"Were you the driver?"

Johnthegrump

Hi all

If the judge asks that question (or similar), how would you reply?

Obviously it's best not to lie, but, from what I can see, it does have an impact on the hearing should the answer be "yes".

(It's a pity we can't plead the '5th') 

Umkomaas

You tell the truth (or face the potential consequences). 

Not identifying the driver only works risk-free if the PPC did not meet the strict requirements of the Protection of Freedoms Act 2012 (Schedule 4) and the Registered Keeper can prove they were not driving on the day. 

There's no clever Trevor magic form of words.

Johnthegrump

Hi Umkomaas

It just seems to be a bit unfair.

The advice given on here & on other fora is "Do not name (or even imply the identity of) the driver".

Then, in court, the judge pressures  the defendant to do so.

Which, of course, opens another avenue for the claimant....common law breach of contract.

 

wannadancewithsomebody

in many cases tickets are never placed on cars NTKs are not recieved , or recieved for several mths ,in fact the rules state they have upto 6 mths to apply for info , and in some cases trace 4-5 yrs after incident ,at this point can anyone  honestly remember
POFa 2012 , set up and allowed ANPR on the PROVISO that paperwork was sent out and RECIEVED by defendant within 14 days , a good chance or remembering who was driving 
OR a ticket on car , and paperwork between day 29 and 56 , again ticket on car , good chance or remembering 

but in cases of default ccj or trace being involved , the timespan is to long 

before asking "where you the driver" , perhaps the judge should ask , was the paperwork served correctly and recieved in a timly manner , a reply " no they never arrived/recieved late , should alert the judge to the fact that a person may struggle to give a truthfull answer , and may just be guessing 

Fruitcake

If the keeper was definitely not the driver, they should say so.

If the keeper cannot remember who was driving, they should say so and give proof that it could be one of several other people. Even only one other person is named on the insurance, it brings the balance of probabilities down to 50;50, which does not tip it enough either way for a judge to say who it probably was.

In certain circumstances, such as "own space" cases it is better to name the driver. Sometimes it makes it easier to say, I couldn't read the signs, or there were no signs, rather than "the driver told me there were no signs" if the signage point is a strong one.

Ideally, if a NTK is non-PoFA compliant and the driver hasn't been identified then it should never get to court. Hopefully that will be the case when the new mandatory CoP comes in, but until then, there is nothing to stop the scammers accusing the keeper of being the driver.

The problem comes if a judge asks a direct question, were you driving? You must not lie, so the best thing to do is to state in your documentation that the claimant has failed to identify the driver therefore they are pursuing the wrong person, and hope the judge doesn't ask.

If of course the NTK was PoFA compliant then there is no point in trying to hide the driver's identity, because the keeper will be liable either way.

D_P_Dance

Then, in court, the judge pressures  the defendant to do so.

A simple "I cannot remember" may deflect this

Which, of course, opens another avenue for the claimant....common law breach of contract.

But surely this is usually the primary cause of action.  

 

Umkomaas

Johnthegrump said:

Hi Umkomaas

It just seems to be a bit unfair.

The advice given on here & on other fora is "Do not name (or even imply the identity of) the driver".

Then, in court, the judge pressures  the defendant to do so.

Which, of course, opens another avenue for the claimant....common law breach of contract.

We don't advise giving the PPC that information from the outset, why should anyone do that, there's no legal requirement and if there's any possibility that the PPC has screwed things up, then we don't advise anyone offering their head on a platter. The PPCs are the 'professionals', it is after all their day job - they need to be able to do it correctly!

But when it comes to dealing with a Judge, as I said above, there is only one risk-free option in not naming the driver. 

I'm not sure what's 'a bit unfair' about the advice. 

Redx

On a point of order , nobody on this forum is allowed to give legal advice , you pay a lawyer for that

We can give our opinions based on what might happen , plus the different scenarios

You will notice in a twoc case of burglary of vehicle case , the police and helicopter follow the driver from a Starburst from the vehicle , if they catch everyone , or just the suspect driver , the police must prove that the actual driver committed the offences , in court

The suspected driver has free legal counsel who tell them to say no comment , to make the CPS prove their case

If asked by a judge or magistrate or the prosecution if they were the driver ? They may say no , or no comment , even if they are lying , many criminals lie , it's a part of the ethos !!

If a judge asks , and you are evasive , they can assume that on the balance of probabilities , you were likely to be the Driver , so treat that point accordingly , and do not lie because perjury attracts a greater punishment

POFA protects a keeper , not a driver

But in the initial stages , why show your hand ? Unless it is advantageous to show it !!
You can always change it later and reveal one card from a hand of cards

The onus is on the claimant to prove they have a valid claim , landowner authority , signage , many hoops before the driver question , they must have a royal flush , or 4 aces , you might bluff a win based on complete rubbish , if you haven't got a tell !!

Bear in mind that if a parking company covered every avenue , every legal point. , They would or should win each and every case , even if people lie or tell the truth !!

It is their job to dot every I and cross every t , most are useless at it !!

Johnthegrump

Umkomaas said:

Johnthegrump said:

Hi Umkomaas

It just seems to be a bit unfair.

The advice given on here & on other fora is "Do not name (or even imply the identity of) the driver".

Then, in court, the judge pressures  the defendant to do so.

Which, of course, opens another avenue for the claimant....common law breach of contract.

                             

I'm not sure what's 'a bit unfair' about the advice. 

My apologies for not being clear......I didn't mean to suggest that the fora advice is unfair.

I was referring to a judge who might pressure the defendant RK into admitting that they were also the driver

                                                                                                                   

Johnthegrump

Thanks, Redx.

I really appreciate your comments, & those of the other forum members.

& fully realise that it cannot be regarded in any way as legal advice.....but opinions from experienced persons are very well received.

nosferatu1001

A judge should not be cross examining 
but they do and it's sct
but it is still rare