AC-2025-LON-000004 - [2025] EWHC 2798 (Admin)

In my view the Magistrates erred in law in two respects. Firstly, they applied the defence under s.172(4) even though that only applies where the Respondent was “the person keeping the vehicle” at the time of the offence. Secondly, they appear to have considered that the only obligation on the Respondent was to name the driver, and once they had accepted that he could not do that, he was not guilty of the offence.

“The person keeping the vehicle” in s.172(2)(a) is not defined, nor is the “keeper” in the Notice of Intended Prosecution. Section 172(10) defines the “registered keeper” as the person registered under the Vehicle Excise and Registration Act 1994, in practice the person named on the DVLA form V5C. However, that person (whether real or legal) might in practice not have day-to-day knowledge of the vehicle. As Mr Jarvis submitted, the registered keeper could go away and leave the vehicle with a third party for a prolonged period. Section 172(2)(a) must deliberately be referring to the actual keeper rather than merely the registered keeper, or it would use the terminology later in the same section of “registered keeper”.

The purpose of the statutory provision appears to be that the person who has day-to-day care and control over the vehicle might be reasonably expected to know the identity of the driver and therefore is the person referred to in s.172(2)(a).

I accept Mr Jarvis’s submission that the reference to the person keeping the vehicle in s.172(2)(a) must be to the person keeping the vehicle at the date of the offence. Firstly, a subsequent keeper on whom a Notice was served could not generally be expected to know who the driver was before they became the keeper. So it is a more natural and purposive interpretation of the words that it be the keeper at the time of the offence. Secondly, the defence in s.172(4) and its restriction to s.172(2)(a) cases makes little sense if a subsequent keeper can be availed of it, even when they know the identity of the previous keeper, but do not know the identity of the driver.

Therefore, in my view s.172(2)(a) applies to the person who was the keeper at the time of the offence and therefore does not apply to the Respondent in the present case. The consequence of that is that the Justices were wrong to allow the Respondent to rely on the s.172(4) defence, because that did not apply to s.172(2)(b) cases.

In Mohindra v DPP [2004] EWHC 490 Moses J was dealing with an argument that there were two separate offences under s.172(2), he said at [14]

“I conclude that section 172(3) creates only one offence and the information need do no more than allege an offence under section 172(3). Where a defendant asserts, in response to the information, that he is not the keeper of the vehicle at the time of the alleged offence, the prosecution will be required to prove that the information which he has failed to give was information which was in his power to give and which may lead to identification of the driver. Where the defendant asserts that he was the keeper, the prosecution need do no more than prove the failure to respond, leaving the defendant, if he wishes, to prove the defence under section 172(4). Where the defendant is silent the prosecution need do no more than prove the absence of any response. Whether the failure to comply with the requirement is a breach of an obligation under section 172(2)(a) or (2)(b) is not an issue unless and until the addressee asserts that he is not the keeper or, as a keeper, seeks to rely on the defence under (4). The precise nature of the obligation which it is alleged has been breached is simply not material in the case of one who remains silent.”

In relation to the registered keeper, he said at [11];

“The obvious purpose of the legislation is to discover information about an alleged offending driver. It is plain that until an addressee responds to the requirement to give information, the enquirer cannot know whether the addressee is the keeper or not. The most that may be discovered is the identity of the registered keeper. Section 172 draws a distinction between one who keeps the vehicle and one who is merely the registered keeper (see section 172(10)). One who keeps the vehicle is presumed to know the information required unless he proves otherwise (section 172(4)). One who is merely a registered keeper is not presumed to have such information, and the prosecution must prove that the information is in his power to give (see as to the different burdens of proof Blackstone 2004 C2.15).”

Although not directly on the same point, it appears to me that these passages support the analysis above. Moses J proceeds on the assumption in [14] that the keeper is the person who keeps the vehicle at the date of the offence. In [11] the distinction between the registered keeper and the actual keeper suggests that the test is one of who has care and control of the vehicle.

The Justices appear to have entirely focused on whether the Respondent could identify the driver of the vehicle. However, it is apparent from the Notice that the obligation on the Respondent was to identify the previous keeper. This is made very clear from the words in Section B and the requirement to complete Section C as well as Section B. The Respondent undoubtedly knew the name of the previous keeper but failed to complete that part of the form.

I do not accept the Respondent’s argument that the police knew who the registered keeper was, and they should have sought information from his mother in law as one of the directors of the company. The obligation on the Respondent was to reply correctly to the information required by the Notice. Whether or not the police had other routes of investigation is irrelevant to the offence. Similarly, the fact that the police had assumed from his response to the form that he had sold the vehicle, rather than purchased the vehicle, does not change the information that was required.

I do not consider that the form itself is ambiguous and would have required the Respondent to speculate as to what information was required. Box B, as set out above, is quite clear that if the recipient is the present keeper but was not the keeper at the time of the alleged offence, the previous keeper must be identified in Section C. There is express reference to “details of…previous keeper”.

Therefore, I find that the Appellant is correct that the Magistrates erred in law in finding the Respondent not guilty of charge 2. On the facts as found the Respondent must have been so guilty and I therefore set aside the acquittal and remit the case with a direction that the Magistrates find the Respondent guilty of charge 2. 2.