Tuesday, 10 April 2018

The 'I Don't Know Who Was Driving' Defence

Perhaps you were driving. Or may be it was your wife? Or could it have been your butler or Auntie Vera? After all, the lot of you regularly drive the car and any one of you could have been on that road at about that time a couple of weeks ago.


For a variety of road traffic offences such as speeding, the police can require you to tell them who was driving when the office was alleged to have been committed, whether it was you or somebody else. It is an offence not to identify the driver. But it is a defence to a charge that you failed to do so if you can show that you did not know when asked who the driver was and could not have ascertained with reasonable diligence the driver's identity.



Lord Howard of Lympne (former Conservative Leader Michael Howard) was asked by the Metropolitan Police who had been driving his car when the driver was clocked travelling at 37mph in a 30mph limit. It could have been him or it could have been his wife. Neither could remember which and the district judge in the magistrates'  court who heard the case when Lord Howard was prosecuted for not identifying the driver was satisfied that the couple were telling the truth. Nevertheless, Lord Howard was convicted on the ground that although in the first part of the form the police had sent to him he had stated ' The driver was my wife or myself. We don't know which,' he had not gone on in part 2 of the form to comply with the request to identify the driver if he was claiming it was not him ! 

Now, you may say that if that's the law the the law is an ass. Well, it transpires it wasn't an ass on this occasion. Lord Howard appealed against his conviction to the High Court  which meant there were rather more M'Luds about than usual. The High Court has recently quashed the conviction.* The magistrates' court had fallen into error in failing to consider whether the defence of not knowing the driver and not being able to ascertain who the driver had been was made out. And the High Court judges did express dissatisfaction with the police form in that it did not cater for the registered keeper to whom it was sent to be able to explain what steps they had taken in the Howard situation to try and identify the driver.

Before you get carried away with that defence next time the police drop you  a line, do bear in mind that magistrates will take quite a bit of convincing that the driver's identity really cannot be ascertained especially if the vehicle was travelling along The Mall or leaving the chippy at 3 o'clock in the morning??!!

There has been another recent  High Court case involving the same offence **. In that case, the vehicle's registered keeper asserted that he had completed the police notice, identified the driver in it and then placed the notice inside a suitable addressed envelope.  He had then left it in the post tray in the post room at his place of work. The person working in the post room had the responsibility for posting items left there and the keeper had assumed that the letter would be posted. The letter was never received by the police. The keeper was convicted of failing to identify the driver. And rightly so, ruled the High Court. He had placed what was his personal responsibility in the hands of a third party. He had not placed the letter either in the hands of the post office by posting the letter or used one of the other private posting companies which provided a comparable service. If he had then he might have escaped a conviction.

Happy motoring - to you, your wife, your butler and Auntie Vera.

* Lord Howard of Lympne v DPP [2018] EWHC 100 (Admin)
** Phiri v DPP [2017] EWHC 2546 (Admin)