Clause 23 - Breach of duty to give information as to identity of driver etc.

Road Safety Bill – in a Public Bill Committee at 9:45 am on 1st February 2005.

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Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs) 9:45 am, 1st February 2005

I beg to move amendment No. 48, in clause 23, page 26, line 31, leave out '6' and insert '3 to 6.'.

I have long been an advocate of pre-legislative scrutiny because when Ministers publish a Bill and it is examined by the House in Committee, there is a danger that they tend to defend it as drafted and to regard any amendment as a personal attack. I hope that Ministers in this Committee will not take that attitude because we are trying to make improvements.

I think that I understand the weakness in the law that the Minister wants to address. He can intervene if I am wrong. The problem is when someone who would receive more than three points on his licence for driving a motor vehicle at quite a high speed decides deliberately to tell the authorities when he receives a notice through the post a few days later that he has no recollection of the incident and no idea who was driving his vehicle. That is an attempt to prevent the courts from imposing a fairly harsh punishment for a serious case of speeding. For the offence of not supplying the name of the driver, he receives just three points.

However, just moving from three to six points and giving the courts no discretion and no ability to consider the circumstances of the case means that injustices could occur. I will give the Minister an example from my personal knowledge. During the recent European elections, a team of Euro-candidates were offered two vehicles by a supporter of my party to use during the election campaign. They accepted the use of those vehicles and they were delivered to one of the candidates, who notionally had responsibility for them both, although obviously he could not drive both of them at once. Over two weeks, the vehicles were driven by the candidates and their supporters. As might be expected during an election campaign, no one kept a log of who was driving at any one particular time. It was not a business. The insurance was for any driver. Anyone who was on the team had the opportunity to drive one or both of the vehicles.

The candidate may have a valid defence in that he should not reasonably be expected to know who was driving the vehicles at every moment, but if he does not and he is found guilty, it seems to me—the vehicle was only just over the speed limit so it was not one of the more serious cases that I mentioned—that the courts would be justified in giving him three points. They would not be justified in giving him six points, but that is the effect that the clause would have. It is intended to mandate the courts, in every case, to impose six points, even for the most minor transgression of speeding.

The amendment does not seek to require an ultra-lenient option, but merely to give the courts the discretion to decide, in the circumstances of the case, whether they should give three or six points. For example, a business man with nine points on his licence who drives at an excessive speed and gives no explanation of why he does not know who was driving his vehicle would justifiably be awarded six points.

Let us consider a case in which someone loans his vehicle in the circumstances I described, not necessarily during an election, but where voluntary work was being carried out and half a dozen people who were properly insured had the use of the vehicle, but the owner did not keep a log. If the courts feel that his error in not keeping a log of who was driving was a genuine mistake—that he did not understand the requirements of the law or of the predicament that he might get into—it is reasonable that they should say that the offence itself is fairly minor. In those circumstances, the courts should award only three points.

I can see why the Minister wants to amend the law, but the courts ought to have discretion, so that where genuine mitigating circumstances exist, they can take those into account.

Photo of Mr Kevin Hughes Mr Kevin Hughes Labour, Doncaster North

May I explain that if hon. Members want to speak, it might help if they made that clear?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

I take it that it will always be expected that I will want to speak at the end of a particular debate.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

The right hon. Member for East Yorkshire's amendment relates to a clause that is, I believe, affectionately known as the Hamilton clause. It refers to an instance in which somebody goes through a speed camera and then has a remarkable act of amnesia when they receive a penalty notice some time afterwards and cannot remember who was behind the wheel.

I take the point about pre-legislative scrutiny. The measures were published six or seven months ago. The Select Committee on Transport had an opportunity to pick over some of the points and I do not take it as a personal attack if an amendment is tabled. In fact, the right hon. Gentleman will recall that we accepted Opposition amendments to the Railway and Transport Safety Bill. Not many, I admit, but we felt that the Opposition had come up with a good idea in some cases.

I am sorry that the right hon. Gentleman has chosen this amendment as one that he thinks is good and ought to be accepted. In the circumstances to which it relates, a road traffic offence is detected but the actual offender cannot be identified without the co-operation of another person—typically, but not necessarily, the vehicle keeper. The most common occurrence of this is in association with speeding offences remotely detected by safety cameras. If the offender was driving greatly in excess of the speed limit he would, if caught and prosecuted, be liable to an endorsement of up to six points or even disqualification in court. However, if in his capacity of vehicle keeper he claimed that he had suddenly been struck by amnesia and did not know who was driving the car at the time, he would then be liable to only three penalty points. So there is an incentive not to admit to a speeding offence. In existing law, if someone is way over the limit, there is a strong incentive to pretend not to know who was behind the wheel.

Amendment No. 48 suggests that the court might consider giving fewer than six points in some cases. I understand the concern. In certain circumstances, people may genuinely not find it possible to be sure of the driver's identity. However, even in the case that the right hon. Gentleman mentioned of a car or vehicle being used in an election, it is reasonable to expect the person who has taken responsibility for the vehicle to keep a log of who drives it because they need to know that the person driving it has the proper licence. We would not freely allow people to jump in and out of the driving seat. It would not be unreasonable to check the drivers to ensure that they are eligible to drive the vehicle.

However, the law comes to the rescue of such a person in exceptional circumstances. Section 172(4) of the Road Traffic Offenders Act 1988 provides a defence whereby the person

''did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was''.

That will not allow members of the right hon. Gentleman's party to drive faster than the speed limit with impunity at the next election—although they will need to accelerate if they are going to improve in the polls—but it does provide a defence. The main point is   that the amendment allows a person who has gone way over the speed limit to get three points rather than six or a disqualification. I am a little surprised that the right hon. Gentleman is on the side of such a person.

Photo of David Wilshire David Wilshire Assistant Chief Whip, Whips

I listened carefully to the Minister and did not intend to intervene but for his point that it would be reasonable to check drivers' licences. In my experience, that simply is not done. Let us consider an election campaign. On 5 May, we will get rid of this Government. A vehicle will be provided for me during the campaign and it will be driven by various people. I do not think it unreasonable if somebody I have known for 20 years turns up in a car, parks it outside my campaign headquarters and gets into the vehicle and drives it. It would be a waste of time, and offensive, to say, ''Can I check that you're entitled to drive that vehicle?'' given that the person turned up in one and that I know for a fact he has been driving for 20 years. So the argument that one should make certain of what is going on is nonsense.

I can, however, confirm that common sense is applied. I know that because, for reasons with which I shall not bore the Committee, I have had the same number plate on my car for a long time. I changed my car for a virtually identical one—from a photograph, one would not have known that it was not the same car—and the new car was to be delivered with the number plate of my previous car. It looked like my car and had my number plate, so when it dutifully triggered a speed camera, I got the notice. On the basis that it was being delivered to me by somebody—I did not have a clue who that was—I was able to say, first, that it was not my car and, secondly, that I had not a clue who was driving it. It was a difficult issue because the number plate caused chaos. I am pleased to say that the Hampshire constabulary backed off, so discretion is used. The constabulary attempted to track down the person delivering the vehicle, but I am not sure how that went.

We should not suggest that all people in those categories have amnesia and are trying to wriggle out of getting points on their licence. I regularly share the driving on long journeys. If I did the same journey on a regular basis, I would not have a clue at which time of night I was driving and where I was even a few weeks previously. To suggest that somebody is trying to wriggle out of something when they genuinely do not know who was driving a vehicle is not helpful. I have every sympathy with what my right hon. Friend the Member for East Yorkshire said.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs) 10:00 am, 1st February 2005

I am grateful to the Minister for what he said about the possibility of a defence and I accept that. However, much else of what he said addressed an amendment that I have not moved. If my amendment said, ''delete 6 and insert 3'', or ''delete 6 and insert 2'', his arguments would have considerable merit. However, my amendment would give the courts the discretion to impose between three and six points, so in the case to which the Minister refers, where the   motorist grossly exceeds the speed limit and seeks to avoid getting six points or perhaps a ban by claiming that he does not know who was driving his vehicle, the courts would still be able to do what the Minister wants the clause to do; impose six points.

Where the courts feel that the person should have made more of an inquiry at the time or kept a log, but the offence is a minor transgression and there are mitigating circumstances, my amendment says that they should have the option of awarding fewer points than six. That is not unreasonable, and it does not side with the motorist who blatantly ignores the speed limit; it just gives the courts the power to be fair. Surely, that is what we ought to do.

Some two or three years ago, I came across a case of three acquaintances of mine who used to share transport to work. Work for them was not at a fixed place, and they travelled to different sites each month. They always used one particular vehicle, but they shared the driving. Some two weeks after finishing a job at one particular site, a ticket came through to the registered keeper of the vehicle, and he genuinely did not know whether he or one of his two friends had been driving. Rather than cause a row between three friends, and although he had a clean licence, he accepted that he was the driver, even though he was not certain. I fear that if the clause remains as it is, it could lead to the opposite situation, with innocent non-drivers admitting that they were driving even when they think that they were not in order to get three points, because they know that if they say that they did not know who was driving, they will be hammered with six. Surely the Minister does not want that, and I hope that between now and Report he will reflect on my amendment. It is fair, reasonable and seeks only to give the courts the power to do what is right in the circumstances.

Photo of John Thurso John Thurso Shadow Secretary of State for Transport, Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Scotland), Liberal Democrat Spokesperson (Transport), Liberal Democrat Spokesperson (Culture, Media and Sport), Liberal Democrat Spokesperson (Scotland)

If a vehicle is registered to a company as opposed to an individual, and therefore the company is the registered keeper, the company, as it does not possess a licence in that circumstance, can say that it genuinely does not know who the driver is and there will be a financial penalty but no penalty on the licence. Is it not the case therefore that more people are likely to register vehicles to companies and that there will be a divergence, with those who offend as corporate users having a different penalty from ordinary individual car owners?

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

That is an interesting point. Such registration would be a ruse available only to the wealthy, as they would be more likely to have associations with limited companies. That situation could occur if the clause stands part without amendment, which is why I must insist on my amendment.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

The hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) makes a good point, but the court would want to see that a record had been kept by the company about who was driving on a particular day. The company can face a considerable penalty, although obviously without penalty points on the licence.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Division number 8 Nimrod Review — Statement — Clause 23 - Breach of duty to give information as to identity of driver etc.

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Again, it is a pity that the Government have not shown enough flexibility to accept my right hon. Friend's amendment. In making his argument, the Minister referred rather disparagingly to the ''remarkable act of amnesia'' in the Hamilton defence. It is important that we should not by implication make defamatory remarks against people, irrespective of whether they were formerly Members of this House.

It was accepted by the court that the circumstances of that case involved two people who frequently drove long distances and shared the driving. Neither of them could remember who was driving at the particular time. For the Minister to suggest that that was a remarkable act of amnesia is to belittle what happened, to try to second-guess the court and to smear a former distinguished parliamentary colleague. His comments were totally unwarranted.

Can the Minister confirm that nothing in the clause will affect whether the Hamilton defence will still be available to people if they cannot ascertain with reasonable diligence which person was driving? Will he take the opportunity of this short stand part debate to comment on the amount of anecdotal evidence of points trading, not just between husband and wife but between partners and other close companions? Someone who has a large number of points on their licence will get their companion to say that they were driving the car at the material time and that person then carries the points on their licence, thereby undermining the whole of our road safety law. What is to be done about that?

If the Government continue their inane war against motorists, more and more people will surely try to avoid the consequences of a law that they feel is unfair and oppressive. We know that quite a lot of people are playing a game whereby whoever has the fewest points on their licence takes the rap for a penalty offence,   irrespective of whether they were driving. That point was made by my right hon. Friend the Member for East Yorkshire in moving his amendment.

I hope that the Minister will be able to explain in this short stand part debate the Government's policy in respect of the increasing amount of anecdotal evidence about points swapping and also that he will confirm that the Hamilton defence, which he described disparagingly but others would consider a factual defence, is still available.

Photo of John Thurso John Thurso Shadow Secretary of State for Transport, Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Scotland), Liberal Democrat Spokesperson (Transport), Liberal Democrat Spokesperson (Culture, Media and Sport), Liberal Democrat Spokesperson (Scotland)

I supported the amendment because I believe that it is important to allow a certain degree of flexibility. Having flexibility in primary legislation means that amendments can be made, and points can be handed out according to the circumstances of a particular case.

In the intervention I made on the right hon. Member for East Yorkshire, I drew attention to the fact that a substantial number of motorists in this country are supplied with company cars. In one notable case a few years ago, the car habitually driven by a well-known football manager was caught in a speed trap, and the football club chose not to state who was driving the car. As the Minister said, a substantial fine was paid—it was several thousand pounds—but the club deemed that that was acceptable rather than allowing whoever might have been driving to receive points on their licence.

Such cases mean that we begin to arrive at a justice system that has, to a certain degree, one law for the rich and another law for those who are not well-off. In my constituency, the vast bulk of motorists are people who are on sometimes, but not often, on reasonable wages, and they need their cars. I am concerned that they will feel the effect of punishment considerably more than a wealthy person who has the protection of a company.

I shall support the clause because the basic underlying thrust of the Government's direction is right, and it is correct that we point out to people that attempting to get round the proper penalties for speeding is wholly unacceptable. The Government should look again at the matter and consider whether there might be a case for flexibility at a later stage in the legislation.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

I said that this was affectionately known as the Hamilton clause, but I did not say it was correctly known as such because in that case the court accepted the evidence given, which shows that the system works and that that defence is available.

Photo of Greg Knight Greg Knight Shadow Minister (Environment, Food and Rural Affairs)

I rise to help the Minister. Would it help if he referred to it as the Sir Gerald Nabarro clause? There was a dispute as to whether Sir Gerald was driving or his secretary; his secretary was Mrs. Hamilton.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Alas, I am old enough to remember that case. I do not want to besmirch someone who is long since dead, but I believe that he was out on important parliamentary business with his secretary and the occasion was so exciting that he could not remember who was in the driving seat at the time.

Often, I see cameras flash a great distance away when other people trigger them. It is often occasion for discussion among those in the vehicle as to whether they triggered the flash, or whether it was someone else. It is unlikely that someone would genuinely trigger a camera and not realise that they were behind the wheel. However, the defence exists; it was used in that case and the court agreed to it. I do not mention that to cast a slur on the court or anyone involved in the decision, but that was what the court decided. Nevertheless, there may be other people who try to use that defence wrongly.

On the question of trading penalty points, I would not have thought that it was in the interest of someone to accept a penalty on behalf of someone else, any more than it would be for someone to admit to any other crime on someone else's behalf. That would be extremely foolish.

I am informed that a person who claims wrongly to have committed an offence to get someone else off the hook could be deemed to be perverting the course of justice. If someone got up in court and made a statement, that might be perjury. Those are serious offences, attracting far higher penalties than a small fine or a few points on a licence. The law provides a pretty strong disincentive for someone to lie to the police, or, even worse, to lie to a court of law. In those circumstances, I hope we can support the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 4.

Division number 9 Nimrod Review — Statement — Clause 23 - Breach of duty to give information as to identity of driver etc.

Aye: 12 MPs

No: 4 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 23 ordered to stand part of the Bill.