Lord Michael Howard conviction for failing to name successfully quashed, the right decision for the wrong reasons
We deal with more failing to name driver cases than any other type of allegation. We were really hopeful that this case would result in the level of scrutiny necessary to clarify what is a really complicated little piece of legislation. Unfortunately the High Court have missed that opportunity and have failed to appreciate the complexity of section 172 and the distinction between the various burdens that apply dependent on the relationship to the vehicle.
It may have been the fault of the questions asked via the case stated, but whoever’s fault our concern is that the police will glean more power from this judgement by simply changing their forms to demand more information than that which they have a right to under the statute.
Undoubtedly the decision of the District Judge in the case of Michael Howard was wrong and the High Court was right to overturn his conviction.
The decision was correct for pretty much all the wrong reasons!
As far as we are concerned the strongest argument that Michael Howard had related to the fact that the District Judge suggested he was under a burden to give ‘information that was within his power to give that may have led to the identity of the driver.’ She seems to have dismissed his hardship argument because of that failure.
As far as the legislation is concerned section 172 applies no such burden upon the day-to-day keeper of the vehicle. The case of Mohindra clearly draws a distinction between the different types of people who may be asked to provide driver information. It states that there is a clear distinction of responsibilities.
Keepers of vehicles (i.e. the day-to-day keeper) are duty bound under section 172 to name the driver, see the writing in red below;
172 Duty to give information as to identity of driver etc in certain circumstances.
(1)This section applies—
(a)to any offence under the preceding provisions of this Act except—
(i)an offence under Part V, or
(ii)an offence under section 13, 16, 51(2), 61(4), 67(9), 68(4), 96 or 120,
and to an offence under section 178 of this Act,
(b)to any offence under sections 25, 26 or 27 of the Road Traffic Offenders Act 1988,
(c)to any offence against any other enactment relating to the use of vehicles on roads, F2. . . and
(d)to manslaughter, or in Scotland culpable homicide, by the driver of a motor vehicle.
(2)Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police [F3 or the Chief Constable of the British Transport Police Force], and
(b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
(3)Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.
(4)A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
Please note that there is no suggestion that the person keeping the vehicle shall give information as the identity of any possible drivers. The words used are as to the identity of ‘the driver’ therefore a single individual not possible individuals.
Now look at section 172(b);
(b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
Note the words ‘any other person’, therefore not the day to day keeper!!
When section 172 is applied correctly there are clear distinctions between responsibilities applicable dependant on your relationship to the vehicle.
The judgement in the case of Lord Howard will simply lead to the police changing the forms. It implies a burden that does not exist in the statute to give any other information when you are the keeper of the vehicle. The statute says that when you are the keeper you have to name the driver and if you can’t you have to do establish on the balance of probabilities that the statutory defence applies.
Namely, that you are not guilty if you show that you did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. It’s clear that the statutory defence only applies to 172 (2)(a) cases, i.e. when you are the keeper of the vehicle.
This judgement seems to be completely ignorant to the judgement in Mahindra and the actual distinction in the black-and-white of the statute provision itself.
The judgement creates the impression that keepers are required to explain their diligence to the police at the time when they are asked and that they are required to give any information within their power to give that ‘may’ lead to the identity of the driver.
That’s not what section 172 says (see above).
Neither is it what the most important case in relation to this issue Mohindra says. Mohindra is not even referred to in the judgement.
The Michael Howard case seems to be decided entirely on the principles of the case of Broomfield and a failure in the drafting of the forms i.e if you don’t put a box on the form setting out what information you want then how can people be expected to supply other information if it doesn’t fall within the scenarios allowed for by the form?
Broomfield says the when a form is sent out it must be completed in the manner prescribed. However, the case of Broomfield does not allow the police to ask for whatever information they want carte blanche. It does not state that the police are allowed to ask people to explain the diligence they’ve used (and that a failure to explain something where there is no statutory obligation to explain scuppers any potential defence) if they are not able to come up with a definitive answer.
Broomfield does not state that the police can ask the keeper of the vehicle for information that is within their power to give that ‘may’ lead to the identity of the driver (the statute only puts this obligation on ‘any other person’).
There have been a few cases recently where the High Court has had the opportunity to clarify section 172 and has in our opinion missed a trick and failed to tackle the most important issues in the case. This was one of those opportunities.
All this judgement will do is make the police/Crown Prosecution Service and ultimately the magistrates/Crown Court judges on appeal, think that the police are allowed to demand any information they want from an individual, despite the statutory provision contradicting that.
Section 172 is a breach of human rights in that it asks for potentially incriminating information, but the breach is deemed to be proportionate to the need to maintain road safety. It still needs to be handled with field care in terms of not empowering the police to ask for more potentially incriminating information than Parliament intended when it created the section.
It will in our opinion simply lead to the police changing their forms and adding a box where people are required to explain their diligence and are required to nominate any potential other drivers, irrespective of the fact that section 172 does not put that obligation on the keeper.
It will then lead to us having to have the argument in the court room and the CPS/legal advisers/magistrates attempting to rely upon the case of Michael Howard and trying to suggest that there is a positive obligation under section 172 for them to provide this information.
The district judge relied on the case of Flegg. That case would have been clearly distinguished by the High Court. The Flegg case revolved around a keeper who said it was either me or ‘him’ and I am sure it wasn’t me. In that case the judgement stated that if you are sure that it could not be you then by default you must be sure that it was the other person driving, therefore he should have nominated the other person.
It was not comparable to the case of Michael Howard where he was saying it was either me or my wife and neither of us were sure which. Therefore the one thing the High Court did get right was the suggestion that sending a notice to the wife would not have taken the issue any further forward if they believed (and the district judge stated that she did) that the writer Michael Howard nor his wife knew who was driving.
Unfortunately the miss-application and misunderstanding of section 172 will continue and if anything the police will begin to believe that they have more powers than they did prior to this judgement.