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You don't know what you're talking about. Who the fxxx do think you are to tell me I'm wrong when you can't spell correctly or use everyday words in correct context (check dictionary for distinction between "infer" and "imply").

The OP's circumstance are analogous to those of (say) a ompany that is the RK of a vehicle which is a company car of an employee whose spouse/partner also drives the vehicle. If the RK (in this case the OP) receives a s.172 notice and is not the "keeper", he should nominate the person who is the keeper (the employee). If the employee was not the keeper at the relevant time, he should nominate the person who was. In the OP's case, the 'keeper' on the day in question was his wife and he should nominate her. That nomination has no evidential effect. The OP had no need to enquire whether his wife was driving or not. As far as he knew (before enquiring), she was driving or was certainly in the best position to know who was. His wife would receive a second s.172 notice and can then raise the issue (if she chooses) that another person could have been the driver at the time in question.

The OP opens himself to a s.172 charge by obfuscating and it achieves nothing. If neither his wife nor her sister can remember who was driving then they have to say so (starting with his wife who (almost certainly) was 'in charge' of the car) and be prepared to give evidence to that effect. The OP cannot do so (because he wasn't in the vehicle) so there is absolutely no point in him getting involved.

Far from inciting PTCOJ, I am trying to make the OP aware of the possible risk of that offence if he tries to be clever.



Don't be stupid. I'm pointing out the possible weakness in the case. If a s.172 case ends up in court, the OP or his wife will need to convince the court that he/she is telling the truth. If the OP has an expensive car which he insures comprehensively, the court may find it unusual that he (or his wife) allows it to be driven by another with third party only cover. Not conclusive but a possible weakness.

You appear to think you know about this stuff. You clearly don't. Classic case of a llittle knowledge being dangerous. What qualification do I have? Well apart from extensive professional experience of law, I kept a magistrates court tied up for two complete days on my own speeding case - and won.

Advantage Observer, new balls please

There's a potential flaw in this argument. You're assuming that the responsibilities of keeper passed to the wife. That may not be the case. I can't assume it, you can't assume it and the RK can't assume it. If someone knows, that's different.

- It's highly likely, no words would have been spoken to designate or delegate the keeper's responsibility. I don't think anything in S172 can require the out-of-country owner to decide who was the keeper of the car in his absence. He must just give 'such information as he can' to assist in the identification of the driver at the time of the alleged offence.

- The fact that one driver is more likely than another is no evidence of anything. The out-of-country RK should not assume that he knows something that he doesn't. Even if it's 90% likely that the wife was driving or keeping, he must list all possible drivers or keepers to the best of his knowledge.

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Paul Smith
Our scrap speed cameras petition got over 28,000 sigs
The Safe Speed campaign demands a return to intelligent road safety

OK Observer …Lets not lower ourselves to using 4 letter words or criticizing each others spelling. Indeed, last time I looked in the dictionary, Company was spelt with a ‘c’…...

OK replying to your comments. S172 has 4 sections that apply to registered keepers who are not corporate bodies and the OP has not indicated that he is. I fail to see that the analogy you draw is relevant. Registered Keeper is a legal term and the RK is named on the V5C document. S172 refers to ‘the person keeping the vehicle’. I understand that as there is an absence of a definition of ‘the person keeping the vehicle’ in the Act such person must be the registered keeper. If the RK fails to respond, in practice he is the person on whom a S172 a) charge will be served and it will be served on the address in the V5C. The term “keeper” has no legal significance. The OP, we are agreed, has no knowledge of who the driver of the vehicle at the time of the offence. He has stated that 2 persons were using the car and neither can remember with certainty who was the person driving the vehicle. I maintain that by naming both persons the OP has discharged his obligations under S172. He is not being clever and neither is he obfuscating, he simply has no further relevant information to give. There is no difference between the OP loaning his car under the same circumstances to his wife’s two sisters or his wife and one of her sisters. If he accepts that neither person can remember who was driving the vehicle, he may not make assumptions as to who was the more likely person and name them. A weakness of the process by which S172 is used by the authorities is that the forms maintain the official pretence that a RK will always be able to nominate one person and indeed many believe that they do not really care if that one person is guilty beyond reasonable doubt as long as they pay and submit their licence for endorsement. So in this case the RK must explain the information he has given us to the authorities in a covering letter.

The authorities have two choices; they can accept that submission and proceed or not against the two nominees or they can reject that submission and bring a S172 2a) charge against the RK. The submission will be his evidence in defence for having complied and the prosecution case will have to be based around an argument that he did not exercise reasonable diligence or that he has lied in evidence and did know which of the two nominees ( or another ) was driving at the time of the offence. Which will be difficult, but certainly not impossible given the attitude of some magistrates.

If they accept the submission, then the authorities will have to seek further evidence themselves
before they can charge one of the two nominees. They may send police to interview each nominee and I have experience of this. Clearly the authorities are prepared to expend considerable police time in pursuing this kind of case. But if the RK has give the authorities all the facts he cannot give anything further and has no legal obligation as far as I can see to assist the authorities further.



I would argue that should the insurance issue be mentioned it should be robustly refuted as a red herring. It might be that you have experience of this and we’d be pleased to hear this from you. The driver at the time of the offence is either legally insured under the RTA or not. Third party liability is sufficient. Provided I am satisfied that a person is a competent driver, I am happy to allow people to drive a car that I legally own ( even if I am not the RK of any of the cars I use ). If they are not I will not permit them to drive. If they suffer an own fault accident, I expect them to pay up for the damage. Same for me driving vehicles not my property and not loaned or hired to me under a hire purchase agreement. And the same applies to my wife and daughter and their friends.

Its all about risk which is the decision of the legal owner. Surprisingly fully comp insurance costs less than TPFT in many cases. And it covers a car for a full 8760 hours while the risk from driving is confined to a few hundred hours. Loaning a car is going to be a small fraction of that few hundred.



Classic case could well apply to your goodself, but we do seem to have very similar qualifications. I have to deal extensively with law in my business and my last speeding case, which I also won, tied up a court for only five of six hours over four separate days.

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Richard Ceen
We live in a time where emotions and feelings count far more than the truth, and there is a vast ignorance of science (James Lovelock 2005)

The "person keeping the vehicle" ("keeper") is acknowled in binding case law to be different to the RK. Therefore, it is possible for the RK to assert that he was not the "keeper" and that he is subject to section 172(2)(b) instead of s.172(2)(a).

The critical point in this case (and others like it) is this:

(i) if a s.172 charge is to be defended (as in this case) on the grounds that there is genuine uncertainty as to which of the two (or more) persons present in the vehicle was actually driving at the time of the alleged offence, the uncertainty can be credibly asserted only by one or more of those persons, not by someone who has no direct knowledge of the actual facts (otherwise hearsay). So, if the 'absent' keeper is charged with s.172, he relies on hearsay for his defence;

(ii) accordingly, the 'absent' keeper (or other s.172 who was not present at the time of the alleged offence) has nothing to contribute to the defence one way or the other and should step out of the way. The sure way of doing that is to nominate the person 'in charge' (in effect, the keeper on that occasion).

The 'Hamilton defence' (that is what this is) needs (for best chance of success, two credible witnesses (i.e. both possible drivers), one of whom is the defenfdant. A defendant who is not one of the possible drivers risks losing the case without adding anything to the chances of success. It's bad strategy.

It is posssible for an absent keeper to seek to 'draw the fire' with a view to obfuscation or to shield another person. That's risky as it carries a PTCOJ possibility.

I agree, except there's a potential problem surrounding the words I emboldened.

How can the absent RK KNOW who was keeper in his absence, if no clear prior arrangement had been made? And if he cannot know, how can he nominate?

I'm especially imagining the situation of 'the family car'. Dad is the RK, but he's out of the country. He's left with no arrangement, other than the usual arrangements, and the keys are available for wife and grown up kids to use. In such a circumstance, how is it possible for the absent dad to know who was 'acting keeper' on any ocassion?

It's my assertion that whoever may be holding the keys is the keeper, but since the holder of the keys may change from minute to minute, hour to hour or day to day the RK cannot know the keeper on a particular ocassion.

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Paul Smith
Our scrap speed cameras petition got over 28,000 sigs
The Safe Speed campaign demands a return to intelligent road safety

I would appreciate a case reference for the binding case law mentioned ( my emboldening) and knowledge as to whether this is relevant to S172 or some other more distant charge. I would maintain that this is not a Hamilton defence at all at this stage. It could become one when the authorities decide as to which of the two nominees to charge with speeding or possibly an offence under S172.

I have to agree with Paul here that the RK has no way of knowing who is the person keeping the vehicle in his absence, or user or driver.

I don't accept that the procedure I proposed carries a risk that it might be construed that an absent keeper has sought to 'draw the fire' with a view to obfuscation or to shield another person and that a PCJ charge would result It might be that a court could consider that S172 2) has not been complied with and 172 3) offence has been committed.

Edited by me 'cos the quote structure wasn't fully understood by me

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Richard Ceen
We live in a time where emotions and feelings count far more than the truth, and there is a vast ignorance of science (James Lovelock 2005)

I don't think the keeper is the holder of the keys. Imagine if you are driving my car, with my consent, and I am a passenger. Does that make you the keeper. No.

It will be a matter of ascertainable fact (within reason) who, on any particularly occasion, is 'in charge'. There may be exceptions but relatively few and far between. For example, in your hypothetical case where there are two or more possible keepers, a test ot 'keepership' may be "to whom would those individuals defer on matter to do with the use of the vehicle". It's hard (perhaps not impossible) to envisage circumstances where that would not isolate a single person. Anway, that's not the circumstances in the OP's' original post. In that case, it is almost certainly the OP's wife who was the keeper.

The RK doesn't need to know, with certainty, who was the keeper. He can simply nominate the person who was "to the best of his knowledge". Responsibility to identify will then pass to that person and if he was not the keeper, then to the next and so on. The distinction drawn between natural persons and corporation is irrelevant.

But in the case of a 'pool car', it probably would.



So this is the key grey area. The absent RK must decide if his knowledge of the keeper at the time of the alleged offence is sufficient to nominate a single person.

I can see every reason to 'err on the side of caution' in this, and in fact naming all the possible acting keepers is the reasonable and responsible thing to do. The fact that such an action is inconvenient for the authorities is surely a bonus, but never a reason.

His legal responsibility is to 'give such information as is in his power to give' that may assist the authorities in identifying the driver. I can see no reason for restricting the amount of information on the basis of an assumption.

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Paul Smith
Our scrap speed cameras petition got over 28,000 sigs
The Safe Speed campaign demands a return to intelligent road safety

I didn't say "would". I said there's a "possibiliity".

Your reasoning is shallow. It is clear to me that the law will not (and should not) permit a s.172 addressee, who may have genuine uncertainty because of non-presence in the vehicle, to shield another person who is in a better position to know who was driving. That frustrates the clear intent of the law. If that person is geninely uncertain, then fair enough, that can be tested and decided by the court in the crucible of the witness box.

Consider a leasing company RK who receives a s.172 and the lessee (the keeper, so far as leaseco is concerned) is an individual. Is leaseco to enquire of lessee who was driving and, if lessee is uncertain (or asserts uncertainty) as between himself and a named other, to be obliged to transmit that response to the CoP, thereby shielding lessee (and opening itself to s.172? Of course not. Leaseco should (and inevitably will) simply nominate the lessee. The situation is exactly analogous to the OP's.

You keep on moving the goalposts by citing an alternative hypothetical case. How many of these do I have to answer before the light dawns? Of course the situation is different with a pool car. But that's not the case in the OP's situation nor the example I gave to counter your (clearly incorrect) argument that the keyholder is the keeper.

See my post above. A s.172 addressee should nominate the person who is (to the best of his knowledge) the keeper. If (and you haven't given me a valid example yet that would fail the test I mentioned above) there is genuinely two or more, then a letter explaining that would satisy the requirement.

In the OP's case, if he wants to name two people, he could write saying "my wife was using the vehicle and I understand [bear in mind, he doesn't know]she shared the driving with <ano>". That makes it clear where, in the OP's opinion, the investigative process should turn. I don't believe (and I believe a court would not believe) that he has discharged his obligation if he does not make it clear who was 'in charge' (i.e. the keeper).

I cannot accept that the situation is exactly analogous. It is necessary for the leaseco to have full knowledge of the lessee as part of their normal business.

I can see no equivalent knowledge or necessity in the family case.

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Paul Smith
Our scrap speed cameras petition got over 28,000 sigs
The Safe Speed campaign demands a return to intelligent road safety

Indeed. There will be formal records outlining the leasco/lessee relationship with regards to the vehicle. As far as I know a marriage certificate doesn't contain the same detail

Bl88dy h3ll how hard is this?

After exercising reasonable dilligence you have ascertained that one of two people were driving the vehicle. Unfortunately despite extensive enquiries, including viewing the video etc etc etc you cannot identify the idividual.

Sign and date the s172 and write 'see attached'. Append a letter stating the facts, outlining what efforts you have made and name the two likey drivers and their addresses.

Then add, I have not discharged my duties as registered keeper of the vehicle and understand that this concludes our correspondance.

You cannot be found guilty.

Yeah

And if two individuals who are versed in the laws of the land (more so than most of us I'd wager) cannot come to some accord as to the correct course of action - what the hell chance do the rest of us have unpicking it all?

It is perfectly clear that there are circumstances in the real world where a RK cannot name a single individual as keper or as driver.

It is equally clear that there are circumstances where the RK has a perfectly clear obligation to identify a 'downstream' keeper.

Somewhere between the two extremes there's a 'breakover point' wher it becomes impossible to name an individual.

Until we can give a precise definition of that breakover point, we cannot finally conclude anything. I know that I cannot define that point; I don't even suppose that the courts can define that point, and ordinary members of the public have no chance at all.

And when we're working close to the ill-defined breakover point, how should a member of the public 'proceed with caution'?

Getting closer to the OP's case now...

- If the family habit was to leave the car keys on the hall table for anyone to use on a first come first served basis, then I am confident that the OP cannot name a keeper.

- But if the OP handed the keys to his wife and said: "look after the car while I'm away", then clearly he has delegated the responsibilities of keeper to his wife.

I expect reality falls somewhere between those two extremes.

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Paul Smith
Our scrap speed cameras petition got over 28,000 sigs
The Safe Speed campaign demands a return to intelligent road safety

I didn't say " would" either; please read above again. I said " might"

No the reasoning is not shallow at all. A leaseco will have a single entity on its records as RK; it might be an individual, it might be a body corporate; having named that entity ALL responsibility is discharged by Leaseco. If lessee is body corporate, Leasco's manager may well have some knowledge or recollection or idea that car is likely to be still be used and driven and even kept by Mr Hispeed Salesrep who works for Corporate Customer Ltd but he has no obligation to volunteer that information nor will he be expected to do so.

This concept of " shielding" is your own and to me has no meaning. As RK, you either give information that is in your power to give or you do not.

You seem to be coming from a " lets bend over backwards and help the authorities as far as possible" position. Which does not fit with your statement that you were prepared to go evidently to some lengths to fight a speeding case.

My position is I am entitled to my reasonable opinion that the process supporting automated enforcement is flawed and counterproductive at best and dangerous and fatally destructive at worst. As a citizen I believe I have no obligation to support the authorities beyond our strict minimum legal obligations.

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Richard Ceen
We live in a time where emotions and feelings count far more than the truth, and there is a vast ignorance of science (James Lovelock 2005)

Oh give over! He appears to be coming from a "what is the best advice we can give to someone who has come here asking for help without dropping himself in the poo" position to me.
And I have no lamp to shine for Observer, he and I have had our differences of opinion a'plenty in the past.

I think Paul's argument is entirely reasonable here.

I have a high performance turbo 4wd vehicle. Myself and my wife are named drivers on the insurance, my 22 year old daughter and her boyfriend are covered (TPO) by their own insurance to drive this vehicle. I have given them permission for them to drive it at any time they need or wish subject to certain reasonable care constraints. I am absent overseas on business frequently for periods of a few days to a few weeks. I have no concern and in any case cannot know at any time which of them might be using, keeping or driving the vehicle. Should an NIP be received on my return, I would deal with it exactly as I have recommended. I would name everyone and tell them that my obligations are discharged. I have already done so in a similar way on 2 other occasions in the last 5 years without any problem. No-one has accused me of shielding anybody or obfuscation, it simply has lead to dropped charges on each occasion.

Sorry !

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Richard Ceen
We live in a time where emotions and feelings count far more than the truth, and there is a vast ignorance of science (James Lovelock 2005)

I've been following this with interest but I think an impasse has been reached.

Could we simply conclude this hasn’t been properly tested in court hence it is currently open to interpretation?

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Views expressed are personal opinions and are not necessarily shared by the Safe Speed campaign