Out of date photo on a driving licence - the correct offence (s.99.5 RTA 1988)

RTA – Road Traffic Act 1988

RTOA – Road Traffic Offenders Act 1988

I first wrote an article on the subject of allegedly expired driving licences back in 2013. That article received national media coverage at the time. Regrettably, people are again being told by police officers or insurers that if the photograph has not been renewed by the date at 4b on the licence then they do not have a valid licence and are therefore not insured. This is simply not true. The licence is valid and therefore you are insured.

s.87.1 RTA 1988, clearly states that it is an offence “to drive on a road a motor vehicle of any class otherwise than in accordance with a licence authorising him to drive a motor vehicle of that class”.

Exceptions to the s.87 offence can be found in s.88.1.a, “a person may drive a vehicle of any class at any time if: the driver has held [a driving licence]”

s.88 goes on to discuss applications being received by DVLA etc.

If, at the time a driver comes to the attention of the police, and the photo on their photocard licence is out of date, the only offence they commit is one of failing to update the DVLA with the new information ie. New photo (or in other situations, new address). s.99.5 RTA 88

It is a requirement under s.99 to update your photo at the ten year anniversary and at any other time to tell DVLA of a change of name or address.

The date the photo becomes out of date is shown at 4.b. on the front of the photo card.

The mistake by the police when prosecuting is a common one.  It comes about by the unfortunate choice of words used on the back of the photo card “licence valid to”.

This wording implies that the licence itself expires at that 4b date.  Clearly, that is what some of our policeman and some courts, are thinking too.

It is, however, not so.

If one looks again at the back of the photo card where the classes of vehicle of which, the licence holder is entitled to drive are shown, there is a commencement and end date.  The latter typically being the holder’s 70^th birthday.

It is that date when the licence expires and the s.87 offence occurs.

Alternatively, s.87 applies if a driving licence is revoked by DVLA or the person is disqualified or, has never held a licence for that class of vehicle.

Consequently, whilst a person holds a driving licence, even if the information on the driving licence as to name, address or photograph is wrong, the licence itself is still valid as to entitlement to drive the categories of vehicle shown on the rear of the photo card.

The offence that is actually committed is dealt with by s.99.5 RTA 1988.

s.99.1 clearly infers that where the information on the driving licence is incorrect or out of date, the licence remains in force, “it shall unless previously revoked or surrendered, remain in force, subject to ss.2 below”.

s.99.5 states, “a person who without reasonable excuse fails to comply with the duty under ss. 2A, 3 or 4 above is guilty of an offence”.

s.99.2A states, “where in accordance with the preceding provisions of this section, a licence in the form of a photo card, remains in force for a period of more than ten years, the holder of the licence must surrender it and its counterpart to the Secretary of State [DVLA] not later than the end of the period of ten years beginning with:

1. “the date shown on the licence as date of issue”.

s.99.4 states, “where the name or address of the licence holder as specified in a licence ceases to be correct, its holder must forthwith surrender the licence and its counterpart to the Secretary of State [DVLA]”.

Committing  an offence under 99.5 does not invalidate your insurance. This is because you do still hold a driving licence albeit that some information, (typically the photograph) is out of date.

Sentencing:

To understand how the error may have occurred with regard to the wrong offence being alleged and the Courts believing they have a non-endorseable alternative sentencing option, one has to look at sentencing. 

s.87 is an endorseable offence, except for a Special Reason or save for the exemption under s.88. 

s99.5 is not an endorseable offence.

I understand that in the past and until I brought the error to the attention of the Courts, drivers charged under s.87.1, in similar circumstances to my client back in 2013, were dealt with by their licence not being endorsed in the mis-belief that they had a substantive driving licence, (as if they had applied for but not yet received one).

Recently and regrettably, a client has recently sought advice because they have been charged with the wrong offence in a Yorkshire prosecution. This issue therefore is still ongoing.

I suspect that the error arises from the Magistrates Court Sentencing Guidelines at page 135 (in the 2008 volume), where the wording of s.87.1 driving otherwise than in accordance with a licence, is repeated as if there are two alternative offences under the same section. The words used are 'where could be covered'.

As I have demonstrated, that is not the case.  The Road Traffic Offenders Act 1988 Schedule 2 sets out the offences in respect of s.87 and s.99.

s.87.1 is endorseable and cannot be construed so as, in certain circumstances, to be non-endorseable.

The non-endorseable bracket in the Sentencing Guidelines has to be in respect of the exemption in s.88 and cannot have any reference to s99.5, due to the wording used.  The offence under s.99.5 is non-endorseable.

It follows that if I am correct, then many defendants before my case in 2013, have been convicted of the wrong offence(s) in respect of their driving licences and they may also have been wrongly convicted of having no insurance. In some cases that will have led to totting up and other issues as to the cost of their insurance premiums.

Anyone, facing a charge of 'Driving otherwise in accordance with a licence', should plead Not Guilty and seek advice from an expert.

CONTACT US

Our specialist Road Traffic Law team can assist you with all aspects of motor law. If you require assistance please contact:

Michael Pace TheMotorLawyer
Michael.pace@chattertons.com 
01522 781466