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Failure to Identify Driver
If you have been charged with the offence of failing to identify the driver, it’s important that you challenge, rather than just accept, the penalty. This is a complex and technical offence which the CPS may not be able to prove.
Ask yourself the following;
- When the police first issue the NIP?
- Was the NIP sent to the correct address?
- Did the police issue reminders?
- Even if the police did comply, do they have evidence to prove the above?
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Failing to Identify the Driver - Section 172
Just because the police allege that you have failed to give information does not necessarily mean that you have committed an offence.
This offence is based on the assumption that the police have sent to you a requirement to identify the driver under section 172 of the Road Traffic Act 1988, and a Notice of Intended Prosecution. The offence will be committed if you have received these documents, and you have failed to return the notice within 28 days, or returned it without taking reasonable steps to identify the driver.
Failure to identify the driver penalty
Failing to identify the driver carries 6 penalty points or an immediate ban, and a fine of up to £1,000.
However, if handled correctly, you may have a very good chance of winning your case. Notices requiring you to disclose driver details are usually sent out by the Central Ticket Office. This office is staffed by civilians, not police officers, and such notices are mass produced by computers. This means that staff from the Central Ticket Office have very little experience in handling real evidence and disclosing information.
The Central Ticket Office handles tens of thousands of NIP's each year. Can the police locate the correct NIP and can they prove that it was issued in time?
Defending against a failure to identify driver court summons
If you have been charged with failing to identify a driver, or failing to provide driver details, there are several ways that you can defend yourself. It is very important to consider the correct procedure for your own case, which is something that speeding solicitor Marcus Johnstone can help you with.
Just some of the defence options available to you could include:
Non receipt defence
If you did not receive a section 172 notice, then you cannot reasonably be expected to respond to it. The prosecution will not be able to prove that was ever actually received by you, only that it was posted to you. The prosecution may not even be able to prove it was posted, unless a witness statement is provided showing the notice was handed to the Royal Mail.
Once you post your response to the s.172 notice, it is deemed served on the police – even if they never receive it. You only have to prove it was posted by providing evidence on this point. It may also help if a witness can testify that they saw you returning it.
No obligation to respond defence
If the notice was incorrectly addressed or your name is misspelt, there may be no obligation to respond. In fact, you could be committing a separate offence of opening mail not correctly addressed to you! The prosecution must prove the notice contains your correct name and address. If it cannot do so, the prosecution is likely to fail.
Insufficient information defence
The notice must give you sufficient information for you to identify the driver. This means the notice should include the date, time and location of the alleged traffic offence. The location should be precise. It is often not sufficient for the prosecution just to include the name of the road. It should state the section along that road and direction of travel, for example, “M6 northbound between junctions 5 and 6”. Missing information can result in the prosecution failing.
Reasonable diligence defence
The law only requires you to provide information which is reasonable to give. For instance, if you are not able to identify the driver, but you can clearly explain why, or show that you have taken reasonable steps to try – then you may have a complete defence. This defence is commonly used when family members have access to a vehicle, or more than one person used the vehicle on the specified date.
Extended time defence
A notice of intended prosecution allows you 28 days to respond. However, if you are away from home and do not receive the notice within this time, you are allowed a reasonable time thereafter to respond. If you only return home after a summons has been received, then you have not had an opportunity to respond, and so are entitled to more time.
'No offence' defence
You may be able to claim that no offence was committed if there are errors in the police or prosecution’s allegations.
For example, this could be in the specification of dates of the alleged offence. The notice of intended prosecution you receive will state that you have 28 days from the date of the notice to respond. However, the law allows 2 days for postage of the notice to you. This technically entitles you to 30 days to respond. If the dates in the prosecution’s allegations are incorrect due to not allowing the 2 additional days, then legally no offence has been created.
Of course, defences of this nature do come with a certain level of risk – for instance the prosecution could simply thank you for highlighting their mistake and alter it – and so need to be approached with a certain level of caution, skill and expertise. That’s where the services of a specialist solicitor can become invaluable.