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Identifying the Driver

Section 172 Notice – Failing to Identify the Driver

This explains what I can do if you were not the driver and don’t know who was, if you didn’t receive the forms from the police, if they are defective in some way, and how the obligations differ depending on whether or not you are the registered keeper of the vehicle.

Notice of Intended Prosecution (NIP)

The first indication a vehicle has been involved in a road traffic offence is the receipt by the registered keeper of a Notice of Intended Prosecution (NIP), combined with a requirement to provide details of the driver.

This may happen, for example, when a vehicle has been photographed exceeding the speed limit and the Police will obtain the address of the keeper from DVLA.

The requirement to provide driver details is not as straightforward as it might seem. The higher courts have interpreted the relevant legislation on a number of occasions and you have to know what you’re doing.

  • What if the requirement and any reminder was not actually received or seen by the registered keeper? The first thing a keeper might actually receive is a court summons for failure to provide the information, and what happens then?
  • What if the registered keeper does not know who was driving? How do you respond to the police in those circumstances?
  • Are you required to know at all times who is driving your vehicle?

These issues frequently arise and the consequences of misunderstanding obligations can be serious as each offence proved carries 6 penalty points. That’s half way to a “totting” ban.

It’s worth knowing a bit about the relevant legislation. Section 172(2) of the Road Traffic Act 1988 creates the obligation to provide information, and a failure to do so is known as a ‘Section 172 offence’. Knowing how to deal with these notices or summonses is very important.

The power to request details of the driver on a particular occasion is given to a chief officer of police and is invariably delegated to a department in each Constabulary which will issue them in their many hundreds. It’s an automated process, but it has to be carefully recorded to establish service on the keeper.

The power becomes exercisable where the driver of a vehicle is alleged to be guilty of an offence to which Section 172 applies. It applies to most road traffic offences, and then draws a distinction between what the ‘registered keeper’ must do and what ‘any other person’ must do. How you respond depends on which category you fall into.

“The person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give”.

“Any other person shall if required give any information which it is in his power to give and may lead to the identification of the driver”

Section 172(3) provides that a person who fails to comply with a requirement shall be guilty of an offence.

There is a good deal of inaccurate information about this area of law on the internet and if you have any doubts you need to obtain proper advice from someone who knows what they are talking about. Your mate in the pub is unlikely to be the right person, nor is seeking out the loophole using an internet search. It will get you into trouble and it’s not easy to back track. You need clear advice on the evidence you will need in order to defend a summons if for example you did not receive the notice or do not know who was driving.

A requirement to provide information is nearly always made in writing in a formal notice. It must identify the vehicle by registration number and the date, time and place the alleged offence was committed. It should also set out the offence itself. It has to give you enough information to enable you to respond properly. Details need careful checking.

If the vehicle is not yours or if you know perfectly well it was not involved in any incident you have to address this. I have had cases of police getting the registration number wrong and sending notices to keepers of vehicles not involved in any offence. It happens. There are also cloned vehicles on the roads. The notices need dealing with to stop the position getting worse. Because the process is automated and because the Police are usually unwilling to accept anything other than the provision of full information on the form they provide, it really is important to stop these cases in their tracks before they progress to a summons.

Everyone is allowed time to respond and the Notices themselves usually permit 28 days from the date of receipt to do so. If time is short, for example if you return from a holiday to find a notice, most police forces in my experience will extend time if its needed as long as they know it’s being dealt with. A point to note: if you are going to be absent from the address DVLA has for you for a lengthy period of time, it would be wise to make arrangements to have your post checked, just in case. This applies to people who divide their time between the UK and abroad, or different addresses in the UK. You do need a system of one sort or another to have post checked so that if notices do not arrive you can call evidence to prove it.

If you are the registered keeper of the vehicle described in the notice, your obligation will be to provide what is asked for, and that is usually the name and address of the driver. It presupposes you know or can find out by making enquiries. However if you do not know, what do you do? It’s a problem many people face.

What you should not do is guess. The law imposes no obligation on you to do that, and you actually need to be quite careful. Naming the wrong person, if done deliberately or recklessly, may lead to a much more serious charge of attempting to pervert the course of justice. People go to prison for that.

You can ask the police for help by requesting any photographs, and some constabularies will readily send them. If you decide to do this, then do so quickly but be careful what the covering letter says because it may become evidence later on. In fact you need to be careful with all your communications with the police.

If you do not know who the driver was and write back to say so, the likelihood is the police will issue a summons. Police forces seem unable or unwilling to understand that sometimes it is just not possible to find out who the driver was and this applies to a vehicle which has multiple users. So you need to protect yourself by writing carefully.

Section 172 gives registered keepers a defence if the information requested cannot be provided, and it’s as follows;

“A person shall not be guilty of an offence [under s.172(2)(a)] if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was”.

This has the effect of passing the evidential burden to the keeper to show both elements, that is to say he did not know and could not have known. Any letter to the police has to explain this carefully and it can be used later in court as evidence. It follows that any defence has to demonstrate why you didn’t know and what you did to try and find out. You have to be “diligent” and magistrates’ courts look really closely at what you did. You might need to check work diaries, send e mails to possible drivers and get them to reply. Every case turns on its own facts but you will need to produce evidence of what you did.

Persons who are not registered keepers also have a defence if they show that it was “not reasonably practicable to give it”. It involves showing why the information could not be given.

Most prosecutions for Section 172 offences are brought against the keeper.

The statutory defences apply where you have received the requirement in the first place. What you do depends on whether you are the registered keeper or not. What really matters is how you respond if you don’t know who the driver was, or if the notice is defective in some way.

What happens if the notice doesn’t arrive or isn’t seen by the keeper? The answer is not as simple as it might seem, and I have dealt with many cases where the notices did not arrive in the post. As many thousands are sent out each year it’s not surprising that some get lost in the post, are put through the wrong letter box or are simply not processed properly by the police.

The main problem the motorist has to overcome is the unwavering faith the police in the Royal Mail and in their own systems. They simply refuse to accept that notices properly addressed are not delivered, even though this flies in the face of the experiences most of us have with post. If a motorist has not provided information the police will just plough on and issue a summons and eventually that does get served. Once the court has become involved you cannot backtrack and have to deal with the prosecution.

Some legal advisers will simply say that you can’t be convicted for failing to comply with a notice you did not receive in the first place. Sadly, is isn’t that simple.

There are two issues to address. The first arises out of Section 7 of the Interpretation Act 1989 which provides that such a notice is deemed served if it is properly addressed, stamped or franked, and then posted “unless the contrary is proved”. If you didn’t get the notice in the post you can challenged the presumption of service by introducing evidence of previous postal errors, or require clear evidence from the police from their records of exactly what they did. You might be able to introduce evidence from other members of the household, and this needs doing thoroughly and quickly.  Such evidence can undermine the prosecution because the police have to prove service and if they can’t the prosecution will fail. This is the best form of attack.

The second is that if the police prove service, but you still didn’t see it perhaps because someone intercepted it or you were not there, you have to fall back on the defence that it was not reasonably practicable for you to respond. In these circumstances you will need clear evidence of why you were not there and what system you had in place to deal with post in absence. It won’t be enough to turn up at court and say the notice didn’t arrive in the post; you will need to provide some real detail and maybe in the form of written witness statements.

If you are uncertain how to proceed, take advice and get it right. The police will prosecute for failure to provide what they want and they will be determined. The wording in your communications is very important if you know you are going to have a problem providing details. It will be the start of your defence in case a summons is issued. If you start after it may well be too late or less effective.

A summons for a Section 172 offence will be issued if you provide inadequate information or none at all. Some people provide covering letters that are unhelpful and carelessly written. I have seen damaging letters written by lawyers who are not familiar with the law!

If you receive a summons there are options available.

First, was the notice itself received by you? If the answer is no, then you have a defence. These notices are usually sent by first class ordinary post, but they don’t always arrive. You can rebut the presumption of delivery by calling evidence, and I have done that many times. There may be issues with your post that have affected you before and members of the family can help. Bear in mind you might have to show that a reminder was also not received.

Second, if it was received and you complied with the requirement, you have a defence. I have helped in cases where the completed form was not received by the police and lost in the post. You will hopefully have a copy of the papers but if not you might need witness evidence from someone who knows you posted it.

Third, if none of these applies you may be able to use one of the statutory defences, or utilise deficiencies in the prosecution paperwork. The prosecutions can be technical and  you can put the prosecution to proof on all technical aspects of its case.

I can advise on the options available to you.

Different considerations apply where the registered keeper is a company or a business partnership. Companies and partnerships do not have licences that can be endorsed, but care is needed to avoid company officers being drawn into a prosecution on the ground that they were involved in what was effectively a decision not to disclose details.

Take advice early and choose your lawyer carefully.

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