A Healthy Debate s. 172

Question:

Section 172 Road Traffic Act 1988

If the S.172 RTA 88 Notice is signed by a civilian office manager and not a CONSTABLE is one obliged to observe it? Shed 6 talks about powers of ‘Constables and Others’. A ‘constable’ is quite clear ‘others’ are certifying officers of the DfT.on production of authority.

There is no such power for a civilian office manager of a police service.

I believe any such demand is unlawful and can be ignored. Your views please. I am aware some 2000 such demands were withdrawn in N Yorkshire a while ago, but it seems some Police Forces are still sending out such notices. Has there been any case law or change in legislation of late please?

Dominic Says;

The police simply have to show that the request was made on behalf of the Chief Constable. The court can rely on its official appearance in deciding whether or not you should had complied with it. If the court is satisfied that the person named was acting on behalf of the CC then the notice is fine.

If you ignore it you risk 6 points if you lose the argument at court – so be careful. If you get a summons the prosecution have to attach a statement proving that the person making the request was acting on behalf of the CC.

I am not aware of any case law that changes this position.
 Have you got a summons to court? Have you got any penalty points already? If so, how many?

Response;

It’s not myself it’s another.

He has 6 points, he had a solicitor to defend him for doing over 110 on the A1 in Lincs last year, he was lucky they did not disqualify him for Special Reasons. He now has one for 36 in a 30 and asked me for advice (I am an Ex WY RT Insp retd 1995)

I told him to speak to his solicitor before he sent the notice back, but I was curious as the S. 172 Notice was signed by a ‘civvy’ office manager. I note Northumbria published a delegation of powers document, their CJSU Office Manager is a delegated authority.

They are promoting in W Yorks the half day lecture for £75 now instead of £60 and 3 points for 10% + 3 so he should get offered that.

I am curious though how the CC can delegate that authority in law. I am not doubting your professional knowledge. However there does not seem to be any provision for it I am aware of but please feel free to point me.

I was looking at the Shed 6? RTA 88 a while ago on ‘powers of constables and others’ ‘Constable’ is quite clear ‘others’ only refers to officers of the D f T (VOSA) Inspectors in the schedule and even the on only then on production of their written authority. I was aware N Yorks had to discontinue a lot of theirs some 2000 I believe last year I think because they were challenged or CPS backed off saying it had to be signed by a Constable. I know they then got one signed and photocopied it, that too was challenged as it too had not been signed being a copy. I just wondered where we were with this now.

I have no points and no pending allegations against me!

Sorry I made an error in my last to you (I was looking at another matter) when I referred to Shed 6!!!!

The case(s) in North Yorks was/were based on the powers granted in S165 RTA 88 to  Constables and other authorised persons (VOSA officers)

Section 172 RTA 88 refers to those powers (contained in S165) when it talks about the power to require information. That was the basis of the opinion as I understand it.

In other words S. 172 relies on S165 to bolster the power to demand information and it is restricted to constables and those other persons.

The issue on the words on behalf to the CC have been tested as long ago as 1963 in Foster v Farell (a Scottish case)where is was held the information with regard to the provision of information by an unauthorised constable was not valid. The other case was Gray v Farrell 1969 where it stated each authority need not be given separately it was suffice for every ‘member of the police force’ to so act.

A ‘member of a police force’ it is contended can only be a constable, a  civilian component is not such a ‘member’ under the Police Act 1964 and cannot be so authorised to demand information under S. 172. That was the argument and I believe it was thought to be quite sound.

The history to this came about from the fact Prosecutions Offices used to be commanded by a Chief Inspector rank and other ‘constables’ who used to sign S172 demands. As a result of further civilianisation they were replaced by Civilian Managers and that was when the problem arose.

I have discussed this with a local defence lawyer and he agrees with myself in this regard.

It would be interesting for this to be tested at some stage unless you have later law on this, it is as I understand it. Hope this helps

Answer;
Where does s. 172 refer to s.165?

 S.165 is a completely different section and simply talks about the power of constables to demand information.

S. 172 does not state that only people with the powers under s.165 can make demands under s. 172.

 These demands are always sent by admin staff on behalf of the CC. They send thousands every week. The court would never agree that they cannot be sent by a civilian on behalf of the CC.

There are lots more recent cases on the lawfulness of the demand and the only issue is whether they are authorised to make the demand.

 Sorry I don’t agree with your local lawyer.

 Response;
 Sorry.
S 171 mentions S 165. That refers to insurance information.

Nevertheless it seems this issue was raised and there was doubt as to whether a civilian could make the demand. This is why Northumbria have said they have authorised Civilians. If that was not an issue why would they do that?

 Just because, as you quote, ‘thousands go out every week’ does not make them lawful.

So it seems the civilian has to be ‘authorised’, perhaps that is where it went wrong initially.

 I note you say there has been more recent cases on this.

Dominic’s Answer:

I appreciate your arguments and they are not silly, but the court won’t open the floodgates by reaching the conclusion that the thousands sent out every week are unlawful and have been unlawful throughout.

I am not suggesting that the fact they send out 1000’s necessarily makes them lawful and I never shy away from a good fight if I think we can win.

I just think the odds are stacked against you and there have been many cases where the lawfulness of the request has been explored and the court simply states that if the CC has given authority (no matter who to) they are lawful – try DPP v Mohandas for one.