section 143 & 165 RTA 1988
Discussion
Hi
Would be interested to your comments with regards to these two sections of the RTA act.
What are the instances where section 143 can be used against the registered keeper of a vehicle, in relation to the keeper not being able to provide documentary evidence of another driver's insurance that covers them for driving that vehicle?
What are the defences, if any?
Also, what are the penalties if a charge is sucessful against the keeper?
In relation to S.165, it seems from reading the act that this is in relation to the driver having to give details of insurance and MOT cover for the car that he is driving. It does not assert that the keeper of a vehicle must provide these documents in relation to another driving using the subject vehicle?
Or have I read that section of the act wrong? :-)
Thank you in advance to all those that answer and read this.
Would be interested to your comments with regards to these two sections of the RTA act.
What are the instances where section 143 can be used against the registered keeper of a vehicle, in relation to the keeper not being able to provide documentary evidence of another driver's insurance that covers them for driving that vehicle?
What are the defences, if any?
Also, what are the penalties if a charge is sucessful against the keeper?
In relation to S.165, it seems from reading the act that this is in relation to the driver having to give details of insurance and MOT cover for the car that he is driving. It does not assert that the keeper of a vehicle must provide these documents in relation to another driving using the subject vehicle?
Or have I read that section of the act wrong? :-)
Thank you in advance to all those that answer and read this.
Hi
Would be interested to your comments with regards to these two sections of the RTA act.
What are the instances where section 143 can be used against the registered keeper of a vehicle, in relation to the keeper not being able to provide documentary evidence of another driver's insurance that covers them for driving that vehicle?
First you have to look at the type of offence and the liablilty concerned.
Most motoring offences are of strict or absolute liability This means that the offence is either committed or it is not and there is no need for mens- rea (the guilty mind). The facts themselves are sufficient to prove the offence.
Is the person insured or is the person not insured?
Either yes or no!
Secondly you have to look at the specific concepts of 'construction and use' offences.
1) Using
Which is the physical act of using the vehicle which the driver will always commit.
It is podssible for the owner or registered rkeeper to use the vehicle even if he/she is not in it.
e.g. a company employing a driver in a company vehicle that has a bald tyre. The driver is using it because he is driving it, the company are using it because it is for their business.
2) Causing
'Causing' an offence will involve some degree of 'control' or dominance by or some express mandate from the 'causer'
An example of this is the employee van driver seeing a bald tyr on the van and informing the transport manager of the fact. The transport manager then tells the driver to drive the vehicle with the delivery or he will face the sack.
In this instance the driver 'uses', the company 'uses' and the transport manager 'causes', so there are three defendants.
3) Permit
This is less direct or explicit than causing. Permitting is basically just that.
e.g. lending your car to someone when you know that the car has a bald tyre/is not insured. The borrower will 'use' the car and the owner or registered keeper will permit the 'use' with a bald tyre/is not insured.
These notions and concepts of usage of vehicles in relation to offences cover all eventualities in relation to the various relationships between drivers, owners and registered keepers.
Registered keepers are not necessarily the legal owner, but if they have control over the specific use of the vehicle in any way, then they will fall within the scope of USE, CAUSE or PERMIT
No insurance is an offence of strict liability.
Under Section 143 you must have at least third party cover on any vehicle that is used on a public road.
What are the defences, if any?
There is a statutory defence (a defence written into the act)
Sect 143(3) Road Traffic act 1988
A person charged with using a motor vehicle in contravention of this section shall not be convicted if he proves -
a) that the vehicle did not belong to him and was not in his possession under a contract of hiring or of loan,
b) that he was using the vehicle in the course of his employment, and
c) that he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance or security as is mentioned in subsection (1) above.
This is a special defence for employees using their employers vehicles in the course of their employment.
The burden of proof in such cases will be on the defendant and will be judged on the balance of probabilities..
A good mantra to use where insurance is concerned is Check this X 5
Does
This policy cover
This person to drive/use
This vehicle for
This purpose on
This day
If you cannot say yes to all of these then there will be no insurance on the vehicle.
Also, what are the penalties if a charge is sucessful against the keeper?
They are exactly the same for the owner/registered keeper as they are for the driver. See below.
Level 5 fine on the standard scale, discretionary disqualification and 6-8 points.
In relation to S.165, it seems from reading the act that this is in relation to the driver having to give details of insurance and MOT cover for the car that he is driving. It does not assert that the keeper of a vehicle must provide these documents in relation to another driving using the subject vehicle?
Or have I read that section of the act wrong? :-)
Section 165(1)(c)RTA 1988 states
A person whom a constable or vehicle examiner has reasonable cause to believe to have committed an offence in relation to the use on a road of a motor vehicle (other than an invalid carriage), MUST on being so required by a constable or vehicle examiner, give his name and address and the name and address of the owner of the vehicle and produce the following documents for examination.
So you can see that paragraph (c) covers the very point you are asking about ANY PERSON believed to have committed an offence AND NOT JUST THE DRIVER
If the offence comes within the scope of the registered owner having some or any control over the vehicle, then USE/CAUSE/PERMIT would allow the constable or vehicle examiner to require the owner or registered keeper to produce the relevant documents. Insurance is one of those covered amongst others.
Thank you in advance to all those that answer and read this.
That is OK, I hope that helps in your understanding of a complex set of rules.
Basically if you are the registered owner of a vehicle you will have a lot of difficulty wriggling away from USE/CAUSE/PERMIT unless you can bring the statutory defence to you aid which I think unlikely in the circumstances as it is for those who do not own or have control of the administration of the vehicles legal necessities.
>> Edited by madcop on Saturday 7th June 13:43
Thank you very much madcop. Very informative, and I agree with you, it is a very complex area.
From your information, one can conclude therefore that a person who is a registered keeper of (and insured to drive) a vehicle can be charged with and convicted of driving with no insurance if he allows another person to use that vehicle?
To expand on things a little, some scenarios:
what is the situation if:
someone uses your car without permission (for example your brother)? You did not technically "permit" them to use the vehicle?
someone uses your vehicle, and you allow them to use it because they show you documentation that they were in fact insured and did have a driver's licence. Assuming you failed to take a photocopy, how does one stand in this scenario?
And finally, someone uses your vehicle without your prior permission, and you find out later on that they have done this. You did not "permit" the vehicle's use, but you are later showed that the driver was in fact insured to drive the car. However, once again you are unable to prove this fact because you did not take a copy of those documents?
Again, thank you madcop.
From your information, one can conclude therefore that a person who is a registered keeper of (and insured to drive) a vehicle can be charged with and convicted of driving with no insurance if he allows another person to use that vehicle?
To expand on things a little, some scenarios:
what is the situation if:
someone uses your car without permission (for example your brother)? You did not technically "permit" them to use the vehicle?
someone uses your vehicle, and you allow them to use it because they show you documentation that they were in fact insured and did have a driver's licence. Assuming you failed to take a photocopy, how does one stand in this scenario?
And finally, someone uses your vehicle without your prior permission, and you find out later on that they have done this. You did not "permit" the vehicle's use, but you are later showed that the driver was in fact insured to drive the car. However, once again you are unable to prove this fact because you did not take a copy of those documents?
Again, thank you madcop.
maven said:
From your information, one can conclude therefore that a person who is a registered keeper of (and insured to drive) a vehicle can be charged with and convicted of driving with no insurance if he allows another person to use that vehicle?
Yes. It is possible for a vehicle to be insured with a policy relating to a registered keeper and for that policy not to cover the person actually using the vehicle at the time. If the person using the vehicle does not have any insurance at all, then they will comit the offence of using the vehicle and the owner will comit the offence of permitting the use even though he had no knowledge of the facts. There could be mittigation in a case like this but the facts are quite clear, there is no insurance (strict liability) and the registered keeper allowed the use without checking to make sure the user was covered adequately by third party risk.
It is not enough to say "yes" to someone who asks to borrow a vehicle and merely ask them if they are insured if they are not covered on the registered keepers policy. In law it is the lenders duty to check and see if there actaully is a Policy held by the borrower, and if so does it cover his/her use for the proposed period of time it is to be borrowed. The lender should use the Check this X5 method.
To expand on things a little, some scenarios:
what is the situation if:
someone uses your car without permission (for example your brother)? You did not technically "permit" them to use the vehicle?
If you are saying that you have not given permission for the user to take the vehicle, then they will commit an offence of Taking a Vehicle without consent.
TWOC is covered by Section 12(7) Theft Act 1968.
This situation is not uncommon where insurance matters are concerned. It usually stems from incidents where an accident has occurred and the facts uncover that the driver who is not the owner is not actually insured. When the Police go to the registered keeper to ask for insurance details, it transpires that the driver at the time is not covered.
The only option then for the registered keeper to avoid prosecution for Permitting No Insurance is to make a complaint of Taking a Vehicle Without Consent. However if at the time prior to the driver having the accident, permission was given by the registered keeper, and the facts are established in interview by the answers the driver gives that he/she did have the registered keepers permission to use the vehicle, then it is possible that no prosecution would take place for the TWOC. Alternatively the Police would charge the driver with TWOC and using with No insurance and the registered keeper with Permitting No Insurance with the intent of the court deciding who was guilty of what.
If a registered owner/keeper is in the car being driven by the uninsured person, e.g. having had too much to drink and allowing the driver to take them home in the owners car, then both the driver and the registered owner/keeper are in fact using the vehicle ( a technical point which does not alter the outcome of punishment )
someone uses your vehicle, and you allow them to use it because they show you documentation that they were in fact insured and did have a driver's licence. Assuming you failed to take a photocopy, how does one stand in this scenario?
Did the insurance certificate cover the check this X5 rule? If the person checking the form even genuinely misunderstood the details of the certificate and having done so gave permission to drive and it was later discovered the driver was not covered, under the rules of strict liability, the offence is complete. There would possibly be mittigation on behalf of the lender of the vehilce in such circumstances which the court could take into consideration when considering the evidence. The facts are though that the driver was not covered by third party risk and therefore the lender commits the offence.
Taking a photocopy would not help either if the details on the certificate do not give cover to the driver. If you produced such a copy in court in your defence to a charge of Permitting No insurance, the magistrates would merely conclude that you had not sufficiently interrogated the document to allow the person use of the vehicle.
And finally, someone uses your vehicle without your prior permission, and you find out later on that they have done this.
This happens quite a lot when teenagers (whether licenced to drive or not) borrow the family car without dads permission and wrap it up or are stopped because they are driving like a Tit and given a producer.
Dad then has to make a decision, "Do I accept the charge of permit no insurance therefore avoiding son/daughters criminal record even though I didn't give permission by saying I did, or do I stick to my principles and allow errant child to be hauled before the court for TWOC, saving the inevitable fine and points on my licence?
This is obviously a difficult decission to make in the circumstances.
You did not "permit" the vehicle's use, but you are later showed that the driver was in fact insured to drive the car.
If you did not permit the use, then the driver has TWOCed the car, regardless whether he/she was actually insured is irrelevant to this situation.
However, once again you are unable to prove this fact because you did not take a copy of those documents?
If they did not have permission, then they did not have permission and the offence is TWOC. If you gave permission under false pretences i.e. the Insurance certificate was forged, then you would not be guilty of this offence. If you merely failed to understand it, then the driver may well fight the TWOC charge and the owner would still be liable for the Insurance offence.
If they did have permission and they are not insured, then the offences are as stated, Using for the driver, Permitting for the owner.
This is a difficult call especially if the driver required to produce insurance is a close friend or relative. Like the example with the father and child taking the family car, a moral dilemna occurs and is very often likely to cause a huge domestic conflict either way!
I have just found a note which states that generally in order to prove an offence of permitting, the prosecution will need to show knowledge by the defendant of the vehicles use and the unlawful nature of that use (this goes away from strict liablilty and into mens-rea) It goes on to say, it is necessary to consider the relevant piece of legislation in each case, together with its intended purpose. Note though that it says generally so this will not be generic across this offence.
My experience of permitting 'No Insurance' is that in the father/child example above, unless a complaint of TWOC is made, everybody is prosecuted for the insurance under strict liablity. What happens at court is a matter for the defendant and his lawyer to convince the court that the reasons were genuine and that there is no subterfuge involved because of the fact that they have been caught out.
I hope that helps.
>> Edited by madcop on Sunday 8th June 12:22
madcop, thank you very, very much for taking the time to impart your knowledge here. I am truly grateful.
The scenario here is very similar to your most common experience. However, the difference is such that the vehicle was indeed taken without permission (the person in question, a good friend, did not think the keeper would mind). He did not inform the keeper of his intention or act of taking the vehicle until after it had been returned.
He did, however, have insurance for the vehicle, and did show documents to that effect.
The trouble is that, he does not seem to have to hand those insurance papers for that period, as it was some time ago.
It seems a little unfair for one to bear the costs (both financially and in terms of endorsements) for something that they did not do but cannot disprove. But it also seems unfair to allow a friend to be brought on charges of TWOC. It reinforces the notion that a centralised searchable database of those with insurance is made available.
A very difficult situation indeed.
Thank you once again for all your help and advice.
The scenario here is very similar to your most common experience. However, the difference is such that the vehicle was indeed taken without permission (the person in question, a good friend, did not think the keeper would mind). He did not inform the keeper of his intention or act of taking the vehicle until after it had been returned.
He did, however, have insurance for the vehicle, and did show documents to that effect.
The trouble is that, he does not seem to have to hand those insurance papers for that period, as it was some time ago.
It seems a little unfair for one to bear the costs (both financially and in terms of endorsements) for something that they did not do but cannot disprove. But it also seems unfair to allow a friend to be brought on charges of TWOC. It reinforces the notion that a centralised searchable database of those with insurance is made available.
A very difficult situation indeed.
Thank you once again for all your help and advice.
You might like to look at the relevant section of Section 12(6) Theft act 1968 which is a defence to TWOC
A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owners consent if the owner knew of his doing and the circumstances.
It would appear that the crux of this matter is finding the relevant insurance certificate of the borrower. If you friend had an honest belief that you would have consented knowing of his taking the vehicle and of the circumstances of why he took it, then TWOC will not apply in that instance.
Can he remember who the insurer was at that time?
A search of their archives should throw up the required information if he was insured at the time he borrowed the vehicle.
If you didn't give him permission and he took it, then he would not be convicted of TWOC but possibly would be of 'no insurance' if he used this defence to a TWOC charge.
If you did not know of his taking of the vehicle, then you would have a defence to the 'permitting' no insurance. that may be the easiest way to deal with this.
A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owners consent if the owner knew of his doing and the circumstances.
It would appear that the crux of this matter is finding the relevant insurance certificate of the borrower. If you friend had an honest belief that you would have consented knowing of his taking the vehicle and of the circumstances of why he took it, then TWOC will not apply in that instance.
Can he remember who the insurer was at that time?
A search of their archives should throw up the required information if he was insured at the time he borrowed the vehicle.
If you didn't give him permission and he took it, then he would not be convicted of TWOC but possibly would be of 'no insurance' if he used this defence to a TWOC charge.
If you did not know of his taking of the vehicle, then you would have a defence to the 'permitting' no insurance. that may be the easiest way to deal with this.
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