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They can send a s172 request to whoever they like, so the short answer is “yes”. However, needless to say, it is not as simple as that.
Under s172 there are two different levels of duty to respond:
The “person keeping the vehicle” (which I’ll call the Keeper) must provide the driver’s details.
“Any other person” must provide “…any information which it is in his power to give and may lead to identification of the driver.”
I see two possible scenarios in the circumstances you describe:
The first is that the vehicle is taken out by different people (and is, as such, a “pool” vehicle). In that case, the employer would almost certainly be seen as the Keeper.
The second is that the vehicle is provided to one individual on a semi-permanent basis. That person usually uses it every day and perhaps takes it home at night. In that case, the individual employee would almost certainly be seen as the Keeper.
I appreciate that my scenarios would not necessarily fit every situation However, there is no definition of “the person keeping the vehicle”. If there is any dispute, that fact would be for the prosecution to prove and for a court to decide.
If the employer is deemed to be the Keeper and is a “body corporate”, then he cannot take advantage of the “reasonable diligence” defence unless he either keeps records (of who has the vehicle) or shows that it is not reasonable for him to do so. So on receipt of the s172 request, he must either name the driver or show why records were not kept. If the court agrees that it was not reasonable to keep records he can then go on to offer a defence based on “reasonable diligence.”
If an individual is deemed to be the Keeper, he must name the driver or rely on the reasonable diligence defence. To succeed with that he must show that he did not know who was driving and could not, having exercised reasonable diligence, establish who was.
In the circumstances you describe, if the employer responded to a s172 request by naming two possible drivers, I believe the usual practice for the police would be simply to prosecute the employer under s172. It will be assumed that the employer is the Keeper and his duty is therefore to provide the driver’s details. Naming two possible drivers does not fulfil that duty. If the employer wants to defend the s172 charge on the basis that he was not the Keeper (and so has fulfilled his duty by providing all the information he has) it will be for the prosecution to prove that the employer was the Keeper.
Do you know the circumstances of how this vehicle is “kept”? Does it relate to one of my two scenarios or is it something in between, perhaps? It may help the employer if he gets his retaliation in first by responding that he is not the Keeper and in naming the two possible drivers, he has provided all the information he has. It does not necessarily mean the police will not prosecute him but it might persuade them to take a different tack.
Edited by Middleman on 27/06/2024 at 14:25
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