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Lord Lyell: I am sorry to intervene before my noble friend. Indeed, my noble kinsman was, or is, learned, but where one Lyell comes along I hope that it is not the second Lyell who is causing trouble.

I recall a high-profile case four years ago where a motor vehicle that was owned, I presume, by a company or corporation was noted committing an offence. Representatives of the corporation, as the registered owner of the vehicle, came to the magistrates' court, and for one reason or another said that they did not know who was driving. I am not too sure who would pick up the penalty points if the police said that the vehicle was involved in an offence—I think it was in breach of the speed limit. As I recall, that corporation could not pick up the penalty points, but there was a clear breach. Yet the registered owners—a corporation—escaped. There was no one responsible person who picked up the penalty points.

I may be able to have a word with the noble Lord outside, because otherwise perhaps even in your Lordships' House there is a law of libel. I recall that it was a high-profile case in the north-west of England. It was curious to me how an offence could be committed and the registered owners—being a corporation or corporate body—could say "We do not know who was driving", and no one was penalised. I can go and look it up.

Earl Attlee: I regret that I have identified another difficulty with having a mandatory six points. Let us suppose that I have fouled up and not told the authorities who was driving the vehicle and I collect six points. I would automatically fight like hell in the courts. If I was only going to get three points, I would take the rap, but at six points I could not afford to be half-way towards losing my driving licence.

Viscount Simon: Would the noble Earl fight like mad if he already had nine points on his licence?

Lord Davies of Oldham: Again, it has been a debate of some complexity. First, let me reassure the noble Lord, Lord Lyell, on that question of against whom the legislation is directed and whether there is any scope for inadvertence. There certainly is. Section 172(4) of the Road Traffic Act provides a defence where the person did not know who was driving and
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could not with reasonable diligence have ascertained who the driver of the vehicle was. That is a proper defence. There is scope for exception in what we would regard as unusual circumstances. In most circumstances that we are dealing with, the driver is known. Let me reassure the noble Lord, Lord Monson, that there are no exemptions. If a husband is driving the wife's car, his good lady is obliged to supply that information, and he incurs the penalty points if he is guilty of the offence.

Let me emphasise what we are seeking to achieve here. We are not seeking to be punitive for its own sake and up-rate from three to six points just because that affects people more adversely. We are trying to deal with a situation where someone tells an untruth about who was driving and in doing so incurs three penalty points where, if the truth was known—namely that he was driving—he would collect six. So it is an incentive to him to lie to the court, because at present the penalty for the vehicle-keeper who claimed that he did not know who the driver was would only be three points, when the offence merits six points.

Of course it is reasonable for us to close that gap. It cannot be the case that we would countenance a position in law where by lying a person effectively defends themselves against a more serious sentence. The Bill ensures that the penalty is six points, but the amendment would create a position where someone would be advantaged if they carried out that activity. That is what we are trying to deal with, and that is the major basis on which I resist the amendment.

Lord Lyell of Markyate: I am grateful to the Minister. I had not intended to make exactly that point; it is complex. Could this be carefully thought about in the department before Report? The circumstances that worry me are rather different. I am concerned that such requests for information on the driver normally arrive by post. In less than perfectly organised households and government departments, things that arrive by post sometimes lie a long time unanswered. Often it is not deliberate, but a slip. If there is a perfectly innocent mistake and no reply is forthcoming can the Minister assure the House that the penalty will not apply? I think that it does.

Can he clarify it—should there not be, and is there not, a difference between something that happens through complete inadvertence and something that happens through deliberate withholding of information, or worse still the giving of dishonest information? I have had to read the form recently, and it says clearly that anyone who knowingly gives false information commits a different and much more serious offence, which would rightly be dealt with seriously, even to the extent of perverting the course of justice. There is a lot to look into here, and those of us who are showing concern are anxious that the courts should be able to show some distinction between innocent carelessness and guilty wrongdoing.

Baroness Gardner of Parkes: On that last point, when I used to sit as a magistrate, I understood that where no reply was received the police regularly went
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round to the address and asked, "Why have we not had a reply?". Likewise, when the cases came before court there was an opportunity to produce proof. If recorded delivery had been used you could then establish whether something had been delivered and by whom.

What is more worrying and is not covered in the Bill is the number of people who have an accident, run away leaving their car and then phone the police and say that the car was stolen. That happened to me, and I was able to identify the person because I was sitting in my house when they crashed into my car outside the house. Due to a slip-up in the police identity parade the fellow got off completely, when I knew very well that he was the driver of the vehicle at the time and he had reported the car stolen after the event. There should be something to cover those strange occasions that are reported as thefts after accidents rather than before.

Viscount Simon: The noble and learned Lord, Lord Lyell of Markyate, has drawn attention to the innocent victim. As the noble Baroness, Lady Gardner of Parkes, said, the police do go round and not only that, they send reminders about the form. Therefore, if it can be ignored once it is unlikely to be able to be ignored twice.

Earl Attlee: In the Minister's reply, he suggested that the problem was people who are misleading or lying to the police. Section 172 of the Road Traffic Act 1988 says:

The noble Lord should take great note of my noble and learned friend Lord Lyell, who pointed to the possibility of a charge of perverting the course of justice, which we know is a very serious offence indeed.

Lord Davies of Oldham: I recognise the strength of that last point, but that would be a different legal proceeding indeed, about a different case. We are seeking to deal with the perverse incentive here, whereby a vehicle is being driven in such a way that it would merit six penalty points. That is the offence that is being committed and that is what the driver of that vehicle will incur.

We are seeking to avoid the perverse incentive whereby the person who was driving that vehicle is able to evade the six penalty points by saying, "I do not know who was driving" and then the penalty is only three points. I maintain that it is right that in circumstances where, at the present time, that perverse incentive exists, it should be removed. I take on board all the many points about the operation of the law and justice in this country and the question of whether the information has been received and whether the person had a proper chance to respond to it. All that takes place properly before the magistrates in circumstances where the defence is that there has been some problem with understanding what they were meant to comply with. But those are extraneous matters.

We are dealing, simply and straightforwardly, with a situation where, at present, there is this incentive for someone to conceal who the driver was because they
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only incur three points in doing so where in fact they would get six points if they identified who it was. That is something which must be recognised as in breach and the noble Lord's amendment would reinstate that perverse and totally unacceptable incentive.

Earl Attlee: Surely in the circumstances that the Minister described the magistrates would award six points?

Lord Lyell of Markyate: I apologise for coming in again, but the Minister makes a point that it is in a case of obvious and serious wrongdoing that the six points would be imposed. The Bill is so drafted that it refers only to a duty to give information as to the identity of the driver, and is drafted in a way which could cover the position that he is concerned about, where there is an incentive, but could equally well cover the innocent circumstance that I referred to.

I agree with the noble Lord that in the best world—and it sometimes is the best world—the police do come round and give you a second chance and consequently the situation does not arise unless you are dishonest. But we have an automatic penalty of quite a serious nature in practice in circumstances which can cover both wrongdoing and innocent carelessness. That is the danger of automatic penalties and I ask the Minister to invite the department to think again.

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