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Hello, I received a Notice of Intended Prosecution as my car was spotted by a speed camera. I wrote back to them to say I cannot recall who was driving at the time of the alleged offence and asked for them to send me the photographic evidence. The photos show the back of the car. What is the legal position if I cannot remember who was driving - could have been any of three people. Obviously I don't want to give the wrong driver information. Many thanks in advance.
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The legal position is that, assuming you are "the person keeping the vehicle", you have a duty to provide the driver's details. If you fail to do so you will be prosecuted under Section 172 of the Road Traffic Act and a conviction carries a hefty fine, six points and an endorsement code (MS90) which will see your insurance premiums rocket for up to five years.
There is a statutory defence to the charge which says this:
A person shall not be guilty of an offence....if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
To take advantage of this defence you will have to show the court that despite your efforts, you could not identify the driver. It will for the court to decide whether your "reasonable diligence" was sufficient to satisfy the defence. It is not an easy hurdle to overcome and simply turning up to say "dunno who was driving" will not cut the mustard - if it was, everybody would do it.
Whilst it is a serious offence to deliberately name somebody you know was not driving, it is not an offence to name the person most likely to have been the driver. So what have you done so far to try to establish who was driving? -
Have you asked the 3 people?Comment
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Thank you. I am going to go to court with this as there are two charges 1) speeding and 2) failure to notify within 28 days. Whatever happened to innocent until proven guilty?Originally posted by HandyAndy View PostComment
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I see cases of this kind (but not one quite like this) and it is a high bar. It will depend on you being able to convince the mags that you genuinely do not know and all circumstances will be taken into consideration. Can you prove it was not you for example? Can the other 3 prove where they were at this time? As for innocent until proven guilty - you can prove your innocence in seconds by naming the driver. If you cannot do so then you have to convince the bench that you have a genuine reason for what is an extremely unusual position.Comment
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But you haven't been convicted of anything yet so you are still innocent...Originally posted by fiveyearplan View Post
Assuming you weren't being a smartarse and thought that you could get away with this by just saying "I can't remember who was driving", you might have a defence to the failure to identify charge if you can show that you used all due diligence to identify the driver.
But apart from asking the other two possible drivers, what have you done to "remember" who was driving? If all you can say is "I don't remember" you are liable to be convicted of failing to identify the driver, get 6 points, get a large fine, get costs awarded against you, get a victim surcharge, and have greatly increased insurance premiums for the next 5 years. (Insurers really don't like MS90 "failure to identify" convictions as they wonder what you were charged with that you didn't want to name the driver...)
There might have been a route out of this and you only getting 3 points for a minor speeding offence if you had known who the driver was, but as you have presumably already told the police that you don't know who the driver was, that route is no longer open to you...Comment
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Reading a lot of Oxford court reports average cost of conviction is about 900 in fines and cost and 6 points never read where anyone is aquited. Hard for Magistrates i think to believe the RK did not know who was driving.
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Indeed it would be hard to believe! So unless you can convince the bench it will be 6 points and a band C fine (150% of weekly income). What did the other possible drivers say when you asked?Comment
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I'm not trying to be difficult. My husband and I have 2 cars that we each drive almost equally. This car is the one registered to me however he drives it and I drive the car registered to him and we drive them almost equally. We don't sign them out each time we use them. We did get a speeding ticket some years ago and we did work out that he was driving - the date was easy to remember and I had a migraine so he was driving however on this occasion there is nothing standing out that would identify which of us was driving or indeed if the third driver was driving.Originally posted by islandgirl View PostComment
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I did not say you were being difficult just that the stance is hard to believe. Husband and I are in a similar situation but I bet by looking back through diaries and commitments I could tell who was driving even 12 months ago. Check credit card statements and debit cards. Was one of you at Tesco? Was fuel purchased? I do not remember will not be good enough for the mags I don't believe (as a mag myself!)Comment
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I agree. You have the date, time and location of the [alleged] offence. Do not try to be clever. Sit down and think hard, all 3 (or is it 4) of you.Lawyer (solicitor) - retired from practice, now supervising solicitor in a university law clinic. I do not advise by private message.
Litigants in Person should download and read the Judiciary's handbook for litigants in person: https://www.judiciary.uk/wp-content/..._in_Person.pdfComment
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Then you must run the "Hamilton" defence:
Hamiltons finally exonerated | | The Guardian
You will see that and Christine Hamilton and husband Neil, MP, found themselves in exactly the same situation as you. She was acquitted. However, that case, being heard in the Magistrates' Court, does not set a precedent and as islandgirl has pointed out, it is a tough hurdle to clear. It is not as simple as turning up and saying "dunno who was driving", as this gentleman discovered:
'Speeding' driver demands justice | South Wales Argus
To take advantage of the statutory defence the court will require evidence of you having exercised "reasonable diligence" in an effort to establish who was driving. From what you've said, all you've done is to ask the other two possible drivers whether they were driving. That will almost certainly not succeed (otherwise everybody would do it). If you have done nothing but that, I should be prepared for a large bill on the day of your trial. As islandgirl has explained, if convicted, you will face a fine of 150% of your net weekly income. But as well as that the court will impose a "Victim Surcharge" of 40% of the fine and the prosecution will ask for a contribution towards their costs, the usual amount being £620. So even with an income as little as £200 per week it will cost you over £1,000. You will also have six points on your licence accompanied by an endorsement code (MS90) which insurers hate. Because of this you can look forward to considerably increased premiums (probably double in the first year) for any motor policy on which you are named as a driver.
The good news is that the speeding charge cannot succeed as the police, like you, do not know who was driving.Comment
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