Exchange With Police Reasonable Diligence

Question:

I have received a NIP for doing 36mph in a 30mph zone.

I wrote as follows to Wiltshire Constabulary:

Dear Sir

I am the registered keeper of xx07xxx.

My mother died in x on x. My wife and I drove to x from our home in Surrey on x to start making various arrangements. We visited the Hospice, then the Funeral Director in x, then the Registrar, then back to the Funeral Director, and then on to my mother’s former home in x. My wife and I shared the driving throughout the day.

As I am sure you will appreciate, it was a traumatic day in an unfamiliar location and we do not know who was driving at the time of the alleged offence. The photograph on your website is inconclusive. Please provide any further photographic evidence which you may have.

Thank you.

Dominic Says:

I note your comments and offer my sincere condolences for your loss. I have accordingly re-checked the film but there is no view of the driver as the photograph has been taken from the rear of the vehicle.

Unfortunately, the cameras used by the Partnership are not designed to obtain clear views of drivers but primarily to identify the vehicle and registration mark. These photographs are available to view on-line by following the instructions on the reverse of the notice sent to you.

The website also has information relating to the site which may be of use to you.

You are advised that it is the responsibility of the registered keeper of the vehicle to provide the identity of the driver at the time of the offence.

Section 172(2) of the Road Traffic Act, 1988 places a duty, on any person required to do so, to provide such information in that persons possession as may lead to the identity of the driver of a vehicle where that driver is alleged to be guilty of an offence.

Section 172(3) goes on to state that a person who fails to comply with a requirement under subsection (2) shall be guilty of an offence.

Where the person who fails to supply the information required on a Section 172 form is an individual, the penalty on conviction is similar to that that would be incurred for the original traffic offence, i.e. a fine, not exceeding £1,000, and endorsement of the driving licence with six penalty points.

The only defence is where the person of whom the information was requested is able to show that they could not, with reasonable diligence ascertain the drivers identity. The question of what amounts to reasonable diligence will be considered on its merits by the adjudicating court in each case.

If you are unable to ascertain the identity of the driver of the vehicle at the time of the alleged offence, this matter will be referred for process by way of a summons for failing to provide information as to the identity of a driver.

In such circumstances it will then be for the court to give consideration to any reasons that there may be for not being able to identify the driver and to adjudicate accordingly.

My question is:

If my wife and I genuinely cannot remember who was driving (because “it was a traumatic day in an unfamiliar location”), is it worth defending on that basis or does “reasonable diligence” suggest that we MUST be able to work it out? (This is nevertheless rather a circular argument if, due to the circumstances of the day, we in fact cannot remember.)

Many thanks!

Dominic says:

Thank you for your email.

s.172(4) provides a defence if you can show that you did your best to figure out who was driving at the time. The magistrates would first need to decide whether or not they believe you when you say that you cannot and due to the circumstances of the day in question I think they will have a lot of sympathy.

They will probably accept that the day was a blur and that it is understandable why you wouldn’t be able to say who was driving at that precise moment.

Crown court judges have said that reasonable diligence simply means you must have done your best. You have asked for the photo – you should also name your wife and provide her full contact details as the other potential driver.

You should consider the description of the location to see if that jogs your memory – maybe have a look on Google earth.

Have either of you got any points already? If so, how many?

We have been getting involved in cases like your over the last 6 months and trying to dissuade the police from issuing proceedings. We have achieved a 90.20% success rate. I charge a fixed fee of £250 plus vat.

If you would like my help then please come back to me.

Kind regards and condolences for your loss.