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Failure to identify driver, Tain, October 2016

Our client was prosecuted for a contravention of section 172 of the Road Traffic Act 1988 (failure to identify driver).

The case began as an allegation of speeding. Our client ultimately received a Notice of Intended Prosecution. He did not know who the driver of the vehicle was. He made fruitless enquiries. He subsequently requested photographs of the incident to assist him. The authorities stated that the photos were sent to him. Our client’s stated that he had never received them.

Falsely identifying someone as the driver in these circumstances can lead to charges of attempting to pervert the course of justice so, in our view, our client’s position (if accepted as true by the court) provided him with a reasonable excuse for “failure” to identify the driver. It is important to be clear – simply stating that you do not know who the driver is will NOT amount to a defence to this charge. The accused must demonstrate that he has taken all reasonable steps to assist the authorities if the defence is to have any chance of succeeding.

In this case, the court did not have to decide the issue. In the course of the Crown’s evidence, a document was placed before the court revealing that our client had previous convictions. While answering questions about the document by the Procurator Fiscal, a Crown witness mentioned these convictions. At this stage, in response to a defence objection, the trial was halted.

The law is clear. Except in very limited circumstances, a court is not permitted to know if an accused person has previous convictions (the law in Scotland being much more absolute than, for example, the USA or even England). Our submission was that our client could no longer receive a fair trial in terms of Article 6 of the Convention. Although the Crown argued to the contrary, the court agreed with our submissions and the case against our client was deserted.