Q I am being prosecuted for failure to identify the driver at the time of an alleged speeding offence. On the day in question, my wife and I were driving from London to catch a ferry to the continent for a holiday. We were away for six weeks and on our return I found that a notice of intended prosecution had been sent to me, alleging that we were caught by a speed camera on a long stretch of road. They allowed me an extension of time to respond, given that we had been away, but I was uncertain about who was driving. My wife and I have for many years shared the driving on long journeys and we must have swapped three or four times on that particular trip. If we had been asked sooner after the incident, we would have had difficulty remembering who was driving, but over six weeks later with a rich trove of memories from our holiday having built up on in our minds, we found it impossible.

I asked the police to produce a photo of our car in the hope that it might help us identify who was driving, but the photo was taken from a rear facing camera and it did not show the driver. I explained our difficulty, not on the form, but in correspondence, and asked if they had any CCTV cameras that could help, but they did not respond, other than to issue a court summons. Shall I just plead guilty?

A You can be convicted of the offence of failure to identify the driver, only if it was in your power to do so, and if you genuinely do not know who was driving, then you have an argument that it was not in your power to do this. The court would examine closely the explanation that you have given, and you can expect to be cross-examined rigorously about your assertion that you cannot remember. It will come down to the courtís view on the evidence.

It probably does not matter that you responded by means other than on the form provided, as although this can be fatal to a claim that the information was given, in your case it is claimed that you could not provide the information, so it is immaterial how you stated that fact.

You say that you were on a long stretch of road when the alleged offence was committed, and if this is a road on which you may have swapped over seats, it will help your case if you can produce at trial a map showing how long the road is and why, if it is the case, you could not identify who was driving at the particular point at which you were captured on camera.

The prosecution and the court might be sceptical about your claim, but the prosecution has to prove its case beyond reasonable doubt. You have an interesting defence to argue, and it might succeed. Be prepared to explain in detail why it is impossible to say who was driving, and it is possible that you might just win the day.

Designed by solicitors, tested by barristers and available around the clock, Road Traffic Representation is an online legal system that allows people accused of a motoring offence to get free advice on how the law will be applied in their case, and referral to a telephone helpline and representation by a barrister in court if required. Practising solicitor Martin Langan spent two years designing the system and creating the data repository which allows the software to analyse road traffic offences with the same authority as a solicitor.

www.roadtrafficrepresentation.com

Twitter: martinlangan