Notice not received by the defendant, Section 172(7):

The registered keeper may never have received the Section 172 notice which would give rise to a defence. If, for example, you have had issues with the Postal Service, which can be evidenced at court, this will give rise to a potential defence. Witnesses can be interviewed and statements can be taken from them to confirm the difficulties that you have experienced. This will allow you to rebut the presumption of service. If you do accept that the summons was served but for whatever reason the correspondence was never brought to your attention in sufficient time this again will amount to a defence.

Notice not received by the police:

That the correspondence was received, completed and posted back to the police but was subsequently not received by the police. The burden of proof for the above matters is on the balance of probabilities which effectively means, the Court must ask itself, was it more likely than not that the events occurred as detailed by the defendant.

Not in your power to give the information, Section 172 (2)(b)

 If the defendant wishes to contend that the information required was not in their power to give then they should raise that issue by stating that they was not the keeper or that the vehicle was elsewhere at the relevant time. However, it must be noted that if you do not reply at all you can be guilty of the offence. Furthermore, if this defence is raised it is for the prosecution to prove that it is not true but also that it was in the defendant’s power to give this information.

Reasonable diligence, Section 172(4):

Section 172(4) gives registered keepers a defence if the information requested cannot be provided, and it states as follows:

“A person shall not be guilty of an offence if he shows that he did not know and could not, with reasonable diligence, have ascertained who the driver of the vehicle was.”

This effectively provides a statutory defence commonly known as ‘due or reasonable diligence’. The defendant must prove that all practicable efforts have been made to identify the driver (e.g. checking diary dates / work commitments) and despite those efforts the driver cannot be identified. This could apply to a vehicle where the registered keeper is a company and there are multiple insured persons who could possibly have driven the vehicle.

What if I did not know about the Court proceedings?

We are often contacted by clients who have simply received an SJP notice and have never received the section 172 notice asking them to identify the driver. In those circumstances we advise that you should contact the relevant court and explain that you have never received the correspondence. We advise you to contact the courts that and inform them that you wish to make an application to reopen the case. The Magistrates Court would provide you with a hearing date and time. It is at this hearing you would attend Court to make a formal application to reopen the proceedings which would allow the original summons to be reserved and provide an opportunity for a defence to be filed.

How we can help

The above list gives you an idea of how this seemingly straightforward area of law can become complex and may require you to consider your case in more detail. You may be admitting to an offence where you have a valid defence in law. CONTACT US today to obtain specialist legal advice as to how best to respond and save your licence.