Access to evidence

[islandgirl]

The risk is presumably plead not guilty and a trial. That is your risk to take. I don't think we really disagree on what is being asked just on the ability of someone to give the answers. "Diaries" is an expression encompassing phones, computers, ipads, laptops, scraps of paper etc! We all very much hope that you will come back and tell us the outcome of this unusual case. Good luck.

[Manxman]

...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.

Like many RKs you are discovering too late that the law expects a RK to be able to know where their vehicle is/was at any point in time and who is/was driving it.

Simply saying "I don't know" or "It was three months ago" or "I've forgotten" or "I've got better things to do than knowing who has the car" almost certainly won't be enough to avoid conviction. You are expected to know and if you can't identify the driver you can be found guilty of a criminal offence.

I believe there is a defence if you can show that you "used all due diligence" (or words to that effect) to identify the driver but still could not do so. However, that is a high bar to get over. Simply asking the possible drivers if they can remember being there and whether or not they were driving is probably not enough.

As I posted earlier, I would most certainly not want to be the RK of a vehicle thet more than two people (including myself) had access to. Unless I had some way of logging use of the car. It's just too risky. I suggest you transfer keepership of the vehicle to your daughter if it's her car.

(NB - if you think about it, the law has to make it very difficult for RKs to get away with failure to identify the driver, otherwise everybody would fail to do so in cases of speeding and hit and run and nobody would ever get prosecuted. It has to be a high bar).

[Manxman]

Colin5705 - I can fully appreciate that you feel very aggrieved about this situation. It might help you better to understand what is happening here if you consider a decision of the European Court of Human Rights in respect of s172 requests to identify a driver. That decision is still binding on UK courts.

O'HALLORAN AND FRANCIS - 15809/02 [2007] ECHR 545 (29 June 2007) (bailii.org)

That was a case brought by two RKs against the UK government. O'Halloran felt that the legal requirement under s172 to identify a driver amounted to a breach of the human right not to incriminate yourself, and Francis basically argued that therefore failure to identify a driver should not amount to a criminal offence.

In the case of O'Halloran the court decided that the requirement to name a driver did not breach any human rights (not directly relevant in your case), and in the case of Francis the court held that failure to identify the driver "... constituted the offence itself".

In particular, this statement by the court seems very relevant to your situation:

"The Court accepted that the compulsion [to identify the driver] was of a direct nature. It also noted that anyone who chose to own or drive a car knew that they subjected themselves to a regulatory regime, imposed because the possession and use of cars was recognised to have the potential to cause grave injury. Those who choose to keep and drive cars could be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, those responsibilities included the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion"

Also:"The nature and degree of the compulsion used ... to attempt to obtain the evidence in the case of Mr Francis, [was] set out in the Notice of Intended Prosecution [he] received. [He was] informed that, as [registered keeper of his vehicle, he was] required to provide the full name and address of the driver at the time and on the occasion specified. [He was] informed that failure to provide the information was a criminal offence under section 172 of the Road Traffic Act 1988. The penalty for failure by the applicants to give information was a fine of up to GBP 1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence" (NB - it's now 6 points and I'm not sure what level of fine.)

Of course none of that is to say that your lawyer doesn't have an effective strategy to allow you to avoid conviction, but it might not be easy...

[islandgirl]

Very interesting Manxman and I agree totally. This is also interesting information https://www.counsel.direct/news/2015...ntity-defences

[Manxman]

Very interesting Manxman and I agree totally. This is also interesting information https://www.counsel.direct/news/2015...ntity-defences

Ah ha! That's a useful summary of the offence and potential defences. Points for the OP to note:

1. A s172 requirement is valid if:- (a) a driver of a vehicle is alleged to be guilty of an offence identified in section 172(1);... I may have missed it but it's not clear to me what offence the driver is alleged to be guilty of here. Is it an offence to which s172(1) applies?

2. The law draws a distinction between the RK at the DVLA and the "keeper" of the vehicle at the time. (ie the person who had control of the vehicle at the time). Unfortunately, as the RK does not know who the "keeper" was at the time, they can't name them and pass the responsibility to name the driver onto them.

3. Not clear from what the OP has said whether they have used "due diligence" or not.

4. I don't think he can argue that it wasn't "reasonably practicable" to name the driver

5. Saying it wasn't in his power to provide the information might work (and I note the OP has already used similar wording). As it says in that article he could argue that the vehicle wasn't under his control at the time and/or "was elsewhere at the relevant time". Problem is, I don't think either he or any of the two other potential drivers know where the vehicle was at the relevant time...


Shutting the stable door etc, but what the OP perhaps should have done as RK of the vehicle (but not its owner and not having the car under his control at the time) was to name and pass on the responsibility to his daughter. That drops her in it to some extent, but she would be in a better position to answer the question.

Assuming she trusts her father when he says he wasn't driving, then her options are quite clear. She would know if she had been driving, so she names herself. But if she knows she wasn't driving, she names the only other person out of three who had access to the car and is insured to drive it as that is the only other possible driver. That only becomes an issue if that person also denies being the driver and it becomes a game of pass the parcel - which will almost certainly guarantee that the police will investigate very carefully to see whether people are playing silly buggers. Which could end very badly...

The daughter could alternatively say - assuming it's true - that it's not in her power to name the driver as the car wasn't at that location at that time. But as noted above, nobody (or perhaps only one person) knows if the car was there or not.

Have to wait to hear the eventual outcome from the OP. I'm sure their solicitor is well versed in all the above.

[Colin5705]

Thank you again for your responses, although I am likely to start suffering from information over load. As I had understood it, Failue to to supply information meant things had moved on and this was now a seperate issue.

1. A s172 requirement is valid if:- (a) a driver of a vehicle is alleged to be guilty of an offence identified in section 172(1);... I may have missed it but it's not clear to me what offence the driver is alleged to be guilty of here. Is it an offence to which s172(1) applies?

Thers is no offence; there is an alleged offence. No evidence of an offence or alleged offence has been supplied. The Police have already spoken to my daughter and apparently accepted her reply that she had no knowledge of the alleged offence. I've not made myself clear, none of the drivers can make the date, location and time fit any journey. I had to go to the location of the offence to find out where it actually was and it is not an location any of us normally use, although we would be within half a kilometre.
No-one can say where the vehicle was at the specific time and date in question. As I said originally it could have been on the driveway, at the shops or visitng relatives. The form is quite specific, who was the driver at the this time and date; that cannot be ascertained. (I may have been in error earlier when I said the form required the driver for the date, time and location. I see re-reading that location is not required.)

[islandgirl]

In that case your only option is to plead not guilty and run a trial on that basis I believe. All potential drivers would need to give evidence. I know you have seen a solicitor and you are the only one who can make that decision. Let us know what happens please.

[Manxman]

Colin5705 - I'm a bit confused by your post #36. I may have got completely the wrong end of the stick, but are you saying that you are quite happy to accept the failure to identify conviction, or do you intend to plead not guilty?

If either is your position then fine, but I'm a bit concerned by the way you have worded your post that you may not have fully understood what has been said previously that (1) a conviction for you would mean 6 points and really expensive insurance premiums for the next 5 years for you or anybody who's insurance you are a named driver under, but (2) that if you intend to plead not guilty that it might be really difficult to persuade the court that you are innocent of failing to name the driver.

My understanding is that your daughter's insurance company informed her that a claim had been made against her because her car (of which you apparently are the Registered Keeper) had allegedly been involved in a "hit and run" having collided with a parked car. The police also wrote to her in connection with the alleged incident and she apparently spoke to them and explained she knew nothing about it.

Despite that you (as RK) subsequently received a s172 request to name the driver, and instead of saying that you could not name the driver because the car had not been in that location at that time and had not been involved in any accident (and I'm not sure if you are saying that that is the case because your account of what you are being asked has been a bit garbled) you simply said you didn't know who the driver was. Saying that might not be enough, as opposed to saying "I can't name the driver because the car was not there at that time"

If that is the situation then you may find it a struggle to persuade the court that you are not guilty. Of course it might be that your lawyer has a good defence for you, but it's not clear to me what it might be. Equally, if you don't intend to be insured to drive a car for the next 5 years, you might not be concerned about a failure to identify conviction.

To go back to your post #36 where you say "There is no offence". As I understand it there is an alleged offence and that might be enough to justify a valid s172 request to you as RK. When you received the s172 request was there nothing on the paperwork to suggest that you (or the driver) might be prosecuted? (ie a Notice of Intention to Prosecute (or NIP)

Basically the police don't need to provide any evidence in respect of an offence until the "accused" pleads not guilty. But if you had asked before replying to the s172 respect whether they had any photographs that might assist in identifying the driver, they might have provided photos of the alleged collision, and those photos might have confirmed whether or not it was your daughter's car and might even have shown the driver.

And just to reiterate what has been said in earlier posts, the fact that: "I've not made myself clear, none of the drivers can make the date, location and time fit any journey. I had to go to the location of the offence to find out where it actually was and it is not an location any of us normally use, although we would be within half a kilometre.
No-one can say where the vehicle was at the specific time and date in question. As I said originally it could have been on the driveway, at the shops or visitng relatives... " may not be enough to prevent you being convicted. Did you read the European Court of Human Rights case that I linked to earlier?

I would also want this confirmed in writing: "The Police have already spoken to my daughter and apparently accepted her reply that she had no knowledge of the alleged offence."

I'm sure that your lawyer has it all in hand. I'm just a bit concerned that you may not appreciate the potential seriousness of this. And I mean you being guilty of failing to identify the driver, not the original accident itself.

Good luck. Make sure to let us know the outcome as if you get off it would be helpful to others to know.

[Colin5705]

Update; Well, I've had my day in Court; or rather, I've had my four hours sitting in the Court tearoom waiting for the Proculator Fiscal deciding not to proceed with the case. If I understand my solicitor correctly, this is not a dismissal or Not Guilty but the best that can be practicaly achieve, given the nature of the system.

I took advice given above re; "diaries" and created time lines. I put two of us 15 miles away in Asda an hour before the incident, with a till receipt and a witness to confirm we were there and using a diffrent car. Similarly for the third driver; a series of business Zoom calls either side of the incident and a social app posting at the time. I hoped to download tracking info for the mobile 'phone but this is not as easy as myth suggests (unless you know in advance to set the system up!) Printed off all bank/ credit card statements, 'phone logs etc. Not that these showed anything other than no activity at the time of the incident.
The Solicitors' I spoke to thought this was largely enough, given the Section 172 request being three months after the event and my reply had been a positive attempt to engage, no previous history with the Courts etc. Also, they were doubtful about the claims of a witness statement and 'photo. The feeling was they would have been presented at an early stage to get the matter resolved. This turn out to be wrong.
When I got the Complaint and Summary of Evidence (which I had to wait weeks for), this was the first description of the incident and the address, THE LOCUS.
I immediately knew the Locus was odd, not an address we recognized. With the description of the incident location including other street names, I set out to locate the Locus. It is not on Google Maps or any modern internet map. I went, on foot, to the approximate location. No street name marked or displayed in the area. The nearest being 50m away, with the legend "To ....." and a Victorian pointing finger. What I did find was a secure block of flats with a private car park. I asked a resident for the correct address and he confirmed the Locus. Long story short, the Complaint described the Locus as public highway, two carrieages with public parking. The actual address location is a private car park, each bay individually secured, no public parking, single carriage, not a public highway. The mechanics of the incident as describe in Evidence could not have happened in the Locus. I made a folder up, nearly 30 pages of this ('photos. maps, Council Officer statements,etc).
Still not received the Police evidence at this stage, after the Plea,and did not receive it until two days before the trial; even then I could not see it "as it must remain within the solicitors control", so office staff read out two witness statements. Immediately, recognised two factual statements that supported my position, strangely not included in the Summary of Evidence. One of which was the owner said he parked in a specific street and picked up the car later, and the witness of the incident gives a diffrent address. No description of how the car got to and fro from these addresses.
In the end, the case was not called, 15 months and £2500 gone.
Not at all a good advert for Police Scotland or the Proculator Fiscal's Office. Obviously no one actually read the conflicting witness statements, or bother to check Google maps, let alone actually visit the location. Also, rather depressingly, the solicitors seemed to view this as pretty much par for the course, that such fundemental errors are routine.

[islandgirl]

Thank you so much for coming back and updating us - a fascinating case. Well done!

[Manxman]

Thanks for the feedback. I'd have said that was a result but for the £2500! Was that lawyer's fees?

Out of curiosity, did they continue to say that "the alleged incident" happened at Gt Frederick Street in Glasgow? I've looked on Google maps streetview and, as you say, it doesn't exist!

Is there anyway to safely complain about the conduct of the prosecution without you (or your daughter) putting your head above the parapet? I suppose the PF just deciding not to proceed might not leave you as safe as an acquittal would. (But I don't understand Scottish verdicts).

[Colin5705]

The lawyer fees were closer to £2600. Circumstances, personal, meant I could only do limited market testing and the company I used were a major practise with availiblity when I needed it. Also, I went for middle level representation as I have no experience and took a conservative approach.

The address was change very early on to North Frederick St., which is on the maps. The Complaint specified North Frederick Path, which is not on the internet maps and in some maps is incorrectly identified as Hanover Cr. But it is on some maps, specifically those produced by Glasgow City Council, the custodians of street names. And if you know what website to go to and get the Officer's email, she will send you a a map, complete with Council logo's, showing the true location of the Path. This is the private car park I mention above. The residents of the flats know the correct address, although there are no street signs. It also has it's own post code. More importantly, to me, is that the physical description of the incident & area, do not reflect the situation of the address. In short, the incident physically could not have occurred there. All of this I put in a seperate file for the lawyer. She was grateful but said I missed an important point i.e. I had to research, an unreasonable amount, to find the address and, if I understand her correctly, that could be suffiient reason for the Complaint to fail. Still better to have the research availble than not.

I would like to complain but, truth be told, we are all exhausted by the process. I know it is "only" a JP Court but when we considered the downside of losing, it was considerable. Yes, I can allow myself to be angry; neither the Police or Fiscal paid even cursory attention to the Complaint, not even noticing that the witnesses claiming the vehicle was at two address at once.

My lawyer describes the not calling the case as just that, it can be at a later date. It is not an aquittal and does not have the strength of an aquittal. But it does seem to be the custom and practise of these Courts

[Manxman]

Thanks for the info.

I thought there was a good chance your daughter might have ended up convicted of something but well done for seeing it through - even if not an ideal ending.

Your lawyer may have been right that you did more research than technically necessary. I believe that in England and Wales that if a NIP doesn't sufficiently identify the location, then it fails. Don't know if true in Scotland.

Anyway - as you say - better to have done the research and found it wasn't necessary than the other way round...

Hope your daughter hears no more of this.

(Just out of curiosity, was it somewhere round here? North Frederick Street - Google Maps )

[Colin5705]

Yes, thats it. The Private Parking sign marks the start of the Path.
As I said the Council is the body to definitively name streets and does publish a map defining each street, although I had to request it. On some published maps it is named as Hanover Cr, possibly because the block of flats is called Hanover House, although the address is N. Frederick St. Hanover Street is the next street west of this location. Confused? A point I did not bring up was it appears the Path is not an adopted road and it is possible this is not a public place. The definition, to me, is a quagmire, but someone above, possibly yourself, include a link to a judgement that made clear it was the prosecution's duty to prove a public place.
If I understand it correctly, a Summary cause will fail after six months if no action is taken. I have other concerns at the moment (I am at that age) and will check that later.

[Manxman]

OK thanks.

Hope the case goes no further before it times out