The Right To Remain Silent – Does That Include The Boss?

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”.

This is the current manifestation of what was quaintly called the “right of silence”. This right, not to incriminate yourself, is an integral part of legal systems around the world. You can stay totally silent when questioned by the police, and nothing in law compels you to open your mouth and speak. Simple as that? Well….. no.

What if you fail to mention something that you later rely on in court? The court may not be prepared to believe you is the answer.

So how does this affect businesses whose employees commit road traffic offences whilst working.

The Notice of Intended Prosecution (NIP) comes to the registered keeper of the vehicle. The law does not permit silence in response to that notice even though it may be self incriminating. Idris Francis of Petersfield, Hampshire and Gerald O’Halloran from London, argued before the European Court, that it was contrary to their human rights for UK laws to require car owners to incriminate themselves by telling the authorities who was driving when the offence was committed.

The court rejected their arguments. People who choose to keep and drive cars implicitly accept certain responsibilities under UK law, one of these is naming the driver of a vehicle after an offence is committed.

What if the keeper does not know the identity of the driver? For an individual, the question might be “who else could it have been”. For a business things are more complicated.

Any business which owns or hires cars will have daily, sometimes hourly, changes of drivers for those vehicles. Good examples are professional practices, utility companies, contractors and cleaning companies. Can they say “I don’t know who was driving?” and avoid prosecution.

The answer is no, in all but exceptional cases. Businesses must keep records of vehicles and drivers to identify who was driving. Failure to do so will not persuade the police or indeed a court that they have a defence. The business will end up being fined. If the business has a sole proprietor or partnership then individuals will end up with fines and penalty points on their licences – the offence of failing provide identity carries three penalty points.

There are also wider issues. Businesses need to keep records for other reasons so they cannot be accused of permitting their employees to commit offences during work. This includes asking for copies of licences, and where the business does not insure the use, copies of insurance certificates, and MOTs.

Is this all red tape? Yes, but these are sensible precautions to avoid heavy fines arising from the actions of employees. Individuals, owning a businesses, are at risk of acquiring penalty points and also possible disqualification from driving when someone else drove the vehicle on the occasion in question.

The moral of the story is, as usual, cover your back!

Published 05/10/2007. The author of this article is Neil Scott