Unsure who was driving

[WanderingBiker]

Hi all, I was wondering if anyone could offer some advice.

 

A few weeks back I got an NIP in the post asking me to name the driver for a speeding offense, (79 in a 60 zone), which is fair enough. My car could have been speeding.

 

However, the problem is I don't know who was driving! It could have been me or my wife.

 

We're named on each others insurance and often share the driving. I'll drive there, she'll drive back or vice versa.

 

The thing is, we don't know the direction of travel when the offense took place and given we'd been on the road where we were caught several times that week, we genuinely can't remember who was driving as we have no set pattern. Sometimes I'll get the car keys first so I'll drive, sometimes my wife. Other times we'll ask the other to drive there and I/she will drive back.

 

Neither of us saw anyone at the road side with a speed gun and we didn't see a van parked up so nothing stands out to identify the driver.

 

We both accept that we could have been speeding but it boils down to a question of who was driving at the time. Even the direction of travel wouldn't help as neither of us can distinctly remember who drove there and back. Add to this we both carry our keys on us which on the bunch has keys for her car and mine so having possession of a key doesn't help either.

 

I've filled out the NIP naming my wife as the driver and offered a covering letter explaining the above. What's the likely outcome of this? I know this could be used as an excuse but at the end of the day my wife and I do share the driving a lot and the road we were caught on isn't an unusual road for us to be on, we're on it several times a week and have been known to travel to that town two or three times in one day sometimes.

 

What's the best course of action to take here? I'm happy to take the points and fine if I was the one driving as is my wife if she was driving. But we honestly can't remember who was driving.

[BRIGADIER2JCS]

Hi welcome to CAG.

 

I would advise to ask for the location of the camera or police speed check, the time, and direction of travel.

[WanderingBiker]

I know the location and time but not the direction of travel. Even with a direction it doesn't help because I would have driven one way and my wife the other. But we can't remember which of us drove there and who drove back which is the sticking point.

[kabukiman]

As you have already named the driver, unless photographic evidence says otherwise I would have thought that would be the end of it.

Or if in a few years time you have a falling out with OH and she says actually it was you, as we've seen you'd probably go to jail.

[Aretnap]

Ask for any photographs which may help to identify the driver (without using words like "proof" or demanding things like calibration certificates at the same time). If it was a mobile camera rather than a fixed rear facing Gatso there's a good chance that the photo will be good enough to tell. They don't have to send you the photos at this stage, but they usually will in response to a reasonable request. Note that unless they specifically tell you otherwise asking for photos doesn't stop the clock - if they don't send anything you still have to respond as best you can within 28 days.

 

If the photos don't show the driver, or if they don't send them, you basically have two options

 

(1) Rack your brains a bit more, check mobile phone records, Emails, credit card receipts and try to work out who was doing what (if it's a road on the way to Tesco for example, who paid for the shopping that day?). What else would you do if there was a £1000 prize for correctly identifying the driver, instead of a potential £1000 fine for failing to do so? If all that doesn't work, reply by means of a letter explaining that you can't be sure of who was driving, but giving the names of the possible drivers and an outline of what you've done to find out. You'll very likely be summonsed for failure to provide driver details, and the onus will be on you to persuade the magistrates that you could not, with reasonable diligence, have found out who was driving. This isn't impossible, but it's not easy either - basically too many people think it's an easy way to get off speeding tickets, so magistrates have become rather sceptical of people who claim not to remember a journey they made a few days previously. If you're convicted the penalty is a mandatory 6 points, and a fine which is dependant on your income, but likely to be in the high hundreds - it's deliberately set higher than for most speeding offences to discourage messing about. The conviction will also have a much bigger impact on your insurance premium than a minor speeding offence - the MS90 code makes insurers wonder what you did that was so terrible that 6 points and £500 seemed like a better option than owning up to it.

 

(2) Take your best guess. For 79 in a 60, the person you name is likely to get a fixed penalty of 3 points and £60.

 

If you really can't work out who was driving, legally speaking (1) is probably the correct thing to do. However given the difference in the penalties, (2) is often the pragmatic option.

 

Another question - who is more likely to have been doing 79 in a 60 - you or your wife? And if it's the sort of road where you might be expected to remember doing 79mph, that might count against you (and if that comes up, "we both regularly drive at about 80" is probably not a good answer).

 

Added - just noticed that you've already sent a reply naming your wife but adding a covering letter saying that actually you're not sure. That won't be accepted - an ambiguous response will be treated in the same way as no response at all and will result in a summons for failure to provide driver details. If you want to avoid that you need to get onto them for a photo, then send an unqualified reply within the 28 days.

[Aretnap]

Or if in a few years time you have a falling out with OH and she says actually it was you, as we've seen you'd probably go to jail.

Certainly not if he attached a letter saying that actually he wasn't sure. And otherwise not unless they could prove that he provided false information deliberately rather than mistakenly.

[WanderingBiker]

Well here's the letter I'll be sending:

 

WanderingBiker

 

06 June 2013

 

Ref:

 

Dear Sir/Madam,

 

RE: Enclosed NIP

 

I write in reference to the above. I have filled out the form naming my wife as the driver on that occasion but would ask the following to be taken into consideration.

 

On the 11th of June 2013 I went to see my doctor at because I have a problem with my arms resulting in stiffness and pain. I have been issued with Co-Codamol pain killers for this, I have an appointment with Alfred Bean physiotherapy on the 24th of June and my GP has made a referral to a neurologist to investigate why I have these pains. I’m sure my GP can confirm this if required.

 

Also during the past few weeks my wife and I have been to Scarborough on many occasions, (collecting reserve items from B&Q, shopping trips and the BMW’s MOT to name a few things), and my wife and I have been sharing the driving a lot. For example I may drive on the way there and she drives us home. We often travel to that area for numerous reasons from shopping trips to days out at the beach and to collect items reserved via the Internet in Scarborough stores and also we are a regular customer of of garage. So it is not unusual for my wife and I to travel to that area on a regular basis, often several times per week and even twice in one day.

 

We are both named drivers on each other’s insurance and so we do share the driving a lot between our cars. If you require proof of this I can supply a copy or our certificates of insurance. Therefore we cannot genuinely remember who was driving on this occasion but have named my wife as it was likely she was driving on the day in question due to the pain I have been suffering in my arms and the fact I have been on pain killers which advise against driving or operating machinery due to drowsiness.

 

It is entirely possible that I have made a mistake and I was in fact driving but cannot say for certain that I was. As stated; due to the pains I have been suffering in my arms it is likely my wife was driving as over the past week or so, (since the pain began and especially following my visit to my GP on the 11th of June), my wife has taken over with the majority of the driving of both my car, (the BMW), and her own car.

 

If however I am wrong then I freely admit this but ask you to consider the above and accept my reasons as genuine. Neither my wife or I have any points on our licences, this issue does not pose a danger or a threat of disqualification and with regard to our insurance premiums, both my wife and I have recently renewed in the last couple of months so any points will not affect premiums until next year and then that impact has a financial effect on both of us as regardless of who gets the points, an increase in insurance premiums as well as payment for any fines comes from the same bank account and out of our joint money.

 

I felt it prudent to make you aware of this on returning the form as on the balance of probabilities it was my wife driving but there is a chance I could have been driving at the time. Further, we cannot be sure in which direction we were travelling on this occasion so again if I drove to the area then my wife will have driven us home because we do share the driving that way. Or perhaps I could have driven us home while my wife drove us to the area, there is no set pattern for us taking turns in driving.

 

I would also add that both my wife and I drive along the that road from to that area from our home address and we also take the same roads when returning home.

 

I thank you in advance for your understanding on this matter and assumed consideration of the facts as outlined above.

 

Regards

 

WanderingBiker

 

And that's basically all I can do. Neither my wife or I can remember why we were on that road at that time as several trips a week to the same place for various reasons tends to meld into one so to speak. I think in all the time I've owned my car, (almost 18 months now), I can count on one hand the number of occasions I've been out in it alone or without my wife as we tend to go everywhere together making it all the more difficult to remember who drove where.

 

I don't see a point in checking emails or phone calls given the car is fully hands free phone operation and my phone talks to me so I often send texts, emails and make calls on the move via voice interaction. As for debit/credit card details, well mines the one which gets used the most anyway so that's not offering a clue as to who was driving.

[Aretnap]

I'd still suggest that you ask for a photo. You can hardly claim that you've shown all reasonable diligence if you haven't even bothered to ask for the photo which may well show beyond doubt who the driver was.

 

That aside, so long as you understand the risks good luck. If you come across as credible and get a sympathetic bench you might be acquitted... or you might not. Personally I'd toss a coin, but that's because I'm a wimp.

[WanderingBiker]

I've added in this:

 

"Perhaps if you have a photograph of when the offense took place this may well clear the matter up and identify the driver on that occasion? Of course, should the photograph actually show the driver at that time then I will of course offer you my details or my wife's details as the driver of the vehicle at the time of the offense."

 

Better?

[renegadeimp]

One problem with that letter. Theres too much waffling and to the court it will simply look like you are trying to evade prosecution.

[Raykay]

Camera partnerships need a definite 'it was...............', sending a letter with the s.172 reply, especially one with 'not sure', 'may of been' etc. is likely to go straight to court.

They need to know who the driver was at the time or they cannot deal with the matter, they are not like a courts that can make a decision depending on the circumstances.

[crem]

The letter is far too long and totally irrelavent to the s172 request. To be honest, I couldn't even be bothered reading right through it and I doubt the court will either. You were asked a simple question, they want a simple answer.

 

If you need help to identify, then as several people have suggested, a polite request to provide any photos they may have that show if it was a male or female driving should be all you send at this stage.

 

if the photos don't help, or they don't send any, then the onus is on you to sit down with your wife, think carefully, and come up with a definate answer as to who was driving within the 28 days allowed. Waffling around can land you in a whole bigger lot of trouble.

[renegadeimp]

The letter is far too long and totally irrelavent to the s172 request. To be honest, I couldn't even be bothered reading right through it and I doubt the court will either. You were asked a simple question, they want a simple answer.

 

If you need help to identify, then as several people have suggested, a polite request to provide any photos they may have that show if it was a male or female driving should be all you send at this stage.

 

if the photos don't help, or they don't send any, then the onus is on you to sit down with your wife, think carefully, and come up with a definate answer as to who was driving. Waffling around can land you in a whole bigger lot of trouble.

 

100% agree here. Stick to facts. One thing to remember with letters like this. If you waffle on, then theres a higher chance they will assume you are guilty. They see this day in and day out all year round. Put the important facts down and leave it at that. If they want more random info, theyll ask.

[Raykay]

They see this day in and day out all year round. Put the important facts down and leave it at that. If they want more random info, theyll ask.

 

The camera partnership don't want any more info, all they want to know is who the driver was at the time, a form filled in nominating one person, and a letter with it saying it could have been someone else would not be acceptable and usually ends up in court.

[Aretnap]

Tha camera partnership may not care about the explanation but the OP has to provide it anyway if he's determined to go down this route. If he can't identify the driver with reasonable diligence his obligation is to provide all the information that is in his power to give and which may lead to the identification of he driver. At a minimum this would include the names of the possible drivers and an outline of what as been done to find out who it was. It won't prevent a summons, but it might help when it ones to court.

 

That said I agree that there's too much waffle. Talking about your insurance for example just implies that you're thinking about the effect a conviction would have on you rather than about who was actually driving.

[Raykay]

Tha camera partnership may not care about the explanation but the OP has to provide it anyway if he's determined to go down this route. If he can't identify the driver with reasonable diligence his obligation is to provide all the information that is in his power to give and which may lead to the identification of he driver. At a minimum this would include the names of the possible drivers and an outline of what as been done to find out who it was. It won't prevent a summons, but it might help when it ones to court.

 

The camera partnership will not deal with the matter without the driver(s) being nominated. It would then be for the court to decide if the explanation met the obligation in s.172.

[Aretnap]

Indeed, but he must still reply with whatever information he can offer or he'll be convicted regardless of how well he can argue reasonable diligence. No reply or a simple "dunno" = slam dunk guilty.

[Raykay]

Indeed, but he must still reply with whatever information he can offer or he'll be convicted regardless of how well he can argue reasonable diligence. No reply or a simple "dunno" = slam dunk guilty.

 

But it would not be dealt with by the camera partnership, they can only deal with the matter with the nominated driver(s). Anything else, explanations etc. would be a matter for the court.

No reply would be a conviction at court, but it would depend on the circumstances and reasons for the "dunno" if that resulted in a conviction.

[Aretnap]

It depends on the exact wording of the s172 requirement, but see Flegg v New Forest Justices. http://www.bailii.org/ew/cases/EWHC/Admin/2006/396.html

 

No idea why I can't get that link to work, but search for "Flegg" on the home page of Bailii. Cliff Notes version: Bloke receives s172 requirement asking for "the full name and address identifying the actual driver or... any information in your power which will lead to the driver's identification". Bloke replies along the lines of "dunno - it could have been me or my mate", but doesn't say who the mate was until after the 28 days are up. High Court decides that as he clearly could have provided more information than he actually did, his reasonable diligence defence is stuffed. So "dunno" is not sufficient in that case.

 

Had the s172 requirement not included the part about "any information" the question would be more arguable, but I would still suggest including whatever information you can - there's nothing to gain and everything to lose by omitting it. It also helps your credibility if you're seen to be doing your best to help rather than sending a terse monosyllabic reply (though there's still no need for irrelevant waffle).

Edited June 24, 2013 by Aretnap

[edwardw]

Also, for reference,

If either of you received speeding penalty points, your insurer would require you to inform them straight away.

Driving with your points not declared on your insurance, in the event of an accident could result in your insurer refusing to pay anything but 3rd party costs.

[Aretnap]

Depends on your insurer's terms and conditions. My current insurer requires me to inform them of bans and accidents immediately, but I only need to tell them about points at renewal time. In my own experience this is fairly standard, though I'm sure there are exceptions.

[WanderingBiker]

Also, for reference,

If either of you received speeding penalty points, your insurer would require you to inform them straight away.

Driving with your points not declared on your insurance, in the event of an accident could result in your insurer refusing to pay anything but 3rd party costs.

 

Actually that isn't the case at all.

 

Having checked with my insurances, because the offense was committed AFTER the time the insurance was taken out it doesn't factor in until renewal and even then all our insurance providers, (mine for the car and the bikes as well as the wife's), don't seem at all bothered by 3 points. In fact all advised us heavily NOT to attend a drivers rehab course if offered as the loading is significant due to the admission of the offense.

 

Taking 3 points and a £60 fine is seen as "getting rid of a minor hiccup" and taking the path of least resistance so appears to be more acceptable to our insurers.

 

Anyway, an update on this. Due to an "anomaly" in proceedure, no further action is going to be taken so it looks like a lucky escape on this one.

[Raykay]

 

There is a presumption that “the keeper” of the vehicle for the purposes of section 172(2)(a) was the keeper registered as such with the DVLA at the relevant time

 

There is no mention or presumption of 'registered keeper' in s.172 , only ' the person keeping the vehicle, or 'any other person'.

The registered keeper could be either.

Edited August 15, 2013 by Raykay