Access to evidence

[des8]

I think they have 6 months in which to lay information before the court, (but that is open to correction!)

What postion/action has your insurer taken?

[islandgirl]

I suggest that the next thing you will receive is a notice of prosecution for failure to provide information. If this happens, you can plead not guilty and take the scenario to the magistrates to decide. I hope this doesn';t happen but it would be my best guess...

[Guest]

Is there a way you can get it from Sacro, like say if you email the police your ID and a request for this information?

[Colin5705]

Sorry for not responding to your replies sooner. I've had other things to concern me.

Well, Islandgirl you called it correct. I've just returned home and found a Conditional Offer re Road Traffic Offenders Act, which I am assuming is related to what is described above. I say assuming as there are no consistent reference numbers across the paperwork and the offence took place prior to the end of the most recent written communications. The offence is described as failing to provide information but does not detail what information. The offer is £100 plus six points.
I'll obviously need to speak to a lawyer now.
But, any thoughts on how this plays out;
If I take the offer then there is the question of the oringinal "incident" to be resolved, It just doesn't go away, as I have effectively admitted that an offence took place and I had information about, neither of which is true.
Or if I take to the Sheriff and am successful, it all goes away?

Any thoughts welcome.

[Colin5705]

Sorry DS8, realise I had not addressed your quest.
To the best of my knowledge, the Insurer doesn't have a position. Other than one garbled 'phone call with my daughter, the main driver on the insurance, they have not been involved.

[efpom]

In the dim recesses of my memory, I recall that there was a English case, possibly court of appeal, where the court held that the keeper does not commit an offence if he cannot genuinely recall who the driver was on the date of the alleged offence and is thus unable to supply the requested information.

[islandgirl]

The Fail to provide informatoin relates to failing to tell the Police who the driver was, nothing else. It carries 6 points in England. I am sure Efpom is correct but, there having been an accident which surely anyone would remember, I think it would be difficult to claim this. The usual caveat is that this is Scotland - my strong advice would be speak to a solicitor.

[Manxman]

Colin5705 - As others have suggested you really need to seek paid for professional legal advice (preferably a specialist in motoring law) as you are in real danger of digging yourself deeper into a hole that is already pretty deep.

A few thoughts to consider with your lawyer:

• You really need to do all that you can to avoid a conviction for failing to identify the driver. Apart from the 6 points on your licence, insurance companies really do not like customers or named drivers with a MS90 conviction code on their licence. They are understandably very suspicious of people who either cannot or will not identify the driver after an accident or other traffic offence. Insurance premiums would be likely to be eye-wateringly high for the next 5 years, whether or not the failure was "innocent" or intentional. (MS90 is the conviction code in England, I'm not sure if it is the same in Scotland).
• What did you actually tell the police in your s172 reply? Did you waffle on about not being able to remember because of the passage of time blah blah blah or were you in a position to honestly say something positive like: "After checking with everybody who could have been driving I am unable to identify the driver at the time and the location in question because the car was not there at that time to the best of my knowledge". Obviously you could only have said that if it was true to the best of your knowledge, but I'm trying to point out that what you actually told the police might be important in demonstrating that you had done all you could to identify the driver. (eg checking recipts for possible purchases in the area, was mobile 'phone tracking on etc etc.).
• Registered Keepers in your position are stuck between a rock and a hard place if you genuinely can't identify a driver. Unfortunately the legal outcome for a RK who sincerely is unable to identify a driver is often much worse if they respond honestly that "I don't know who the driver was" than if they respond pragmatically by naming the "most likely" driver. But if you name a driver that you know wasn't driving, you run the danger of being done for perverting the course of justice and ending up in prison. It's a very awkward position to be in. (See Chris Hoon and his wife who both went to prison for messing about dishonestly with a s172 nomination).
• Have you only been charged with failing to identify and nothing else? I ask because normally somebody will be charged with two offences - usually failure to ID and speeding. What normally then happens is that the defendant offers a "plea bargain" in which they will accept the speeding offence if the failure to ID charge is dropped. (Obviously this can only be done legally if the defendant actually was the driver of the speeding vehicle). I assume you haven't been charged with any other offence so have nothing to bargain with?

I am not a lawyer and am unable to give legal advice. But I suggest you see a lawyer pronto and discuss the above points with him or her. You don't want to do anything else of your own volition and make matters worse...


To get back to the underlying cause of this (the alleged accident) how confident can you honestly say you are that the car in question was not, and none of the possible drivers were, involved in the accident/collision/incident? Or is it possible that somebody is lying to you?

If you are confident that you are being told the truth and that it is unlikely that the vehicle was involved in an accident, you need to explore the possibility that the vehicle has been "cloned". You need to see photos of the car involved in the alleged accident and compare it in detail to your daughter's car. Are there any badges or stickers on one car that aren't on the other etc, thus demonstrating that the car in the accident was not your daughter's? You need to discuss this possibility with your lawyer too, as if it wasn't your daughter's car involved in the accident, then that would explain why you couldn't identify the driver and would go some way towards getting you off the MS90 charge. (You might also be able to make something out of the confusion as to where the car was meant to be when you were asked who the driver was. Am I right in understanding that you were given more than one location or that the location changed over time?)

It's also possible that someone who witnessed the accident might have mis-read the number plate. Again you need to see photos of the car involved in the accident and compare that car to your daughter's.

Speak to a lawyer.

Couple of final points:

1. Moving forward, you need to sort out who the Registered Keeper is - is it you or your daughter? As you are discovering, being a RK carries some onerous responsibilities. It really needs to be the person who has most day to day control of the car. The RK is not necessarily the owner. [Edit: I would not be happy being the RK of a vehicle that more than two people including myself had access to unless I knew where the vehicle was all the time and who was using it]

2. My understanding is that the usual 6 month time limit for commencing ciminal proceedings that normally applies to certain motoring offences has been extended to 12 months in Scotland post-lockdown. It remains 6 months in England & Wales.

[Colin5705]

Thank you, Mankman, for your advice.
I am having a telephone consultation with a lawyer tomorrow.

What did you actually tell the police in your s172 reply? "There are three possible drivers insured to drive this car. I have spoken to them all and no-one can make the time, date and location correspond to any remembered journeys. It is now more than three months since the date you quote. Access to the car is not controlled to family members. This makes it difficult for me to answer truthfully the attachment “Information provided under Section 172...1988”."

As I said above, there have been several communications with the Police and inconsistences in the information provided and other information which my own research has revealed, which I will not reveal on an open forum. None of which is conclusive but point in a different direction. However, if I understand correctly, the Fail to Provide Information is a different matter from the original alleged incident.
The location and time have change from one written communication to the next.

I have not received any information, accounts etc that indicate the original alleged incident occurred, full stop. As I said am preplexed as to why if this information exists I have not been shown it, even if only to identify the driver. The insurance company seem to have no interest in the alleged incident but not having been here before I don't know if that is significant.

I was the RK at the time of the alleged incident.

[islandgirl]

As a magistrate who deals with Fail to provide if I was given that explanation I would believe you guilty of fail to provide!

[Colin5705]

Well there is a position!!

But I am here to learn. I don't know where the car was on that date, let alone who was driving! Can I give the names of all the insured drivers? Maybe I should have and said "driver" is an irregular plural. That doen't really bother me.

I would serously like to understand your reasoning of saying guilty. My reading of the form is that it is quite specific, "who was driving?" at this specific time and place; not who might have been or to your best recollection but the definitive. Have i missed read?

[islandgirl]

Access to the car is not controlled to family members?????

If this was the only information given (and you say it is not, so I may change my mind if I saw more) then it would seem like an attempt to avoid the question. As Manxman says, a positve response that the car could not have been in that location etc may make me more sympathetic! Sorry Colin5705 but we have heard it all before (I am sure your case is genuine but many are not!). If being unable to remember was a defence noone would ever be convicted!

[Colin5705]

Access to the car is not controlled to family members?????

Maybe I have not expressed myself well here. I mean that any family member, insured to drive that car, can simply pick up a key from a basket in the hallway and drive the car, not that anyone wandering by can use the car.

I don't think it is that hard to believe that I can't recall were that car was at a specific time weeks, now months, after the alleged event. And as I made clear, inquiries were made about who could have been using the car on that date and that location. Also, I have replied promptly to all inquiries about the alleged incident, not in anway evasive. And I must stress, no evidence has been offerred that the alleged incident took place let alone that my car was involved, although I realise that this Failure to Provide has moved on a bit from that question (although in my mind it does put the cart before the horse in that if the incident took place then the request for info. makes sense but not if no incident took place, otherwise we would all be answering this form endlessly)

[islandgirl]

Understood but I think in the circumstances it would be a guilty finding. At this point the police only want to know who the driver was at that time. The incidenct is secondary. They are only asking who was driving on a specific day. One would think that you could narrow it down via family discussion, sorting diaries etc to who it might have been. At this point in time that information has not been given.

[Colin5705]

Well, I've had a meeting with a lawyer and he has offered some advice, which I will be considering over the week end as all routes suggest are to my mind high risk and costly. So it is likely this will be my last post fo some time. Thank you all for spending time and effort with me.

Islandgirl; We seem to have a fundementally different understanding of what I am being asked. It is not "who was driving on a specific day".
It is who was driving on this day, at this place, at this time. And there have been family discussions. But as for sorting diaries... well I stopped being driven by a diary when I retired and when my offspring return home for a visit, it is to enjoy the chaos of a family home, not the to follow the regime of a diary.

You are correct that this information has not been given because I lack that knowledge and it is not in my power to give.