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Monthly Archives: February 2016

Proving the Identity of the Driver

One challenge often faced by the prosecutors of any road traffic case is that of proving that the defendant was the driver of the vehicle at the relevant time.  The recent Chris Huhne/Vicky Pryce scandal is an extreme example of how crucial identification can be in such cases.[1]  Sections 11 and 12 of the Road Traffic Offenders Act 1988 make it easier, in most cases, for the prosecution to prove who was driving a vehicle at any given time.  In this article, we look at some of the different ways in which the prosecution can prove the identity of a driver, and at the consequences of lying about who was driving.

Identity

Section 11 Certificates

Under section 11 of the Road Traffic Offenders Act 1988 (RTOA), a certificate can be used to prove the identity of the driver, user or owner of a vehicle in certain circumstances.  Section 11 applies to virtually all road traffic offences (see Schedule 1 to the RTOA), and it is important to note that, unlike section 12 statements (see below), section 11 certificates can be used in summary trials (usually Magistrates Court) as well as trials on indictment (Crown Court only).

A section 11 certificate can only be used to prove the identity of the driver, user or owner of a vehicle if:

(1) The defendant tells a police constable or traffic warden that:

(a) a particular vehicle was being driven or used by, or belonged to, the defendant on a particular occasion; or

(b) a particular vehicle on a particular occasion was used by, or belonged to, a firm and that the defendant was, at the time of the statement, a partner in that firm; or

(c) a particular vehicle on a particular occasion was used by, or belonged to, a corporation and that the defendant was, at the time of the statement, a director, officer or employee of that corporation;

AND

(2) The police constable or traffic warden produces and signs a certificate in a standard form containing this information.

Section 12 Statements

Where the driver of a vehicle is alleged to have committed an offence, if the police make a request under s172 Road Traffic Act 1988 (RTA) in writing, and send it by post, it is mandatory for the recipient to provide such information as to the identity of the driver as requested by the police.  The requirement to provide information goes beyond simply saying ‘I was/was not driving’: where the recipient does not believe he is the driver, and knows that only one other person has access to the vehicle, he is obliged to provide this information to the police as well.[2]  It is an offence under s172(3) to fail to provide this information within 28 days[3], unless it can be proven (on the balance of probabilities) that the recipient did now know, and could not without reasonable diligence have discovered, who the driver was.[4]

The s172(3) offence usually carries 6 penalty points and a £200 fine which, in the context of most speeding offences, is often a greater penalty than would be imposed if the driver simply complied with s172 and admitted he was driving when the offence was committed.

Under section 12 RTOA, any statement given in reply to a request made under s172 RTA can be used to prove that the defendant was the driver of a vehicle where he is charged with an offence listed in schedule 1 RTOA.

It is important to note that, whilst the requirement to provide information following a section 172 request applies to virtually all road traffic offences[5], section 12 can only be used for the offences listed in Schedule 1 to the RTOA, and can in any event only ever be used in summary proceedings (usually in the Magistrates Court).

Cases where there is no Section 11 Certificate or Section 12 Statement

Sections 11 and 12 RTOA represent ‘shortcuts’ to identifying a driver: these are usually treated as conclusive proof that the defendant was driving at the relevant time.  However, where there is no Section 11 Certificate or Section 12 Statement, the court may look to other sources to establish the identity of the driver.

Simply being the owner of a vehicle is powerful evidence to be taken into account, which can be sufficient evidence that the defendant was the driver where he lies to the police and fails without good reason to reply to a s172 request.[6]  Moreover, admitting to being in a particular place at the relevant time, and being the owner of the vehicle used to commit an offence at that time and in that place, can constitute sufficient circumstantial evidence to prove identity.[7]  Interestingly, where a defendant provides his name and address to a police officer at the scene of the offence and subsequently appears at court in response to a summons posted to the address provided, this triggers a presumption that he was the driver at the relevant time.[8]

It is also possible that the defendant could be identified by an eyewitness, as in all other criminal cases: Code D of PACE applies to road traffic cases as it does to offences under the general criminal law.[9]  A dock identification may also be permissible in cases where the defendant has not given prior notice that he intends to put the prosecution to proof as to his identity.[10]

Lying about the identity of the driver

Lying about who was driving in a reply to a s172 request would clearly amount to an offence under s172(3) RTOA, which could result in disqualification from driving (or 6 penalty points) and a fine.  However, these penalties appear minor when compared to the sentences you could face for the other offences you may be committing by lying.

If a false s172 statement is presented to the court (as a piece of written evidence), its maker could face a sentence of 2 years imprisonment.[11]  However, if the maker of the statement tells the lie when required to give evidence in court under oath, he could be found guilty of perjury which carries a maximum sentence of 7 years imprisonment.[12]  Moreover, as we saw with the Huhne/Price case,[13] lying about the identity of the driver can also amount to perverting the course of justice.  This is a very serious offence, and carries a maximum sentence of life imprisonment.  (Huhne and Pryce were both sentenced to 8 months imprisonment.[14])

Case Study: R v G (2013)

In 2013, Miss G contacted Road Law Barristers having been convicted for the offence of failing to provide information following a s172 request.  After reviewing her case, we helped her appeal the conviction on the basis that she could not have reasonably known who the identity of the driver was.  The appeal succeeded, meaning Miss G avoided the substantial fine and 6 penalty points she initially faced.[15]

If you have been accused of any road traffic offence, do not hesitate to contact us for a free consultation: with our advice and representation, you could avoid a conviction.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.



[1] http://www.bbc.co.uk/news/uk-21737627

[2] R (Flegg) v Southampton and New Forest Justices (2006) 170 JP 373

[3] Foster v DPP (2014) 178 JP 15

[4] RTA s172(4)

[5] See section 172(1)

[6] Baker v Oxford [1980] R.T.R. 315

[7] Scruby v Beskeen [1980] R.T.R. 420

[8] Cooke v McCann [1974] R.T.R. 131

[9] R v Tiplady (1995) 159 J.P. 548

[10] Karia v DPP (2002) 166 J.P. 753

[11] Criminal Justice Act 1967, s9

[12] Perjury Act 1911, s1

[13] http://www.bbc.co.uk/news/uk-21737627

[14] Ibid

[15] https://www.roadlawbarristers.co.uk/about-us/case-studies/