Michael Howard
Discussion
Ardennes92 said:
Good to see the old boys network is still healthy; don't suppose it will apply to the unwashed
Friends of mine used this defence. Driving from S. Coast to Yorkshire they swapped a couple of times and got caught on the way. Camera pics showed the car but it was well after dark so no other way of identifying whether driver was male or female, They said it could have been either one of them driving at the time but they couldn't be sure. That was the end of it.It seems to me that the case revolves around the nature of the form. There have been any number of such cases over the years. The defendant goes free and the form is re-engineered. Those cases going forward will be binned if the same circs apply. Those convictions where the Howard suggestion is involved will be binned on application, always supposing the person did not plead guilty.
I might have misread the reports though.
I might have misread the reports though.
EU_Foreigner said:
How exactly is this case different from the many other cases where the same defense has been given, i.e. unknown who the driver was, where the owner gets an MS90.
Would Howard now get compensation for the hike in insurance premiums that an MS90 would have given him.
Only in the form of rebait from his insurer as the risk no longer applies and didn't during the insured period.Would Howard now get compensation for the hike in insurance premiums that an MS90 would have given him.
Then again, if the insurer regards 2 adults driving without knowing which one was driving at any time as a risk they would, IMHO, be justified in keeping the raised premium to insure such forgetful people.
Derek Smith said:
It seems to me that the case revolves around the nature of the form. There have been any number of such cases over the years. The defendant goes free and the form is re-engineered. Those cases going forward will be binned if the same circs apply. Those convictions where the Howard suggestion is involved will be binned on application, always supposing the person did not plead guilty.
I think it may be even more limited than that. From reading the Daily Mail article (yes, I know) and a couple of reports on the original conviction I get the impression that the case went somewhere along these lines...Howard replies saying that it could have been either him or his wife driving, but only writes his own details on the form.
Magistrates say "If there were two possible drivers you should have provided details for both of them. You didn't provide all the required information. Guilty!" without really considering the wider question of whether he really didn't remember, or had exercised reasonable diligence in finding out who was driving.
Defence lawyers say "hang on - the form didn't actually ask for the other possible driver's details and didn't have space for two people's details anyway so you can hardly blame him for not providing them".
High Court agrees with the defence lawyers and overturns the conviction.
Had the magistrates not got hung up on the fact that he hadn't written his wife's name and address on the form and said something like "We don't believe that you can't remember, and in any event you seem to have made very little effort to work it out. Guilty!" then they would still have been entitled to do that, and it's unlikely that the High Court would have intervened. So there's no need for pending cases to be binned - the magistrates will just have to consider all the circumstances rather than convicting as soon as they see there's only one set of details on the form.
In other words the conviction was overturned on a fairly narrow point about the magistrates' reasoning and what the form actually asked for. People who think that Michael Howard got special treatment, or that this ruling will mean that saying "I don't know if it was me or my wife" will suddenly become an guaranteed get-out, are wide of the mark.
These musings of course come with the massive caveat that they're based on me reading between the lines of a report in the Daily Mail, of all papers. I wouldn't be surprised if the actual reason turns out to be something completely different.
Derek Smith said:
It seems to me that the case revolves around the nature of the form. There have been any number of such cases over the years. The defendant goes free and the form is re-engineered. Those cases going forward will be binned if the same circs apply. Those convictions where the Howard suggestion is involved will be binned on application, always supposing the person did not plead guilty.
I might have misread the reports though.
Are there any other detailed reports (I won't pay for the Times)? I might have misread the reports though.
I can see how this was a good result for Michael Howard, but whether it was a good result for anyone else remains to be seen. It could result in a welcome clarification/limitation on the assumption that a keeper necessarily must know or be able to determine the identity of a driver of a kept vehicle at a particular time. This assumption makes some sense if the s.172 request is delivered within the required period for initial notices, but it becomes less tenable the further away from the date of the offence the request is received by the keeper.
In the Howards' case, they had been on holiday and apparently did not receive the notice in a timely fashion (their testimony suggests they did not see the request until "almost a month" had passed). Surely it is obvious that the no one has the same power of recollection of inconsequential events months after the incident date as the do much closer to it, but the s.172 regime flounces off into the murky realm of "reasonable diligence".
That aside, this could simply be about the form of the request. Many people assume that when the police ask a question, any answer must be 100% truthful, but this is not the case with a s.172 request. The forms generally avoid giving explanations, presumably because the ambiguity works in the favour of the police, but there is probably also an element of "the police cannot give legal advice". Whatever the reason, if the case results in changes that clarify the recipient's obligations then perhaps the result can be characterised as "good".
I now have the law report. Some quotes below.
“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
agtlaw said:
"...The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen.”
By design, no doubt. The form was designed to encourage certain responses and discourage others. It will be interesting to see if the form is now changed in response.agtlaw said:
I now have the law report. Some quotes below.
“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
So a QC had the nouse to “strike out” and alter Part 1 to suit his purpose but when it came to Part 2 he turned into a timid imbecile who couldn’t work out what to do... or did he?“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
Stout99 said:
So a QC had the nouse to “strike out” and alter Part 1 to suit his purpose but when it came to Part 2 he turned into a timid imbecile who couldn’t work out what to do... or did he?
Of course he knew what to do. That was not to fill out section 2 unless he was nominating that person as the driver at the time of the offence. That is the whole purpose of section 2.EU_Foreigner said:
And no European law to hide behind because it is only in the UK that this strange situation occurs, other European countries just "fine" the car owner and they don't care who really was driving.
We too are an European country but are maybe concerned with punishing actual culprits of bad behaviour rather than just having invoices funded... So easy to dodge if vehicle is registered to a company I guess...just cough up and all is well...Countries where the vehicle owner is liable:
France
Belgium
Netherlands
Hungary
Countries where the driver is liable:
Spain
Germany
Italy
Ireland
Netherlands
Romania
Belgium
Bulgaria
Slovakia
Austria
Finland
Hungary
Czech Republic
Poland
As a person in my 50's I am now prone to forgetfulness (short term memory)
this is not an excuse but a real issue for me
it does not impact the way I drive since that is long term memory (I learnt to drive in 1980 and so will not forget how to drive)
Therefore I can see how Howard can honestly say he could not remember.
Going forward if the form is not changed I can see many more people using the same process to achieve the same ruling as Howard.
John
this is not an excuse but a real issue for me
it does not impact the way I drive since that is long term memory (I learnt to drive in 1980 and so will not forget how to drive)
Therefore I can see how Howard can honestly say he could not remember.
Going forward if the form is not changed I can see many more people using the same process to achieve the same ruling as Howard.
John
agtlaw said:
I now have the law report. Some quotes below.
“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
The lapse of time due to being on holiday seems to have been a factor in this case. I would imagine that filling in Part 2 might also not be a sensible idea if you're on 9 points and genuinely can't remember even after performing due diligence. The bench might think you were 'doing a Huhne'.“The form he was sent contained a "Part 1" that was to be completed where the driver of the car was its registered keeper. It required details of the driver's name and details. "Part 2" was to be filled in where it was known that another person had been driving. That also required the driver's name and details. The appellant filled out Part 1 but struck out the words "I was the driver", adding that "the driver was me or my wife" but that he was not sure which. The appellant was prosecuted for failing to give information, contrary to s.172(3). The appellant said that he had a defence under s.172(4) on the basis that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
The Crown argued that the form had not been properly completed as he had not identified the driver and had not given the wife's details.
The district judge found that the appellant was the registered owner of the car and the letter had been properly served on him. She noted that he had completed Part 1 and given his own name. She found that although he had mentioned that the wife might have been the driver, he had not provided her details in Part 2. She said that he had failed to comply with s.172(2) because he had not identified the driver. She noted that it was credible that he could not remember who was driving, but found that the test of reasonable diligence under s.172(4) did not fall to be considered.
The appellant submitted that while the statutory scheme under s.172(4) contemplated that a registered keeper might not know who the driver was, the choice had been to fill in either Part 1 or Part 2, which did not cover that scenario. Accordingly, even if he had filled in the wife's details in Part 2, she would be in the same position as he had been, namely that she did not know who had been driving the car.
HELD: Where an individual was unable to say who had been driving, as much information should be provided as soon as possible to show what steps had been taken to identify the driver and why that had not been possible. In the instant case, the appellant had not said what steps had been taken. In not naming the driver, he had therefore committed an offence under s.172(3). The problem had arisen, however, because the form contained no space to give further information, and there was no guidance as to how to fill in the form when a common scenario such as the instant one had arisen. It would only have been appropriate to fill in Part 2 where the appellant had known that the wife was driving. The judge had erred in finding that the appellant should have filled in Part 2. Where the recipient of a notice contended that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle had been, he should not fill in Part 2 of the form. As for reasonable diligence, it was a matter for the magistrates to assess credibility. The appellant had failed to give the information required regarding identification of the driver. However, he had not failed to fill in the form properly. There had been sufficient information to identify both drivers. The judge should have considered whether he had a defence under s.172(4).”
Somewhat amusing that it's another Tory (ex) politician involved. I believe it is colloquially known as 'the Hamilton defence'.
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