Driving Licence stuff - taking up the challenge

[Tony F Dordogne]

A few days ago somebody posted a link to a web site which said that they could arrange for disqualified drivers to get licences from other parts of the EU - perfectly legally - and then use them to drive in the UK.  They also said, in sort of reverse advertising - people should not do that of course, trying to cover their greedy backsides.

They challenged people reading their web site to complain to the European Commission about it if they wanted to - well, I've sent details of their web site to all the London MEPs and two of them are now raising the matter with the Commission - neither of them are best pleased with what they both describe as serious loopholes in the law and they are going to push to get something done about it.

People can do their own thing but if they are disqualified and getting what are effectively crooked driving licences from Estonia - where ever - it will be interesting to see what their insurance company says if they have an accident and the police have their driving licence address as Riga or Warsaw, especially as the name and dob will come up as being a UK disqualified driver in the DVLA records unless it's a totally crooked licence of course.

Sounds like a trip to the local constabulary office to verify details would be in order.

[Deimos]

Whilst I cannot agree with the loophole (and did not see the original post), I would imaging there might be a few insurance issues if using it. I thought insurance companies tended to ask if you have and "driving convictions" or offences (unsure about the actual wording they use) - without asking about under which license. Similarly they often ask how long you have held your license, to which the answer must be 5 mins (or similar) if using this loophole. I would expect the insurance company to then start examining things a bit more closely.

Ian

[Tony F Dordogne]

In theory that's true Ian but somebody that I know who's in a bit of a scrape at the moment, had his licence pulled by the Prefecture and just got it back (though has since lost it again until he appears at Tribunal after Procureur in France appealed) went back to the UK a couple of weeks ago and hired a car for a week before he left France, and he wasn't asked by the car hire company here or in UK whether there was anything that would debar him from being insured.

He didn't volunteer that he's been charged with a number of counts of manslaughter as a result of a road accident earlier this year because they didn't ask him - so whether the insurance company would do anything in advance is debatable in the case of these dodgy driving licences.

As for length of time you've held the licence, most people would not answer with how long they've held this particular licence, i.e. piece of plastic/paper, but the date/year that they passed their driving test - though as was demonstrated on the website, you can ask for classes of vehicle to be added to your licence when you haven't actually passed a test in some of these countries! 

[powerdesal]

[quote user="Tony F Dordogne"]

In theory that's true Ian but somebody that I know who's in a bit of a scrape at the moment, had his licence pulled by the Prefecture and just got it back (though has since lost it again until he appears at Tribunal after Procureur in France appealed) went back to the UK a couple of weeks ago and hired a car for a week before he left France, and he wasn't asked by the car hire company here or in UK whether there was anything that would debar him from being insured.

He didn't volunteer that he's been charged with a number of counts of manslaughter as a result of a road accident earlier this year because they didn't ask him - so whether the insurance company would do anything in advance is debatable in the case of these dodgy driving licences.

As for length of time you've held the licence, most people would not answer with how long they've held this particular licence, i.e. piece of plastic/paper, but the date/year that they passed their driving test - though as was demonstrated on the website, you can ask for classes of vehicle to be added to your licence when you haven't actually passed a test in some of these countries! 

[/quote]

Tony,

Whilst I am not condoning any illegal or dodgy behaviour, your first two paragraphs above are not really making a point. The person mentioned has his legal right to drive until he is found guilty, being charged is not being guilty therefore he has nothing to declare that would debar him from being insured.

This is of course only my personal opinion of what you said.

[Cjlaws]

[quote user="Tony F Dordogne"]

A few days ago somebody posted a link to a web site which said that they could arrange for disqualified drivers to get licences from other parts of the EU - perfectly legally - and then use them to drive in the UK.  They also said, in sort of reverse advertising - people should not do that of course, trying to cover their greedy backsides.

They challenged people reading their web site to complain to the European Commission about it if they wanted to - well, I've sent details of their web site to all the London MEPs and two of them are now raising the matter with the Commission - neither of them are best pleased with what they both describe as serious loopholes in the law and they are going to push to get something done about it.

[/quote]

I can't see what the excitment is about here.

If someone is banned from driving in the UK then he or she remains banned until the disqualification comes to an end. It doesn't matter how many licences they may have. They are banned by the court from driving in the UK.

"....... serious loopholes in the law" - what nonsense!

[Sunday Driver]

On the contrary, Tony's point is very valid.

A driving ban in the UK involves the suspension of a person's entitlement to drive, which is enforced through the withdrawal of their UK driving licence.  However, as highlighted by the website link, a second EU driving licence may be obtained which is valid for use in the UK. Furthermore, even if the person is identified by the police as having had his UK licence withdrawn, the second EU licence will remain valid because the UK authorities cannot revoke a foreign issued licence. 

Tony goes on to make his second point regarding insurance.  UK car hire companies and insurance companies do not have routine access to the PNC, so driving licences are accepted at face value.  That means that anyone producing such a "hooky" licence when hiring a car or obtaining insurance will be able to disguise the existence of the UK driving ban. 

There are, of course, additional risks involved here because failure to disclose material facts (ie, the driving ban) may constitute dishonestly obtaining a service by deception - an offence under section 1 of the Theft Act 1978 (commonly known as fraud) which is punishable by up to seven years imprisonment.  Moreover, the act of producing the second licence to support the dishonest obtaining of the car hire/insurance would constitute an additional offence of false accounting.

As Tony has reported, the MEPs are right to consider this as a serious loophole in the law.

 

 

 

[Cjlaws]

With the geatest respect, SD,  the relevant offence under the Road Traffic Acts is driving whilst disqualified, not driving without a valid licence. It matters not that a person has a licence issued abroad which would otherwise be accepted in the UK. A person so disqualified is not permitted to drive a vehicle within the jurisdiction of the UK courts. If such a case came to court, then the prosecution would only have to prove the previous conviction and disqualification. The defence could not produce a foreign licence and claim that that had some magic precedence over the disqualification. There is thus no loophole.

As you rightly point out, it may be possible to hire a car using such a licence and to obtain insurance by making a false statement. In each of these cases the disqualified driver would be breaking the law, so no loophole there.

In the car hire case which Tony mentioned the hirer had a valid licence in his possession and was apparently not asked if he had convictions not recorded on his licence. What was to stop him driving the vehicle?

[Sunday Driver]

CJ - my point was not in dispute about the RTA provisions for driving whilst disqualified.  It was that the person would still be in possession of a valid driving licence which he could still use for the purposes mentioned.  If he could subsequently walk into a car hire or insurance company and produce his "second" licence, then that is surely a loophole.

In the car hire case that Tony mentioned, the hirer did have a current licence at the time of the hiring so there was nothing to stop him driving.  However, the relevant point in Tony's example was not the failure to declare potential convictions - it was the failure to disclose material facts, eg being involved in an accident involving multiple deaths.....

 

 

 

[Cjlaws]

[quote user="Sunday Driver"]

CJ - my point was not in dispute about the RTA provisions for driving whilst disqualified.  It was that the person would still be in possession of a valid driving licence which he could still use for the purposes mentioned.  If he could subsequently walk into a car hire or insurance company and produce his "second" licence, then that is surely a loophole.[/quote]

No it is not a loophole in the law. It involves breaking the law.

And I was arguing with this:

[quote user="Sunday Driver"]  However, as highlighted by the website link, a second EU driving licence may be obtained which is valid for use in the UK. Furthermore, even if the person is identified by the police as having had his UK licence withdrawn, the second EU licence will remain valid because the UK authorities cannot revoke a foreign issued licence.  [/quote]

If using a licence involves breaking the law it is not "valid" for use in the UK.

[quote user="Sunday Driver"]In the car hire case that Tony mentioned, the hirer did have a current licence at the time of the hiring so there was nothing to stop him driving.  However, the relevant point in Tony's example was not the failure to declare potential convictions - it was the failure to disclose material facts, eg being involved in an accident involving multiple deaths..... [/quote]

It's possible to argue that material facts should have been disclosed in that case, if it could be shown that the hire application amounted to an application for insurance, and hire companies should ensure that they ask the relevant questions, but it certainly doesn't reveal "serious loopholes in the law".

 

 

 

[Tony F Dordogne]

Ok folks

Longest response so far from MEP - though 4 have said they will take this up:

"Thank you for your e-mail of 24^th November regarding the apparent driving licence fraud taking place in the European Union.

 I, like you, am appalled that an EU citizen who has been disqualified in their own country can make an application for a driving licence in another EU country, and then proceed to swap this licence for a new UK one.  Such fraudulent activities are unacceptable and are contrary to the objectives and principles of European legislation on driving licences. 

 In the light of such activities the European Parliament has very recently approved a Directive on a European driving licence. In certain countries this represents a veritable revolution: a driving licence for life will be replaced by one which is renewable every 10 years, 5 years for bus and lorry drivers. Within a few years the 110 models in circulation will disappear and be replaced by one driving licence in credit card format. Moreover a database of the licences of the 17 member states will be created, which will serve as a vital instrument in the fight against “driving licence tourism”.   

The introduction of this Directive is vital to road safety in Europe. The network of driving licences means that those who have had their licences revoked or suspended cannot apply in another member state for one and endanger European citizens.

 Thank you for bringing this matter to my attention. It is my belief that this new piece of European legislation should be fully implemented in all member states as soon as is practicably possible."

Obviously no time scale involved but at least it's a start on this thing ..............

 

 

[Sunday Driver]

Here is a link to the EU paper on [url=http://www.network.mag-uk.org/dld/2006_memo_driving_licence_en.pdf#search='paper%20driving%20licence']The European Driving Licence - ensuring security, safety and free movement[/url]

The key paragraph:

1. Fighting driving licence fraud

Today, several types of fraud exist. They range from trafficking the document itself, unlawfully obtaining duplicates by suggesting theft or loss of the original licence, obtaining a driving licence in a different country while being banned from driving in the home country.

The basic philosophy that underlies the fight against driving licence fraud is the principle that one person can only hold one driving licence. This principle has been reinforced by this Directive.

One cornerstone in the policy to combat driving licence fraud is the regular renewal of driving licences which will allow Member States to have a regularly updated national database and thus a constantly updated knowledge of the valid driving licences which are in circulation.

The counterpart to this measure is the communication between the national authorities which will be improved by creating a communication network for driving licences between them. The regular consultation of this network will allow applying the new and stricter rules on the prohibition to issue a licence to someone whose licence has been withdrawn, suspended or restricted.

 

[Boiling a frog]

The relevant offence when you have been disqualified from driving is that you are disqualified from holding or obtaining a driving licence

The relevant text is here

103.—(1) If a person disqualified for holding or obtaining a licence—

 (a) obtains a licence while he is so disqualified, or

 (b) while he is so disqualified drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class, a motor vehicle of that class,

he is guilty of an offence.

    (2) A licence obtained by any person who is disqualified is of no effect.

Thus even if that person has another driving licence issued by another country the person is still committing a criminal offence in the UK if he drives.

 If he obtains another driving licence while disqualified he commits a criminal offence.

There is obviously nothing to prevent someone driving while disqualified(except the fear of being caught)  however if stopped by the police it takes a matter of moments to establish if he is disqualified or not.and it is now common practice for police officers to request this check routinely even where the person produces what appears to be a valid licence

[Chief]

There is no such thing as a legal loophole. Loophole is shorthand for 'we didn't do our job properly'.  The law is objective, something is either legal or illegal.  If it is illegal, charge them, if it is legal, well its legal, however much we disapprove.  I don't agree with what they are proposing in getting new licences for banned drivers, but if it is legal, efforts need to be expended on changing the law and not castigating those who use it for their own means. 

How many of us would refuse the possibility of avoiding 60-70% of our annual tax if someone came to us with a legal 'loophole' that allowed us to do it....not me, have to be honest.

 

[allanb]

[quote user="Sunday Driver"]

Furthermore, even if the person is identified by the police as having had his UK licence withdrawn, the second EU licence will remain valid because the UK authorities cannot revoke a foreign issued licence.[/quote]

SD: if you're right, it means that the UK courts do not have the power to prevent someone with a foreign EU licence from driving in the UK, no matter what he does.  Can this be correct?

[Sunday Driver]

The UK driving ban will still apply to anyone who has been disqualified, and if caught driving under the ban, they will be prosecuted, whatever foreign licence they have.

The whole object of obtaining one of these licences is to be able to keep driving after a disqualification without being discovered.  There's no other valid reason for someone to go through all that trouble.

So, a banned driver will lose his UK licence, but will keep his second valid EU licence because the UK authorities will not be aware of it and he is unlikely to declare it.  He can then use it to hire a car (yes, and drive it illegally - but isn't that the point of getting the second licence).  He can show it to a prospective employer if the job requires a driving licence.  He can come across to France and drive a car here, as there is currently no cross border licence data sharing system. Etc, etc.....

He will still be banned, but holding a second licence gives him these opportunities.  If he's any sense, he'll obtain the new licence in a different address, so if he's stopped by the police he won't show up as banned on a PNC person check.

When Parliament introduced the legislation covering disqualification, it intended that a person would be forbidden from driving in the UK and, as a consequence of his licence withdrawal, would also be unable to drive anywhere else.  The law foresees the situation of someone trying to get a "contingency" licence and forbids obtaining or holding a second licence.  However, this "legal loophole" allows someone to legally obtain a second licence from outside the UK jursidiction, thereby circumventing Parliament's wishes.

 

[Llwyncelyn]

Sunday Driver I agree absolutely with what you are saying and have some experience (legal wise but not personally)

Until someone is convicted then as you say they are 'truly not guilty' even though it may be the intention of the person so charged to plead guilty at the hearing!

If you are banned from driving in the UK that is as far as our jurisdiction goes.  It ends at Dover.  Thus if you are then caught in the UK with a licence from whatever legislation then sorry you cannot drive.  An Estonian licence is not a 'get out of jail card.' The UK laws prevail and at all times in respect of RTA.

Now as to the hire car arrangement and provided the person hiring had in his possession a valid driving licence then he would be entitled to hire a car but.............................and it is a mute point.  Had he been convicted at that time?  If the answer is no then...................perhaps ok.  However number of strands to driving so to speak and that obviously involves the insurance.  We all know if we take out say a medical protection policy or whatever in the UK you are under both an implied and express obligation to inform them of any incident or occurence or details of medical condition which may bar you from taking up the policy.  The onus is on you and the having discharged the onus it is up to the insurance company to grant you cover or not.

In this case I would have thought (only my views) that he should have disclosed to the hire company and in all probability the answer would have been no.  The accused (but not yet found guilty) would have known this and his mens rea was telling him as much.  In those circumstances I think he should have disclosed but of course then in the UK without a car.

It is down to the individual.

 

rdgs

[Sunday Driver]

Regardless of his mens rea, I don't see how he would be under a compulsion to disclose pending charges for potential offences which have yet to be proven in a court of law.  The point which was made was that he failed to disclose his involvement in a road traffic accident - a point of fact, rather than an unproven allegation.

 

 

[Llwyncelyn]

Sunday Driver I understand your position but disagree sorry.

[Boiling a frog]

Sorry but where is the line that you would draw re disclosure

In this instance yes it is a potentially serious offence but do you disclose that you have been breathalised found allegedly over the limit and await prosecution,or do you disclose that you have had a notice for speeding which you are disputing.

[Llwyncelyn]

Taking the both points in isolation.  Unless you can prove problems with the equipment and the subsequent test or blood test and say you are two and a half times over the limit you  know repeat know that you are going to be banned.  Do you wait until the mags of course some people would some people would not.

As to speeding surely it is all relative speeding is speeding but can cause deaths but drink driving is drink driving.  Allegedly causing death by dangerous driving is of course a totally differing matter.

I say again its down to the individual we all fortunately react differently.

There is no right or wrong answer save for one's self.  That is the only yardstick that you should follow.

 

[Sunday Driver]

I don't see how you can interpret the insurance disclosure requirements on the basis of what you imagine is going to happen to you.  The insurance declaration clearly states "have you had any convictions within the last X years".  If you have been breathalysed, found positive and charged, but not yet convicted, then you have no conviction to declare.  Once the conviction is entered, however, you would then have to declare it as a material fact.

It's like someone knocking on the door of Winson Green Prison and saying "I'm up for trial next month but the evidence looks pretty bad, so you may as well take me in now....."

 

[Will]

I certainly see SD's point. Would you say to your insurer 'well, I drove at 100km on a 90 road the other day, but I don't think the gendarmes checked the speed, and I may have been just over the alcohol limit coming back from that party last weekend'. Of course you wouldn't, unless you were a complete idiot. And there's not a lot of difference between that and what is being discused.

Now, if the question was 'do you have any actual or pending convictions...' it would be different, but I don't see how, under most legal principles, a pending case could be taken into consideration.

[powerdesal]

This is really spooky, I'm about to agree, again, with Will. If you have been convicted there is no argument. If you have not, yet, been convicted then you are still as pure as the driven snow. Whether you know in your heart of hearts that you are guilty and will be found so doesn't actually, in law, make any difference.( my opinion only)

[Tony F Dordogne]

Surely here the issue is one of what constitutes a relevant/material fact which is always the escape clause for the insurers - you didn't tell us so you get no cover.

My chum had been banned from driving for 3 months in France - his licence was suspended immediately it was known that his blood test was over the legal limit here in France, usual practice - and he had to go through all the usual tests here before he got it back.  Whilst in the UK they let you keep your licence until you appear in Court, here they suspend it immediately once your test results are positive.  Usually the case would be disposed of within 3 months (ok, there may be exceptions of which this, unfortunately is one) but that isn't the point.

In France, once your licence has been pulled, regardless of whether you have appeared at Court and especially after an accident, your insurance company will decide whether to offer cover or not - regardless of conviction and if you don't declare what's happened, you are in deep mire.  And, using the priciple above that third-party insurance is Europe wide, surely the refusal of insurance cover (see other thread along similar theme) and failure to disclose would kick in - if the first part applies, the second part must follow.  Interestingly, the other parties involved in the accident are covered, including his wife and child but niether he, nor the value of the car, are because of the blood alcohol reading.

Regardless of whether the person has been to Court, (a) he has had his licence suspended because his blood alcohol level was elevated and (b) he has been refused insurance on the same grounds - and incidentally, can't get insured now so they ARE relevant facts when hiring a car or getting insurance.

By the way, the Procureur appealed the return of his licence at the Court of Appeal and won, the licence is suspended indefinately now and that covers all motorised vehicles, including a sans permis. 

[Sunday Driver]

Tony, you make an important distinction between the law as it applies in France and that which applies in the UK.  In the UK, you retain your licence until proven guilty.  However, your original post ( and the subsequent debate concerning disclosure) has been concerned with the "legal loophole" as it applies to the UK, so the situation in France is not really quite relevant to the debate.

However, your French perspective is very interesting and opens up a new area of discussion.