Failure To Furnish – A Diligent Defence?

The incredibly fashionable use of S.172 Road Traffic Act 1988, which creates a duty to give information as to the identity of a driver in certain circumstances, is consistently being misapplied and misdirected through the blurring of several separate and distinct defences. For the majority of time, a request for the information is usually sent out with a Notice of Intended Prosecution for an offence of speeding. The offence is often defended, particularly when the defendant is at risk of ‘totting up’. Prior to 2007 the offence only carried 3 points (now 6 points) and conceivably gave little or no incentive for a response since the outcome was perhaps in some case likely to be less than that for the substantive offence. The position is different for companies as there can be no endorsement. This perhaps illustrates the importance of running the correct defence clearly and coherently for the client and making sure that the court does not apply the wrong section as a result of some confusion as to which defence is actually being ran.

Defences – Whiteside v DPP [2011] EWHC 3471 (Admin)

There are two separate and distinct statutory defences contained within this section, namely, subsection (4) and subsection (7) (b). The distortion between the two defences results from a misapplication of the term ‘reasonable diligence’. Both defences incorporate the element of diligence but the timing of its application is what is crucial. The confusion stems from the inference that in order to satisfy the prerequisites of this defence, the defendant will be expected to show that he acted with due diligence in order to ensure that he receives his post or is made aware of the same in accordance with Whiteside v DPP [2011] EWHC 3471 (Admin).

This is not the same diligence that the defendant is expected to exercise under subsection (4) and it is clear from Whiteside that this duty applies prior to the service of the notice. Whiteside suggests that this defence is limited in application but can apply where the defendant shows that he did not see the notice or it was not reasonably practicable for him to see the notice. It follows that he cannot respond to a notice he is unaware of even when the notice has been properly served. This appears to somewhat contradict the decision in Atkinson v DPP [2011] EWHC 3363 (Admin).

It is clear since Atkinson that the duty to exercise reasonable diligence under subsection (4) is not invoked until such time as the notice is served. This seems entirely logical. However, this can be directly contrasted with Whiteside insofar as the duty to exercise diligence is imposed before knowledge of the requirement to supply the information is ever received, if received at all. It is worth noting that there may be other offences committed by not exercising that duty prior to the notice that are sometimes less obvious but they are not pertinent to the current topic. Reasonable diligence is not defined in law and will ultimately be a matter for the court taking into account the credibility of the defendant. It is essentially a matter of fact and degree as to whether any defence under this section will succeed and each case will be meritorious or not depending upon the individual circumstances.

However, consider the position of a husband and wife, who are the only persons insured to drive their vehicle, who both nominate each other as the driver. Arguably, neither can be guilty of failing to provide information under s.172 but neither can be guilty of the substantive offence due to the identity of the driver not being certain and S.80 of the Police and Criminal Evidence Act 1984 might prevent any prosecutions of a different nature. Moreover, what possible supporting evidence could they gather other than their memory of who was driving at the time? How diligent will they need to be ex post facto? Notwithstanding that, the more supporting evidence available as to the enquiries made the more likely the defence will succeed. This is also true for the well overused ‘postal defence’ of which more often than not the supporting evidence consists solely of the defendant’s credibility when providing an explanation for what he has done about his missing post.

The ‘postal defence’ is completely distinct from the statutory defences contained within S.172 and is often confused with the defence under subsection (7) (b). This only serves to confuse a complicated defence further. By virtue of Section 7 of the Interpretation Act 1989 service is deemed to be effected essentially by posting it 1st class to the last known address, unless the contrary is proved. In effect, this creates a rebuttable presumption that the Notice of Intended Prosecution and S.172 request had been served and, if successfully rebutted, places the prosecution in a position where they have not proven service of the notice and therefore cannot prove the S.172 offence. In addition, it is likely that they will also be out of time to pursue the substantive offence. It is possible to run both the ‘postal defence’ and a defence under subsection (7)(b) in exceptional circumstances in the alternative but more often than not it will lead the court into confusing the two defences as one and misdirecting itself to a conviction. It is often best to run one defence or the other depending on the particular circumstances. The difficulty with the ‘postal defence’ is that the usage is fast becoming frequent and the courts are increasingly reluctant to accept that post has gone missing without supporting evidence. That said, it still remains a valid defence. The key point to S.172 is not to confuse the separate and distinct defences available and to remain diligent at all times.

Keith Hartley-Jones
Central Chambers
23rd July 2012

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