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Legal overview: Received a Notice of Intended Prosecution and don’t know who was driving?

Article by: Legal Expert: Giles Ward, Senior Partner, Milners Solicitors

Imagine this scenario; you are the owner of a company with a fleet of over 25 vehicles and over 50 employees who all use different vehicles on a daily basis. You do not keep a record or a log of who is using which car, at what time, or on which day. You receive a Notice of Intended Prosecution (NIP) and panic – who was driving this particular vehicle on this particular day at this particular time? Will anybody own up to driving the car? Who would voluntarily subject themselves to 3 points on their licence and a speeding fine? What happens if I cannot answer the NIP and it is my fault for not keeping a record?

The keeper of the vehicle has a legal obligation under Section 172 of the Road Traffic Act 1991 to provide the name of the person who was driving their vehicle at the time of the alleged motoring offence. If the keeper cannot remember or does not know who was driving their vehicle, they may be liable to prosecution. The punishment for failing to name the driver could be worse than for the speeding offence itself. The owner of the company must therefore demonstrate that he/she does not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. Whether or not the owner of the company has acted with reasonable diligence is a decision entirely for the Court.

You can write to the Constabulary and request a photograph of the vehicle / driver but this might not assist. The photograph is taken for the purposes of identifying the vehicle, not the driver. So where does this leave you as the owner of the company? In short, it leaves you at risk of prosecution and a large fine if you cannot identify and report the driver of the vehicle in response to the NIP.

To combat this, regardless of the nature of your business, you should keep a thorough log/record of the whereabouts of your drivers at all times. You are ultimately responsible for your employees and it is you that has to respond to the NIP if the vehicle is registered to your business address.

Companies are not subject to speeding points, but Directors are. If you cannot account for your employees then you are ultimately leaving yourself wide open to an even bigger problem.
You should put all of your employees on notice (by way of an employee handbook and/or guidance notes) of their duty to report their whereabouts on a daily basis. If you cannot trust your employees to comply, you should consider introducing a clocking in and out system which forces your employee to enter data as to their whereabouts, for example vehicle tracking and telematics. If they fail to comply with the reporting requirements, they should be on notice that they could be subject to disciplinary action.

Procedures and policies within companies are often overlooked – do not become the author of your own misfortune.

By Giles Ward, Senior Partner of Milners Solicitors, Leeds

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