If you receive a Section 172 notice but cannot identify who was driving, the evidence of the enquiries you make could determine whether you can successfully defend a prosecution for the separate offence of failing to provide driver details.

A conviction for failing to provide driver details carries six penalty points and may also result in an unlimited fine or driving disqualification. Therefore, it is not a minor administrative issue that can be put aside. At the same time, defences are available that could limit the penalties you face.

The person keeping the vehicle may have a defence if they can show that they did not know who was driving and could not establish the driver’s identity despite exercising reasonable diligence. It is not normally enough to say that you cannot remember or that several people could have used the vehicle. The Magistrates’ Court will examine what you checked, who you contacted and why those enquiries did not produce an answer.

Here, JMW’s motoring law specialists explain how a reasonable diligence defence works and the ways we will build a strong defence to a Section 172 prosecution.

What Does Failing to Identify a Driver Mean?

Section 172 of the Road Traffic Act 1988 gives the police the power to require information identifying the driver of a vehicle alleged to have been involved in a road traffic offence.

The vehicle’s registered keeper must provide the information needed to establish who was driving. Anyone else who receives a valid request must provide any information within their power that may identify the driver.

The police commonly send a Section 172 request when they have identified a vehicle that was allegedly involved in an offence but still need to establish who was driving. This may follow a speed-camera or red-light-camera activation, CCTV footage, a witness report or police observations.

The request often accompanies a Notice of Intended Prosecution, although the documents perform different functions. The Notice of Intended Prosecution warns that prosecution for the alleged driving offence is being considered. The Section 172 requirement asks for information about the driver’s identity. You must provide the requested information within 28 days beginning with the day on which the notice is served.

What Is the Reasonable Diligence Defence?

The person keeping the vehicle may have a defence if they show that they did not know and could not, with reasonable diligence, establish who was driving.

Reasonable diligence means taking the practical steps that could reasonably be expected in the circumstances. There is no standard checklist and the enquiries you should make to show that you exercised diligence will depend on who had access to the vehicle, how it was normally used, what records existed and how much time had passed.

Being unable to remember who the driver was is not a defence. You must make, and be able to demonstrate, genuine efforts to reconstruct what happened.

For example, if two family members regularly share a car, it will not be enough to say that either could have been driving. They will need to check their calendars, work commitments, messages, card transactions and the purpose of the journey.

The court will assess both the enquiries made and the credibility of the explanation. Evidence showing that you began investigating promptly will generally provide a stronger defence than an account reconstructed after court proceedings started.

What Evidence Can Show Reasonable Diligence?

A reasonable diligence defence rests on your solicitor showing the Magistrates’ Court that you followed every realistic line of enquiry available to you. The evidence presented will need to demonstrate what you checked, when you checked it and why you were still unable to identify the driver.

A written chronology is a major part of this defence. This should record when you received the notice, who had access to the vehicle, the enquiries you made and the outcome of each one. Notes created at the time are likely to carry more weight than an account reconstructed after court proceedings have begun.

You should retain copies of the records you examined, even where they did not provide a conclusive answer. These include calendars, work rotas, vehicle logs, bank transactions, parking records, messages, location history and insurance documents. Their importance is not limited to whether they identify the driver. They can also show that you investigated each potential driver and attempted to reconstruct the journey.

Evidence that an enquiry produced no result will also support the defence. For example, you may have asked the police for photographs, contacted a business about CCTV or checked whether location data was still available. Keep copies of those requests and any replies confirming that the image was unclear, the footage had been overwritten or the information was no longer retained.

Ask potential drivers to provide their own account of what they remember and the records they checked. A statement explaining why a person could not have been driving, or why their records did not resolve the issue, will show that the enquiries were genuine and thorough.

You should also keep a copy of the completed Section 172 form, any covering letter and all supporting documents sent to the police. Proof of posting or electronic submission will show when you responded and what information you provided.

A single document may not establish reasonable diligence. Our solicitors will review the steps you took, identify any gaps in the enquiries and gather the records needed to support your account. We will then organise the evidence into a clear narrative with witness statements where necessary, and present the combined case to show that you acted promptly, pursued every realistic line of enquiry and still could not identify the driver.

What Evidence Is Expected from a Company?

A company seeking to rely on the reasonable diligence defence must show that it could not identify the driver despite making appropriate enquiries. If it did not keep a record of who used the vehicle, it must also prove that its failure to keep such a record was reasonable.

The company should produce the records it used to allocate and monitor the vehicle. Depending on its operations, these could include vehicle booking records, key sign-out sheets, driver-allocation logs, work rotas, delivery schedules, mileage records, fuel-card transactions and telematics data.

Where no driver record exists, the company will need to explain why. For example, it may need to show that the vehicle was assigned to one employee, or that the circumstances made a formal recording system unnecessary. Simply stating that several employees could have driven will not satisfy the additional requirement.

What if the Records No Longer Exist?

Records may have been deleted, overwritten or routinely destroyed before the notice arrived.If you defend a charge of failing to provide driver details on this basis, the court will consider what other enquiries remained available and whether you acted quickly enough after receiving the notice.

For example, if CCTV was deleted before you knew it was relevant, this could serve in your defence. Evidence showing when you requested it and the operator’s retention period may demonstrate that you pursued the enquiry.

The position will be less favourable where information was available but was lost because the recipient delayed taking action.

Where records were never created, the court may consider whether it was reasonable not to keep them. This is particularly important for businesses, although private vehicle keepers are not normally expected to maintain formal journey logs for ordinary family use.

What if the Police Say Your Response Was Incomplete?

The police may prosecute where a response does not clearly provide the required driver information.

Returning a form with missing details or only a list of possible drivers may be treated as non-compliance. Whether your response met the legal requirement will depend on what was requested, what information you supplied and what enquiries you made.

Keep a copy of the completed form so that your solicitor can compare it with the prosecution’s allegation as proof of posting or electronic confirmation will establish when and how you responded.

JMW’s failure to provide driver details solicitors will review the notice, your response and the police records to determine whether the prosecution can prove the offence.

What Happens if the Court Rejects the Defence?

A conviction for failing to provide driver details carries six penalty points. The court may also impose an unlimited fine or driving disqualification.

If the additional points take your total to 12 or more within three years, you may face a totting-up ban. Our guide explains what happens when you reach 12 penalty points.

The police may continue to prosecute the original motoring offence, such as speeding or failing to comply with a red light. However, they must prove that offence separately, including the identity of the driver. Where no driver was identified through the Section 172 response, the original charge may depend on whether the prosecution has other evidence showing who was driving.

How Can JMW Defend a Failure-to-Identify Allegation?

Our motoring offence solicitors will build a defence around the enquiries you made, the information available and the reasons why the driver could not be identified.

We will review the Section 172 notice and establish whether you were the vehicle’s registered keeper or someone required only to provide information within your power. We will then examine diaries, messages, work records, financial transactions, location data, footage and vehicle documents.

Where further evidence may exist, we will identify the enquiries needed to preserve or obtain it. We will also take statements from potential drivers and other witnesses, resolve inconsistencies and prepare a clear chronology for the Magistrates’ Court.

In some cases, JMW will test whether the police made a lawful request, whether the notice was properly served and whether your response provided all the information available to you.

Where the evidence supports a reasonable diligence defence, we will present it firmly and challenge the prosecution’s case. If the original motoring allegation remains before the court, we will defend that charge separately and provide a robust response to any and all charges that you are facing.