Introducing my VLOG

Here I introduce my new series of video blogs aimed at providing useful information for all motorists and particularly those concerned about, or facing, motoring prosecutions.

If there are any subjects you would be particularly interested to have me cover please let me know using the comments box below..

 

 

Section 172 Notice - Practical Advice

NIP 172 get proof of postageWhen police request driver details.

Section 172 Road Traffic Act requirements - Some simple practical advice.

These notices are issued in huge numbers across the UK every week and yet they often cause difficulty.

What happens when the police say they never received it back and claim it can’t have been posted to them?

On the 10 October 2017 the High Court clarified this issue.

The Section 172 Notice procedure requires a written and signed response from the registered keeper giving details of the driver. That’s the easy part. If the police start proceedings saying it never arrived, it is for the keeper to show that the information was actually put into the post. It is not necessary to be able to explain why it never arrived. Prosecutors seem to think you have to do this but it’s not correct. How can you possibly know?

I have dealt with many cases where the police say the information never arrived and their default position is that the registered keeper could not have put it into the post in the first place. The police seem oblivious to the possibility that the envelope may have become lost either by the Royal Mail, or by them.

In these circumstances the registered keeper must provide some evidence to show the envelope was actually posted. This can be proof of posting from the Post Office, or a witness such as a family member saying that the envelope was put into the post.

The High Court dealt with a case where the registered keeper was employed by a university and he placed his envelope with all the office outgoing post. The police said they never got it. The court decided that he had not complied with his obligation under Section 172 because he was relying on his office to post the envelope but had no evidence they actually did. There were no office records showing what went into the post that afternoon.

Harsh, but that’s how it works.

Some simple rules - be careful, and do not rely on someone else to do the posting for you. Do it yourself and obtain proof of posting (it is not necessary to do recorded delivery). Tell someone in the house that you are off to the post box to post it, and keep back a copy of the completed and signed form.

If you do these things you will be in a very good position to defend a prosecution for failing to provide driver details.

Drug-Driving Cases Dropped Over Forensics

It has been announced this evening that a number of drug-driving prosecutions have been dropped because original test results may have been "manipulated" by staff ar Randox Testing Services in Manchester.

What happened at Randox

It is reported that "rogue" staff manipulated quality control results used to check test samples taken in cases ranging from murder to drug driving offences. 

Randox drug testing

Police have probed Randox after two men were arrested on suspicion of perverting the course of justice in February, and said that more than 10,000 cases may have been affected.

This will cover a wide range of police and civil investigations, but according to the National Police Chiefs’ Council (NPCC) 75% were traffic offences, such as drug driving.

BBC home affairs correspondent Danny Shaw said it was "the biggest forensic science scandal in the UK for decades".

A total of 42 police forces across the country sent data to the laboratory for testing.

Potential data manipulation at a different facility, Trimega Laboratories, is also being investigated by Greater Manchester Police, said the NPCC. Tests carried out between 2010 and 2014 may be unreliable according to reports.

What is being done to check test results?

Thousands of samples will have to be retested, assuming that sufficient quantities remain and have been properly stored. Poor record keeping may make it difficult for those affected to be identified and written to.

What does this mean for criminal cases?

Some cases will be abandoned if the courts believe the test results are not reliable. In some instances innocent people will have been convicted and it's possible some guilty people will have walked free.

Police have admitted that in all over 10,000 samples will have to be retested. Whilst it is possible that the retest will give a similar result, a major problem for police will be poor storage after all this time, even assuming that enough blood has actually been retained to do a retest. Inadequate storage and quantities will pose major obstacles for police in these extraordinary circumstances. It  could be very difficult indeed to show that a driver whose results were affected by this was  over the relevant limit.

The National Police Chiefs' Council has stated that "fewer than ten per cent of retests have resulted in drug driving cases being discontinued." Something in the region of 10% dubious results considering how many cases are affected could mean a significant number of convictions will be reviewed.

How long has this been going on?  

Policing minister Nick Hurd has said that all test results carried out by Randox and Trimega are being treated as potentially unreliable. He further stated that most drug tests between 2013 and 2017 are potentially unreliable.

Drug testing appeals

Many motorists will have pleaded guilty and trusted the laboratory results. If you think you may have been affected there is a procedure to appeal your drug driving conviction.

I am experienced in these appeals. If you think you may have been affected contact me urgently on 01580 292409 or use my contact form.

Moving House? Another Item for the Checklist..

Moving house? Inform DVLAMoving house?

No, I don’t do conveyancing but I frequently deal with drivers who have and who have got into difficulty because they did not notify DVLA when they move.

DVLA requires you to tell them when your address changes so your driving licence, vehicle log book (V5C) and vehicle tax are up to date.

This includes if you’re temporarily moving home (if you’re going to university, for example).

It’s a free service and can be done online, but not doing it can cause serious problems if for example you are caught speeding by camera or committing many other road traffic offences.

When this happens the police sent the registered keeper a request to say who the driver was, and it needs to be dealt with in 28 days. A lot of people believe that the police use the address on the drivers’ licence to obtain addresses, but this is incorrect.

Whilst they will sometimes use addresses obtained from insurance records which they can obtain using a Police National Computer check, more often than not the address used is the one held by DVLA on the V5.

If you have moved away and you don’t see it, you have a problem when the court papers themselves turn up. With so much to do when moving you might forget completely to notify DVLA, or just provide a new address for the licence and not include the V5, or just do it late. Suddenly a modest speeding offence is transformed into something much more serious with a higher fine and 6 penalty points.

There is a statutory defence to a prosecution for failing to say who the driver was, and it requires you to show it was not “reasonably practicable” for you to provide the information. It might seem logical to say that it was not reasonably practicable for you to respond to something you didn’t get.

That argument will not work if you did not update your address on the V5 promptly. A court will likely conclude that you could have provided the information had you updated the DVLA.

Your position will be helped no end if you put a redirection service in place, provide a forwarding address to your buyers and if you are away temporarily make sure you make arrangements for someone reliable to check and open your post and get in touch with you.

call if any post arrives for you. If no one is staying there then go to the property and check the post regularly.
These offences carry six penalty points and if you already have points on your licence you can suddenly be facing a disqualification. Some police constabularies prosecute the failure to disclose offence as well as the speeding one, bringing in 9 points on one go!

I can usually help in these circumstances so get in touch with me straightaway.

The Right Kind of Drink Driving

 

It might sound a little light hearted but it could be serious. DRIVING while dehydrated has almost the same effect on driver errors as being behind the wheel under the influence of alcohol.

Motorists are being warned about the dangerous effects of driving whilst dehydrated.

We are all frequently reminded why it’s good for our general wellbeing to be hydrated, and on a long drive you can be behind a wheel for hours. Hydration can help keep you awake and alert; remember the motorway signs warning that tiredness can kill?

Recent research has revealed that more than two in three (67%) UK drivers fail to recognise the major symptoms of dehydration.
Symptoms include slower reaction times, loss of focus and muscle cramps – potentially putting drivers and others at risk.

Driver error accounts for more than two thirds (68 per cent) of vehicle crashes in the UK.

With the potential loss in concentration and focus caused by dehydration, drivers could run into harm behind the wheel.

Health authorities recommend drinking around two litres of water a day.

Driving on our ever more congested network is a task that requires full concentration.

Not surprisingly the vast majority of drivers believe that drink driving is more dangerous than dehydrated driving. We all know don’t we that we don’t function at work very well if we don’t drink water during the day. We get tired, lose concentration, get fractious and impatient and why wouldn’t it be the same behind the wheel?

When police interview drivers suspected of driving dangerously or very carelessly they always ask searching questions such as:

  • Were you taking any medication properly?
  • Did you take a proper period of sleep before a long drive?
  • Did you drive whilst tired;
  • Did you take any breaks?

I have dealt with quite a few instances where driving has clearly affected by lack of fluid and food, leading to loss of concentration and even blackouts. Drivers need to be aware that the DVLA receives reports in such circumstances and it can lead to licence revocation in serious cases.

Hydration is worth keeping in mind. Take more water with it.

Tougher Motoring Penalties On The Way

Causing death by dangerous or careless driving are very serious offences and the sentences are going to get tougher.

There is also likely to be a new offence created of causing serious injury by careless driving.

Further, the Government is looking at a law change to deal with dangerous cycling, so it’s going to be a busy time for everyone involved in this as the changes are brought in.

Ministers have this month confirmed plans to introduce tougher sentences for those who drive irresponsibly and devastate lives.

  • life sentences will be introduced for those who cause death by dangerous driving, and for careless drivers who kill while under the influence of drink or drugs
  • new offence of causing serious injury through careless driving to be created
  • part of government action to make roads safer for all and stop devastation caused by dangerous drivers and cyclists

Those causing fatalities face life behind bars after plans to increase maximum sentences received resounding support from families and campaigners.

Ministers have confirmed that drivers who cause death by speeding, racing, or using a mobile phone could face sentences equivalent to manslaughter, with maximum penalties raised from 14 years to life.

Offenders who cause death by careless driving while under the influence of drink or drugs will also face life sentences, and a new offence of causing serious injury by careless driving will be created.

The move comes after an overwhelming response to a government consultation which revealed substantial backing for the plans from a wide range of people including victims, bereaved families and road safety experts.

How Average Speed Cameras Work

 

Those who use a number of Smart Motorways in the UK will be very familiar with HADECS 3 speed cameras. It is short for Highway Agency Digital Enforcement Camera System 3, and is one the newest speed cameras to be installed on UK roads.

They are simple to operate and are very accurate. There is no limit to the number of motorists they can photograph. In total three photos are taken when a passing vehicle triggers the speed threshold of the HADECS. The photographs are then automatically encrypted and sent to be analysed by enforcement staff. Two of the pictures provide a secondary check of the vehicle's speed as they show the position of the car in relation to the check marks on the road and allow enforcement staff to determine which vehicle is exceeding the speed limit. The third photograph provides a close-up view of the vehicle. Smart motorways employ variable speed limits, signposted on gantries.

Other speed cameras such as the Gatso have been a familiar sight for far longer and are deployed at fixed sites all over the UK.
So where can you find average speed cameras?

They have tended to be located wherever traffic speed has been identified as raising safety concerns, and very common for example along stretches of motorway where there are roadworks. They can in fact be located anywhere and be temporary or permanent. If they are to be increasingly used in urban or country locations they will be found as drivers enter and exit a location, a village or school for example.

SPECS and VECTOR average speed cameras, which come from the same company, are the two most common average speed cameras used in the UK. They operate in basically the same way by measuring the average speed of your vehicle between two or more locations by using Automatic Number Plate Recognition (ANPR).

VECTOR cameras double up to deal with other road traffic offences:

  • Bus lane enforcement
  • Level crossings
  • Red light enforcement
  • Yellow box violations
  • Tolling
  • Access control
  • Congestion charging
  • Parking management

Only yellow VECTOR cameras are used for speed enforcement. They will become much more common as the cost of installation has dropped.

How do average speed cameras measure your speed?

Any average speed camera system requires at least two cameras linked together. There is no limit to the number of cameras that can be linked in one system nor is there any specific limit to how long an average speed camera network can be. This is a problem for motorists who lose concentration and speed up over a long distance.

When a car passes the first camera in a linked sequence, an image of its number plate is taken and used to identify the car when it passes subsequent cameras. As the car passes along the route, the time taken to pass between the cameras is recorded, and if this exceeds a set baseline, the vehicle details are submitted to a prosecution database.

Individual cameras don't have the facility to measure vehicle speed – a car must pass a second camera for its average speed to be calculated. In a sequence of multiple cameras, it is at the discretion of the local enforcement agency as to whether cameras work in pairs or in larger groups.

Will I know if I've been recorded by a camera?

There is no flash telling you that a photograph has been taken, so you won’t know until a  Notice of Intended prosecution arrives through the letter box. Average speed cameras use invisible infra red to capture details. There is no double flash as a GATSO is triggered.

The average speed cameras will record you, whether you are exceeding the speed limit or not. Your vehicle details are analysed if the speed limit is exceeded, otherwise you are ignored.

Is there an average speed camera tolerance?

There is a good deal of myth about this. The short answer is that its completely down to the individual police force. Some apply a zero tolerance and others a degree of latitude depending on prevailing traffic conditions. All you need to be aware of is that a network of average speed cameras that measures the time it takes you to complete a set journey will provide all evidence required to secure a speeding conviction.

 

Dangerous Cycling?

dangerous cycling

It often takes a tragedy to bring about a change in the law.

In February 2016 Kim Briggs was killed by a speeding cyclist as she stepped off the pavement onto a road in central London. Charlie Alliston was convicted of wanton and furious driving, contrary to Section 35 of the Offences against the Person Act 1861. It’s worth knowing what it actually says:

"Whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years ..."

It will have surprised many that in 2017 Charlie Allston was prosecuted using legislation that is over 150 years old. He was of course also charged with manslaughter, but apart from that there was nothing else available to prosecutors. The jury acquitted him of manslaughter, and the case revealed how inadequate the law now is when dealing with circumstances such as these.

The huge number of cyclists on the road not only in central London but also in other major cities has created issues that need addressing, and the law is out of date. Charlie Allston’s bike was not legal to be used on a public road because it had no front brake. Had a motor vehicle been defective or altered in the same respect, the driver would almost certainly have been prosecuted for causing death by dangerous driving. There is no comparable legislation that deals with cyclists, and whist such events are thankfully rare, the law is in serious need of review.

Let me make plain that I also believe cyclists need increased protection. I enjoy cycling and encounter far too many rude and aggressive motorists who could easily put my life in danger. I am sure lots of cyclists have experienced it, and far more cyclists are killed by bad drivers than are pedestrians by bad cyclists.

That said, Charlie Allston’s behavior exposed a huge gap in the law. If a cyclist travels too fast to safely stop and causes death or injury, there needs to be modern legislation in place to address it. There are thousands of modern bikes on the road with fit young riders able to achieve speeds that are not always appropriate when surrounded by so many pedestrians.

Of course pedestrians have a responsibility too. How often do we see people wandering along the pavements with eyes glued to a telephone, plainly not looking where they are going. For other pedestrians it’s a serious nuisance and for cyclists it can be even worse when they step into the road.

I read that cycling groups want a review of the law for motorists as well, but generally speaking the existing road traffic legislation in place for dealing with motor vehicles and drivers works pretty well. Specific offences have been created dealing with fatalities, the use of mobile devices, and driving at speed and sentences are tough for serious offenders.

I don’t think any can now seriously argue that the law relating to cyclists does not need updating on its own to reflect the huge social changes that have taken place simply within the last five years or so.

Whilst what Charlie Allston did was rare, there is every chance it will happen again and legislation needs to be in place to deal with it, and to act as a deterrent to others. For that young man to be cycling at speed in busy central London using a bike that had no front brake and which he could not stop in time was inexcusable. It had tragic consequences for Kim Briggs’ family, and creating specific offences to deal with a minority of cyclists who ride dangerously is now overdue.

To pee or not to pee; that is the question....

Failure to provide a urine sampleLast year I successfully defended a number of drivers charged with failing to provide a urine sample when required to do so by police during a drink drive investigation. It has become a specialism and these cases require a high degree of technical skill and know how.

The law is easily explained using a couple of examples, based on prosecutions I defended.

Late one afternoon police stopped a driver on a main road in Surrey because they were concerned about his driving. The officers suspected he had been drinking and as part of the investigation into whether he had actually been doing so they and required him to provide a sample of breath into a roadside screening device.

Unfortunately the officers didn’t have any devices with them in the car and had to call for another police vehicle to bring one. It took about half an hour for one to arrive after which the driver provided a positive sample, but was only just over the limit. He was at this point arrested on suspicion of drink driving.

The arresting officer decided the driver should be conveyed to a police station in a cell van rather than his police car, a decision that was never quite understood. He called for one and it took quite a while a while to arrive. By the time the driver was on his way to the police station he had been at the roadside for about an hour.

He was handcuffed placed in the cell van and off he went.

So much time had passed that he was now desperate to empty his bladder. His normal bodily functions had not put themselves on hold, and he tried to attract the attention of the driver to ask him to stop. He was ignored. As the journey progressed he could not stop himself and to his embarrassment went in the back of the van.

On arrival at the police station he immediately told the officer what had happened and apologised, explaining he simply couldn’t help himself. His apology was accepted and he was taken into the station. He knew the officers wanted him to provide further breath samples as part of the investigation. However, the first thing he did was to ask for was a cup of water. He had had nothing to drink for at least a two hours and was very thirsty.

His request was refused and he was told he had to wait whilst he was booked in. After some time, he was taken into a room where the breath test device was located. At this point it was discovered the device wasn’t working properly and so the only options available to police were to require either blood or urine. No one medically qualified was available to take blood, so it had to be urine. The officer told the motorist he had one hour to provide two separate samples, which is what the laws requires and my client said he would do his best. At this point he was provided with small plastic cups of water which he drank, and he kept on drinking. The problem for him was that he was so dehydrated that his body simply absorbed the water and produced no urine. Try as he may during that hour, he could not produce any urine, let alone two samples.

Police have to stay in the same room and being watched and reminded of the passage of time (you have 15 minutes left!) makes it more difficult at the best of times. When your body won’t produce urine, what do you do? His hour was up and that was that. He was charged with failure to provide urine.

In the Summer of 2016 a young woman was involved in an accident and turned her car over. Emergency services and police arrived and she was taken to a local hospital Accident and Emergency for a check over. Police followed the ambulance and her mother joined her at the hospital.

On arrival at the hospital she asked the officer if she could go to the ladies as she was desperate to pass urine, and he gave permission. As she was at a hospital the police could not take breath samples and so the doctor supervising her care gave permission for the police to take a sample of blood. However, a police doctor could not be found to do this. The officer decided she should provide urine, and she was given an hour to do so. The accident had made her very unwell and all the water she was given was brought straight back up and she was becoming more and more dehydrated. Her mother and a nurse accompanied her to the ladies lavatory where she was seen to try to produce urine, but she just couldn’t. Once the arbitrary hour was up, she was charged with failing to provide.

Both cases came to trial and both were found not guilty. The charge drivers face in such cases is one of failure to provide urine “without reasonable excuse”, and those words are vital. In both cases the reasonable excuse put forward was that they could not physically produce urine. Both were dehydrated and our bodies do not work to order when given an hour and no more to provide urine. Both had been seen to drink water and then to try to urinate. In both cases police knew they had urinated beforehand. When the reasonable excuse of “can’t go” is put forward the prosecution has to disprove it and that can be difficult when someone appears to have done their best in pressured and difficult circumstances.

What the court looks for is evidence of effort made too both drink and to produce, which can be as simple as standing over a toilet with a sample collecting cup ready. Courts have to accept that when the body is dehydrated it will not simply produce urine to order.

New Fixed Penalty for Mobile Phone Offences

On the 1 March 2017 the Fixed Penalty (Amendment) Order 2017 comes into effect and applies to offences committed on and after that date.

It applies to the use of hand-held mobile telephones and to other hand-held interactive communication devices while driving. The new fixed penalty will be £200 and 6 penalty points and it applies to all categories of driver whether car, van or HGV.
It remains a matter for the police to decide whether a particular offence merits an offer of a fixed penalty or is too serious and needs to go to court.

The Order was made following a consultation by the Department for Transport which concluded on November 2016. The overwhelming majority of responses were in favour of a significant increase in penalty, in many instances higher than the one to be implemented. It is entirely possible that this is something of an interim measure to see if driver behaviour responds to the message and improves. If it doesn’t, sentencing could change again, but for now it’s going to be a case of two strikes and off the road for 6 months.

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