Motoring law helpsheets

Most road traffic cases are heard in the Magistrates’ Court but if you appeal then your appeal will be heard in the Crown Court.

Is it easy to appeal?

It is easy to appeal but you must lodge a Notice of Appeal in writing within 21 days of the Magistrates’ decision. If you wait longer than 21 days you may still be able to appeal but you will require a convincing explanation for the delay.

What can I appeal against?

If you pleaded guilty in the Magistrates’ court you cannot change your mind and plead not guilty when you appeal, you can only appeal against your sentence, not against the conviction itself. If you pleaded not guilty in the Magistrates’ court you can appeal against the conviction or the sentence or both.

The appeal is heard by a Crown Court Judge sitting with two Magistrates.

In the case of an appeal against conviction the Crown Court will need to be satisfied that the Magistrates’ Court came to the wrong decision on the evidence. On an appeal against sentence, the Court will need to be persuaded that the sentence was unjustified and disproportionate to the offence.

What happens if I appeal?

If you appeal, the Crown Court will hold a fresh hearing of your case. If you are appealing against conviction, then each side can use the same evidence as before. If your appeal is against sentence you can use the same mitigation and explanations as you did in the Magistrates’ Court.

What happens if I win my appeal?

If you win the appeal, the conviction is quashed or the sentence is reduced, but you will not get any compensation for the inconvenience or loss you have suffered.
<h3>What happens if I lose my appeal?</h3>
If you lose the appeal and the Court finds against you again, the original conviction or sentence will stand and there will usually be some extra costs for you to pay.

What are the risks of appealing?

Many people are unhappy with the penalties imposed by Magistrates Courts, but it is important to remember that as well as quashing a conviction or reducing a sentence, the judge and magistrates are also entitled to impose a harsher or different sentence and may also make you pay the prosecution’s costs if they consider that you should not have brought the appeal in the first place.

Taking advice promptly after the Magistrates’ Court hearing is very important to help avoid these risks.

Are there other ways to appeal?

If the Magistrate made an error of law, rather than of fact it may be appropriate to take your appeal to the High Court rather than the Crown Court.

This is frequently described as an appeal requiring the Magistrates to ‘state a case’ for the opinion of the High Court. If the High Court considers the Magistrates got the law wrong, the conviction can either be quashed, or the case sent back for rehearing.

Is there a way to appeal again if I lose my appeal or have been given a harsher sentence?

No, there is no further right of appeal after you have appealed to the Crown Court from the Magistrates’ Court.

What if my original case was held in the Crown Court?

If your case was heard in the Crown Court then you may appeal to the high court

Causing death by careless or inconsiderate driving is a serious offence with significant penalties. Successful defence relies upon expert knowledge of the law, sound cross examination of key witnesses and access to skilled and expert investigators.

The Road Safety Act 2006 introduced the offence of causing death by careless or inconsiderate driving.

The offence of careless driving is committed when driving a mechanically propelled vehicle on a road or other public place either without due care and attention, or without reasonable consideration for other persons. The Courts deal with hundreds of cases of careless driving every year and are used to deciding whether someone drove carelessly. These cases can be difficult and involve witnesses giving evidence of what they recall happening over perhaps just a few seconds. People’s recollections are not always correct.

Causing death by careless or inconsiderate driving is a serious offence with significant penalties. Successful defence relies upon expert knowledge of the law, sound cross examination of key witnesses and access to skilled and expert investigators.

What is careless or inconsiderate driving?

It’s quite a simple test and in many ways quite an easy offence to commit. A person drives carelessly or inconsiderately when the way they drive falls below the standard to be expected of a competent and careful driver. Whether they have done so is for the Court to decide after it has heard all the evidence and decided what it thinks of the witnesses after they have been cross examined. Cases sometimes involve expert accident reconstruction evidence for both the prosecution and the defence.

Here are some examples that might amount to careless driving:

• Overtaking on the inside;
• Driving too close to another vehicle;
• Driving through a red light by mistake;
• Turning into the path of another vehicle;
• Being distracted by tuning the radio, lighting a cigarette, talking with another person in the car;
• Misjudging a corner.

Inconsiderate driving might include:

• Flashing lights to force other drives to give way;
• Misusing lanes to gain advantage over other drivers;
• Unnecessarily staying in an overtaking lane;
• Unnecessarily slow driving or braking;
• Dazzling other drivers with undipped headlights.

There is no exhaustive list of circumstances that will constitute careless driving, and every case will turn on its own facts.

Prosecutions for this offence can be dealt with either in the Magistrates’ Court or the Crown Court. The magistrates’ sentencing powers are limited to 6 months imprisonment, whereas the Crown Court can impose a sentence of up to 5 years in prison. In addition, the court must impose a mandatory disqualification of 12 months and has a discretion to order that the driver retakes a test.

Magistrates will refuse to hear a case if it thinks that its sentencing powers will not be adequate. The Court will look at the nature of the culpability and the extent of harm caused. Some cases will probably come fairly close to dangerous driving, which carries a maximum sentence of 14 years imprisonment. There will be a big difference between a sentence for causing death by dangerous driving and for doing so by careless driving.

There are three levels of seriousness to be judged by reference to the degree of carelessness involved. The most serious level would involve driving that comes very close to dangerous driving. The least serious group of offences will involve perhaps a momentary error of judgement. All other cases will come in between these two. I can help with the police investigation and interview process, and in providing expert guidance on whether the driving was careless.

I can call upon accident reconstruction experts and others who might be able to assist. It might be possible to engage with the Crown Prosecution Service over the level and seriousness of the charge or the facts that support it. If you plead guilty or are convicted I can help with making sure the Court is given all the information it needs to sentence you fairly.

A serious offence with serious consequences. Expert advice during police interview is critical as is the support of experienced and knowledgeable representation in court to effectively cross examine witnesses and present your case.

There is a significant difference between dangerous driving and careless driving (properly referred to as driving without due care and attention). In court the prosecution has to show different things and the penalty for dangerous driving is much greater than for careless driving.

Dangerous Driving

Dangerous driving and causing death by dangerous driving are the two most serious moving road traffic offences. They are made even more serious if aggravated by drink or drugs.

Your driving is dangerous when: ­

• It has fallen far below the standard that could be expected of a competent and careful driver, and
• Was obviously dangerous to competent and careful driver

The offence may be committed by: ­

• Simply driving in a dangerous way – your case will depend on witness evidence.
• Driving a vehicle that is in a dangerous condition (even if you are driving normally otherwise)

Dangerous means there was a danger of physical injury (however minor) or serious damage to property. The prosecution does not have to prove that anyone was actually injured, that damage actually took place or that anyone felt in danger.

The driving is judged objectively. In other words, what was going on in your mind will not be relevant as to whether your driving fell far below the expected standard.

Careless Driving

You drive carelessly when the standard of your driving is lower than that of a reasonable, prudent and competent driver.

Careless driving is dealt with in the Magistrates Court.  It will typically carry a fine and a penalty points endorsement on your licence.  You can’t go to prison for careless driving but you can lose your licence in serious cases.

Causing Death by Dangerous and Careless Driving and Related Offences

Causing death by dangerous driving carries a maximum term of imprisonment of 14 years and unlimited fine.

The Road Safety Act, which came into force in November 2006, created new offences of causing death: ­

• By careless or inconsiderate driving, and
• By driving an uninsured or unlicensed vehicle, and
• Whilst being a disqualified driver

In the Magistrates Court the penalty is up to 12 months and disqualification and in the Crown Court up to 5 years imprisonment.

I like to help

I can help you by:

• Guiding and assisting you through the police investigation, including the interviews
• Analysing the case against you – for example: how is the prosecution proposing to present the case in court?
• Assessing the evidence – for example: how many witnesses? What did they see? Were the events fresh in their minds when they made statements? Are they reliable?
• Considering whether expert evidence is required, which might include accident reconstruction or engineering
• Taking evidence at an early stage from witnesses who may help you whilst events are fresh in their minds.

It is an offence to drive or attempt to drive a motor vehicle on a road or public place with alcohol above the ‘prescribed’ limit.
The ‘prescribed limit’ is measured in breath, blood, or urine:

• In breath it is 35 microgrammes of alcohol in 100 millilitres of breath.
• In blood it is 80 milligrams of alcohol in 100 millilitres of blood,
• In urine it is 107 milligrams of alcohol in 100 millilitres of urine.

If you are convicted of a drink-driving of­fence you will lose your licence for a mini­mum of 12 months. However, the court can impose a prison sentence of up to 6 months and impose fines of up to £5000. If the alco­hol level is very high, the period of disqualifi­cation may be longer.  If you are convicted of drink-driving offences twice within 10 years you will be disqualified for a minimum of three years.

Death by careless driving whilst under the influence of drink or drugs

If you are convicted of causing death by careless driving whilst under the influence of drink or drugs you will face: ­

• Up to 14 years in prison, and
• An unlimited fine, and
• A minimum-driving ban of two years

There are two other offences, which come within this category of offence: ­

1. Failing to provide a specimen at a police station

A conviction for this offence leads to a man­datory disqualification of at least one year, unless you can show you have a reasonable excuse for having failed to provide the sam­ple. Courts have considered reasons such as:

• Becoming short of breath as a result of a panic attack whilst providing breath sample. This was found to be a special reason on the facts of the particular case
• Having a phobia of needles and medical conditions such as asthma.  Some such cases have been refused as special reasons and the Courts will require medical evidence to support such arguments.

2. Being in charge of the vehicle having consumed alcohol over the prescribed limit

This offence is committed when you are ‘in charge’ of your vehicle, even though you are not actually driving. The concept of being ‘in charge’ of the vehicle is very wide. You can be ‘in charge’ simply by being in it. For this reason I recommend you do not sleep in your vehicle whilst recovering from a night out (even though this may be de­fendable on the ground that you would not actually have driven whilst over the limit). It is very risky. If you are in your vehicle and a breath test proves positive, it will be for you to show that you would not have actually driven whilst over the limit. People greatly underestimate how long it takes for alcohol levels to drop below the legal limit.

How to argue against a disqualifi­cation for drink driving

In certain circumstances it is possible to argue what are called special reasons either not to endorse a licence with penalty points, or not to disqualify. Special reasons are cir­cumstances connected with the commission of the offence, such as driving in an emer­gency, driving to escape a threat, driving a very short distance, or driving after consum­ing laced drinks. This is a very technical area of law but if argued correctly can have a significant impact on sentence.

• Driving in an unforeseen emergency where there is no reasonable alternative and no one else can drive.
• Where you did not know you had been consuming alcohol (for instance laced drinks). However, there is a duty to check and ask what you are drinking and if the level in your breath sample is high the Court may well say you ought to have known.
• Where you had consumed the alcohol after you had stopped driving and left the vehicle. This involves detailed evi­dence of what was consumed and when and you will need help from an expert to calculate alcohol levels

Hardship for the driver or family or others af­fected is not a ‘special reason’.

The courts operate a drink driver rehabili­tation scheme and participation in such a scheme can reduce the period of disqualifica­tion by up to 25% provided that the course is completed satisfactorily.

I like to help

If you think you may have a special reason why you should not be disqualified for drink driving please contact me since I can help you.

The law requires motorists to have in place a policy of insurance against third party risks and an offence is committed if you have no such policy. An offence is also committed if you permit someone else to drive without a policy.
The court will impose a fine and between 6 and 8 penalty points so a conviction can be serious if you already have points on your licence. The court also has a discretion to disqualify irrespective of the number of points you already have and so these prosecutions need treating with care.

I have come across very many of these offences detected when the police accessed the insurance national database after stopping the driver for something completely unconnected. Many drivers are surprised to learn they are not insured and so thought needs to be given to how lack of knowledge or mistake by insurers or others may help.

It is important to appreciate that driving without insurance is a strict liability offence; in other words if as a fact you were not insured, you have committed an offence. A mistake or lack of knowledge is no defence.

However, if a policy has been incorrectly cancelled, or delayed being brought into force or if someone else incorrectly states that you are insured, there may be an argument that ‘special reasons’ exist not to endorse the licence with points.

If successful this can have a significant impact on the case, but it requires careful presentation because the courts look very closely indeed at the facts. It is not easy to persuade a court that lack of knowledge or a mistake is a special reason because if it was many such offenders would achieve it, and the fact is they do not. The court starts from the general proposition that it is the duty of the driver to know if he is insured. Special reasons might include:

• a cancellation of an insurance policy by the insurer without telling the policy holder
• insurance company error
• trusting and relying on information given by the owner that proves subsequently to be wrong
• having a genuinely and reasonably held belief you are insured when you are not

A more complete article on special reasons may be found by going to the special reasons helpsheet.

If you acquire 12 penalty points on your licence within 3 years (taken from the time of the conviction for the first until the commission of the last), the court will probably disqualify you from driving.

If whilst driving you cause injury to another person or damage to property such as another vehicle, roadside fencing or traffic signs, the law says that you must stop at the scene of the incident.

If you do not stop at the scene of the incident you are likely to be charged with both failing to stop after an accident and failing to report.

How serious are these charges?

The police and the courts regard these offences as serious. They can carry up to ten points and disqualification so you should treat them with respect. If the circumstances are particularly serious, you can be sent to prison.

When do I have to report an incident to the police?

If the damage is caused to another person, vehicle or other property, you must provide certain details including your name, address and who your insurers are. If you do this you do not need to report the accident to the police. However, if you cannot provide the details, because for example the damaged vehicle was unattended in a car park and you cannot find the other driver, then you must report the incident to the police within 24 hours.

What happens if I do not report the incident to the police when I should?

You are likely to be convicted if you do not report the incident when you should have unless you can show you did not know you had been involved in an accident. However, the burden will be on you to show you did not know, rather than on the prosecution to show you did know. If your vehicle was involved in a significant impact it will be very difficult to explain how you did not know about it.

Ignorance of the duty to stop and report is no defence.

What if I left the scene of the accident and went back later?

If you left the scene went back later the court will look at the reason for not stopping or returning immediately and you may still be convicted. These cases depend on their individual circumstances, which require careful assessment.

In order to make sure drivers have proper warning that they may be prosecuted for one or more road traffic offences, the law requires they are given a Notice of Intended Prosecution (NIP).
This is a statutory entitlement contained in Section 1(1) of the Road Traffic Offenders Act 1988 and the driver must:

• Be warned at the time of the offence about the possibility of a prosecution for an offence
• Have been served with a summons from the Court within 14 days of the offence

or

• Be made aware that within 14 days of the commission of the offence a Notice of Intended Prosecution was served on the driver or the person who was the registered keeper at the time the offence took place

It is rare for a Court to serve a summons within 14 days of an offence and so in most cases the driver will be given a road side verbal warning when stopped, or will receive a written warning in the post.

In speed camera cases the receipt of the NIP is usually the first indication to the motorist that an offence has been committed.

It is essential to check the date of receipt (and to keep the envelope if there is any doubt) because the law requires service within 14 days. If it was posted by ordinary first class post within the 14 day period there is a presumption of service by the second business day after posting, unless the driver shows this did not happen. In a recent case the Court was shown that a postal strike meant the NIP could not have arrived within the 14 day period.

The NIP must also comply with some other statutory requirements which include the proper identification of the offence, its date and its location. The NIP should provide enough information to enable a driver to know exactly what he is alleged to have done, and an improperly completed one may mislead and prejudice a defence.

Late service of a NIP is a complete bar to a prosecution. A motorist cannot be convicted of most straightforward road traffic offences unless the procedure is properly complied with.

When determining how to go about dealing with road traffic offences the starting point is always a careful look at the date and content of a NIP.

A motorist convicted of certain road traffic offences may want to consider whether he can establish a ‘special reason’ not to have his license endorsed, or not to be disqualified.

‘Special reason’ is an expression which has a particular legal meaning, but if established in court can have a very significant impact on penalty. The majority of motorists can easily put forward reasons why an offence was committed, but the law distinguishes between reasons which are routine and ordinary (for example: I was late for work, I was not concentrating, it was not deliberate, I did not see the signs and so on) and those which are so closely connected with the commission of the offence that they attract the title ‘special’ and open the way to not being disqualified or having a license endorsed with penalty points.

It is firstly important to understand that to qualify as a ‘special reason’ the facts underlying it must apply to the commission of the offence and not to any particular circumstances of the motorist. So for example the consequences of a disqualification or endorsement will not be a special reason. For this reason the possibility of a loss of job is not a special reason.

Secondly, special reasons are by definition not defences and so will only apply in cases where the court has found the allegation proved and the motorist guilty.

There is no definitive list of what might constitute a special reason and it is for the court hearing argument to decide whether a claimed set of facts is sufficient. The concept is easiest to understand with some examples.

Case study 1

Some years ago I represented a driver accused of speeding on the motorway. She was concerned she was being followed by an aggressive driver and speeded up to get away. The Court accepted her evidence of her belief and found special reasons not to endorse her licence.

Case study 2

I represented a driver charged with drink driving. His breath sample put him over the legal limit and so he was guilty of the offence. However, he called witness evidence to show his non alcoholic drinks had been laced without his knowledge and the Court found this was a special reason not to disqualify.

This particular type of case will also require expert evidence from someone qualified to undertake alcohol calculations.

Driving in an emergency can constitute a special reason as can driving to escape physical threat. Driving without insurance if the insurance company has made an error which the driver being vigilant could not have known about can be a special reason. Each case is different and turns on its own facts.

It can be seen from these simple examples that Special Reasons can apply to offences of speeding, drink driving and driving without insurance. The list is not a closed one and so a careful assessment of the facts and presentation of the arguments and evidence is the only way to explore whether they are available to you.

I know how the Courts approach the concept and what principles will be applied in such cases.

Unless the driver is stopped and indentified at the road side, the prosecutor must take steps to identify the driver. This is usually done by a request for driver details served pursuant to Section 172(2) of the Road Traffic Act 1988 (known as a Section 172 Notice).
The law requires the registered keeper of the vehicle to give whatever information about the identity of the driver the Chief Officer of Police asks for. It is accordingly common in speed camera cases for the prosecutor to send out both a Notice of Intended Prosecution (NIP) and a Section 172 Notice in order to firstly comply with the requirement to serve a NIP within 14 days and secondly to seek details of the driver.

If you receive an NIP and you were both the registered keeper and the driver of the vehicle, all you have to do to comply with the law is confirm this and return the notice within 14 days.

If you were the registered keeper and not the driver, for example, if the keeper is a limited company, or if the vehicle was being driven by a family member or business partner, then you must say so when you return the notice.

The true driver will then receive their own NIP. If the second NIP is received outside the 14 day period it will be valid as long as the first one to the registered keeper was served within 14 days.

If despite using reasonable diligence you cannot identify the driver, you can defend an allegation of failing to provide driver details. This is not as straightforward as it may seem because the Court will require evidence of the efforts made and will be concerned to make sure that the defence is not just being abused to attempt to escape responsibility.

I have successfully defended such allegations when the Court heard credible evidence that it was impossible to identify the driver of a business vehicle to which a number of employees had access and none of whom would own up despite being individually written to. In that case the Court accepted that the company secretary had done as much as anyone could have to try and identify the driver.

It is also essential to check the form of request because it must be made by or on behalf of the Chief Officer of Police and that should be clear from its content.

Since September 2007 you will get 6 penalty points endorsed on your licence if you fail to provide the driver’s details. The courts also have discretion to disqualify you from driving.

Proper signing has an important part in speeding allegations, an analysis of this invloves asking whether the signs erected at the location provide adequate guidance to the motorist.

There is a statutory duty on the Secretary of State to erect and maintain traffic signs to provide such guidance in relation to motorway and trunk roads, and on the local authority in relation to other roads.

The law on road signing is largely contained in the Traffic Signs Regulations and General Directions 2002 and contains detailed provisions relating to the position, and contemporaneous content of signs.

As a general observation, if a driver considers the signing to be inadequate the Court will be greatly helped in determining the issues if there are photographs showing what was visible to road users. There may be issues over obstruction or position contemporaneous photographs and a plan can be a significant help months later when a case comes for hearing.

If your licence is at risk and other people rely on you to keep on driving then you will need special advice.

Are you a key person facing disqualification?

More and more key people are finding themselves at risk of losing their licences. This has serious consequences for their livelihoods and for the lives of others who depend on them. If your licence is at risk and other people in your company rely on you keeping on driving I can provide you with straightforward advice tailored to your circumstances.

I have been helping key people for more than 25 years. Other solicitors have referred much of this work to me because I have the skills and experience to act effectively for business leaders and key employees who need to drive to carry out their jobs.

I know what the court will need and I know how best to present it.

I understand that you need effective, pragmatic advice and robust, careful representation in court. I understand your work situation and how a driving licence is critical to you so that you can carry out your duties; duties your business may be dependent on.

Speeding is the most commonly committed road traffic offence. Speeding law is complicated. Much of this stems from the process after detection, whether it is by a following police car, speed camera, or a hand-held speed-measuring device.

Speed cameras

Most offences are detected by cameras, simply because there are so many by the roadside. Most of these offences are dealt with by Fixed Penalty Notices. If a camera photographs a vehicle exceeding the speed limit, the registered keeper is sent a notice asking him to state who was driving. There is a statutory requirement to answer, and it’s an offence not to.

The driver then receives a Fixed Penalty Notice, or a Summons to appear in court. As a very general guide an excess of about 5 – 10 miles an hour will result in a Fixed Penalty Notice being issued; anything above is likely to result in a Summons. A Fixed Penalty Notice will be for a fine of £60 and a licence endorsement of three penalty points. If you receive a Summons the penalties when you go to court may well be higher.

Are there any legal loopholes if a speed camera catches me?

Many people have attempted to find loopholes. Some of these are genuine legal arguments based on proper procedure but some are not so please be careful of anyone offering to get you off a speeding offence. However,:

1. If a speed camera catches you, or if you are stopped by a police officer, the police have to adhere to strict time limits. If you receive such a notice in time and you know that you broke the speed limit, you need to decide whether to accept the fixed penalty and endorsement, or to challenge it. If you challenge the notice you will have to go to court and, if the court disagrees with you, you could receive a bigger fine and be even worse off.
2. There may be issues arising over the service of the notice outside the 14-day period, or where details in the notice are incorrect.
3. There may also be very sound reasons for requesting copies of the photographs.

I like to help

If you think you may have good reasons to challenge a Fixed Penalty Notice or Summons then please contact me since I’d like to help you.

Beware

Some drivers have attempted to get off speeding convictions by saying they were not the driver of the vehicle photographed when in fact they were. The Police are increasingly vigorous when investigating such claims and if you are lying will charge you for the offence of attempting to pervert the course of justice. This carries a prison sentence, which the Courts usually impose as a deterrent.

What if I face disqualification from driving?

If you face disqualification perhaps because your penalty points have totted up then I may be able to help you.

A summons for speeding (and other offences) must be issued by the Magistrates Court within 6 months of the date of the offence. For the case to have got this far the prosecutor must have served a Notice of Intended Prosecution (NIP) within 14 days of the offence and properly identified the driver.

The summons must also comply with requirements relating to both time of issue and content. For example it must clearly and correctly state the speed limit alleged to have been contravened, identifying whether the road was “restricted” or not. A road becomes “restricted” and subject to a speed limit if its street lighting is not more than 200 yards apart OR the relevant local authority makes an order that it should be restricted.

Sometimes these need checking. It is not unknown for a summons to allege speeding on a restricted road, when the road is not in fact restricted.

If all procedural and content requirements have been complied with, the case then becomes one of evidence; in other words the question is whether the evidence obtained by the speed detection equipment is adequate to lead to a conviction.