KNOW YOUR RIGHTS
2) If you are not the keeper then you are “any other person” and only need to give “information in your power to give which may lead to the driver’s identity” (s.172(2)(b)). This means that (again within 28 days) you must write to the police with all information you can, including all details of any potential drivers. Even if you have no knowledge of the vehicle or who was driving it, you must still respond to the police with that information – simply ignoring a request even when you have no knowledge is an offence (R v Grant [2001] EWHC 1114).
But, even if you do exercise diligence or provide all informa- tion in your power to give, the police are unlikely to simply let it lie and instead will likely summons you to court. It would then be down to you to argue either of the above, depending on your relationship with the vehicle.
At court, evidence is probably going to be required to support your defence. In support of a diligence defence we would always advise obtaining witness statements for any potential drivers as well as copy records/documents you checked.
However, if this does happen we strongly advise you seek legal advice rather than trying to represent yourself. Trial proceedings can be complicated.
WHAT HAPPENS IF I DON’T RECEIVE THE REQUEST?
For some unlucky people the first they hear is when a Court Summons arrives charging them with failing to provide driver information. And it is only when they look back through the paperwork they realise that a request for information was sent to them and they did not respond.
In these circumstances the defence available is under s.172(7)(b). This says that if the defendant can show that it was “not reasonably practicable” to respond (as they didn’t receive it) then they will not be guilty of an offence. However the defence is not automatic – it must be considered on a case by case basis. Some examples:
• The request for information was sent by first class post to your correct address but you are certain you never received it. Here the police will rely on what is called a ‘presumption of service’, meaning they can presume that an item sent by first class post was delivered. However, the defendant can rebut that presumption by giving evidence (Gidden v Chief Constable of Humberside [2009] EWHC 2924). It does help if you can provide a reason why you think it may have gone missing, for example if you have had previous problems with your post or perhaps the postman was ‘pinged’ by the app during the pandemic. And if you can provide further evidence from any people you may live with to confirm whether it was received or not that will go a long way to supporting the defence.
SEPTEMBER 2021
• The request for information was sent by registered or recorded delivery, but you did not receive it. Unfortunately this is not a defence. Anything that is sent by registered or recorded post is deemed received – whether or not they actually received/opened it.
• The request for information was not received because it was sent to an old address. Unfortunately this may not be a defence. Every person is required to ensure that their details are updated with the DVLA – this is not just the driving licence but also the V5. So if the V5 is registered at an old address and this causes the request to be sent to that old address, then the defendant may not be able to rely on the defence (unless they were still collecting post from the old property or had a postal redirection in place and can show it was still not delivered).
• The defendant did not receive the request because they were away/on holiday at the time. Again, this may not be a defence. The defendant must ensure that they are avail- able at the property where the request is sent and/or have a system in place to deal with post whilst they’re away. If they fail to do so and miss the request, they cannot rely on the defence that it was not practicable (Whiteside v DPP [2011] EWHC 3471).
WHAT ARE THE PENALTIES?
If you fail to nominate the driver or provide information in your power to give, then you are likely to get summonsed to court. At court if you were then found guilty of failing to provide information you would receive six penalty points or a discretionary disqualification, as well as a fine of up to £1,000. There may also be court costs involved.
If however the police suspect you of providing deliberately misleading or false information in response to the request for information, they can prosecute you for perverting the course of justice. The most high profile example of this is when the former MP Chris Huhne and his wife were each given a prison sentence when she agreed to take three penalty points for him.
SO WHAT DO I DO IF I RECEIVE A REQUEST FOR INFORMATION?
In a nutshell, seek legal advice. If you have just received the request for information then we advise you how to respond in the correct manner. If you have just received the summons, then certainly it is not something we recommend people attempt to deal with on their own. Section 172 is complicated. There are different burdens, different ways of providing information and if you get charged, different defences. It’s a complex area of law and certainly one that requires specialist legal advice. If you need advice, email
advice@pattersonlaw.co.uk or call us on 01626 359800 for free initial advice.
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