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Jo C.
Jo C., Barrister
Category: Traffic Law
Satisfied Customers: 69774
Experience:  Over 5 years in practice.
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I've received a 'reminder' letter about an alleged traffic

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I've received a 'reminder' letter about an alleged traffic offence (speeding in a 30 mph zone). I have received a 'reminder' letter from the police but not the original NIP. I'm worried because the alleged offence was committed in London - which is some 60 miles from my home - and both my girlfriend and I often travel in for work and leisure. Both of us are insured on the vehicle and regularly drive it, so either one of us could have been driving (this offence supposedly took place nearly 6 weeks ago). I know I have a legal obligation to identify the driver, but the police are demanding a response within 7 days. The letter is dated 17 August, and only reached me yesterday (19 August) because it was sent by second class post. I will make my reasonable enquiries but it is unlikely I will be able to respond before 24 August - and that is ignoring the fact that, as yet, I haven't even seen the NIP! I've drafted a letter to the police's processing department explaining the situation, but fear it will fall on deaf ears and they will charge me with failing to identify. I haven't yet had time to send my letter, but will do tomorrow by recorded delivery. Do you think this is the best course of action? What else should I do?
Submitted: 1 year ago.
Category: Traffic Law
Expert:  Jo C. replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Do you have the post marked envelop?
Customer: replied 1 year ago.

Yes - it was posted by second class mail on 17 August 2015

Expert:  Jo C. replied 1 year ago.
Normally they give you 28 days to respond. It does unreasonable. Hang on to the post mark.
Why can't you identify the driver today? I know you won't know off hand but the law requires you to investigate which really only normally involves checking diaries.
Customer: replied 1 year ago.

The offence allegedly took place on 11 July - which was a Saturday. I was working that day. I'm fairly certain my girlfriend also came into London with me because we were going away on holiday, and she needed to buy some things before we left. Both of us are insured to drive the vehicle. We regularly drive each other's vehicles (I am also insured on hers). And it happens so often that we rarely give it a thought. The problem now, of course, is that nearly 6 weeks have passed - so trying to remember who was driving at that precise moment is going to be difficult.

Expert:  Jo C. replied 1 year ago.
Yes, I understand. Nobody ever really remembers who is driving without investigation.
But it is usually possible upon consideration.
If it was just before a holiday then that is usually a good point of reference. This was a shopping trip just before a holiday. It is fairly common place for you to go to work but an unusual event for her and that should trigger her recollection?
Customer: replied 1 year ago.

Sorry - I probably didn't explain myself as clearly as I could have!

We both travelled into London together; I went off to work and met up with her after before travelling back together again later that evening.

Expert:  Jo C. replied 1 year ago.
Yes, I understand. The difficulty is remembering who drove on that particular journey.
Have you asked her ?
Who had the car during the day?
Would you have swapped over driving? Bearing in mind this was only 60 miles.
Customer: replied 1 year ago.

We discussed it (at length!!) last night, and between us have genuinely drawn a blank.

The car was with me during the day, as I parked it at my office. I do take your point, actually, that if I was driving when we met back up it's possible that we didn't swap over. Which would logically leave me as the driver.

It's difficult to explain to somebody without asking them to take things on trust, but we genuinely do share our driving around. We'd have to try and think back - it is possible we could have swapped especially if, for example, I'd driven in. And central London is still some 6 miles from my office, so I might well have wanted a rest by that point!

Would it be easier to just nominate myself as the driver??

Expert:  Jo C. replied 1 year ago.
No, you can't do that. That is perverting the course of justice and also there is no real reason you should have to nominate yourself rather than her just because you are male. Women are adults and have to take responsibility. I don't know why men always feel they should place themselves at risk to protect women.
The trouble with this types of defence is this. In a nutshell, people over use it and lie and pretend they can't remember. That does tend to lead courts to be distrustful of such claims and also Magistrates are generally biased in favour of the Crown. The problem is fundamentally that if the allegation against a driver of a particular car were that he was hanging around outside primary schools trying to abduct children then the registered keeper WOULD find out his identity so fast the world would spin. Therefore, the only real difference is the seriousness of the offence rather than a person's ability to find out who was driving.
Come what may, the only thing that is going to satisfy the police is the disclosure of the identity of the driver within time. If they don't get that then they are likely to summons for failing to identify. They do forget sometimes so you may be lucky but you cannot rely on that.
If you really cannot say who was driving then you have to prepare as though this will end in court.
Section 172 of the Road traffic act reverses the onus onto you. It does not ask whether you know offhand who was driving. Of course you do not. It does, however, place an obligation upon you to investigate the issue using reasonable diligence and to identify the driver.
With personal vehicles that are usually fairly easy to do is because we can all say with reasonable efforts who was driving our own personal car on any particular day.
“Reasonable diligence" has been considered is by the higher courts and it means doing things like checking your diary, retracing the journey etc.
If you genuinely cannot do so then it is a defence to say that you had used reasonable diligence and cannot say. Sometimes haulage companies are in that position.
Generally speaking, “reasonable diligence" at the magistrates court means doing everything humanly possible. Any imperfection or failing will be used as an excuse to convict you.
Also, you should remember that the law reverses the burden of proof on to you to show, on the balance of probability, that you have used reasonable diligence.
The reversal of the burden of proof has been considered at Europe and has been held the within reasonable limits.
Moreover, if you really cannot identify the driver then you must not guess. That is potentially perverting the course of justice and people go to prison for that.
If you can't identify the driver then you need to use a particular response to bring yourself within the caselaw. You must staple the letter that you write to the nip. Do not use a paperclip. If you do they may seize on that and use it to convict you as they will differentiate it from the leading case. On that letter write the words
“The driver of this vehicle was either
A (name and address)
B (name address)
Obviously, you can only name the 2 genuine candidates.
The case of DPP v Jones says that if you respond in this way it is for the police to investigate which of the 2 candidates are responsible and it gives you a defence to failing to identify.
This case is relatively little-known and if you respond in this way they could charge you with failing to identify. You may have to go to court and argue the point. They will send you some quite intimidating letters. Overall though, if you respond in this way you bring yourself within the caselaw and have a much stronger chance.
Hope this helps. Please let me know if you need more information.
Jo C., Barrister
Category: Traffic Law
Satisfied Customers: 69774
Experience: Over 5 years in practice.
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