As with any motoring business, where you provide courtesy cars or test drives there will come a time when the driver has broken the law and you receive a request from the Police for the Drivers Details. What can you expect and how should you respond?
Notice of Intended Prosecution (NIP)
The first notice that you are likely to receive of any issues is Notice of Intended Prosecution.
The purpose of a NIP is to inform a potential defendant that they may be prosecuted for an offence. A NIP must be served on the Driver or registered keeper within 14 days. This can either be done through the post or at the roadside where the vehicle is stopped by a police officer.
A prosecution cannot proceed if the NIP is not provided within 14 days. However, a notice shall be deemed to be valid if it was posted to the last known address, notwithstanding that the notice was returned as undelivered.
Also, small mistakes on the notice will only render it ineffective if it would mislead the potential defendant.
Request for the Name and Address of the Driver
Most, if not all NIPS will be accompanied by a request for the driver’s details. If you are the registered keeper of the vehicle there is a legal requirement to provide the driver’s details. Failure to provide the driver’s details is itself an offence under section 172 of the Road Traffic Act 1988 and this also carried points and a fine. In fact, in most cases the penalty for not providing the Driver’s details are more than the original offence and for most speeding offences is double.
It is strongly advised that the driver’ s details are provided.
Does the GDPR/Data Protection Act prevent me from giving the details
No. Where the information is necessary for compliance with a legal obligation, such as responding to the police, then this will be lawful processing even if the data subject objects.
What if I do not have the details.
Then all you can do is respond honestly. There is a limited defence to not providing the details where you did not know who the driver was and could not have found out with reasonable diligence.
However, this is not an excuse to not keep a record of driver details or ‘forget’ who it was. The courts will as part of any case test such a defence. If the evidence to support your defence is insufficient, then this can be taken into consideration when a court sentences you.
This is also less likely to apply if you are a company as the court will require a relatively robust system of control to be in place and that any failure to keep a record was reasonable. This can be quite a high bar.
It is very important that any NIP or request for information is dealt with promptly. It is important to provide the driver’s details promptly and accurately, or if you were not the registered keeper at the time to provide the true keepers details. Failure to do so is likely to result in a larger fine and more points and can result in personal and company liability.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.