Failure to nominate the driver of a motor vehicle

(also sometimes called failure to provide information, failure to nominate, failure to furnish)

Section 172 of the 1998 Act places a burden on the owner of a motor vehicle to give information as to the identity of the driver of the vehicle at the time of an alleged offence, such as speeding.

The offence of failing to nominate a driver at the time of an alleged offence used to carry a maximum of three-penalty points and a £1000 fine.

However, in response to the increased number of motorists using this penalty as an effective method of capping liability, the government has introduced new legislation to increase the number of penalty points to six for the same offence. This legislation came into force on 1 October 2007.

The law states that you are required to identify the driver of a vehicle when it the driver is alleged to have committed an offence. Under the new law, failure to identify the driver of a vehicle alleged to have committed an offence after 1 October 2007 will result in 6 points and a fine of £1000.

What if I do not know who was driving the vehicle?

If this is the case, then the law states that the owner or keeper of the vehicle must have exercised ‘reasonable diligence’ to find out the identity of the driver. Reasonable diligence just means making a real effort to find out who was driving.
 
If all the above checks, enquiries and investigations have been made into all the possible drivers and still there is no way in which the identity of the driver can be found out, the keeper of the vehicle and any potential drivers will usually be cross-examined by the prosecution solicitor or barrister.

If cross-examination has taken place and there is still no way to say for sure who was driving the vehicle, then the law says that the keeper of the vehicle cannot be held responsible. This will only be possible if the court is satisfied that the keeper has been diligent in trying to find out who was driving.

Case Study 1

Our client had recently purchased a new vehicle and had taken his partner and another third party out for a test drive in an area that was not familiar to any one of them. During that journey all three persons could potentially have been driving the motor vehicle.

A few days later he received a notice of intended prosecution for an alleged speeding offence in a thirty miles per hour speed limit area. As the registered owner of the vehicle, he received the NIP requiring him to furnish information as to the identity of the driver.

He then contacted and retained us. We contacted the safety Police Unit indicating that the identity of the driver was unknown and that we required additional photographic evidence to identify the driver. The photographic evidence was received but was inconclusive.

After various communications with the safety camera unit and a number of court appearances the prosecution withdrew the charge of speeding, and the failure to identify the driver charge was also dropped days before the actual trial. We were contacted by the prosecution who stated that they wished to avoid a trial. As a result, our client recovered his defence costs.

Result: Not Guilty – Court made order for our client’s legal fees to be paid from court funds.

Case Study 2

Our client was also accused of failing to identify the driver.

Similarly, he received the notice of intended prosecution within the fourteen day stipulated period for driving his motor vehicle at a speed exceeding thirty miles per hour. Our client was adamant that he was not speeding.

As a result of this, he contacted the safety camera unit to secure additional material to corroborate the allegation of speeding. In addition to this, he provided all his contact details in an email to the camera unit requesting the material and in the same emails identifying the fact that he was confident that he was not travelling at an excess speed. 
Our client received a number of replies to his electronic communications confirming that the speed measuring device was completely accurate and that as he had failed to respond to the NIP within the time period in the prescribed manner, he was guilty of an offence under section 172 of failing to provide details as to the identity of the driver.

He was summoned to attend court and at that point, he instructed us to take on his case. After conducting thorough investigations into our client’s case and two court appearances where we appointed specialist counsel to represent our client, two days before trial we received notification from the Crown Prosecution Service to confirm that they had withdrawn all charges against our client.

Result: Not Guilty – Court made order for our client’s legal fees to be paid from court funds.

Strategy in Failure to Give Information Cases

One of the most frustrating aspects of this offence is that it has the potential of criminalising a bad memory. People who are law-abiding and respectful find themselves in the criminal courts. However, the fact that people accused of this offence often have no previous convictions often makes it easier to defend them. This can be done in a number of ways:

1. Character witnesses. Where truthfulness is an issue, we will normally ask motoring law clients to suggest friends or associates who may be prepared to come to court. We will talk through the suggestions and select the most suitable people to attend.
2. Character letters – where character witnesses cannot attend, the right type of character reference letter should be presented to the magistrates. This works best when used alongside ‘live’ character witnesses who attend in person.
3. Presenting background information about the defendant’s respectability to the court, both in court and in document form – i.e. employment, qualifications, etc.

Defence costs orders

Orders for the court to pay back at least the majority of defence costs are normal in cases of failure to give information cases, if the case is dropped, or the defendant receives a not guilty verdict. This happens after the case, and we submit the file back to the court for them to assess exactly how much to pay.

If you have received a summons for failure to give information as to the identity of the driver, or any other motoring offence, contact us to discuss your options.