Be careful what you pay for - a cautionary tale

This is an article that I have been thinking about writing for a while. What stopped me was the concern that readers would think “Well he would say that wouldn’t he!” Some recent experiences though have compelled me to put finger to keyboard because frankly I’m appalled at some of the things I’ve heard.

I have recently received a number of enquiries and instructions from drivers who have become disillusioned with one or other of the several self-styled “national” road traffic firms. An internet search will quickly take you to firms who proclaim to be the best and who will “get you off” using knowledge and legal procedures known only to them. They offer representation wherever you live and whichever court you will be attending.

This is exactly what you want to hear when you are desperate and afraid of the consequences of a prosecution. It has fuelled the widespread belief that whatever the case against you, there is an answer to it as long as you choose one of these firms, and spend enough money with them.

I can tell you that there will be very many disappointed drivers whose expectations have been raised and dashed, and who will have spent thousands of pounds achieving very little, if indeed anything at all.

In my experience clients want a trusting relationship with the solicitor who will advise them realistically, who will be available personally throughout the conduct of the prosecution and then represent them in court. No client wants to be treated like a commodity, and yet in the scramble to draw in desperate motorists charged with serious offences, this is what can happen. Just be aware of how it might work.

My experience with disaffected clients has provided a fascinating insight into how some firms work and what they charge for. Most of these have been drink driving cases or failure to provide a breath or urine specimen, but it applies to any road traffic offence.

When you instruct one of these firms you may be appointed a “caseworker” who will be your point of contact with the firm and the person you must call whenever you want advice. Caseworkers I have encountered have varying degrees of experience and legal know how and some plainly have little of either. Your caseworker’s job is to ensure that the various administrative elements of your case are performed including instructing a barrister to represent you in court. They are called case workers because they are not solicitors. In most firms I have encountered caseworkers don’t know the law and cannot therefore provide legal advice. These firms are often just expensive administrators.

I have seen the dissatisfaction that stems from an impersonal relationship with “caseworkers” who can’t provide advice.

When searching online for a lawyer who specialises in drink driving cases it’s important to be a smart shopper.

Firstly, be very careful about success rates and claims to get you off the charge. Success rates are overrated. Unlike financial service companies, solicitors do not have to warn you that past successes are no guarantee of future ones, and I think that is regrettable.

I see web sites claiming to possess access to laws, procedure and tactics known only to them and which can be deployed to “get you off”. This is also misleading. I am not aware of any other area of legal practice where solicitors making claims of this nature are allowed to get away with it.

Secondly, be careful to understand exactly what you are paying for.

With some firms this is how it works, and I will use an anonymised case as an example.

The lady who approached me in some distress was a driver living in the South East. She had been charged with drink driving and had spoken with a few solicitors and decided to instruct Firm X based well away from her home and the court. She agreed an all in fee for Firm X to do the work. Let’s say it was £3,000.

No one from Firm X could travel to court because it was too far to come and so they appointed a junior barrister to meet her at court and to conduct the first hearing. In the meantime she had been communicating with her “solicitors” by telephone and e mail only, and because the caseworkers employed by the firm to take her calls were not qualified she was unable to get any legal advice from them. By the date of her first hearing Firm X had not actually undertaken any legal work. Their work was administrative and limited to passing papers from client to barrister. They were a go between, but an expensive one. It took her a while to realise that she was paying for this. She was distressed because she could not get anyone in the firm to answer legal questions. When she pressed them, they became defensive and unhelpful.

In my example the junior barrister was quite rightly paid a fee for attending court, and it was in the order of £350 plus VAT, totalling £420. The barrister was paid and Firm X kept the rest for its administrative work.

If your case has a number of court appearances, you may well get a different representative each time, but the charging principle remains the same.

That to me just didn’t seem right. The client did not think so either and changed.

Now tell me if I’m missing something. If you are paying significant sums to a solicitor for legal advice, don’t you expect to be advised by a qualified solicitor? Don’t you expect your solicitor to be an expert in this work and to be the person who you meet to talk through the charge? Don’t you expect that the solicitor will appear in court with you on each occasion?

If your answer to these questions is “YES”, then you need to be careful.

Mobile myth busting: "if I text someone who is driving will I go to prison?"

Using mobile phone while drivingI have been participating in an online debate about the offence of using a mobile phone and it seems there is confusion and misinformation over what constitutes an offence, and what does not.

Courts view it seriously. Research suggests you are four times more likely to crash if you use a mobile phone while driving. Reaction times for drivers using a phone are around 50% slower than normal driving.

Police figures have illustrated that around 200,000 UK drivers are prosecuted for the offence annually, with more than 171,000 fixed penalty notices issued for the year ending October 2011, and an increase of 4,000 of the previous total recorded in 2006. An increase in the fixed penalty from £60 to between £80 and £100 is likely later this year.

A conviction can bite because it brings a fine, 3 points and a discretion to disqualify. The fine is much higher for drivers of goods vehicles and those adapted for carrying more than 8 passengers.

The exact legal position is that it is an offence to drive a motor vehicle on a road if at the same time the driver is using:

  • a hand held mobile phone
  • a device which performs an "interactive communication function by transmitting and receiving data"

A device is deemed to be a hand held one if at the time of its use it was being held. So if you have a hands free device in your hand, it is no longer hands free. A device performing interactive communication functions covers all smartphones whether being used to e mail, text or to photograph.

The same legislation also creates two other connected offences, namely causing or permitting a driver to use such a device, and supervising a learner whilst using such a device. You will cause or permit a driver to use a phone if for example you hold it to his ear as he drives. Employers may be open to prosecution if they require employees to make or receive calls whilst driving.

Offences committed whilst supervising a learner need no explanation.

So these are the three criminal offences connected with the use of a mobile device.

It's not an offence to cycle and use a hand held mobile phone. However it is possible to be prosecuted for careless or dangerous cycling.

A defence is available for emergency calls. The police officer usually asks the driver at the time he is stopped if he was making an emergency call. 

The offence is committed when using such a device. It is not an offence to simply have a mobile in your hand, and I have read much misinformation about this. One mobile phone company I have been obtaining records from recently insists wrongly that simply to hold is an offence; it is not, and a prosecutor must introduce evidence of actual use. That usually comes from a police officer who saw the driver holding a phone and speaking. In serious cases involving accidents phone records can be obtained and can lead to an allegation of dangerous driving.

People sometimes ask if it’s permissible to use a mobile whilst stationary and the answer is that it depends on the circumstances.

The offence is using whilst driving and whether someone is “driving” in the context of many road traffic offences road traffic offences is quite widely defined. You do not need to be moving to be driving and so for example if you are stationary in traffic or in a jam, you are very likely to be “driving” and thereby commit an offence.

However, if it is obvious you have pulled over or are parked up and will not be moving, no offence is committed. This ought to be obvious to the police.  

Defending such prosecutions is not straightforward. The prosecution must produce evidence of use, and seeing such cases in court one can be forgiven for thinking that the evidential burden is on the driver to prove he wasn’t using a mobile device. Most cases involve a police officer and a sighting of the driver speaking to a phone held to his ear, and such unchallenged evidence will be sufficient.

But officers do make mistakes. I hear drivers say they offered to show the phone to police who stopped them so the record can be seen there and then, and were met with a refusal. From what I can tell this seems quite common, although I don’t understand why. If records showing no telephone activity are produced in court this can all provide fertile cross examination material. The court only needs to conclude that the officer might have been mistaken and the driver is entitled to be acquitted.

And no, if you text someone while they are driving you do not commit an offence and you will not go to prison!

 

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