We were approached by another solicitor who did not deal with motoring law as his daughter had been arrested for driving with excess alcohol. The police had asked her to provide a sample of breath at the roadside which she did and it showed a reading in excess of the prescribed limit. The client was expecting to have to plead guilty at court until we sat down with her and listened to her story.
After providing a breath sample at the roadside, the client was then taken to the police station and en route was advised that she would have to provide a sample of breath at the station to which she had agreed. Through no fault of her own, the intoximeter was not working so the police at that stage requested that she provide a blood sample for analysis. A healthcare practitioner was present but could not find a vein sufficient to be able to take the sample. Again, the client was cooperating throughout.
The next stage was that the police then asked that our client to provide a sample of urine. The law on this point is that the police request that two samples to be provided in an hour, the first of which is disregarded. There must be two distinct samples, not just tipping half of one sample away and then using the other half. Anytime that a sample of urine is requested, it is always worth getting a solicitor to look at the circumstances involved. There are many instances where the police do not follow to the letter of the law how such a second sample should be obtained.
In this case the police stated that ‘a’ sample was needed within an hour and promptly took the client away to be photographed and fingerprinted. That took about 20 minutes out of her hour and at no point was she offered a glass of water. The client requested some water and eventually managed to provide a sample with 13 minutes to go. She was then told for the first time that another sample was required. At this point she consumed so much water that she made herself sick. A second sample was not forthcoming and as such she was charges to court.
We argued that there was a reasonable excuse for not providing a sample of urine given that she had fully cooperated throughout. The client was not told that there was a requirement for a second sample until it was obviously too late having been ‘processed’ for a third of her allotted time and was not offered water at all.
A full trial took place with the police being called on behalf of the CPS and our client giving her evidence as to how she was treated by the police. The court found her not guilty and she retained her driving license.
Motoring Brief - 07 March 2019
We were recently asked to represent a young man for drink driving, driving while disqualified and driving without insurance. He admitted to being over the legal limit and having no insurance. He also told the police upon arrest that he was disqualified.
When we met at court our client was ready to plead guilty to everything. He had taken a friend's car having had a few drinks, had not been insured and was subsequently in an accident.
We spoke to the CPS representative who confirmed all charges were correct. We then spoke with the client again. After just a few minutes it was clear that the police and the CPS had things completely wrong. Drink driving while disqualified would automatically cause the court to look at a prison sentence, guidelines state that. Our young man had last year driven without insurance. His licence was revoked under the "new driver provisions". He was NOT disqualified.
How inept was that of the police and CPS? The CPS representative at court on the date saw sense and withdrew the driving while disqualified charge, and our client received a ban and a fine. No custodial sentence.
Do not blindly trust the police, always take proper advice
Motoring Brief - 21 August 2018
We were contacted by a gentleman who had been involved in an accident in a supermarket carpark, which tragically resulted in the death of an elderly lady.
Our client reversed out of a parking space and put the automatic car into drive. For reasons unknown to him, the car’s engine revved up very highly and the vehicle lurched forward. The car struck the lady's shopping trolley, which in turn pushed her into another car. The lady sadly died a few days later as a result of her injuries. Our client was charged with causing death by careless driving.
The gentleman accepted that he was guilty as there was no other explanation other than driver error. The vehicle had been examined as was found to be in very good condition.
This was a case that the prosecution said should be dealt with at the Crown Court, with it being an “either way” offence. Their reasoning was that the matter was aggravated. They stated that according to a witness, it appeared that our client was going to drive off after the accident. The witness stated that she had put her arms in the air and shouted to stop. Our client was adamant that as soon as the vehicle was under control he brought it to a halt and cooperated at the scene.
We requested the prosecution papers on four separate occasions. Each time we were given an excuse as to why they could not be sent out, and we therefore had to see our client and take his instructions without the papers. Eventually we received them the day before we were due in court.
On reading the prosecution file, it appeared that the court would have to send the matter to the Crown Court based on the CPS’s case summary. The summary however, omitted a passage from the deceased lady’s daughter who had witnessed the entire incident. She clearly stated that immediately after the collision, the driver stopped the car himself. She went on to say that he was not made to stop. There was nothing in the statement from the witness who claimed to have made the client stop, with regard to her position in relation to the accident. She may have been 100 meters away and not even been seen by our client. Furthermore, when the police arrived at the scene, they told our client to move his vehicle without making a note of where they found him parked in relation to the injured party.
In summary, the CPS told the court that this matter was aggravated without any firm evidence. We took issue with this and argued that in the absence of any real aggravating features, this matter should be dealt with in the Magistrates Court, and we argued for our client not to be sent into custody. We were successful in both arguments.
Our client wrote to us afterwards and said “May I once again thank you for your excellent advice and guidance at my court appearance. As you no doubt saw, I found the whole procedure traumatic, but your calm approach to every eventuality really helped”.
We were not helped by the CPS or the police but we got there!
Motoring Brief - 31 May 2018
There may be occasions when you receive a number of Notices of Intended Prosecution (NIPS) within a relatively short space of time. They primarily relate to speeding matters. It is possible to get two or more following a long journey spanning different court / police areas, and consequently you may have more than one court hearing in different courts.
We had this exact scenario only recently. The case was complicated by the fact that the first matter came to court faster than the latter and the first one made our client a "totter". The first approach to such a scenario is to try to join up the proceedings so that you just have the one hearing, or at least one sentencing hearing and therefore have one sentence for both matters. We can usually facilitate this for our clients.
Difficulties arise when there are different sets of matters in different areas, and the time it takes to get to court can differ quite starkly. The police have six months to prosecute most motoring matters from the date of the offence, so that is a large window of opportunity to have more than one prosecution pending.
With our client, the lady had a summons come through after responding to an NIP. The court date was approaching and a further NIP was received. The court dealing with the first matter refused to adjourn in order to allow the second matter to "catch up" so we were left having to argue exceptional hardship at the first hearing, knowing that another hearing would be needed for the subsequent matter. We successfully argued exceptional hardship and made sure that the court had endorsed its record that we had applied for an adjournment, and were told to continue with the exceptional hardship argument regardless.
The client kept her licence and continued to drive. A new hearing date then came through. You can only argue exceptional hardship once and we had exhausted that application. We therefore attended and argued that the two matters should have been heard together, and that because this had not happened our client had been adversely prejudiced. Speeding carries points or a discretionary period of disqualification. We successfully argued for a very short disqualification as opposed to points. Penalty points would have resulted in a 6 month disqualification, as opposed to the 7 day ban which we secured on behalf of our client.
It goes without saying that you should seek advice as soon as the paperwork comes through your door, to ensure that every eventuality is accounted for.
Motoring Brief - 24 April 2018
Before 3rd April 2017, if you had been arrested by the police and released following interview, the likelihood is you would have been released on police bail. This would have specified a time and date for your return to the station. In the meantime the police would have to conduct their investigations and decide if you were to be interviewed again on your return. This is all well and good in theory; however the police would often fail to conclude their investigations and the bail date would simply be extended. An individual's bail could be conditional, which would mean that their movements, associations and other matters could be controlled by the police. This could last for months, sometimes years before any charges were brought or the bail was cancelled.
The above scenario was the state of play for years and indeed became standard practice. Clients were put on strict conditional bail, including curfews and conditions as to whom they could see and where they could go, and the police could use those conditions to control people they suspected of causing trouble, but without the burden of proof. This changed when Operation Yewtree led to a number of celebrities being arrested and bailed on suspicion of historic sexual offences. Their bail was repeatedly extended, and the media exposure brought into light the inherent flaws of the system. So the government changed the law.
Now, unless the matter is particularly serious most people are released pending investigation. No time or date is attached and no conditions are permissible as bail simply is not imposed. On the surface this is fine as it stops the police from using bail to exert an unjustified level of control over suspects. However clients are left in a state of limbo, with absolutely no idea what is happening or whether they may receive a knock at the door from the police to be further arrested.
It is essential to have a solicitor present at the police station when being interviewed. Despite what the police might advise, it will not delay matters. An individual will not be left in a cell for hours because the solicitor cannot be contacted. Furthermore, when our client is released pending investigation, we can chase the police on our client's behalf and ensure that our client is not surprised by a knock on the door in the middle of the night.
Motoring Brief - 11 October 2017
We were approached by a friend of a Polish gentleman who was being prosecuted for Drink Driving. He had already entered a not guilty plea when he was represented by the duty solicitor at his first court appearance. The matter was then adjourned for trial and shortly before the trial date he contacted us. We only managed to obtain the prosecution papers minutes before the hearing due to the CPS failing to serve them in good time. However on reviewing the statements it appeared that he was clearly guilty of drink driving but had a clear run to argue "Special Reasons" not to disqualify.
Our client's English was extremely limited and an interpreter was present for the trial. Two police officers were present to give evidence for the Prosecution. The circumstances were as follows:
The client was living in his car having recently been made homeless. He had parked up for the night in the entrance to a farmer's field off a quiet country lane and consumed a few cans of beer before falling asleep in the back of his car. The police were on patrol in the area looking for another suspect when they saw the client's car parked up. The CCTV from their dash cam showed both officers approach the client's stationary car and try for some time to wake the client by banging on the rear window. Eventually the door opens and one of the officers gave evidence to say that he could smell alcohol on the client's breath so told him not to drive his car until the morning. Apparently the client said "Okay" and the police drive off a short distance down the country lane and then pulled over to keep an eye on the gentleman's car.
A couple of minutes later our client's car was seen to exit the field and immediately pull over into a lay by on the road and park up. The police then pull up alongside and arrested the gentleman for drink driving.
Clearly the gentleman was over the limit and he did drive on the public road. This was after a police officer had specifically told him not to drive on the road. However, it was immediately apparent that our client could not understand anything we said to him before the interpreter arrived. The police had given evidence that the client had understood him when spoken to in the farmer's field but what did the police really understand of the situation? Apparently not a lot.
We took our client through his evidence from the witness box. He informed us he was completely unaware what the police were saying to him. He assumed that he must have been doing something wrong for the officers to be banging on his windows in the middle of the night. The only thing that he could surmise was that he should not be on somebody's private land, and that the police were telling him to move. He knew he had consumed alcohol and was over the limit but honestly believed that he had no choice as he had been ordered off the land. He therefore drove the shortest possible distance and parked up. The police clearly thought that they were being clever and had caught the gentleman out; indeed their evidence was that the defendant had seen the police car as he was about to drive away and had then pulled over. Our client was adamant in his defence that he had simply done what he believed was asked of him. The police did not check that he had understood them and clearly just wanted to catch him out. The court believed our client and we successfully argued that the special reasons of shortness of distance driven, coupled with a mistaken belief that the police had told him to drive meant that our client was not disqualified from driving, despite pleading guilty to drink driving.
This is a prime example of the police striving to make an easy arrest rather than assisting and communicating honestly with somebody, thankfully our client was within his rights to exercise the "Special Reasons" defence and avoided a costly and unreasonable driving ban.
Motoring Brief - 07 August 2017
As of 01 March 2017, if a newly qualified driver is caught using a mobile telephone whilst driving a motor vehicle, they will have their licence revoked and will have to retake their test.
This position is very straightforward legally. The new driver provisions apply to any driver who acquires 6 penalty points or more within two years of passing their test. As the new rules for using a mobile phone mean that the offence now carries 6 penalty points, then the licence is revoked as it is only held on a probationary period for the first two years. Exceptional hardship provisions do not apply.
We have dealt with a number of these cases in recent months. There is the well known case of former cabinet minister Chris Huhne and his ex-wife Vicky Pryce. Whilst they were married Mr Huhne committed a road traffic offence, received a S172 notice (requesting the identity of a driver), and gave his the wife's name as the driver. When the relationship ended it came to light what they had done. They were both interviewed by the police and denied the offence of attempting to pervert the course of justice. Both then pleaded not guilty and prevaricated their innocence all over the media. Eventually Huhne pleaded guilty on the first day of the trial and Pryce was convicted after a trial. They both received 8 months custody for attempting to pervert the course of justice and both went to prison.
A similar set of circumstances occurred when a father and son got into trouble, the son having accepted the points for his father's speeding ticket, again stating on the S172 notice that he was the driver when he was not. The father subsequently split up from his partner who was aware of what had taken place, and she reported the incident to the police. We were called to attend the police station with them.
The evidence was clearly available to the police that the father was the driver, a photo of him taken by the speed camera that was a very clear image of the father's face. This was clearly going to be a case where guilty pleas would need to be entered at the first possible opportunity to gain maximum credit. Full admissions were made. This type of offence can only be dealt with at the Crown Court. Two of our advocates represented both defendants and immediately the judge was made aware that there were major differences between our case and that of the former cabinet minister. Our clients did not go to prison. Straightforward advice coupled with good representation will always give the client the best possible chance of a favourable outcome.
Similarly the police discovered the wife of another client of ours had been caught speeding and the husband had answered the S172 notice addressed to her. He too had stated that it was not his wife who was driving as she had not been in that particular area on that day, this was false. The husband was prosecuted for attempting to pervert the course of justice and the prosecution opened their case on the basis that this was similar to the well reported case above. In mitigation our advocate pointed out that this was not the case at all, as at no point in time had our client's wife also stated that someone else was the driver and not her. This was the husband trying to keep his wife out of trouble but doing so quite illegally. However by putting his hands up and not trying to fool the judge and jury he did the right thing and did not go to prison.
Motoring Brief - 21 March 2017
We were recently contacted by a newly qualified driver and his father. They came to see us under our free initial consultation scheme. The client was 17 years old and had passed his test six months ago.
The client was fully insured to drive his own car under his own policy. His father had asked him to drive his car and told the client that as he was fully comprehensive to drive his own car then the same policy would cover him to drive another vehicle and cover him for third party, fire and theft. The client then drove his father's car and was pulled over by the Police. When he came to see us he had his paperwork from the Police offering a fixed penalty conditional offer.
This consultation with the client raised a few issues. Driving without insurance carries penalty points of between 6 and 9 or a discretionary disqualification. Under the New Driver Provisions, the client's licence would be revoked if six points or more are endorsed within 2 years of passing his test. Therefore could the court be persuaded to impose a short period of disqualification, rather than impose points that meant the driver had to re-take his test? At first glance this appears to be a reasonable request of the court, given the circumstances. However, the New Driver Provisions were specifically drawn up by Parliament to address a particular concern and courts do not like to circumvent such matters when sentencing.
We then looked at Special Reasons. This particular argument can be effective when trying to avoid endorsements / disqualification when the right set of circumstances exist.
To establish Special Reasons, you must be able to show that all of the following criteria apply:
So in this case we have a scenario where someone thought that they were insured to drive a particular vehicle and had this belief backed up by another person, his father. So it appears at first glance that the criteria for Special Reasons are met. However, in such cases the court will want to know what steps the client had taken to establish that he was in fact insured. Under cross examination, the client would be asked whether they had checked their policy of insurance or had spoken with the insurance company. In this case the client had not done either, he had just relied on his father's advice. Special Reasons would therefore not have applied and we advised the client and saved him a lot of time and trouble, not to mention cost. If however the father had told the client that he was insured under the father's insurance policy and was misled, then this would have carried more weight and would have been more likely to be successfully argued in court.
Such a simple scenario can therefore raise a number of issues. It is vital to take expert advice to see whether an argument to keep your licence exists. Particularly in a case such as the above, where such advice is free.
Motoring Brief - 09 December 2016