family and we’re co operative to a degree, we potentially will pay the price for that naïveté.
Thinking back, the officers didn’t give us their names, station they were based, let alone any paperwork.

[islandgirl]

I do understand of course - we are brought up to think the Police are always "on our side". We have all made similar mistakes. I think a meeting with the Police and a good solicitor would be my next move.

[HandyAndy]

Yes, it was verbal, he/we declined to answer as this was an unannounced visit from the police...

A s172 notice is usually made in writing. However, contrary to my earlier answer where I suggested it must be made in that way (and where I was not aware of the circumstances you have explained) it may be made verbally.

The law is silent about whether the vehicle which is the subject of a s172 request must have been involved in the commission of an offence. It only stipulates "Where the driver of a vehicle is alleged to be guilty of an offence..." The issue, I think therefore, for your son, is whether the police had grounds to allege that he was guilty of an offence. If they had evidence to show that the person who committed the alleged offence (on the first bike) was the same person seen riding away from the scene (on the second bike, your son's) i would suggest the s172 request is legitimate.If they don't have those grounds I would suspect that it is not.

When a written s172 request is made the recipient has 28 days to respond, but there is no such provision when a verbal request is put. If your son said, for example, "I can't remember but give me a few days to make enquiries" a charge would be unlikely to succeed if that time was not allowed, But from your description he simply refused to answer, so the lack of that concession may not work in his favour.

Thank you once again islandgirl, I think? the privilege against self incrimination may apply in the context you mention above.

The issue of self incrimination under s172 was tested all the way to the European Court of Human Rights in a case brought jointly by Idris Francis and Gerard O'Halloran. They jointly complained that their "right to silence" was being removed by s172 but in June 2007 the Court found against them:

Motorists lose human rights appeal over speed camera fines | HeraldScotland

If this went to court in England & Wales your son would be served with the evidence the police intend to rely on to convict him. I imagine the same goes for Scotland though I am not 100% sure. That evidence should include the reason why your son was chosen to explain who was riding his bike at the time in question (i.e. it should explain why the police believed the person who allegedly committed the offence was the person seen riding away on your son's bike).

If he has already been charged then the matter will go to court (there is no "Fixed Penalty" alternative for s172 offences). Between now and then it may be prudent to get an opinion - if nothing else to cover any differences between Scottish law and that in E&W. Many solicitors provide a free consultation where that advice may be available.

I don't know your son's age or driving experience but a s172 conviction will have considerable ramifications. For a start it carries six points and if he first passed a driving test less than two years prior to the offence his licence will be revoked and he will revert to provisional status. But more than that, a s172 conviction leads to hugely increased insurance premiums for probably five years.

I don't think I can add much more. It is a situation I have never encountered and I've been thinking it through (with the help of others) "on the hoof" (as my posts probably illustrate). I think it's certainly something that ought to be tested, but whether your son wants to be the tester, only he can decide.

[islandgirl]

This is an excellent description of where we are on this case - I still think a visit to a solicitor followed by a meeting with the Police may be the way to go. As Handyandy says, the matter will go to court but you may get the charges dropped if a solicitor can show the charge should not have been made. Given the ramifications and costs a conviction will cause it may be better to spend on a solicitor now rather than later?

[Arcilect]

Thanks Andy,
‘The law is silent about whether the vehicle which is the subject of a s172 request must have been involved in the commission of an offence. It only stipulates "Where the driver of a vehicle is alleged to be guilty of an offence..." The issue, I think therefore, for your son, is whether the police had grounds to allege that he was guilty of an offence. If they had evidence to show that the person who committed the alleged offence (on the first bike) was the same person seen riding away from the scene (on the second bike, your son's) i would suggest the s172 request is legitimate.If they don't have those grounds I would suspect that it is not’

He did say something along the lines of ‘ I sometimes leave my keys in the bike when I’m with friends so I can’t be sure’ they said how do you mean, I said ‘like when you go to buy something’

‘If this went to court in England & Wales your son would be served with the evidence the police intend to rely on to convict him. I imagine the same goes for Scotland though I am not 100% sure. That evidence should include the reason why your son was chosen to explain who was riding his bike at the time in question (i.e. it should explain why the police believed the person who allegedly committed the offence was the person seen riding away on your son's bike).’

I believe them trying to ascertain identity may fall in to this.

‘I don't know your son's age or driving experience but a s172 conviction will have considerable ramifications. For a start it carries six points and if he first passed a driving test less than two years prior to the offence his licence will be revoked and he will revert to provisional status. But more than that, a s172 conviction leads to hugely increased insurance premiums for probably five years’

He is 17 and due to be sitting his driving test soon. I suspect testing this in court would be a costly thing.

I don’t think we have any alternative but try to be able to afford professional help here.

thank you once again for all your time and help.