Author Topic: Court summons for failing to identify the driver  (Read 931 times)

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ManxTom

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Re: Court summons for failing to identify the driver
« Reply #15 on: June 10, 2024, 03:27:41 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

I don't think it's strange - my understanding is that it's precisely because a trust is not a body corporate that it has no legal personality.

What this means - in civil matters at least - is that the trustees are personally responsible for the actions of the trust.  Whether that extends to liability in criminal matters as well, I don't know.

Are you saying you've been given paid for legal advice to ignore the summons?


Southpaw82

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Re: Court summons for failing to identify the driver
« Reply #16 on: June 10, 2024, 03:35:11 pm »
Without looking at it too deeply, at the moment nobody is named explicitly on the summons. It is in the name of the trust. Whether properly construed the summons names all the trustees is something I can’t be bothered to research. Either the system will not deal with this scenario (which would be a defeat of the ends of justice) or someone will look at it and pursue the trustees.
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NewJudge

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Re: Court summons for failing to identify the driver
« Reply #17 on: June 10, 2024, 04:51:17 pm »
I think you need to tread a little carefully.

Quote
Either the system will not deal with this scenario (which would be a defeat of the ends of justice) or someone will look at it and pursue the trustees.

If you ignore this court action, there is a danger (in fact a near certainty) that the trust will simply be found guilty in its absence. Unless the Magistrates’ Legal advisor is on the ball, it is unlikely that  anybody will raise the issue of the trust and its lack of “legal personality”. It will probably only surface when the enforcement of any financial penalty is attempted and that may possibly culminate in bailiffs visiting the address of the trust (presumably as shown on the vehicle’s V5C).

Whether anybody will look at it beyond that is uncertain. But they should because the implications for this are quite profound. It would mean, in effect, that people keeping vehicles where a trust is the registered keeper are immune from all the legislation that goes with that (e.g. road tax, change of details etc). It also means that they can ignore any s172 requests with impunity. The result of that is that the drivers of these vehicles need not worry about committing any offences – which are not always as trivial as speeding - that rely on s172 to identify the driver.

In a Freedom of Information request in 2019, the DVLA confirmed that is was possible to register a vehicle in the name of a trust:

https://www.whatdotheyknow.com/request/can_a_trust_be_a_registered_keep?utm_campaign=alaveteli-experiments-87&utm_content=sidebar_similar_requests&utm_medium=link&utm_source=whatdotheyknow

“We appreciate that you have taken the time to contact us in relation to this matter. I can confirm you are able to register a Trust as a registered keeper.”

It would be interesting if you kept us informed of what happens. I’m already in the early stages of setting up a trust, and plan to transfer to it the vehicles currently registered to Mrs NJ and me!   :) 




The Rookie

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Re: Court summons for failing to identify the driver
« Reply #18 on: June 11, 2024, 08:24:06 am »
The result of that is that the drivers of these vehicles need not worry about committing any offences
Which then raises the spectre of an attempt to pervert the course of justice of course., whether that would have legs is a different matter, possibly not in this case as that wasn't the intent at time of registering but where someone does do that....
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Southpaw82

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Re: Court summons for failing to identify the driver
« Reply #19 on: June 11, 2024, 11:19:38 am »
The result of that is that the drivers of these vehicles need not worry about committing any offences
Which then raises the spectre of an attempt to pervert the course of justice of course., whether that would have legs is a different matter, possibly not in this case as that wasn't the intent at time of registering but where someone does do that....
I don’t think we know one way or the other what the intention behind registering the vehicle in this way was.

roythebus

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Re: Court summons for failing to identify the driver
« Reply #20 on: June 14, 2024, 10:09:12 pm »
I'm currently involved with the setting up of a trust to take over the assets of a similar bod where all the trustees are deceased. My partner was also involved but she opted out after it was mentioned that trustees could be held personally liable for the actions of the trust, which "could" involve her losing her house in extreme circumstances. It was found that trustees can only be held personally liable if they are involved in criminal activities. Insurance will be in place to idemnify trustees in those sort of circumstances. But nobody has mentioned the s172 scenario as they don't believe the trust would get involved in owning or operating vehicles. I'll mention it to the other future trustees at our next meeting.

I'd suggest a trust is a body corporate, it doesn't have to be registered anywhere.
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