Author Topic: Court summons for failing to identify the driver  (Read 1282 times)

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rogertaggart

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Court summons for failing to identify the driver
« on: June 07, 2024, 06:33:02 pm »
Registered Keeper (RK) has received a summons for the offence of failing to identify the driver related to an alleged speeding offence.

Salient points:-

- RK is a private trust.
- Magistrates' Court has summoned the trust.
- The trustee was in contact with the police prior.
- Outlined that the trust could not identify the driver even though reasonable diligence has been used. Stated what reasonable diligence consisted of.

Reasonable diligence included:
  Interviewing the two possible insured drivers, checking their phone, bank, calendar, diary, Employment and CCTV records which they co-operated in supplying
  None of these records evidenced who could be using the car at the time of the alleged speeding offence


The defence will rely on the fact that the RK has complied with their duty under s172(4) and thus is not guilty of the charge of failing to identify the driver.

Questions:
What is the supporting case law in RK's defence? i.e. relating to the reasonable diligence clause 172(4) of the RTA1988

What documents should be asked for at the disclosure phase?

- even though RK will be submitting documentation evidencing reasonable diligence would it be wise to probe the reliability of the officer operating the speed camera, the speed camera certificates etc?

- RK already requested photo/video evidence to try and ascertain the driver's identity. Police sent rear view of the car but admitted that such evidence wont help as car was caught speeding driving away from the officer operated camera

- any other documents that could be requested?

- police ignored reasonable diligence provided in email correspondence prior to summons. Can they be accused of wasting the court's time?

- can any counterclaim be brought against the CPS/DPP for time preparing for the case as a LIP?
« Last Edit: June 07, 2024, 06:39:55 pm by rogertaggart »

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NewJudge

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Re: Court summons for failing to identify the driver
« Reply #1 on: June 07, 2024, 07:35:27 pm »
Quote
- police ignored reasonable diligence provided in email correspondence prior to summons. Can they be accused of wasting the court's time?

The police will not make a decision on whether reasonable diligence has been shown or not. That is for a court to determine.

Have you also read s172(6)

Where the alleged offender is a body corporate...subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.

So assuming records were not kept, and if not has the trust considered whether not doing so was "reasonable"? Of course among the difficulties they may have in showing that is illustrated by the position they are now in.

Quote
even though RK will be submitting documentation evidencing reasonable diligence would it be wise to probe the reliability of the officer operating the speed camera, the speed camera certificates etc?

It would be pointless. The speeding matter is now irrelevant (unless you want to argue that the police had no right to allege that the offence had been committed, and so were not entitled to issue a s172 request).

Quote
What is the supporting case law in RK's defence? i.e. relating to the reasonable diligence clause 172(4) of the RTA1988

I'm not so sure there is much in the way of case law. Each case will turn on its own facts and it's for a court to decide whether the facts support the "reasonable diligence" that is required.
« Last Edit: June 07, 2024, 07:52:10 pm by NewJudge »

Southpaw82

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Re: Court summons for failing to identify the driver
« Reply #2 on: June 07, 2024, 07:50:50 pm »
A trust (private or otherwise) can’t (properly) the RK, because a trust has no legal personality. The trustees of the trust can be the RK, however.

Is the “summons” directed to any particular person(s)?

ManxTom

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Re: Court summons for failing to identify the driver
« Reply #3 on: June 07, 2024, 08:45:18 pm »
A trust (private or otherwise) can’t (properly) the RK, because a trust has no legal personality. The trustees of the trust can be the RK, however.

Is the “summons” directed to any particular person(s)?

I wondered about that.

Perhaps the OP can explain how the RK appears on the car's V5C?

rogertaggart

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Re: Court summons for failing to identify the driver
« Reply #4 on: June 08, 2024, 11:49:44 am »
A trust (private or otherwise) can’t (properly) the RK, because a trust has no legal personality. The trustees of the trust can be the RK, however.

Is the “summons” directed to any particular person(s)?

the summons is directed to the RK. The RK is the trust, not a trustee.

wasn't aware that the trust name could not be used.

format of RK is Xyz Private Trust

therefore summons is addressed to "Xyz Private Trust"

rogertaggart

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Re: Court summons for failing to identify the driver
« Reply #5 on: June 08, 2024, 12:00:34 pm »
"Where the alleged offender is a body corporate...subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable."

How does one prove a negative!? i.e. show that no records were kept?

Is a private irrevocable trust not registered with HMRC, a body corporate?

roythebus

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Re: Court summons for failing to identify the driver
« Reply #6 on: June 08, 2024, 12:15:37 pm »
In which case the trust will be found guilty and fined. No points on the trustee's licences, but corporate body fines are usually at the top end of the scale. Not forgetting that the Trust's insurance premiums are likely to be higher for the next few years, that is if the Trust insures the vehicle.
Bus driving since 1973. My advice, if you have a PSV licence, destroy it when you get to 65 or you'll be forever in demand.

Southpaw82

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Re: Court summons for failing to identify the driver
« Reply #7 on: June 08, 2024, 12:31:04 pm »
In which case the trust will be found guilty and fined. No points on the trustee's licences, but corporate body fines are usually at the top end of the scale. Not forgetting that the Trust's insurance premiums are likely to be higher for the next few years, that is if the Trust insures the vehicle.

Roy, the trust can’t be convicted or fined because it has no legal personality.

Without looking into this too deeply, I would imagine that properly understood, the prosecution is in reality against the trustees. Once the matter reaches court this may well be noticed and steps taken to regularise the position.

This all sounds like some ‘wizard wheeze’ to avoid accountability - how did this “private trust not registered with HMRC” (whatever that means) come about?

666

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Re: Court summons for failing to identify the driver
« Reply #8 on: June 08, 2024, 12:44:21 pm »
"Where the alleged offender is a body corporate...subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable."

How does one prove a negative!? i.e. show that no records were kept?


If records had been kept, the RK would be able to name the driver and no offence would have been committed. How much more proof could you need?

NewJudge

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Re: Court summons for failing to identify the driver
« Reply #9 on: June 08, 2024, 04:29:44 pm »
I think the issue of whether a trust can be a RK will have to be ironed out and it's beyond my knowledge. On the assumption that "the trust" is eventually determined to be the RK:

Quote
Is a private irrevocable trust not registered with HMRC, a body corporate?

S172 seeks to differentiate between individuals (who hold driving licences which can be endorsed with details of offences) and corporate organisations (which do not). This trust, whatever its legal identity, is not an individual with a driving licence and I'm fairly certain that if the point was appealed in a higher court, that court would find the trust to be a "body corporate" for the purposes of s172. 

Quote
How does one prove a negative!? i.e. show that no records were kept?

As above, the defendant should have no need to take advantage of s172(4) if records were kept because presumably the driver could be identified from them. So before attempting a defence under that section the defendant will have to give testimony to show that no records were kept and that failure was "reasonable". It would be for the court to decide whether or not they accept that evidence as proof of both requirements of s172(6). If they do, then the defendant's defence under s172(4) can be considered. It they don't, s172(4) cannot be relied upon.
« Last Edit: June 08, 2024, 04:33:24 pm by NewJudge »

ManxTom

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Re: Court summons for failing to identify the driver
« Reply #10 on: June 09, 2024, 12:17:43 am »
"Where the alleged offender is a body corporate...subsection (4) above shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable."

How does one prove a negative!? i.e. show that no records were kept?

Is a private irrevocable trust not registered with HMRC, a body corporate?

Even assuming that such a trust is a body corporate, "the trust" (or you, or whoever is a trustee) doesn't need to worry about proving that records weren't kept, because "the trust" has already evidenced that by failing to name the driver.

What "the trust" (or trustees) need to do is to demonstrate why it was reasonable for "the trust" not to keep such records.

Can "the trust" (or whoever) do so?

rogertaggart

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Re: Court summons for failing to identify the driver
« Reply #11 on: June 10, 2024, 12:17:58 pm »
i might add that the original NIP was not received, only the reminder which was pointed out to police.

The effective date of service was therefore after the 14 days.

Do the police keep proof of postage as such or could this be a valid argument that the speeding offence and the subsequent s172 notice are both void from the start?

The Rookie

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Re: Court summons for failing to identify the driver
« Reply #12 on: June 10, 2024, 12:58:09 pm »
i might add that the original NIP was not received, only the reminder which was pointed out to police.

The effective date of service was therefore after the 14 days.

Do the police keep proof of postage as such or could this be a valid argument that the speeding offence and the subsequent s172 notice are both void from the start?
1/ Yes they do have proof of posting
2/ The S172 wouldn't be voided anyway, there is no 14 day time limit on it in the way there is for a compliant NIP.

So the later service is only relevant with respect to the effect on the recipients memory.
There are motorists who have been scammed and those who are yet to be scammed!

NewJudge

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Re: Court summons for failing to identify the driver
« Reply #13 on: June 10, 2024, 01:40:44 pm »
A timely NIP is only required to successfully prosecute the speeding offence. If the NIP was received late (or even not at all) it does not invalidate the accompanying (or any subsequently served) s172 request.

Since the speeding offence is now irrelevant, so is the NIP and its timeliness.

I think if the recipient is deemed to be a "body corporate" you will have difficulty defending this. The very section - 172(4) - which you are relying on as a defence is not available in those circumstances (which, as I said, I am not able to comment on). In that case it is only available if the body corporate can show that no records were kept (and they obviously were not) and you can convince the court that it was reasonable not to do so.

It's a shame because you have at least the basis of a decent "reasonable diligence" defence under s172(4). It might therefore be better if you could convince the court that the recipient of the s172 request was an individual. Then a defence under s172(4) would be available to that individual unconditionally. But, from your description of the arrangements, I'm not quite sure how that could be done.

Meanwhile, in case you need to demonstrate it to the court, what are the circumstances surrounding this vehicle and the people who may drive it which might make the requirement to keep records of who does so unreasonable?

Moving a little further along, if "the trust" did end up convicted and, as southpaw suggests in post#2, it has no "legal identity", I'm not sure how any financial penalties imposed might be enforced. But once again, not something I have enough knowledge of.
« Last Edit: June 10, 2024, 02:25:39 pm by NewJudge »

rogertaggart

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Re: Court summons for failing to identify the driver
« Reply #14 on: June 10, 2024, 02:40:51 pm »
I think if the recipient is deemed to be a "body corporate" you will have difficulty defending this. The very section - 172(4) - which you are relying on as a defence is not available in those circumstances (which, as I said, I am not able to comment on). In that case it is only available if the body corporate can show that no records were kept (and they obviously were not) and you can convince the court that it was reasonable not to do so.

It's a shame because you have at least the basis of a decent "reasonable diligence" defence under s172(4). It might therefore be better if you could convince the court that the recipient of the s172 request was an individual. Then a defence under s172(4) would be available to that individual unconditionally. But, from your description of the arrangements, I'm not quite sure how that could be done.

Meanwhile, in case you need to demonstrate it to the court, what are the circumstances surrounding this vehicle and the people who may drive it which might make the requirement to keep records of who does so unreasonable?

Moving a little further along, if "the trust" did end up convicted and, as southpaw suggests in post#2, it has no "legal identity", I'm not sure how any financial penalties imposed might be enforced. But once again, not something I have enough knowlwdge of.
Thanks all for the replies.

Southpaw is correct in that a trust has no legal personality but strangely too it is not a body-corporate either so effectively, and based on legal advice now sought, there is no effective way for the court to rule and any enforcement to be pursued.

If I were a trustee I would step up and defend but I am not exposing my sons to that.

So the strategy is to ignore the summons and hope I won't come to regret that decision