We periodically hear of clients finding problems when they cannot identify a driver of a vehicle who has committed an offence, usually speeding.
It cannot be over emphasised that in cases where either employees drive company vehicles or customers take loan cars on test drives then it is important to get a clear record of who was driving when an offence is committed.
The law states that a keeper of a vehicle (as named on the V5) can avoid prosecution if:
a) he/she did not know who the driver was and
b) could not with reasonable diligence have ascertained who the driver was
If the keeper was a body corporate (eg a limited company) then the company must additionally show:
c) no record was kept of persons who drove the vehicle and
d) that failure to keep a record was reasonable
It is clear that you need to keep a record of drivers and you should make it a formal company instructions, with a warning of disciplinary action, if employees do not complete the detail, whether it be themselves driving or a customer on a test drive. Make sure, you can provide a name and address. Doing nothing can never be reasonable diligence. Having set up a record system, check it periodically to make sure it’s working, and discipline anyone who is not following the rules. It will be your head on the block should an offence be committed, and employees amnesia quickly kicks in if there’s a problem.
To satisfy c) and d) however, there must be a good reason why the actual driver is not recorded. Reasons might be that an employee signs out for a vehicle but when approached, it transpires he let his/her spouse use the vehicle, and such use was never authorised. Equally, if a vehicle is signed out for a test drive and the driver decides to let his ‘mate’ try it out. There are many issues regarding test drives and we can provide test drive sheets if needed.
There is one further issue which can cause concern for company directors. The law extends the same offence to a company director/manager/secretary or similar officer if the offence is proved to have been committed with their consent, connivance or neglect. If such an offence is charged the person can be awarded penalty points if found guilty. However, the burden of proof on the Police is much higher here since consent and connivance require the person to have knowledge of the offence and along with neglect show a dereliction of duty. A failure to check records or have a system in place that will do so could lead to a charge being brought.
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