Failing to identify driver..
Discussion
Question.
Para 4 of Section 172 says:
A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
But how do the CPS decide if reasonable diligence was used or not? It seems that as soon as you look at the often dodgy photograph which determines nothing they don't ask what process you took to arrive at this inconclusion and just take you to court - so what evidence do the CPS provide to the court in order to gain a conviction?
Do they automatically assume that you didn't excercise reasonable diligence until you prove you did??
Para 4 of Section 172 says:
A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
But how do the CPS decide if reasonable diligence was used or not? It seems that as soon as you look at the often dodgy photograph which determines nothing they don't ask what process you took to arrive at this inconclusion and just take you to court - so what evidence do the CPS provide to the court in order to gain a conviction?
Do they automatically assume that you didn't excercise reasonable diligence until you prove you did??
p490kvp said:
Question.
Para 4 of Section 172 says:
A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
But how do the CPS decide if reasonable diligence was used or not? It seems that as soon as you look at the often dodgy photograph which determines nothing they don't ask what process you took to arrive at this inconclusion and just take you to court - so what evidence do the CPS provide to the court in order to gain a conviction?
Do they automatically assume that you didn't excercise reasonable diligence until you prove you did??
Para 4 of Section 172 says:
A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
But how do the CPS decide if reasonable diligence was used or not? It seems that as soon as you look at the often dodgy photograph which determines nothing they don't ask what process you took to arrive at this inconclusion and just take you to court - so what evidence do the CPS provide to the court in order to gain a conviction?
Do they automatically assume that you didn't excercise reasonable diligence until you prove you did??
The burden of proof for that statutory defence lays with you, not with the prosecution.
Edited by vonhosen on Saturday 11th November 00:40
I think you are breaking that sentance of S172 up and applying it incorrectly. The "if he shows that he did not know" surely can merely ammount to one writing back and saying "I do not know who was driving".
Therefore one did not know. The point I'm asking about is that your response to the NIP then gets sent to the CPS who then decide if you will be summons to appear at a court. So at this stage what evidence gathering has there been to suggest that your statement suggesting that you didn't know who was driving either did or did not show reasonable diligence?
I suggest that actually at this point the CPS have built a case on absolutely nothing because there has been no evidence gathering to suggest that you didn't show reasonable diligence.
Therefore one did not know. The point I'm asking about is that your response to the NIP then gets sent to the CPS who then decide if you will be summons to appear at a court. So at this stage what evidence gathering has there been to suggest that your statement suggesting that you didn't know who was driving either did or did not show reasonable diligence?
I suggest that actually at this point the CPS have built a case on absolutely nothing because there has been no evidence gathering to suggest that you didn't show reasonable diligence.
OK so you look at the photographic evidence from a rear facing camera which shows not a lot. So when you claim I can't identify the driver on what basis do you get summons? Are you saying that regardless of how dodgy their evidence is they automatically assume that you haven't been diligent in other respects?
gently bentley said:
As the reply said its not for the CPS or PF in Scotland to prove. Thats written into the statute so the argument is a non starter I'm afraid.
Which is why, regardless of how many "emminent" legal opinions hold otherwise, S172 is a filthy fascist obscenity.
Even those who drafted it realised it, why else would they make it inapplicable in truly serious cases?
jasandjules said:
And Innocent Until Proven Guilty was a cornerstone of our justice system, along with the principles of natural justice. But the Laba Party, in consideration of removing your hands from your £60 car owning donation tax, decided to change that.
Do you think the Tory party would have allowed us to get away with claiming not to know who was driving?
chrispy porker said:
there are a lot of defences in law, the proof of which lie with the defendant. eg most offences saying 'without reasonable excuse' .
A defence is what it says it is. It is up to the person accused to use it.
A defence is what it says it is. It is up to the person accused to use it.
That is all fair enough and I'm not contesting that point but what I am saying is that where is the prosecutions evidence gathering prior to this? I thought that the usual process was that they had to be sure beyond all reasonable doubt that you did not know who the driver was and therefore they must have some evidence that the process you took that lead you to make the statement of you not knowing was not sufficient? Or am I missing something?
The alternative would be a nonsense law - requiring the prosecution to prove that he didn't use reasonable efforts when the efforts are known only to the accused.
There are a number of these in law, and quite a few the other way round (eg failing to understand the warning in drink driving throw burden onto prosecution to show that it was understood). The legislators know what they are doing when they word these to throw burden one way or the other. Which is not to say that they are always right.
But I think this is right.
There are a number of these in law, and quite a few the other way round (eg failing to understand the warning in drink driving throw burden onto prosecution to show that it was understood). The legislators know what they are doing when they word these to throw burden one way or the other. Which is not to say that they are always right.
But I think this is right.
herewego said:
In a way people are getting away quite lightly with this system in which you can nominate as driver whoever is prepared to take the points. The alterntive, I suppose, is an HGV type driver recording system.
...or a better alternative would be to stop taking money from drivers for doing something which is an extremely minor contributor to road accidents...
james_j said:
herewego said:
In a way people are getting away quite lightly with this system in which you can nominate as driver whoever is prepared to take the points. The alterntive, I suppose, is an HGV type driver recording system.
...or a better alternative would be to stop taking money from drivers for doing something which is an extremely minor contributor to road accidents...
Or if you don't like the points/fine don't speed. Its not like we don't all know the law on this one. If you don't like the legislation in relation to owning a motor vehicle and holding a driving licence then send your licence back and use public transport. I'm sorry but owning a car is a responsibility. If you genuinly (like in pool cars or if you have been on a long journey and swopped drivers) don't know who is driving thats fine but a number of people on here seem to post wanting to drive whatever speed they feel like doing and then when they get caught they don't accept responsiblity. I'm a realist I do break the speed limit and when caught I'd admit it because I'm not a liar. S172 merely asks you tell the police who was driving your car that you own at a certain time. Sorry thats hardly unreasonable.
I know of people who think its more than reasonable to steal your car off the driveway.. so are we saying that eventualy that should be legalised?
Hang on - if you really make a stand on this then you are of course right but then thats like saying you should get nicked at any speed over the posted limit.
The reality of a great deal of camera offences are such that the occupants of the vehicle getting photographed have no idea that they have been photo'd until the NIP comes through sometime later.
Now (you live in the real world) if husband and wife share a car on a daily basis and are asked to commit themselves absolutely how many people (who have a usual busy life where motoring isn't their focus) can say with certainty who was at the wheel?? As individuals is it reasonable that we should keep a drivers log for each of our vehicles? Then what happens if you go on a long drive and share the driving duties - then you can be sure one of you was driving but which one?
The point I'm trying to make - or the question I'm asking - is that in these circumstances it is normal to ask for the photgraphic evidence. When this fails to give any level of determination as to the identity of the driver it is usual to get summons for failure to notify - but when their own evidence for the original offence of speeding is so flakey how can they dare to then say you didn't excersise reasonable diligence? Like I say on what are they basing this on? Surely a counter arguement could be that if they had been more diligent in obtaining the orginal speeding evidence then it would be impossible to not know who the driver was.
The reality of a great deal of camera offences are such that the occupants of the vehicle getting photographed have no idea that they have been photo'd until the NIP comes through sometime later.
Now (you live in the real world) if husband and wife share a car on a daily basis and are asked to commit themselves absolutely how many people (who have a usual busy life where motoring isn't their focus) can say with certainty who was at the wheel?? As individuals is it reasonable that we should keep a drivers log for each of our vehicles? Then what happens if you go on a long drive and share the driving duties - then you can be sure one of you was driving but which one?
The point I'm trying to make - or the question I'm asking - is that in these circumstances it is normal to ask for the photgraphic evidence. When this fails to give any level of determination as to the identity of the driver it is usual to get summons for failure to notify - but when their own evidence for the original offence of speeding is so flakey how can they dare to then say you didn't excersise reasonable diligence? Like I say on what are they basing this on? Surely a counter arguement could be that if they had been more diligent in obtaining the orginal speeding evidence then it would be impossible to not know who the driver was.
I'd disagree about people not knowing whi is driving their car as on any day the vast majority of people are in single occupancy vehicles.
This is why forward facing cameras were introduced. As I did say there are times when you genuinly won't know. The courts will accept this as the case if you can evidence it. My point is just that one of the responsibilites of owning and running a car is knowing who has access to it and uses it. As I think I did say I speed and I would for one do not agree with 32 in a 30 etc however unhappy I would be with that it is my experience that most speedometers (except calibrated ones) tend to show you travelling faster rather than slower than you actually are. As such I'd have to take it on the chin unless I really did not know.
I just get annoyed at some people on here who clearly knew who was driving, were caught at 45 in the 30 then not being willing to accept responsibility for their actions and instead start making out they never knew who was driving etc etc. I am not suggesting you fall in that catagory.
This is why forward facing cameras were introduced. As I did say there are times when you genuinly won't know. The courts will accept this as the case if you can evidence it. My point is just that one of the responsibilites of owning and running a car is knowing who has access to it and uses it. As I think I did say I speed and I would for one do not agree with 32 in a 30 etc however unhappy I would be with that it is my experience that most speedometers (except calibrated ones) tend to show you travelling faster rather than slower than you actually are. As such I'd have to take it on the chin unless I really did not know.
I just get annoyed at some people on here who clearly knew who was driving, were caught at 45 in the 30 then not being willing to accept responsibility for their actions and instead start making out they never knew who was driving etc etc. I am not suggesting you fall in that catagory.
Mr_annie_vxr said:
I know of people who think its more than reasonable to steal your car off the driveway.. so are we saying that eventualy that should be legalised?
If you think theft of a car is a suitable analogy, then it's going to be a little difficult having a meaningful discussion with you...
Mr_annie_vxr said:
This is why forward facing cameras were introduced. As I did say there are times when you genuinly won't know. The courts will accept this as the case if you can evidence it. My point is just that one of the responsibilites of owning and running a car is knowing who has access to it and uses it. I am not suggesting you fall in that catagory.
No I'm not kicking off with you - far from it, everyones point is fair enough.
You make the point above about the responsibilities of owning/running a car is knowing who uses it and that is kind of fair enough - until you come to the relationship within the family. I suppose each to his own but my wife doesn't ask me to use the car - its truely is a free for all - if one needs to pop out for something then you'll take the keys to the car that is first on the driveway, etc. There isn't a formal process for this - and I think that is the case with most "normal" relationships - isn't it?
Everything is above board and legal - insured, serviced, etc.
Re: forward facing cameras - it is a fair point. In my case having to defend a failure to disclose after being picked up by a laser device in a camera van on the A34. I got pinged at 82mph, asked for the photo to see who was at the wheel and it is a rear facing shot and impossible to see driver - other than two shadows of me and the wife, who was driving unknown.
Why? well normally you might well be able to recall a flash or seeing the van but too late, whatever that should I agree lodge in the brain for 14 days. However we were both oblivious to the camera van because it was parked on the other side of a large bridge over the A34 (just after the M4) - if the camera operater had parked the otherside then he would have easily been able to gain a front shot and the speeding matter is easily dealt but now it is non disclosure and other than asking to see the evidence it becomes a joke to be able to prove you did not do something.
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