Interesting s.172 High Court case
Discussion
Judgment given today at the High Court.
Atkinson v. DPP [2011] EWHC 3363
"The facts were that a Yiben Meiduo motor scooter was recorded doing 38 mph in a 30 mph area on Lovely Lane, Whitecross, Warrington, at 10.38 on 13 Nov 2010.
On 19 Nov 2010 a Notice of Intended Prosecution was sent to the Appellant, asking her who the driver was. She replied to say that she did not know. The scooter had been up for sale. A buyer had asked to test drive it before he considered buying it. She asked if he had a licence. He assured her he was legal to go on it, so she let him ride it. He returned, having done so, to say he would let her know if he wanted it. He never got back to her. She did not take his name.
The Appellant contended before the Magistrates that she had the defence provided for by s. 172(4) as she did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. She contended that the defence of reasonable diligence had to be considered from the time the Appellant had received the notice from Cheshire Police asking her to identify the rider of the vehicle on 13th November 2010.
Magistrates' Court decision; "We were of the opinion that the appellant did not know and did not act with reasonable diligence in that she failed to obtain details identifying the person she allowed to ride her scooter on 13th November 2010 by not checking and not asking for documentation which would have enabled the appellant to reply to the notice of intended prosecution sent by Cheshire Police and provide the details of the rider of the scooter to them."
Question for the High Court, "Were we right to conclude that acting with reasonable diligence started at the point the appellant allowed someone else to use her motor scooter and not when she received the notice from Cheshire Police asking her to identify the driver?"
Judgment of the High Court, "The question posed by the Magistrates' Court in the case requires to be answered in the negative. Reasonable diligence to ascertain identity fell to be assessed at the time the request from the police was received by the Appellant."
http://www.bailii.org/ew/cases/EWHC/Admin/2011/336...
Atkinson v. DPP [2011] EWHC 3363
"The facts were that a Yiben Meiduo motor scooter was recorded doing 38 mph in a 30 mph area on Lovely Lane, Whitecross, Warrington, at 10.38 on 13 Nov 2010.
On 19 Nov 2010 a Notice of Intended Prosecution was sent to the Appellant, asking her who the driver was. She replied to say that she did not know. The scooter had been up for sale. A buyer had asked to test drive it before he considered buying it. She asked if he had a licence. He assured her he was legal to go on it, so she let him ride it. He returned, having done so, to say he would let her know if he wanted it. He never got back to her. She did not take his name.
The Appellant contended before the Magistrates that she had the defence provided for by s. 172(4) as she did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. She contended that the defence of reasonable diligence had to be considered from the time the Appellant had received the notice from Cheshire Police asking her to identify the rider of the vehicle on 13th November 2010.
Magistrates' Court decision; "We were of the opinion that the appellant did not know and did not act with reasonable diligence in that she failed to obtain details identifying the person she allowed to ride her scooter on 13th November 2010 by not checking and not asking for documentation which would have enabled the appellant to reply to the notice of intended prosecution sent by Cheshire Police and provide the details of the rider of the scooter to them."
Question for the High Court, "Were we right to conclude that acting with reasonable diligence started at the point the appellant allowed someone else to use her motor scooter and not when she received the notice from Cheshire Police asking her to identify the driver?"
Judgment of the High Court, "The question posed by the Magistrates' Court in the case requires to be answered in the negative. Reasonable diligence to ascertain identity fell to be assessed at the time the request from the police was received by the Appellant."
http://www.bailii.org/ew/cases/EWHC/Admin/2011/336...
U T said:
I don't think the law does say a company should have a written log. But that's what prudent companies do, in order to be able to identify the driver in the event of an NIP, parking ticket or whatever.
Completely wrong. The word should isn't used in the legislation but that's exactly what is implied; see s.172(6) above. If you meant 'must' rather than 'should' then you'd be right. The word must would imply something mandatory.U T said:
In my view the owner or keeper of a car should have a duty to keep tabs on the use of the car, so that in the event of someone committing an offence in the car, the perpetrator can be identified and punished. If the owner/keeper can't do that, then they should be punished. Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.
If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.
if i take full contact details, driver licence number, of a test driver on 1st December who tells me on 10th december that he doesn't want to buy my car and i then bin those details, would you say i was guilty of an offence if on 14th december when a NIP/s.172 request arrives and I no longer have his details? If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.
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