Receiving a notice of intended prosecution (NIP) can be concerning, particularly if you are unsure why you have received it or what your obligations are. However, it is important not to ignore it.
One of the most frequently prosecuted motoring offences arises not from the driving itself, but from failing to deal properly with the administration. Most cases involve either a misunderstanding of obligations, apathy, poor administration or reliance on inaccurate or misguided advice.
The consequences of a conviction can be significant, as there will be a mandatory six penalty points, in addition to a fine.
It should also be noted that a conviction for failing to provide driver details can have significant implications for motor insurance, with some insurers imposing higher premiums or even refusing to provide cover.
What is a notice of intended prosecution?
The offence of failing to provide driver details always arises out of a differing, substantive allegation, such as speeding or failing to comply with a traffic signal.
In order to establish the identity of the driver, the police will write to the registered owner or keeper of the offending vehicle, requiring information to be provided. This document is referred to as a notice of intended prosecution (NIP). It provides details of the substantive offence whilst requiring the driver’s identity to be confirmed.
The police will then contact, in turn, any other person nominated as being the potential driver.
What should I do when I receive a Section 172 notice?
Under Section 172 of the Road Traffic Act 1988, the keeper of the vehicle is legally required to “give such information as to the identity of the driver, as he may be required to give by or on behalf of a chief officer of police”.
If a person is contacted and they are not the keeper of the vehicle, there is a requirement to “give any information which it is in his power to give and may lead to identification of the driver”.
These obligations are different and so it may be important to establish early on that even if you are the registered owner of the car, you may not have been the keeper at the material time.
The most important point is that a notice of intended prosecution should not be ignored. In most cases:
- The first notice of intended prosecution must be served on the registered keeper within 14 days of the alleged offence.
- The recipient will usually have 28 days to provide the information requested under Section 172.
- Failing to respond can lead to a separate prosecution, regardless of the outcome of the original allegation.
Don’t I have a right against self-incrimination?
Whilst generally, we have a right against self-incrimination, it has been determined that being identified as the driver does not prove guilt for the substantive offence.
As such, the requirement to provide driver details, even if they are your own, are not protected by the right against incrimination. This will not provide a defence if a notice of intended prosecution is ignored.
What if I don’t know who was driving?
The obligations also change dependent on whether the motorist is the keeper of the vehicle or simply a person nominated.
Legally it has been established that a person always has some information to provide, even if it is a confirmation that they know nothing of the vehicle.
This is a highly nuanced issue and the response to be provided is based on the specifics of each case.
For example:
- A person selling a vehicle may have allowed a prospective purchaser to test drive it.
- A vehicle may have been used by another member of the household without the keeper’s knowledge.
- Several people may have had access to the vehicle during the relevant period.
In these cases, a person should provide all the information in their power but may also be able to avail themselves of a specific defence based on reasonable diligence.
A person can argue “that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was”.
The Court will carefully consider whether the enquiries and responses were reasonable or if more ought to have been provided. So, if every member of the household denied being the driver, it could still be expected that a response would include their details, despite their claims of innocence.
What happens if I fail to provide driver details?
This offence is commonly referred to as failing to provide driver details, failing to furnish information, or failure to identify the driver.
A conviction will result in a mandatory six penalty points together with a fine. In many cases, the penalty for failing to provide driver details can be more severe than the penalty for the underlying offence which originally led to the notice being issued.
For that reason, it is important to properly understand and comply with the obligations imposed by Section 172.
What if I didn’t receive the notice of intended prosecution?
This depends on whether you are the registered owner or keeper of the vehicle and whether the V5 logbook is up to date.
If everything is in order though and the post simply let you down, then this will provide a defence. A motorist cannot do the impossible; they cannot provide details of a driver if they did not know they were being asked the question.
This is of course a simplified version of the position, as the Court may still investigate the manner in which post is dealt with within the household and evidence will have to be given in Court.
Equally, if the notice was completed and posted back to the police, but somehow did not reach its destination, this will provide a defence. There is no requirement for a motorist to hand deliver the information or check multiple times that it arrived, so once it is posted their obligation is met.
What if I moved address?
This can be a little more complex. If you are named on the logbook and failed to update the address with the DVLA, you will not have a defence based on the notice not arriving unless you can show that you still ought to have received post to the old address, such as having a mail redirect or arrangement with the occupant of the property.
If, however, somebody else nominated you and gave an old address, this is not your fault and can provide a full defence.
Can I provide fake details?
If a motorist knowingly provides false information, it will leave them open to prosecution for a much more serious offence, namely perverting the course of justice.
This is an offence for which a prison sentence can and will be considered, so such action would be strongly advised against.
Is there any room for manoeuvre?
There are many people who simply bury their head in the sand and ignore the notice of intended prosecution.
Although they are guilty of failing to provide details and should ordinarily receive six points, it may be possible in some cases to negotiate an alternative outcome. This is dependent on a number of factors and the specific circumstances of the case.
There are also a number of technical defences that can be raised to defend this allegation. These are more administrative in nature, relating to how the prosecution brings its case and serves its evidence.
How we can help
If you have received a notice of intended prosecution or are facing an allegation of failing to provide driver details, obtaining advice at an early stage can make a significant difference. Issues such as whether the notice was properly served, whether reasonable diligence was exercised to identify the driver, and whether the correct information has been provided are often highly fact-specific and require careful consideration.
Our specialist Road Traffic team, led by Nick Terry, regularly advises motorists on matters involving notices of intended prosecution, Section 172 obligations and allegations of failing to provide driver details. The team can assess the circumstances of your case, identify any available defences and guide you through the court process where necessary.
Get In Touch
Nick Terry is a Partner in our Crime & Regulatory team and Head of the Road Traffic department. He specialises in motoring, criminal and regulatory matters, representing clients in a wide range of cases including drink and drug driving offences, dangerous driving allegations, causing death by driving offences, totting up disqualifications, professional misconduct proceedings and regulatory investigations.
If you need assistance with a road traffic offence or would like to speak in confidence, contact us today on 0161 362 1111 or fill out our contact form for a confidential consultation.
This article is for information only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0330 111 3131.