Section 143 of the Road Traffic Act 1988 requires every person who uses, or causes and permits another person to use, a motor vehicle on a road or other public place to have a policy of insurance in respect of third party risks.
The offence is one of strict liability and although it would appear to be a relatively uncomplicated matter as to whether a breach of the provisions has occurred, experience suggests to the contrary.
Close examination of the terms of the policy is required together with proper consideration of the statutory defence for persons using vehicles in the course of their employment and all other relevant circumstances.
In Scotland, the penalty for driving without insurance (contrary to section 143 of the Road Traffic Act 1988) is 6-8 penalty points or discretionary disqualification. The Court can also impose a fine of up to £5,000. These cases are proceeding by way of fixed penalty notice with the offer of 6 penalty points and a £300 fine. As this is the very minimum penalty prescribed by law, a driver guilty of an offence under Section 143 of the Road Traffic Act 1988 should be aware that by not accepting the fixed penalty notice, there is a possibility that an increased penalty or disqualification may be imposed by the Courts.
A common form of policy allows driving, with the permission of the insured person, by any person “who holds or has held a driving licence”. This clause can be crucial as it may permit insurance cover even if the person does not, at the time of driving or using the vehicle, hold a valid driving licence.
All too often, the assumption is made that simply because a driving licence is not valid that any associated insurance cover must be negated. This is not the case and proper enquiry should be undertaken to clarify the driving licence condition clause.
There is also a statutory defence for persons using vehicles in the course of their employment. There are three conditions that require to be established for a successful defence under Section 143(3) of the Road Traffic Act 1988:
(a) That the vehicle did not belong to him and was not in his possession under a contract of loan or hiring
(b) That he was using the vehicle in the course of his employment;
(c) That he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance or security.
It is for an accused person to satisfy the Court of all three conditions on the balance of probabilities.
It is possible for the Court to decide that special reasons exist for not endorsing in respect of an offence under Section 143 of the Road Traffic Act 1988. It should be noted that the concept of special reasons essentially links up to the circumstances of an offence and allows the Court to excuse the offender having regard to a mitigating or extenuating circumstance. This must not, in law, amount to a defence to the charge and must be directly connected to the commission of the offence and be a circumstance that the Court ought properly to take into consideration when imposing sentence.
An honest, but groundless, belief that the policy covered a particular use cannot amount to a special reason. The existence of special reasons is determined on the balance of probabilities. Typically the submissions need to be significantly persuasive in order to persuade the Court to refrain from imposing the usual number of penalty points or disqualifying.
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