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Failure to Identify the Driver

3 January 2022
Motoring
Document Offences

Failure to identify the driver is a paperwork offence and it is a shock to many drivers that it can carry a greater penalty than the speeding offence itself, especially when a police letter may have simply been lost or misplaced.

Is failure to identify the driver an offence if I do not know who was driving the vehicle?

If this is the case, then the law states that the owner or keeper of the vehicle must have exercised ‘ reasonable diligence to find out the identity of the driver. Reasonable diligence just means making a real effort to find out who was driving.

If all reasonable checks, enquiries, and investigations have been made into all the possible drivers and still there is no way in which the identity of the driver can be found out,  the keeper of the vehicle and any potential drivers will usually be cross-examined by the prosecution solicitor or barrister.

If cross-examination has taken place and there is still no way to say for sure who was driving the vehicle, then the law says that the keeper of the vehicle cannot be held responsible. This will only be possible if the court is satisfied that the keeper has been diligent in trying to find out who was driving.

Strategy in Failure to Identify the Driver Cases

In failure to identify the driver cases, one of the most frustrating aspects is that there is the potential for criminalising a bad memory. People who are law-abiding and respectful find themselves in the criminal courts. However, the fact that people accused of this offence often have no previous convictions can make it easier to defend them. This can be done in a number of ways:

  1. Character witnesses where truthfulness is an issue, we will normally ask motoring law clients to suggest friends or associates who may be prepared to come to court. We will talk through the suggestions and select the most suitable people to attend.

  2. Character letters where character witnesses cannot attend, the right type of character reference letter should be presented to the magistrates. This works best when used alongside ‘live' character witnesses who attend in person.

  3. Presenting background information about the defendant's respectability to the court, both in court and in document form i.e. employment, qualifications, etc.

Defence costs orders

Orders for the court to pay back a percentage of defence costs are normal in cases of failure to identify cases, if the case is dropped, or the defendant receives a not guilty verdict. This happens after the case, and we submit the file back to the court for them to assess exactly how much to pay.

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