Section 172 (Duty to give information as to identity of driver etc in certain circumstances.) is, in essence, a finger-pointing provision. The section was considered in the recent case of Lynes v DPP [2012] EWHC 1300 (Admin) - McCombe and Hickinbottom JJ.
A speed camera does not identify the driver, only the vehicle. However,
every vehicle has to be registered with the DVLA under the provisions of the Vehicle Excise and Registration Act 1994 and regulations thereunder. The details to be registered include those of the keeper and that keeper's address. Section 172 of the Road Traffic Act 1988 lays down a procedure for obtaining information about who is driving a vehicle at any particular time in relation to a number of offences, including speeding.
This has been a troublesome section which has spawned a considerable volume of case law. Lynes v DPP is useful since the judgment draws together a number of those cases.
There is often considerable confusion as to what the section is about - as I believe is demonstrated by the reporting of the case against Steve Coogan - BBC 16th July. Section 172 is concerned only with failure to supply information. It is NOT a speeding charge though section 172 notices are most commonly used in relation to speeding offences.
The section itself contains defences.
172(4) - 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.
172(7) - A requirement [to supply information] may be made by written notice served by post; and where it is so made -
(a) it shall have effect as a requirement to give the information within the period of 28 days beginning with the day on which the notice is served, and
(b) the person on whom the notice is served shall not be guilty of an offence under this section if he shows either that he gave the information as soon as reasonably practicable after the end of that period or that it has not been reasonably practicable for him to give it.
The internet is replete with solicitors advertising their services in relation to this section.
It may also be relevant to this case that the defence case only has to be accepted by the court on the balance of probabilities rather than the higher criminal standard.
ReplyDeleteThe media reporting does not say that section 172(4) was argued but it looks to me as if it was. You are right - the standard of proof on the defendant would be a balance of probabilities.
DeleteIt seems quite a reach to argue s172 does not violate the right to silence. If a vehicle keeper is told that an offence has been recorded by a camera and is asked who was driving then he would incriminate himself if he stated that he was driving.
ReplyDeleteThe way this has been made to work legally is to have morphed the Right to Silence into a more specific right to avoid direct self-incrimination. The right has been considerably weakened. A person with the right to silence can refused to answer any question on any subject without punishment or adverse conclusion being drawn. A person who merely has a privilege against self-incrimination can be compelled to answer a series of questions, each individually innocuous, but collectively amounting to a confession of guilt.
The answer to your point was, I think, delivered by the European Court of Human Rights in O'Halloran and Francis v UK 2007.
Delete