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I did mention insurance, primarily as a reason why none would own up - but you're right, it could be a problem for Grandad too - permitting a vehicle to be used without insurance is an offence attracting 6 points IIRC.
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if nobody is prepared to confess then pass everyone's details onto the police and let them deal with the mess.
'Fraid it doesn't work like that. It is not the responsibility of the police to sort out the mess of your father's own making. It is his responsibility to provide the driver's details.
If none admit to it name the person who drove the car away from his home in the first place and let them deal with it?
That approach might work. The difficulty is that if Person 1 (of the six) denies driving and nominates Person 2 that will not be allowed to go on for long. The police have six months to instigate proceedings for speeding and they like to have their ducks in a row after about four months. Each person who is asked for driver’s details has four weeks to respond. No more than one or perhaps two “buck passing” episodes will be tolerated.
You could try to appeal to the better nature (if any exists) of the Magnificent Six by explaining that whoever “takes the rap” will almost certainly be offered a Speed Awareness course (cost about £100 and no points) provided they have not done one in the last three years. You may also mention that the issue of insurance is unlikely to be raised if the matter is dealt with promptly. However, if it is not, that issue may also be investigated.
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if nobody is prepared to confess then pass everyone's details onto the police and let them deal with the mess.
'Fraid it doesn't work like that. It is not the responsibility of the police to sort out the mess of your father's own making. It is his responsibility to provide the driver's details.
When I say "them" I mean the family, not the police. Apologies, that wasn't very clear.
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Need to be a bit careful here.
Is the car insured for other drivers or could an admission on speeding lead to driving without insurance.
He could reasonably accept that as owner he was not aware who was driving at the time and reluctantly accept that as vehicle owner he has responsibility for the offence - mea culpa, won't do it again etc.
If he owns up to now being unable to drive will that invalidate his insurance - and are the rest of the family driving on his policy.
Best option is of course for one of the family to fess up.
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When I say "them" I mean the family, not the police. Apologies, that wasn't very clear.
As I said, that won’t do. If your father provides a list of half a dozen potential drivers the police will not fanny about trying to establish which one of them was driving. They will not contact any of the six so there will be nothing for them (the six) to sort out. At present your father has to do something to satisfy the requirements of Section 172. If he does not (and providing a list of six names does not) they will simply charge your father with “failing to provide driver’s details”.
At this stage the insurance issue is a red herring. If a driver is nominated and accepts either a Speed Awareness Course or a Fixed Penalty then no investigations into the insurance matter will follow. There’s simply no need.
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I believe they do collect licence details when you go for a SAC :)
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I believe they do collect licence details when you go for a SAC :)
Yes they do because you can only do one in a three year period.
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Thanks all.
All the family members have inurance and can drive any car with permission.
No family member including him have any convictions of any kind, not even a parking ticket.
He is not prepared to accept the fine himself as it wasn't him and this is illegal.
He still cannot find out who was driving. Who remembers driving at 35 mph? It's a main road they all use.
He was happy for them to use the car as no use to him right now and he knows they are all careful drivers. I don't consider 35 mph dangerous and he is happy for them to continue using it.
Had they been going 120 down the motorway they would have admitted it as they would know who it was.
As it is, they genuinely have no idea which one was committing the dreadful crime of 35 mph in a 30
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It's about remembering who was driving on the date/time specified - not about who can remember what speed.
You may not consider 35 mph in a built-up area as dangerous but it's illegal so the guilty driver needs to "fess" up.
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As it is, they genuinely have no idea which one was committing the dreadful crime of 35 mph in a 30
I can see how that could happen...but it won't go away. Is there any photo evidence? There will certainly be a date and a time. I think the penalty for 35 in a 35 is probably less than for failure to disclose, and the person who admits it will probably be offered a course anyway, with no points.
Perhaps they could have a whip for the cost.
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As it is, they genuinely have no idea which one was committing the dreadful crime of 35 mph in a 30”
Then it’s cards on the table time because your father has a problem.
First of all, let me make it absolutely clear that the speeding matter, as far as your father is concerned, is irrelevant. He was not driving so cannot be prosecuted for the offence. Without a driver being named (and accepting he was driving) nobody else can be prosecuted either. Furthermore, whether or not you or he consider 35mph to be safe or otherwise is also irrelevant and would be even if he was the driver. Enforcement in a 30mph normally begins at 35mph (Limit + 10% +2mph) and that is the speed alleged.
He is not prepared to accept the fine himself as it wasn't him and this is illegal.
As I said, the fact that he was not driving is no longer the issue. He faces a different charge of “Failing to provide driver’s details”. If he is convicted of that he will not have the luxury of being unprepared to accept the fine and it most certainly is not illegal. The legislation is contained in Section 172 of the Road Traffic Act. As I said earlier, he has a duty to provide the driver’s details. There is a statutory defence to the charge which says this:
A person shall not be guilty of an offence…if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The first part of the defence is satisfied – he did not know who the driver was. The second part is a little more tricky. He will have to demonstrate to the court that he has made every effort he can to establish who was driving. Simply saying “I asked each of them and none can remember” will not cut the mustard. He will have to show that he has investigated their movements that day, established what they were each doing, where they were at the relevant time and much more. It sounds a hard task and it is. It is not an easy defence to run because if it was everybody would do it. The court will find it hard to believe that six people, who presumably all have cars of their own, cannot remember driving your fathers car at a specific time in a specific place. The reward for success is substantial – nobody is convicted of speeding because the driver cannot be identified and your father is acquitted of the S172 charge. The price of failure is equally high. The offence carries six penalty points (probably not too much of a worry if your father does not drive) but he will also pay a fine of one and a half weeks net income, a surcharge of 10% of the fine and costs of at least £300 and possibly up to £600, depending how much work the prosecution has to do to prepare for the trial.
A far more pragmatic approach would be for your father to name one of the six (with their agreement) who was most likely to have been the driver. He will be offered a Speed Awareness course which will cost him about £90 (which the six could split) and half a day of his time.
Make no mistake that your father will be prosecuted under S172 if he does not name the driver. This will not go away and needs to be addressed one way or another. There is the easy way (which really is easy) and the hard way (which is exceedingly hard and highly likely to end in failure). I know which one I would choose.
Edited by Middleman on 01/09/2017 at 22:04
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makes me wonder whether the gentleman is well enough to run the kind of investigation mentiond, if he is not then is there any precidence for a defendant being unfit to identify or investigate? Of coure the danger with such approach would come should health improve to the point where the desire to start driving again occured.
There was the case of the football club some years ago, how did that matter end up?
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The thought had crossed my mind.
Unfortunately that course of action simply replaces one obligation (to identify the driver) with another (to show incapacity to deal with the request).
There is a simple, relatively inexpensive (especially if shouldered by six people) and pragmatic way to deal with this problem as I have outlined. Trying to identify the driver has proved fruitless (whether by accident or design); defending the S172 charge by showing "reasonable diligence" is notoriously difficult and expensive in the event of failure; trying to demonstrate incapacity, should it fail, leads you back to showing that due diligence has been exercised.
I don't really think I can add any more. Personally I find it extremely disturbing that six people cannot bring themselves to deal with this matter without jeopardising the elderly chap who was kind enough to give them access to his car. But it obviosly takes all sorts. And we still don't know if they continue to have such access (I would hope not). Perhaps they really don't properly understand the process that is likely to follow should no driver be identified and that if they all remain schtum it will go away. Hopefully they do understand now.
Edited by Middleman on 02/09/2017 at 00:28
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Middleman has covered this superbly.
I'm a bit surprised the car appears still to be in the hands of these people, if it belonged to any of us here it would have been reclaimed the same day as the standard of behaviour and responsibility became clear, as for them doing the decent thing now well we won't be holding our collective breath.
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The six really do need to sit around a table and decide who is going to take the rap instead of forcing the old man to be taken to court. Do they have no sense of responsibility?
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A bit of good advice that I often fail to follow myself, being a person with the willpower of a gnat: "never a borrowerer or a lender be". The usual consequences of such a mistake are easily retrievable, in that you go round to the neighbour and ask if he's finished with your lawnmower, or "can I have that fifty quid back". I've read of a case where someone lent a large amount of money for a house purchase to a so called friend whose credit rating was so poor that he couldn't get a mortgage, and lent it without any paperwork or legal documentation changing hands at any point. He subsequently struggled to get that money back.
But yes, the position as far as the police are concerned has been well described here, and the six, if they haven't already, need to show a bit of fortitude, guts, family loyalty, whatever, stop piddling about and make sure a hand goes up, pronto. Even if the best they can do is select a fall guy by picking straws rather than identifying the genuine culprit.
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Interestingly Honest John has answered this and he said the same thing that I did "If the family member who was driving at the time will not admit to it, then what he should do is identify whoever drove the car away from his house because that is honestly the last person he saw drive his car."
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I'm sure that's right as a last resort, although as Middleman says the six of them should be able to establish which one of them it was. As a priority the burden and worry need to be taken away from the old gent who is ill.
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Interestingly Honest John has answered this and he said the same thing that I did "If the family member who was driving at the time will not admit to it, then what he should do is identify whoever drove the car away from his house because that is honestly the last person he saw drive his car."
This ^^^^^^^^^^^^^^^^^^
Makes very good sense and it was probably the responsibility of the person who took the car away to keep adequate records, on behalf of the owner who was kind enought to lend it to him, of who drove the car and when, anyway.
Edited by Galaxy on 02/09/2017 at 12:41
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It's the most logical and honest answer the car owner can give. He can only be 100% sure of who took the car from his house and in essence that IS the person he loaned the car to.
When we hire lorries at work the hire companies don't have a list of who will drive the vehicles, they just know the company who is hiring the vehicle and it is down to our transport office to keep records of who drove it when. After a few incidents of almost being falsely accused I keep records in my work diary of the reg numbers and trailer numbers I pull everyday. That way if there is a dispute over trailer or vehicle damage or driving offences I can be sure if I was driving that vehicle or not.
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Interestingly Honest John has answered this and he said the same thing that I did "If the family member who was driving at the time will not admit to it, then what he should do is identify whoever drove the car away from his house because that is honestly the last person he saw drive his car."
It’s an interesting suggestion. Unfortunately it has one or two drawbacks. The first of these is that the OP’s father is not being asked who he last saw driving his car (which by the sounds of it may have been some time prior to the date of the allegation). He is being asked who was driving it at the time of the allegation. If he names the person who drove the car away, unless it can be shown by the prosecution that the person nominated is “the person keeping the vehicle” then he becomes “any other person”. Under S172 “any other person” has a different, less onerous, obligation than either the Registered Keeper or “the person keeping the vehicle” has. The duty S172 places upon “any other person” who is asked to supply driver’s details is this
“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.”
So, all the one of the six nominated by father has to say is “I am not the person keeping the vehicle. I do not know who was driving at the time and I have no information which may lead to the identification of the driver”. He does not have to make any enquiries; he does not have to show that he has exercised “reasonable diligence” (or indeed any diligence at all). The police may try to establish that he was “the person keeping the vehicle” (and so has the same obligations as the Registered Keeper to provide the driver's details) but I doubt it. It is far more likely that they will return to father. However, it might help concentrate the minds of the six that if one of them is nominated and the police do believe they were “the person keeping the vehicle” then they will be in court facing the penalties I described (and six points, together with an MS90 endorsement code – which insurers hate – may well be significant to them).
“…and it was probably the responsibility of the person who took the car away to keep adequate records, on behalf of the owner who was kind enought to lend it to him,”
Not so. There is no obligation on individuals to keep records of who is driving a vehicle and in fact the “diligence” required to find out who was driving only begins when the request is made. Only in the case where the request is made of a “body corporate” does the question of keeping records come into play. Such a body has to show that if no records were kept (which led to them being unable to identify the driver) that the failure to keep records was reasonable.
To comment on Whackyracer's point, the scenario he describes is entirely different. The hire Company knows to whom they leased the lorry and his firm becomes "the person keeping the vehicle". They then have the same duties as the registered keeper to provide the driver's details and, in the case of a firm, would have to prove that if they did not keep records then failure to do so was reasonable. This is not the case here. The police will have a difficult job proving that any one of the six (who seem to have free and random access to the car and all drive it as and when they feel like it) is the person keeping the vehicle. That's why I don't think they will even try.
There is widespread misunderstanding about Section 172 and the obligations it places on Registered Keepers and people “keeping” vehicles. It is not easy to pass the buck (and nor it should be). Unless he encounters a sympathetic Bench I believe the OP’s father is likely to find this out. As I said earlier, I think it is disgraceful that the people he lent his car to will see him in court (and it will be a court hearing – such matters are not dealt with by post) rather than take the option I described. But as I also said, it takes all sorts.
Edited by Middleman on 02/09/2017 at 14:31
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The father can only tell the Police and court what he knows and all that he knows is who drove the car away from his home and how long the car has been in their care. What else can he do?
If the car has been in the care of these other family members for a good while the father is possibly going to be open to presecution for failure to notify the DVLA of a change of keeper.
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To comment on Wackyracer's point, the scenario he describes is entirely different. The hire Company knows to whom they leased the lorry and his firm becomes "the person keeping the vehicle". They then have the same duties as the registered keeper to provide the driver's details
It's doesn't sound entirely different to me! The situation is almost identical. If you think of the father as "the hire firm" and the person he loaned the car to as "the company" what is the difference apart from there being no paper trail with dates and times etc?
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"...what is the difference apart from there being no paper trail with dates and times etc?
It's totally different as I thought I'd explained.
There is a considerable difference in responsibilities between " the person keeping the vehicle" and "any other person". In the case of your firm, it is indisputable that the company is "the person keeping the vehicle". The lease company has an obligation to provide the driver's details as the Registered Keeper; your Company has the same obligation as "the person keeping the vehicle". Both can be prosecuted under S172 if they fail to meet this obligation.
As far as the S172 is concerned there is provision for a request for driver's details to be made of "any other person". If such a request is made, their responsibilities are very much less onerous as I explained in my earlier post. In the case in point here the OP's father has an obligation as the Registered Keeper. However, if the person he nominates is not "the person keeping the vehicle" his obligations are far less (again, as I explained earlier). In the circumstances the OP describes I cannot see any way that any of the six people can be defined as "the person keeping the vehicle" and anyone who father nominates will simply be "any other person". The question of records and paper trails is completely irrelevant in both scenarios (unless, in the case of a company, they failed to keep records of drivers and rely on that failure as a defence).
Hope this helps.
Edited by Middleman on 02/09/2017 at 15:17
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Just to throw a spanner in the works, does anyone else remember this case ? www.telegraph.co.uk/news/1447758/Hamiltons-claim-v...l
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Just to throw a spanner in the works, does anyone else remember this case ? http://www.telegraph.co.uk/news/1447758/Hamiltons-claim-victory-over-speeding-fine.html
Sounds good to me, but how did the case of the famous soccer club end? I won't name names here (unless advised that it is permissible to do so) but as far as I recall the vehicle was designated as a pool vehicle and was being driven by staff member but did not have a record of which staff member at the time of the offence.
(Also, I suppose there is not a family member resident overseas who could have been the driver? Throws us lots of issues eg insurance, foreign licence etc as well as how a prosecution could proceed)
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Once again, the Hamilton’s case is a completely different kettle of fish. There were only two of them involved; they shared the driving on a journey; they managed to convince the court that, having exercised reasonable diligence, they could not determine which of them was driving at the time of the alleged offence. It is a completely different scenario to the one described by the OP. The OP’s father seems to be saying that even having exercised diligence (quite whether it amounts to “reasonable” or not) he cannot discover who was driving. It is my view, based on what the OP has said, that a court would not accept that all reasonable diligence has been exercised because all he seems to have done is to have asked each of the six who was driving and none has owned up. That will not do in my view.
I know nothing of the football club case mentioned. It seems, however, to fall under the “body corporate” scenario where the issue is whether or not it is reasonable to fail to keep records of who was driving a particular vehicle. Once again, it seems not to fit the circumstances described by the OP.
We’re going round in circles here. The OP’s father has a clear choice: he can get one of the six to “accept the rap” and he can nominate him as the driver. That person will almost certainly be offered a Speed Awareness Course. Or he can state that he cannot determine who was driving in which case he will be charged under S172. He has a statutory defence to that charge which, based on what I have heard so far, is very likely to be unsuccessful. Of course strange things sometimes happen in courts and I am by no means suggesting it is a certainty that father will be convicted. I am not a gambling man but if I was I know where my money would go,
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We’re going round in circles here. The OP’s father has a clear choice: he can get one of the six to “accept the rap” and he can nominate him as the driver. That person will almost certainly be offered a Speed Awareness Course. Or he can state that he cannot determine who was driving in which case he will be charged under S172. He has a statutory defence to that charge which, based on what I have heard so far, is very likely to be unsuccessful. Of course strange things sometimes happen in courts and I am by no means suggesting it is a certainty that father will be convicted. I am not a gambling man but if I was I know where my money would go,
Isn't it an offence to lie in these situations? to quote a bit of the Hamilton case "But at the bottom of the notice you must sign a declaration that all the information is correct, and it states that it is an offence to supply false information.
"We would have been committing an offence if we had guessed who was driving because there was a 50 per cent chance it would have been false."
Edited by Wackyracer on 02/09/2017 at 23:39
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Isn't it an offence to lie in these situations?
Yes it is. But, as I mentioned in my post on 21st August, whilst it is an offence to deliberately name someone you know was not driving (see the Chris Huhne/Vicky Price case) it is not an offence to name somebody whom you believe was most likely to have been driving. That is especially so if the person nominated agrees that they were most likely to have been driving and has told you so when you enquired. Although I have not read one lately, I believe that the declaration at the foot of a S172 return says (something like) "the information I have provided is true to the best of my knowledge and belief". The CPS are not in the business of prosecuting people who are genuinely trying to comply with the law (bearing in mind that one of the “six” must have been driving) but they will take action against people trying to pervert the course of justice (as Huhne was as he had more points on his licence than his wife had). You will also note from my earlier post that I recommended that the OP’s father requested photos “to help identify the driver”. The photographs provided do not usually provide any such help but in cases like this it is a good idea to see them. Then it can be seen whether (for example) they show an elderly male at the wheel when you are considering nominating a young female.
The alternative the OP’s father has to taking this pragmatic approach is to defend a S172 charge. This is not easy, is probably something he is not well eqipped to do, is unlikely to succeed in his case (from what we have been told) and failure will be very expensive. There is a simple remedy which I have explained and which is vanishingly unlikely to result in any repercussions. That is my advice and unless any new information comes to light I’m sticking to it.
Edited by Middleman on 03/09/2017 at 23:35
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This thread appears to died, now, and the OP had never returned to let us all know what has happened.
However, I heard about this case earlier this afternoon on the news and it made me think of this thread immediately.
www.essex.police.uk/news/brought-to-justice/father.../
So, it would appear the police do, indeed, have a solution to cases like this - they just charge everyone!
Edited by Galaxy on 13/09/2017 at 18:32
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As Nelson Muntz would say
ha ha
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Yes, it does make you sit up and take notice. I wonder if the OP has read this?. Very sad state of affairs though, that the OP's father makes his car available to help out various members of his family, one of them gets done for speeding, but is unwilling to stand up and take responsibility.
Better to leave good old Dad to take the rap!
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Caedite eos. Novit enim Dominus qui sunt eius.
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"Caedite eos."
Hang on - that's going a bit far.
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tough justice ... (surprised anyone can get to 95 on the M25 although the area around the M11 may be less congested than others) - suppose there is a legal loophole for the police to use, wonder what would have been the situation if both gentlemen had stated they were driving?
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Can the registered owner put whoever they wish on an insurance policy as a named driver or is their consent needed?
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“suppose there is a legal loophole for the police to use,”
It’s not a loophole by any stretch. Section 172 allows the police to make requests of whoever they deem fit in order to obtain the driver’s details. They obviously realised they were being given the runaround so asked both the people who were insured to drive the car for those details. They obviously both failed to meet the requirement and were both prosecuted and convicted.
“..wonder what would have been the situation if both gentlemen had stated they were driving?”
I imagine that at least one of them would have been charged with attempting to pervert the course of justice. It really is not a good idea to faff about with S172 requests as doing so can often end in tears (as the two Mr Tuns found out).
The main issue with Section 172 is that you cannot use the circumstances of any one case to judge what might happen in another. All are different and that is why they always go to court for a decision. In the Essex case there are probably details known to the police which were not reported. As an aside, there is obviously some inaccuracy in the reporting:
“As the registered keeper Gabriel Tun received six points and was ordered to pay a fine of £1,015, costs of £155 and a victim surcharge of £30.”
If Mr Tun had been fined £1,015 the victim surcharge (more properly called just a “surcharge”) would have been £101.
In the OP’s case here, it is extremely unlikely the police would charge six people especially because, as far as we know, the details of the six have not been provided to them. It is my view that if the OP’s father did provide a list of six possible drivers the police would simply prosecute him for failing to furnish the driver’s details.
It is a pity the OP did not come back and let us know what had been decided. If for no other reason, if he has decided to defend the S172 charge we may have been able to help a little more. His notice must have been served on 21st August at the latest meaning he has only until next Monday to provide his response. So he should have posted it by now. Perhaps he’s done nothing hoping it will simply go away. Not a good strategy at all.
Edited by Middleman on 15/09/2017 at 18:00
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As Middleman says, it is a pity the OP did not come back and let us know what had been decided.
More helpful replies have been proffered than you could shake a stick at.
What a shame.
Avant will (quite rightly, and with generosity of spirit) say that the resultant responses will likely be of general benefit to others so not to be unduly concerned ... but I can't help being of the nature to feel slightly aggrieved that the OP couldn't be bothered to acknowledgr the help offered.
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Hopefully this will never occur to me & Mrs S, but if, for instance we were away (sharing the driving) and a week later a NIP letter arrived, how on earth would we know who was driving? Especially if the area is unknown and even if the the letter made clear the exact point of offence there is no legal obligation to keep a drivers log in private cars so knowing who was the driver would be impossible to state. (If the obligation does exist it's not well known) It is in this kind of situation that was in my thoughts when I commented that both drivers might own up - surly trying to pevert justice cannot apply if there is genuine ignorance? - and if must be for the police to show intent to pevert justice which would not the situation? I will add the norm of being presumed innocent until proven guilty seems to be a cancelled consideration here.
The answer in how to deal with such an situation is thankfully not needed as this is just a theoretical situation but a very likely one for some so I would appreciate reading your answer for the benefit of others.
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www.essex.police.uk/news/brought-to-justice/father.../
So, it would appear the police do, indeed, have a solution to cases like this - they just charge everyone!
But why did it take four years?? Yet another indicator that there is something seriously wrong with our asinine sluggish legal system. Wouldn't be surprised if there's an appeal!
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