What is the ‘rule’?

The ‘rule’ itself is quite straightforward: if the speed limit is (for example) 30mph, the rule states that you won’t get a speeding ticket unless you are going 10% plus 2 mph faster than the limit.  In this example, this would mean that you would have to be travelling at 35mph or faster in order to receive a speeding ticket.

However, most people will have heard tales of friends and colleagues who have been given tickets for exceeding the speed limit by much smaller margins – in some cases by only a couple of miles per hour.  What happened to the rule in these cases?

The truth is that the “10% plus 2” rule isn’t actually a rule at all: it is merely a guideline.  The ‘rule’ originates from speed enforcement guidance issued by the Association of Chief Police Officers[1] which sets out the strategy that police forces should use when enforcing speed limits.  At paragraph 9.6 of this document, a table is provided which sets out the recommended outcomes for different levels of speeding:

The guidance recommends prosecuting drivers only where their speed exceeds the thresholds set out in the table.  It also sets out whether you are more likely to receive a fixed penalty, a speed awareness course, or a court summons.

A closer analysis of the table will reveal that the “plus 2 mph” relates to device tolerance, to take account of the fact that the speed guns used by the police are not always 100% accurate.  However, paragraph 9.7 of the guidance reveals that, at speeds below 66mph, the tolerance level is +/- 2mph, whereas for speeds above 66mph the tolerance level is +/- 3%.  This distinction is evident on the 70mph row on the table, where the fixed penalty threshold is 79mph, rather than 78mph as would be the case if the 3% device tolerance figure was not used.

What effect does the guidance have in practice?

The guidelines themselves state very clearly that they “do not and cannot replace a police officer’s discretion”,[2] and express reference is made to circumstances in which an officer decides to depart from the guidelines set out in the table above.  Therefore, you should not rely on the table as a set of ‘replacement speed limits’, as you may still be prosecuted.

The main speeding offence is contained within s89 Road Traffic Regulation Act 1984, which clearly states:

“A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence.”

In court, this is the standard to which drivers will be held, and you will notice that there is no reference here to any threshold other than the signposted speed limit.  According to the statute, if you are even 1mph over the speed limit, you can legally be convicted for speeding if a police officer considers it appropriate in his discretion.  No reference is made to the guidance in the statute whatsoever: it has zero legal status.

What is important, however, is the column of device tolerance figures in the table above.  All the police need to do to convict you for speeding is prove beyond reasonable doubt that you have exceeded the speed limit.  However, given that the speed guns used by the police have a tolerance of +/- 2mph (or +/- 3% for speeds over 66mph), it is doubtful that they would be able to convince a court that a recorded speed of 31mph (for example) is a truly accurate reading: the driver in this example could actually have been driving at 29mph, which is clearly within the speed limit.

However, drivers should be aware that the Scottish police have decided not to follow the guidance at all, and will prosecute drivers for exceeding the limit by even 1mph, regardless of any device tolerance.[3]  There is also talk of a review of the guidance, which was first issued in 2011, to take account of developments in speed enforcement technology.

It is questionable whether the device tolerance figures outlined above apply to the average speed cameras widely used across the motorway network to enforce speed limits in road works, which calculate a driver’s speed based on the time it takes for their vehicle to travel between two points set a measured distance apart.  The manufacturers of SPECS average speed cameras suggest that their equipment only has a margin of error of 0.1% due to the fact that they measure speed over a longer distance than conventional fixed speed cameras.[4]  This clearly makes it easier for the police to prove that a driver was speeding in the even the most marginal of cases.  This may explain why Bedfordshire police made the decision in 2015 to apply a zero tolerance approach to speeding on the motorway.[5]

Conclusion

Whilst it is obviously advisable to stick to the speed limit, if you are caught speeding it is not the end of the world.  With the expertise of a Road Law Barrister on your side, you have the help you need to get the best possible outcome in court.  Back in March, we represented Mr C in Leeds Magistrates court.  He had been caught travelling at 56mph in a 30mph zone, and faced the prospect of at least 56 days disqualification, according to the sentencing guidelines.  However, having heard persuasive submissions from his Road Law Barrister, and having received evidence in support of these submissions, the Magistrates decided that 6 penalty points would be an appropriate sentence in this case.  Mr C therefore left court with his license and livelihood intact.

If you are caught speeding, or are arrested for any other driving offence, then please do not hesitate to contact us today for your free consultation.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post Speeding: what is the “10% plus 2” rule and what does it mean? appeared first on Road Law Barristers.

When does the law refer to “accidents”?

One example of when the definition of “accident” is important can be found in our earlier article relating to preliminary testing for drink/drug driving.[1]  Section 8(2) Road Traffic Act 1972 is one of the main provisions enabling the police to carry out a preliminary test for alcohol/drugs.  It states:

“If an accident occurs owing to the presence of a motor vehicle on a road or other public place, a constable in uniform may require any person who he has reasonable cause to believe was driving or attempting to drive the vehicle at the time of the accident to provide a specimen of breath for a breath test […]”

The definition of “accident” is, therefore, of central importance to this statutory provision: in some cases, this definition could be the difference between a lengthy disqualification and keeping your licence.

Moreover, as we discussed in another previous article, if you are involved in an accident, there are certain things the law requires you to do.[2]  You may need to report the accident to the police, or provide other persons involved with your personal details, for example.  It is an offence to fail to do either of these things when required to do so, and these offences clearly hinge on whether, as a matter of law, there was an “accident”.

The Definition

A good starting point is that the court will consider the definition of “accident” in the context of every individual case:[3] it is to be approached flexibly, and the court will strive to consider whether an ‘ordinary man’ observing the events in question would consider an accident to have occurred.[4]

Importantly, the court has been very clear in stating that a deliberate act can still amount to an “accident” for the purposes of the Road Traffic Acts, if the circumstances demand it.  In Chief Constable of Staffordshire v Lees[5] the defendant deliberately drove his car into a locked gate, and this was held to constitute an accident.  Although this arguably stretches the dictionary definition of the term, there was a very logical reason behind the court’s conclusion:

“it would be an insult to common sense if a collision […] arising from some careless an inadvertent act entitled a constable to exercise his powers under the [Road Traffic] Act but a similar result caused by a deliberate antisocial act did not.”

The court also held in Morris[6] that some road traffic collisions can have such minor consequences that they cannot be considered accidents in the proper sense of the word: the physical consequences of the collision may be so minor that, in all the circumstances, the hypothetical ordinary man would not consider it serious enough to be an accident.

However, there have been cases where the court has held that an accident has occurred even where there was no physical contact between the vehicles involved.  In Currie[7] it was held that the approach taken in the Scottish case of Bremner v Westwater[8] should be adopted as part of English law.  In Bremner, the defendant was overtaking another vehicle on a blind corner.  A police car was rounding the corner in the opposite direction, and was forced onto the verge in order to avoid a head-on collision.  It was held that, even though there was no physical contact between the defendant’s car and the police car, the circumstances of this case were sufficient to fairly describe what happened as an “accident” for the purposes of the Road Traffic Acts.

Conclusion

In summary, the term “accident” is to be interpreted flexibly, and should be interpreted in light of the facts of each individual case.  There is no requirement for the parties to the collision to be totally free of blame, and there is also no absolute requirement for physical contact to occur between vehicles.  The key question is whether an ordinary man, having observed the events in question, would consider the events to amount to an accident.

If you are facing prosecution for any driving offence, please contact us as soon as possible for your free consultation.  In R v S[9], Mr S faced the prospect of a 24 month disqualification, and a possible prison sentence, after being involved in a high speed collision on the M1, and refusing to provide an evidential specimen of blood at the police station having been suspected of being over the drink drive limit at the time of the collision.  Having a Road Law barrister on his side meant that Mr S was able to walk away from court without a prison sentence, and with only a 12 month disqualification – the shortest possible disqualification in the circumstances.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post What is an “accident” for the purposes of the Road Traffic Acts? appeared first on Road Law Barristers.

Breath, blood or urine?

Whilst a preliminary test for drink driving typically involves breathing into a handheld breathalyser, under s7 Road Traffic Act 1988 (“RTA 1988”) the police may require the driver to provide two specimens of breath, or one specimen of blood or urine, for testing.

Section 7(3) RTA 1988 provides that the police must use breath testing unless this would be unsuitable or impracticable for one of the following reasons:

1. The constable requiring a specimen has reasonable cause to believe that a specimen of breath should not be provided for medical reasons;
2. Evidential specimens of breath have not been provided elsewhere and a suitable evidential breathalyser is unavailable;
3. A suitable evidential breathalyser has already been used, but the constable has reasonable cause to believe that the readings were inaccurate; or
4. The constable has reasonable cause to believe that the driver’s state is caused (if only in part) by drugs rather than alcohol.

As with the preliminary test, the request for a specimen can only be made in certain locations.  There does not, however, appear to be a restriction on where the specimen is actually taken providing the initial request is made in the right place.

Where the specimen is of breath, the request must be made at a police station, a hospital, or at (or near) a place where the preliminary breath test has been administered.[1]  Where the specimen requested is of blood or urine, the request can only be made at a police station or hospital.[2]

In cases where the police have a choice as to whether to request blood or urine (ie. in any case where breath is not appropriate for one of the reasons outlined above) it is for the constable making the request to decide which type of specimen to require.[3]  The only exception to this is where a doctor provides a medical opinion to the effect that blood would be inappropriate.[4]

What if the breathalyser result is borderline?

The general rule is that, of the two specimens of breath provided, the police will use the lower reading and will entirely disregard the higher one.[5]  However, if the lower specimen contains no more than 50 microgrammes of alcohol in 100ml of breath (the legal limit being 35 microgrammes) the driver is entitled to make a claim under s8(2) RTA 1988.  Making such a claim entitles the driver to provide a specimen of blood or urine for analysis which will be used instead of the breathalyser results (noting, of course, that it is for the constable to elect between urine and blood)[6].

Importantly, if the result is borderline and the police fail to inform the driver of their right to provide an alternative sample under s8 RTA 1988 in a manner which is clear enough to give the driver enough information to make an informed decision, in the majority of cases this will be sufficient to overturn any conviction resulting from the investigation.[7]

What if I don’t want to provide a specimen?

Before obtaining a specimen pursuant to section 7 RTA 1988, the police must provide the driver with a warning that a failure to provide a specimen of breath, blood or urine in circumstances where it is validly required is an offence and may render the driver liable to prosecution.

In terms of sentencing, this offence is very similar to the actual drink driving offences in that a failure to provide will generally result in a disqualification.  This offence was clearly created to encourage people to comply with the evidential testing procedure: if you will be disqualified for failing to provide a specimen, and are likely to be disqualified if you do provide a specimen and are found to be over the limit, then there is no advantage to refusing to provide a specimen.

It should, however, be noted that the police cannot force you to provide a specimen of any description without your consent, unless s7A RTA 1988 applies.  Section 7A has a very narrow application and is generally restricted to cases where the driver is incapable of providing consent for medical reasons.  Examples of when s7A applies could include cases where the driver has a previously existing condition (ie. dementia) and is unable to consent for that reason, or where the driver was involved in a serious collision and is unable to consent due to being in a coma.  In such cases, a doctor can take a blood sample from the driver.  However, the sample cannot be tested in a laboratory until the driver provides his consent.[8]  Failure to provide such consent is, as would be anticipated, also an offence.[9]

Conclusion

It will come as no surprise that this article is only the tip of the iceberg.  There are many more technical rules surrounding evidential specimens which could help you avoid a conviction, which is why you should not hesitate to contact us for your free consultation if you face a prosecution for drink driving.  Our Road Law Barristers are very familiar with the technicalities surrounding drink driving and, with our expertise on your side, you could retain your licence and your livelihood.

One of our previous clients, Mr S, faced the prospect of disqualification after being arrested for drink driving and providing positive breath samples both at the roadside and at the police station.[10]  However, after examining the procedure followed by the police in his case, it emerged that the breath samples were improperly obtained.  Our barristers constructed a legal argument to challenge the admissibility of the breathalyser evidence, and as a result the CPS decided to drop the case.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post What happens if you are arrested for drink driving and are asked to provide an evidential specimen of breath, blood or urine for analysis? appeared first on Road Law Barristers.

“Roadside” testing

The term “roadside test” is actually a misnomer.  The technical term is actually “preliminary test” because there is nothing which says that the test must be carried out at the roadside.  The power enabling the police to undertake a preliminary test comes from s6 Road Traffic Act 1988 (“RTA 1988”), and sections 6A-6C state that a preliminary test may be carried out:

(a) at or near the place where the requirement to comply with the test is imposed, or

(b) if the constable who imposes the requirement thinks it expedient, at a police station specified by him.”

It should, however, be noted that a preliminary breath test may only be carried out in accordance with (a) above, unless a constable reasonably believes that an accident has occurred owing to the presence of a motor vehicle on a road or other public place, and the person was driving, attempting to drive, or in charge of the vehicle at the time of the accident.  In the latter case, the test may be carried out in accordance with either (a) or (b).

The purpose of a preliminary test is to enable the police to quickly and efficiently establish whether it is worth arresting a driver to investigate whether they were driving whilst under the influence of drink or drugs.  If the preliminary test comes back positive, this is usually followed up by a more accurate “evidential” test at a police station pursuant to s7 RTA 1988.

When does a constable have the power to undertake a preliminary test?

According to s6(2)-(5) RTA 1988, a constable can require a driver to co-operate with one or more preliminary tests if a constable reasonably suspects that one of the following applies:

(a) The person is or has been driving, attempting to drive, or in charge of a motor vehicle on a road or other public place; AND EITHER

(i) has alcohol or a drug in his body or is under the influence of a drug; OR

(ii) has committed a traffic offence whilst the vehicle was in motion; OR

(b) The person:

(i) has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place; AND

(ii) was doing this whilst having alcohol or a drug in his body or while unfit to drive because of a drug; AND

(iii) still has alcohol or a drug in his body or is still under the influence of a drug; OR

(c) An accident occurs owing to the presence of a motor vehicle on a road or other public place, and the person was driving, attempting to drive, or in charge of the vehicle at the time of the accident.

Note that the constable must only reasonably suspect the above to be the case in order for their power to undertake a preliminary test to be activated.

It should, however, be noted that under s9 RTA 1988 hospital patients are granted a degree of protection against preliminary testing.  In cases where a constable wishes to perform a preliminary test on a hospital patient, the test cannot be performed if the patient’s doctor objects on the grounds that performing the test would be prejudicial to the patient’s proper care and treatment.

Three types of test

Under s6A-s6C RTA 1988, three types of preliminary test can be undertaken:

• Preliminary breath test.  This is where the driver provides a specimen of breath which is then used to obtain an indicative reading from a breathalyser as to whether the proportion of alcohol in the driver’s breath or blood is over the prescribed limit.  It should be noted that the breathalyser must be approved by the Secretary of State, and that its operating instructions should be followed.
• Preliminary impairment test.  This is where the constable instructs the driver to perform certain tasks, whilst being observed by the constable, and the constable notes his observations of the person’s physical state.  This test can only be performed if the constable in question has been properly trained, and if the test itself follows the Secretary of State’s Code of Practice issued for this purpose.
• Preliminary drug test.  This is where a specimen of sweat or saliva is obtained and is used to obtain an indication of whether the driver has a controlled drug in his body, and whether the proportion of it in the person’s blood or urine is likely to exceed the prescribed limit.  The device used to indicate the presence of drugs must be approved by the Secretary of State, and the test can be repeated up to three times.

Clearly, the type of preliminary test adopted will depend on the circumstances of the individual case.  It is also well within the constable’s powers to insist that the driver complies with all three types of preliminary test, if he considers this to be appropriate.

Interestingly, a constable may only administer these tests if he is in uniform at the relevant time.

What if the police do not follow these rules properly?

Frustratingly, the impact of a failure to follow these rules is small.  If the preliminary test is positive, the driver will almost always be arrested and taken to a police station for an “evidential” test under s7 RTA 1988.  The evidential test is generally undertaken using more accurate equipment, and so produces a much more reliable reading than a handheld device intended for use at the roadside.  Accordingly, the evidential test will provide the readings that will be used in court should the result come back positive, and the preliminary test is usually abandoned.  Any question of the preliminary test being rendered inadmissible under s78 PACE (for example) is therefore largely redundant in practice.  Furthermore, the courts have consistently held that an unlawful preliminary test does not prejudice the legality of the s7 evidential test[1] save for in exceptional circumstances such as where the police use some form of trick or deception in obtaining the evidence.[2]

What if you fail to co-operate with a test?

If a constable requires you to undertake a preliminary test, you must comply.  A failure to comply without reasonable excuse is an offence under s6(6) RTA 1988 and can give rise to a fine, discretionary disqualification, or four penalty points.  It should be noted that a claim from the defendant that the pre-conditions for requiring him to comply with the test were not present was considered not to amount to a reasonable excuse in relation to this offence.[3]  In reality, only genuine medical reasons are likely to amount to reasonable excuses.[4]

Furthermore, under s6D RTA 1988, if you refuse to comply with a preliminary test and a constable suspects you have alcohol or a drug in your body, or that you are under the influence of alcohol or a drug, you can be arrested and taken for an evidential test under s7 RTA 1988 anyway.

The fact that you refused to comply with a preliminary test under s6 may also, in some cases, be used in court as evidence against you.

Conclusion

In conclusion, the police have a broad discretion to require a driver to co-operate with a preliminary test for alcohol or drugs.  As it is an offence to refuse to comply, and you can still be taken for an evidential s7 test in the case of refusal, the cases in which it would be advisable to refuse to comply with a s6 preliminary test are very few in number.

A failure to follow procedure in the case of a s7 evidential test, however, is much more damaging to the prosecution case.  In the case of R v S[5] Mr S was caught drink driving, and provided samples of breath at both the roadside and at the police station.  However, following advice from his Road Law Barrister, Mr S walked from court without a conviction – the crown decided to drop the case against him on the basis that the police did not follow the correct procedure when operating the breathalyser.

If you are arrested for drink driving, or would like advice in relation to any other road law case against you, please do not hesitate to contact us for your free consultation.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post When can the police perform a roadside drink or drug test? appeared first on Road Law Barristers.

Driving whilst disqualified: the offence

Under s103 Road Traffic Act 1988 (“RTA 1988”) it is an offence to either (a) drive a motor vehicle on a road; or (b) obtain a driving licence, if either of these activities are done whilst the defendant is disqualified from holding or obtaining a licence.

The prosecution must prove that the offence was committed beyond reasonable doubt.  In the context of this offence, this is usually a two stage process.

The first stage requires the prosecution to prove that the defendant was disqualified from driving at the relevant time.  Proving that a previous conviction resulting in disqualification exists is usually relatively straightforward – the conviction is most often proven under s73 PACE by producing a certificate of conviction, signed by the clerk of the court.

More problematic is proving that the conviction relates to the person who has been arrested for driving whilst disqualified: defendants frequently argue that the initial conviction relates to an entirely different person.  In order to prevent guilty defendants escaping conviction by arguing mistaken identity, the court has adopted a fairly hard line approach: if the name on the conviction matches the name of the defendant, this will create a presumption that they are the same person, beyond reasonable doubt, regardless of how common the name in question is.[2]  This means that, if the names match, the prosecution need not produce any further evidence on this point in order to secure a conviction – unless, of course, the defence can provide persuasive (as opposed to spurious) evidence to suggest that the defendant is a different person.  In such a case, the prosecution may produce further evidence (such as fingerprints, or testimony from someone who was present in court during the original conviction) to prove that the defendant was previously disqualified.[3]

It is irrelevant if the defendant did not know he was disqualified from driving at the relevant time, or if he mistakenly believed that his disqualification had lapsed: the defendant’s state of mind is irrelevant for the purposes of this offence.[4]

The second stage requires the court to be satisfied that the defendant drove a motor vehicle on a road (or obtained a licence) whilst this disqualification was in force.  It should be noted that the vehicle must be driven on a “road” which, according to s108 RTA 1988, covers all forms of public highway.  This suggests that driving a motor vehicle whilst disqualified on private property only will not be sufficient to make out the offence.  However, it should be noted that if the defendant drives on a road but mistakenly thinks that the road is private property, the offence will be made out regardless of the mistake.[5]

Possible Defences

The only defences available to a charge of driving whilst disqualified are those of duress and necessity.  Very broadly speaking, duress is available as a defence when the defendant is forced to commit the offence as a result of a threat from a third party.  For example, if a drunken man pulled out a loaded gun, pointed it at the defendant’s partner and children, and threatened to shoot them if the defendant did not immediately move his parked car, the defendant may be able to escape a conviction by raising the defence of duress.  This is, of course, an extreme example; but it is effective in illustrating the point that the threat must be a real threat, and must be a threat of death or grievous bodily harm.

It should be emphasised that duress and necessity are very complicated legal concepts, and specialist legal advice from one of our Barristers is strongly recommended if you think duress and/or necessity may apply to your case.

Sentencing

The maximum sentence for driving while disqualified is 6 months imprisonment and/or an unlimited fine.  The court has discretion to disqualify, but must endorse the offender’s licence with particulars of the offence.  The offence also carries 6 penalty points.  The appropriate sentencing guideline also suggests that the court can, in addition, extend the period of disqualification by up to 18 months.  The guideline also indicates that the court will consider cases where the driver had only recently been disqualified more seriously than other cases.

Other considerations

In addition, if the driver is involved in a collision whilst he is driving whilst disqualified, they could also be found guilty of the specific offence of causing death by driving whilst disqualified (s3ZC RTA 1988), or for causing serious injury by driving whilst disqualified (s3ZD RTA 1988).  These offences are similar to those discussed in our previous article concerning driving whilst uninsured or without a licence,[6] and have the effect of making it easier for the prosecution to convict the driver for a more serious offence if he was disqualified at the relevant time than if he was not disqualified.

Conclusion

If you are facing the prospect of a conviction for driving whilst disqualified, please do not hesitate in contacting us for your free consultation.  In the recent case of R v C in Grimsby Magistrates Court,[7] Mr C was expecting a further disqualification following a conviction for driving whilst disqualified.  However, after hearing the persuasive submissions of his Road Law Barrister, the Court decided to spare Mr C from the disqualification that would have normally followed.  Without our assistance, Mr C would likely have been disqualified and would have been unable to work as a result.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post Consequences of driving while disqualified appeared first on Road Law Barristers.

Two forms of offence

It is important to distinguish from the outset between (a) driving without due care and attention; and (b) driving without reasonable consideration.  It is possible to achieve a conviction by proving beyond reasonable doubt that the driver did either one of these things, and it will become clear from what follows that these offences are aimed at very specific forms of conduct.

(a) Careless Driving (driving without due care and attention)

The definition of driving without due care and attention is provided by section 3ZA RTA 1988:

“A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.”

As was noted in one of our previous articles, this is to be distinguished from the test for dangerous driving in that (among other things) careless driving requires the defendant’s driving to fall “below” the objective standard, whereas dangerous driving requires the driving to fall “far below” that standard.[1]

Interestingly, if a driver breaches the Highway Code, this does not make the driver automatically guilty of careless driving.  However, such a breach may still be used as evidence to support the prosecution’s allegations of careless driving.  Equally, full compliance with the Highway Code could be used to suggest that there was nothing wrong with the defendant’s driving whatsoever.  The reality is that each case must be considered on its own facts: the court must establish what the hypothetical “competent and careful driver” would have done in the individual situation before the court, and must then compare that driving with that of the defendant.  The Highway Code can therefore be used to guide the court’s analysis, but it is not decisive.

It should be noted that, in some cases, a presumption of carelessness arises.  For example, if a car crosses the road’s central dividing line, the driver must account for why he (or she) was on the wrong side of the road.  If they are unable to provide an adequate reason, the driving will be presumed to be careless without the need for further evidence.[2]

The court should also consider facts which were in the driver’s knowledge at the relevant time, as well as facts of which the driver could be expected to have been aware.[3]

The relevant CPS policy document[4] gives the following examples of careless driving:

1. Overtaking on the inside
2. Driving inappropriately close to another vehicle
3. Emerging from a side road into the path of another vehicle
4. Tuning a car radio, using a mobile phone, or lighting a cigarette where such behaviour avoidably distracted the driver

(b) Inconsiderate Driving (driving without reasonable consideration for other persons using the road or place)

The test for inconsiderate driving is much simpler: if your driving can be said to “inconvenience” other road users, you are likely to be convicted for inconsiderate driving.[5]  This offence is often proven in court by the testimony of another road user.

The wide phrasing of the offence means that all manner of driving can qualify as inconsiderate driving, and the CPS has provided a non-exhaustive list of examples on its website[6]:

1. Flashing of lights to force other drivers in front to give way
2. Misuse of any lane to avoid queuing or to gain an advantage over other road users
3. Unnecessarily remaining in an overtaking lane (popularly known as “middle lane hogging”)
4. Unnecessarily slow driving, or braking without good cause
5. Driving with undipped headlights which dazzle other road users
6. Driving through a puddle causing pedestrians to be splashed

Sentencing

The Magistrates Court sentencing guidelines provide that a driver convicted for an offence under s3 RTA 1988 can receive a maximum sentence of a level 5 fine (£5,000).  In addition, the driver’s licence must be endorsed with particulars of the offence, and the court has powers of discretionary disqualification.  If the driver it not disqualified, then they are likely to receive 3-9 penalty points.  Disqualification is normally reserved for the most serious cases of careless driving, where the driving is bordering on dangerous.

Conclusion

If you are accused of careless or inconsiderate driving, do not hesitate to contact us for your free consultation – the expertise of a Road Law Barrister could save you from disqualification.

In 2013, Mr C was charged with careless driving and appeared in Scarborough Magistrates Court to receive his sentence.  Mr C had been driving for less than 2 years which meant that receiving 6 or more points would have caused him to lose his licence under the new driver provisions.  The submissions of his Road Law Barrister persuaded the Magistrates to depart from their sentencing guidelines and impose only 5 penalty points, meaning Mr C was able to walk away from court with his license intact.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post What Constitutes Careless and Inconsiderate Driving? appeared first on Road Law Barristers.

1. Using, or causing or permitting to be used, a motor vehicle without insurance

You commit an offence under s143 Road Traffic Act 1988 (“RTA 1988”) if you use a motor vehicle on a road or other public place if it is not covered by a policy of insurance.  It is also an offence to cause or permit another person to commit this offence.  It is important to note that this offence can be committed in “public places” such as car parks and access roads open to the public as well as on the public highway.

Section 145 RTA 1988 sets out what must be covered by the insurance policy for it to satisfy s143.  This is a very wordy section, however the practical consequence is that any third party or comprehensive insurance policy obtained from a reputable insurance company will be sufficient.

It is vital to note that the offence is committed regardless of the driver’s knowledge: the driver can still be convicted even if he honestly believed he possessed a valid insurance policy at the relevant time.[1]

When proving this offence in court, once the prosecution has accused the driver of using the vehicle without insurance, it is for the driver to prove that he had a valid policy of insurance at the relevant time.[2]  This is usually done by the production of an insurance certificate.  Once this has been done, the burden then shifts to the prosecution who have to prove beyond reasonable doubt that the policy was invalid.

Interestingly, a policy is valid for the purposes of s143 even if it was obtained by fraud (or non-disclosure of material facts) unless the insurer has given notice that the policy has been avoided.[3]  However, a policy may be invalid for the purposes of s143 if its terms are breached (this will depend on the individual policy), or if the driver uses the vehicle beyond the scope of the policy.  Using a vehicle for business use when it is only insured for social domestic and pleasure use is a classic example of using a vehicle beyond the scope of the policy.[4]

There is a very specific statutory defence contained within s143(3) RTA 1988 which is aimed at users of company cars.  It is a full defence if it can be shown that (a) the vehicle did not belong to the driver (whether by way or hire, loan, or otherwise); (b) that the vehicle was being used by the driver in the course of his employment; and (c) that the driver neither knew nor had reason to believe that he was not insured.

Looking towards sentences, an uninsured driver can be disqualified from driving (discretionary), but must be given 6-8 penalty points if not disqualified.  The driver can also be fined any sum the court sees fit.  Alternatively, a fixed penalty of £300 is available in some cases.

It should also be noted that if you have an accident whilst uninsured, you could suffer financial consequences extending far beyond the reach of the criminal law.  If you are found negligent in a civil court, not only would you need to replace the claimant’s damaged vehicle, but you would need to compensate them for their injuries as well.  It is not uncommon for compensation in serious personal injury arising from road traffic accidents to extend well into the millions.  When viewed in these terms, the price of a comprehensive insurance policy suddenly seems like very good value.

It should be noted that it is also an offence to simply keep a motor vehicle without insurance (s144A RTA 1988) regardless of whether it is actually used.

2. Driving otherwise than in accordance with a licence

Under s87 RTA 1988 it is an offence to drive on a road a motor vehicle of any description without the correct licence.  It is also an offence to cause or permit another person to commit the offence.

Proof is approached in the same way as it is for using a vehicle without insurance: the burden is on the driver to prove that he was licensed (by producing his licence), and it is then for the prosecution to prove that the licence is invalid or does not permit the driver to drive the relevant vehicle.

This offence applies equally to those who have never passed their driving test as it does to those who have passed a test but are driving a different category of vehicle.  (For example, the driver of an HGV who has passed a car driving test but has not passed an HGV test.)  Interestingly, this offence is also committed where a learner driver (aged 17 or over) is driving a vehicle without displaying L plates and/or without being supervised.  Underage driving is also covered by this provision, as is driving without wearing glasses or contact lenses where this is required by the licence.

Similarly to using a vehicle without insurance, a driver’s honest belief that he did hold a valid license is irrelevant for the purposes of this offence.

In terms of sentence, a level 3 fine (up to £1000) can be ordered, and in some cases there is a possibility of discretionary disqualification or endorsement with 3-6 penalty points.  A fixed penalty of £100 can also be issued in certain situations.

3. Causing Death by Driving (Unlicensed or Uninsured drivers)

Under s3ZB RTA 1988, a driver commits an offence if he causes the death of another person by driving a motor vehicle on a road and, at the same time, is committing an offence under either s87(1) RTA 1988 (driving without a licence) or s143 RTA 1988 (driving without insurance).

Importantly, there is no requirement for the prosecution to prove that the defendant’s driving was careless or dangerous.  All that needs to be proven is that there was “at least some act or omission in the control of the case, which involves some element of fault […] which contributes in some more than minimal way to the death”.[5]  Therefore, a defendant whose driving was in all respects ‘perfect’ at the relevant time cannot be convicted.  However, if there is some element of the defendant’s driving that can be criticised (for example, a breach of the highway code which, in all the circumstances, is not serious enough to amount to careless driving), and this element of the driving can be said to have played a not insignificant role in causing the death, there is likely to be a high chance of conviction.

A driver convicted of this offence can receive up to 2 years imprisonment if tried in the Crown Court, as well as obligatory disqualification or endorsement.  This may seem harsh because of the low ‘fault’ threshold, however it is suggested that the lack of insurance and/or valid licence has the effect of amplifying the seriousness of the offence such as to warrant such a high sentence.

Conclusion

As is emphasised by the above, it is vitally important to check that all your documents are in order before taking to the road.  The law does not care if you honestly believed you were entitled to drive, or if you honestly believed that you held valid insurance, so it is always best to take the time to read and understand the terms of your insurance policy, and your driving licence, to avoid any unwelcome surprises.

However, if you do fall foul of these offences, it is not always the end of the road.  In September 2014, in the case of R v T,[6] we helped a driver (who was accused in the Crown Court of obtaining insurance by using a false driving licence) avoid disqualification and imprisonment.  This shows what a big difference representation from an experienced Road Law Barrister can make – please do not hesitate to contact us for your free consultation.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post The Consequences of Driving Without a Licence or Insurance appeared first on Road Law Barristers.

It should be noted from the outset that the focus of this article is on sentencing for adults – there are significant differences when sentencing those under the age of 18.

The Role of Sentencing Guidelines

The Sentencing Council[1] produces guidelines to be used by the court during the sentencing process.  Guidelines have been produced for almost all road traffic offences, and are always a good starting point in estimating what sentence a driver is likely to receive.

Although the guidelines are not absolutely binding, the general rule is that they must be strictly followed unless the court is satisfied that it would be contrary to the interests of justice to do so.[2]  However, a recent case emphasised the fact that “guidelines are not tramlines – nor are they ring-fenced”[3] which means that, with the expertise of a Road Law Barrister on your side, it is possible to persuade the court to take a more flexible approach to sentencing than would otherwise be the case.

One example of this was the case of R v H which was heard in York Magistrates Court in 2014.[4]  Mr H pleaded guilty to dangerous driving and, according to the guidelines, was likely to receive either a high level community order or a period of imprisonment.  However, submissions made by his Road Law Barrister meant that Mr H actually left court with an absolute discharge, which is the most lenient sentence possible in law.  This illustrates the true value of being represented by an experienced Road Law Barrister at a sentencing hearing.

Guilty Pleas

It should also be noted that, under s144 Criminal Justice Act 2003, a court must take into account any guilty plea made by the defendant when considering what sentence to impose.  The Sentencing Council has produced a comprehensive guide as to how this should be approached[5], but the general rule is that a defendant will receive a reduction of one third if he pleads guilty at the earliest possible opportunity (which is usually his first court appearance).  The appropriate reduction will decrease the further through the court process the case gets, meaning that a defendant will receive a much lower reduction of around 10% if he pleads guilty “at the door of the court” on the day of his trial.

It should be noted that this reduction does not apply to the length of any ancillary order, including a disqualification from driving,[6] and is likely to be of a reduced level where the prosecution case is overwhelming.[7]

Road Traffic Specific Sentences

As Road Traffic offences are a very specific type of criminal offence, a number of context specific sentences have been created to address offending in this area.  A selection of these is outlined below.  It should be noted that in some cases the court can combine a number of different sentences so that the offending behaviour is adequately reflected by the sentence that has been passed – however this can get complicated, especially when a driver is being sentenced for more than one offence at the same sentencing hearing, so specialist advice from a member of our team is recommended.

1. Forfeiture of motor vehicle – the court can order, in some cases, that the vehicle involved in the offence be forfeited to the police.[8]
2. Disqualification – unless there are “special reasons”, a driver who is convicted of an offence involving obligatory disqualification must be disqualified from driving for at least 12 months.  (See our previous article on special reasons for further information.[9])  However, where the offence involves discretionary disqualification, the court has a choice as to whether it disqualifies.  Typically, only the most serious variants of qualifying offences will attract discretionary disqualification where the offence in question is a first offence.[10]  The court can also disqualify under the ‘totting up’ provisions if the driver has accumulated 12 or more penalty points, unless there are mitigating circumstances.  (See our previous article on mitigating circumstances for further information.[11])
3. Penalty points and endorsement – the majority of road traffic offences carry penalty points which should be endorsed on offender’s driving record, together with particulars of the offence, upon conviction.  The driving record used to take the form of the paper counterpart to the driving license, but it is now an entirely computerised system operated by the DVLA.  (Note that, where the driver is disqualified for an offence, penalty points must not be additionally endorsed in respect of the same offence.)[12]

“Mainstream” Sentences

As Road Traffic offences are criminal offences, it is possible for drivers to receive sentences which are applicable to the whole of the criminal law instead of or in addition to the specific sentences outlined above.  The three most common ‘mainstream’ sentences are outlined below.

1. Imprisonment – as with most serious criminal offences, a driver could be sent to prison if the offence is so serious that it crosses the ‘custody threshold’ (ie. that the offence “was so serious that neither a fine alone nor a community sentence can be justified for the offence”).[13]  The general idea is that prison should be seen as a last resort; however some offences, such as causing death by dangerous driving, are so serious that custody is the only option, according to the sentencing guidelines.  In cases where the court is going to sentence an offender to between 14 days and 2 years in prison, the court has the option of ‘suspending’ the sentence for up to 2 years.  This means that the offender will not be sent to prison immediately, but if they commit a further offence or breach any conditions set out by the court during this time, their suspended sentence will be ‘activated’ and they will serve the prison sentence that they would have received had the sentence not been suspended.  The court can essentially set the same conditions as are available when making a community order (see below).
2. Community Order – this type of sentence allows an offender to serve their sentence in the community, and may only be passed when the court considers that the offence was “serious enough to warrant such a sentence”.[14]  For this type of sentence, the court will order the offender to do a certain activity (such as unpaid work) and/or attend supervision or counselling appointments with a view to preventing further offending through rehabilitation.  The court can also impose restrictive requirements such as curfews and residence requirements, and can ban an offender from going to certain geographical locations.  The community order is arguably the most flexible sentence in that it can take many different forms depending on the circumstances of the individual offender.
3. Fine – for offences of low seriousness, the court can choose to simply fine the driver a sum of money.  Whilst the level of the fine must reflect the seriousness of the offence,[15] the court must also take into account the driver’s financial circumstances.[16]  This means that if the driver has a very limited income, the fine will be lessened so as not to exceed his means disproportionately.[17]  However, if the driver is very wealthy, the fine may legitimately be amplified so as to increase its impact.[18]  It should be noted that a failure to pay a fine imposed by the court is likely to result in a prison sentence.[19]

The court can also order “discharges”.  An absolute discharge is the most lenient sentence available in law, and is essentially where the court decides to impose no sentence whatsoever.  A conditional discharge is the second most lenient sentence, and is essentially an absolute discharge on the sole condition that the defendant does not commit a further offence within a specified period.

Conclusion

As noted above, the assistance of a Road Law Barrister can have an enormous impact on the court’s decision as to sentencing – you could quite realistically enter court expecting prison and drive home with your license intact, having received an absolute discharge.  If you are due to be sentenced for a road traffic offence, please contact us today for your free consultation.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post A Guide to Road Traffic Sentencing appeared first on Road Law Barristers.

In this article, we take a brief look at three ways a driver can challenge a speeding charge in court, thus allowing them to avoid a conviction completely.

1. Does the vehicle fall into an excepted category?

Section 87 RTRA sets out a number of classes of vehicle which can be effectively immune to speeding tickets in certain circumstances.  In essence, if a vehicle is being used for fire service, ambulance or police purposes, and driving in accordance with the speed limit would be likely to hinder the purpose for which they are being used, such vehicles are immune to speeding tickets.  In such cases, s87(2) states that the driver must have completed a prescribed high speed driving course if they are to benefit from the immunity.

‘Official’ police cars, ambulances and fire vehicles clearly fall under s87, but there have been cases where individuals have attempted to argue that their own vehicles became “ambulances” when they were used to convey someone to hospital at speed, for example.  The court has not been sympathetic to this approach, and has held that vehicles which are not constructed or adapted towards such a purpose are highly unlikely to fall under the exception.

2. Was the speed limit adequately signposted?

Incorrectly sited speed limit signs will not automatically invalidate a road’s speed limit.  However, it may be possible to avoid a conviction if it can be shown that, in all the circumstances, the signs are not sufficient in advising drivers of the speed limit, or are otherwise misleading.[2]  For example, it was held that the signs must be positioned in such a way as to convey a reduced speed limit to the driver in sufficient time to enable the driver to reduce their speed to the new limit, and that this would not be the case if the speed limit signs are obscured by overgrown hedgerows.[3]  Similarly, if a sign is not illuminated in the dark when it is required to be so illuminated by law, this may also amount to inadequacy for present purposes.

Where the adequacy of the signage is raised, the court must hear evidence from the prosecution relating to whether the signage is compliant with the Traffic Signs Regulations and General Directions 2002 (SI 2002 No. 3113).[4]  Where there is substantial (as opposed to trivial) evidence of non-compliance, the court should perform a balancing exercise weighing the public interest in setting and enforcing speed limits against motorists’ protections against conviction, and the driver’s ability to determine the speed limit by other means.[5]

There is, however, an exception.  If the distances between streetlights on a stretch of road are equal to or less than 200 yards, the road may be considered a “restricted road”.[6]  Unless signage indicates otherwise, it should be assumed that such a road carries with it a speed limit of 30mph: there is no need for additional signage indicating that there is a 30mph limit.  It is for the prosecution to prove the speed limit, and so the defendant may choose to put the prosecution to strict proof on this issue – in such a case, the prosecution must provide evidence which proves, beyond reasonable doubt, that the streetlights are in fact the appropriate distance apart.[7]

3. Can it be proven that the driver was actually speeding?

If the prosecution is based entirely on eyewitness testimony (ie. where someone states that, in their opinion, the driver was speeding) there may be a realistic chance of avoiding conviction.  Section 89(2) RTRA states that evidence of speed must be corroborated by a secondary source.  Therefore, if the only evidence that the driver was speeding comes from a single pedestrian who said that the driver was driving “a bit fast”, the prosecution cannot succeed because the allegation of speeding is not corroborated.  However, if there was a second witness who (having observed the driver at exactly the same time) also said that they thought the driver was speeding, this is likely to be sufficient evidence upon which a conviction can be based.[8]

An exception arises where the conclusion that the driver was speeding comes from a factual source: driving a police car at an even distance behind a driver and making a note of the readout on the police car’s speedometer requires no further corroboration.[9]

However, under s20 Road Traffic Offenders Act 1988 (“RTOA”), it can be conclusively proven that a driver was speeding if this fact is shown by a record produced by a prescribed device.  ‘Prescribed devices’ include radar guns used by the majority of police forces.  It is a similar position where the evidence is produced by a fixed speed camera such as a Gatso or Truvelo.  The evidence must be accompanied by a certificate signed by a constable (or other authorised person) and, where such a certificate is provided, the burden shifts to the defence to prove that the evidence is not an accurate record.  The result in practice is that, in the overwhelming majority of cases, the printout from a speed camera is final, unless there is persuasive evidence to suggest that the camera was not calibrated properly (to use one example).

Conclusion

If you have been accused of speeding it is possible that, with our help, you could avoid a conviction.  This article has looked at three of the ways in which a driver could escape conviction, but these are only a sample.  Each case is unique, and the facts of your case may allow a different defence to be raised.

Even if you are convicted, we have considerable expertise in handling sentencing hearings.  One example was the case of R v M,[10] heard in Leeds Magistrates Court, where a driver faced disqualification for a fourth speeding offence as a result of the ‘totting up’ provisions.  Despite not being at risk of losing her job if she was banned, M’s Road Law Barrister was able to persuasively argue that other people would be prejudiced if she was disqualified, namely members of the public she helped by working for the NHS.  As a result, M retained her license.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post 3 Ways of Contesting a Speeding Charge appeared first on Road Law Barristers.

In this article, we look at how you could avoid a driving ban under s35.

For how long would a ban under s35 last?

Section 35 RTOA 1988 states that a ban must last “for not less than the minimum period”, unless mitigating circumstances apply.

The length of the minimum period depends on whether the driver has received a driving ban (lasting for at least 56 days) in the three years before the date the latest offence was committed:

• If the driver has not received a qualifying ban during this period, the minimum period of disqualification is 6 months.
• If the driver has received one ban during this period, the minimum period of disqualification is 1 year.
• If the driver has received more than one ban, the minimum period of disqualification is 2 years.

It should be noted that these are only minimum periods – the court may, if it considers a lengthier ban to be more appropriate, order that the driver be banned from driving for a period exceeding the minimum periods outlined above.

If a ban is received under s35, the effect of the ban is to ‘wipe the slate clean’ as regards penalty points – any penalty points which triggered the ban will not be counted by the court in future proceedings.  However, as is shown by the above, the fact that a ban has been ordered will be taken into account by the court when considering the minimum period in relation to future bans.

How can a ban be avoided?

A ban under s35 can be avoided if:

“the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”[2]

In short, if the driver can show that there are “mitigating circumstances”, he may be able to avoid a disqualification (or shorten the length of the disqualification).

Mitigating circumstances under s35 are very different to “special reasons” under s34 (relating to obligatory disqualification) in that mitigating circumstances can relate to either the offender or the offence, whereas special reasons can only relate to the offence.[3]

Despite the broad phrasing of s35(1), s35(4) states that the following circumstances cannot amount to mitigating circumstances:

• Any circumstances alleged to make the offence not a serious one.
• Hardship, other than exceptional hardship.
• Any circumstances which, in the three years before the conviction, have already been taken into account by the court under s35 in relation to a previous ban.

It follows that, in practice, most of the mitigating circumstances raised in court relate to exceptional hardship.  The most common argument relates to employment: if a driving ban would be likely to cause the driver to lose his job (because a license is required to travel to work, or because the job involved driving, for example) this could form the basis of a strong exceptional hardship argument.  The court is likely to consider the effect of the ban on the driver’s family (and, if the driver is a businessman, the effect on any dependent employees).  The court will, however, consider whether alternative means of transport would be available to the driver, and will also consider whether driving is actually necessary for the driver’s job.

The burden is on the driver to persuade the court that mitigating circumstances apply in the context of the case, and the court may require evidence to be presented if the matters raised do not fall within the court’s knowledge.  Considerable expertise is required to persuasively present this information: the court must be satisfied that the hardship is ‘exceptional’ if it is to have any room for manoeuvre under s35.

Different rules for newly qualified drivers

Although separate from s35 RTOA 1988, a slightly different system operates in respect of newly qualified drivers.

Under the Road Traffic (New Drivers) Act 1995, a “probationary period”, lasting for 2 years from the date the driving test was passed, applies to all new drivers.  During this period, if the driver obtains 6 or more penalty points, the court will automatically revoke the driver’s license.

If the license is revoked during the probationary period, the driver must reapply for a driving license and must retake an ‘ordinary’ driving test before being awarded a full license.  It should be noted that, after the retest, no new probationary period exists.  However any penalty points obtained during the probationary period remain ‘active’ for 3 years from the date of the commission of the offence(s) and will be carried over to the new license.  Obtaining a further 6 points would, therefore, make the driver liable for disqualification under the s35 scheme outlined above.

Conclusion

If you face disqualification under the s35 ‘totting up’ procedure, please contact us for a free consultation.  In the case of R v W [4], Mr W was caught doing 99mph in a 70mph limit.  He already had 9 penalty points on his license, and so faced the prospect of a 6 month disqualification which would have caused him to lose his job, causing his family to suffer severe hardship.  Following a free consultation with one of our expert barristers, the persuasive submissions we made on his behalf resulted in him avoiding disqualification altogether.  Without our expertise Mr W may not have been able to persuade the Magistrates that his hardship was ‘exceptional’, and may not have been able to avoid a ban.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.

The post Penalty Points Disqualification and Exceptional Hardship appeared first on Road Law Barristers.