A Notice of Intended Prosecution is sent in writing if you are not stopped by the Police and verbally warned that you face prosecution – it is not required for all Offences – your failure to comply with the procedure can have serious consequences.
Since October 2007 the Offence of failing to provide details of the identity of the driver carries 6 Penalty Points so how can you avoid being convicted of this Offence?
It is sometimes known as
- failure to provide information
- failure to nominate a Driver
- failure to furnish information
Section 172 of the 1988 Road Traffic Act requires the Police to issue a Notice of Intended Prosecution (“NIP”) to the Registered Keeper of the vehicle involved in the commission of certain Offences within 14 days of the Offence being committed. In certain circumstances, including where such notice is given verbally by a Police Officer to the driver of a vehicle, this does not have to be given in writing.
A written Notice does not have to be received within 14 days but it must have been issued within 14 days of the alleged Offence and essentially on the basis that you are likely to receive it within 14 days.
Car on Lease or Finance Agreement?
Be careful if you drive a car subject to a Lease or other Finance Agreement because the Finance Company is then usually the Registered Keeper. Notices will therefore be sent to them and not you – if the car was provided for you by your Employer and they, not you, signed the Finance Agreement, then the Notice will be forwarded to them and not you, causing further delay.
The Registered Keeper has to provide within a reasonable time (this may be specified in the NIP & is usually 28 days) details in writing of who was driving the vehicle at the time.
Call us for Free initial advice before you complete the Form and let us ensure that there are no errors in it – this can often be the case but, for the error to be fatal it has to cause you significant prejudice. Keep a copy of the Form and make a note of when & where you posted it.
Not sure who was driving?
If you are unable to be sure who was driving the vehicle you must identify those who might have been. If the identity of the driver can still not be established you may be prosecuted even though you have done everything possible to establish who was driving.
If you receive a Summons alleging that you did not reply to the Notice and are unsure what to do call or email us before you do anything and you will get Free Advice from a specialist Motoring Solicitor. You may well have a Defence and if you are acquitted your Costs should be paid by the Prosecution.
For more information on:
- the different obligations for a business as opposed to an individual
- what if I cannot establish who was driving the vehicle
- what if your car was not where it was alleged to have been
- what if the NIP is inaccurate or unclear
- what happens if I do not receive the NIP
- what happens if my reply is not received
- what are the risks if I deliberately name someone who was not the Driver
- if I am charged with this Offence how do I fight it and can I plead Guilty to a lesser offence
- Click on the Link and you will receive a Free Guide giving you all the information you need to deal with a Notice of Intended Prosecution.
- Notice of Intended Prosecution (Guide to be downloaded with e mail address captured)
The Vehicle is Registered to a Business
The first problem here is that the NIP will be sent to the address for the Registered Keeper which may be
- an individual
- a business
- a Finance Company if the vehicle still belongs to them
Time is important when dealing with a NIP as you are usually given a maximum of 28 days within which to reply. You will not be convicted if you show that you do not know who the Driver was and could not with reasonable diligence have identified the Driver of the vehicle.
If you run a business which has a pool of vehicles available to be driven by a variety of Employees then you will be expected to maintain a Log showing who drove any of those vehicles on any occasion they were used. If no records exist or if they are deficient you are likely to be convicted.
There have been many cases where business owners tried to hide behind an argument based simply on saying that no-one knew who had taken a particular vehicle on the day in question. That argument is unlikely to now find favour with a Court. If you want advice on the nature and extent to which you should log the use of your business vehicles call or email us now.
What if I do not know who was driving the vehicle?
If you are unable to establish who was driving the vehicle at the time the Offence was committed then you should complete the Notice on that basis. You should also send a covering letter (keeping a copy) indicating that you have complied with your legal requirement as the Registered Keeper to 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 – see below as to the sort of enquiries you should be able to demonstrate that you have made.
The Police may not accept your simple claim that you are unable to identify the Driver and if you are prosecuted on that basis you will be expected to have at least done the following
- established who other than yourself has access to the vehicle generally and, specifically, on the day in question
- checked any Police photographic evidence to ascertain whether the Driver can be identified from that
- named anyone you suspect may have been driving the vehicle
- what information can those who have access to the vehicle give as to their whereabouts on the day in question
- who is insured to drive the vehicle
- is it a vehicle you usually drive or is it just registered in your name
- where were you on the day the alleged offence was committed
- have you got Bank or Credit Card Statements that show any purchases (Fuel?) having been made that day in the area where the alleged Offence was committed
- do you have any Personal or Business Diaries that assist in establishing where you or others with access to the vehicle were
If you have carried out all of the above enquiries and investigations but are still unable to identify the driver then at a Trial you, as the Keeper of the vehicle and any potential drivers can expect to be cross-examined by the Prosecution Solicitor.
If the Magistrates accept that the Prosecution have not proved that you have failed to meet the requirements imposed on you as the Registered Keeper of the vehicle then you cannot be convicted either for the Offence of failing to give details of the Driver or, of the Offence allegedly committed by whoever was driving the vehicle at the time.
If you are acquitted or, if the Crown prosecution Service drop the Case before Trial we will apply for a Defendant’s Costs Order which will see all or part of your Costs paid by the Prosecution.
What if your car was not where it was alleged to have been?
It may be that you simply deny that the vehicle was where it was alleged to be at all and this is an argument that can be advanced on your behalf. In those circumstances you cannot of course identify the Driver.
So how do the Prosecution prove it was your vehicle and, is it enough for you to claim that someone else was using a cloned number plate? The answer is “with extreme difficulty” if you raise this as an argument – the Government’s own figures show that in 2004 alone there were 33,000 number plate thefts and the vehicle, having been cloned, will of course be the same type which is the whole point of cloning.
You would need compelling evidence that you and any other potential Driver of the vehicle was nowhere near that location at the time.
What if the NIP is inaccurate or unclear?
To a large extent minor errors will be overlooked by a Court and do not therefore provide you with a valid reason for failing to give the information requested. Examples of minor errors that will not benefit you include
- alleging Careless Driving instead of Dangerous Driving
- timing – am instead of pm
- omitting “without due care and attention” stating only that you drove a car
However, an NIP that simply asks who was the Driver of the vehicle on a specified date “on the M6 Motorway” is not sufficiently clear for you to be able to know what enquiries you should make. In these circumstances you should not ignore the NIP but write and request more information – always keep a copy of any letter you send in relation to a NIP. It is a matter of fact and degree as to whether you have been misled or prejudiced and only errors as to location are likely to be of assistance.
What happens if I do not receive the NIP?
For inexplicable reasons NIPs are not sent by Registered Post or Recorded Delivery so apart from usually having proof of postage the Police can rarely prove that the NIP was actually received. If (as is sometimes the case) no reminder is sent an argument that the NIP was not received is difficult for the Prosecution to challenge successfully.
The Mail Regulator POSTCOMM quoted that in 2005-6 11.4 million items of mail are lost each year. In that same year they handled over 21 billion items of mail and received approximately 734,000 complaints about lost mail paying compensation in approximately 406,000 cases amounting to over £7m.
However, defending a Charge of not providing Driver Identity details may still leave you vulnerable to a charge for the substantive Offence if you were the Driver at the time.
Most Police Forces will send a reminder and it will be stretching the credulity of any Magistrate to argue that the postal system failed twice.
What if my reply is not received?
Just as the Post Office may not deliver the NIP to you, your reply could equally go astray so always keep a copy and make a note of the date of postage.
Most Police Forces will send a Reminder and if you receive that it is safer to assume that your reply has not been received – the best option then is to reply and send a copy of the original reply.
Any Summons for a Motoring Offence has to be issued within 6 months of the date on which the alleged Offence was committed so bear that in mind when wondering how long you may have to wait before knowing whether or not you will be prosecuted.
What are the risks if I deliberately name someone who was not the driver?
Considerable is the short answer!
If you and/or another person agree to give details of a person who was driving the vehicle in place of the person who actually was then you are at risk of being prosecuted for conspiring to pervert the course of justice. If convicted of this Offence it is likely that you would go to Prison.
The Police may reject the reply you make and if you are then charged with this Offence you would both be cross examined at Trial as to the cogency of the evidence to show that the person named actually was the Driver of the vehicle.