The importance of specialist representation when facing prosecution in road traffic cases. Three case studies.

CASE STUDY 1

I was consulted by H who was charged with one count of careless driving. The proceedings were initiated by Hampshire Constabulary (“the Police”) and prosecuted by the Crown Prosecution Service (“the CPS”).

H was a young probationary driver who was involved in a single vehicle accident where, due to excessive acceleration from a standing start at traffic lights, he lost control of the vehicle and ended up in a ditch. H had a clean driving licence and the Police offered H the opportunity of attending a Safe and Considerate Driving Course (“SCDC”) as an alternative to a prosecution for careless driving. Unfortunately, the letter from the Police offering the SCDC erroneously referred to the date for completion as being the date of the accident which, of course, pre-dated the offer. H, who is dyslexic, misconstrued the completion date as relating to the following year and did not take action in time to avail himself of the offer. H ended up before the Aldershot Magistrates’ Court for trial facing one count of careless driving. As H was a probationary driver, if convicted and sentenced to 6 or more penalty points, H was at risk of revocation of his driving licence entitlement pursuant to the Road Traffic (New Drivers) Act 1995.

Before I was instructed H had entered a not guilty plea and a trial date had been fixed. Upon being instructed in the case I wrote to the CPS making detailed representations in a 6-page letter urging the CPS to discontinue the case on public interest grounds including a proposal that the discontinuance could be made conditional upon the SCDC first being completed. The Police had already repeatedly apologised in earlier correspondence with H’s mother for the error in the offer letter but despite these apologies refused to countenance the reoffer of the SCDC stating that there have been incidents where drivers have been unable to complete a course for other reasons such as lack of availability and they are not given an opportunity to take the course on another occasion after the statutory limitation period has expired. The reasoning of the Police went on to say that such courses are offered at the discretion of the Police and are by “no means a given” as the driver does not have the right to complete the SCDC.

In light of the Police refusal to reoffer the SCDC the CPS went on to consider the public interest test and decided that it was in the public interest to proceed with the case against H. Pursuant to my advice H applied for the stay of the proceedings on abuse of process grounds on the basis that H had been given an expectation that he would not be prosecuted and that it was manifestly unfair that H faced proceedings.

Following an exchange of Skeleton Arguments with the CPS containing legal argument I advised H to abandon the abuse of process application and to change plea to guilty thereby placing all of the emphasis on the mitigation. During the sentencing exercise, which came before District Judge Pattinson (“the DJ”) at Aldershot Magistrates’ Court, the CPS submitted that the sentencing of H came within category 2 of the Magistrates’ Court Sentencing Guidelines for careless driving matters. A category 2 case involves a starting point of a fine in keeping with a defendant’s means equivalent to one week’s net income after deductions of income tax and national insurance coupled with endorsement of the driving licence with 5 to 6 penalty points. The CPS in their Skeleton Argument had submitted that H’s case came within category 1 which involves a starting point of a fine in keeping with a defendant’s means equivalent to one-and-a-half-weeks’ net income after deductions of income tax and national insurance coupled with consideration of a disqualification or endorsement of the driving licence with 7 to 9 penalty points.

I mitigated at length on H’s behalf emphasising the history of the matter and, in particular, the offer of the SCDC by the Police in a letter with the erroneous completion date details. I urged the DJ to place H in category 3 for sentencing purposes the starting point of which would be  a fine in keeping with a defendant’s means equivalent to half-a-week’s net income after deductions of income tax and national insurance coupled with endorsement of the driving licence with 3 to 4 penalty points.

The DJ readily took on board the mitigation and described the matter as “a very unusual case”. The DJ observed that in all likelihood H would have completed the SCDC and would not have been before the court had there not been an error in the letter as to the completion date of the SCDC. The DJ expressly took into account the fact that there had been a guilty plea and took account of the “very unfortunate background” to the case. The DJ imposed a low fine, no prosecution costs and endorsed the licence with only 3 penalty points. The DJ expressly stated in sentencing that he was approaching the case akin to a fixed penalty case where the fixed penalty had not been accepted for good reason.

The sentence imposed by the DJ meant that H avoided becoming subject to the new driver revocation provisions and saved his driving licence entitlement. This case demonstrates the need to seek specialist legal advice when facing an allegation of careless driving.

CASE STUDY 2

I was consulted by S who was charged with one count of speeding. The proceedings were initiated by Kent Police (“the Police”) and prosecuted by the Crown Prosecution Service (“the CPS”).

S was alleged to have been driving at a speed of 46 mph along a section of a restricted road subject to a 30 mph speed limit.  The speed reading was generated by a Home Office approved laser speed measuring device. S took issue with the accuracy of the speed measurement. Pursuant to my advice S tendered a not guilty plea and in doing so expressly took issue with the accuracy of the speed reading. Furthermore, the prosecutor was put to proof of the status of the road at the enforcement site and a request was made for production of any road traffic regulation order which imposed the alleged speed limit. S believed that the section of road had previously been subject to a higher limit of speed than 30 mph.

The court fixed a trial date at Medway Magistrates’ Court. S had 9 penalty points on his licence for sentencing purposes and, if convicted, S would have been liable to a “totting-up” disqualification of at least 6 months. I advised S how to prepare his mitigation in terms of “exceptional hardship” for the purposes of section 35(1) and (4) of the Road Traffic Offenders Act 1988. As part of that preparation and pursuant to my advice S undertook an intensive road risk and behaviour training course and the course provider supplied a detailed report for the use of the court in the event of a conviction being imposed.

When the matter came before the justices for trial the prosecution witnesses had not been warned to attend the trial. I was able to persuade the CPS in all the circumstances not to seek an adjournment. The CPS offered no evidence against S and the speeding charge was dismissed. A defence costs order was made in S’s favour. The acquittal of S meant that his licence entitlement was no longer at risk in terms of a “totting-up” disqualification.

This case demonstrates the need to seek specialist legal advice when facing an allegation of speeding.

CASE STUDY 3

I was consulted by J who was charged with one count of use of a mobile phone while driving. The proceedings were initiated by the Metropolitan Police (“the Police”) and prosecuted by the Crown Prosecution Service (“the CPS”).

J was alleged to have been driving a motor vehicle while he was using a hand-held mobile telephone. The Police were relying on video evidence captured by a civilian pedal cyclist on a helmet mounted camera which had been uploaded by the cyclist onto a platform administered by the Police. J took issue with the allegation that he was driving at the material time as the vehicle had been stationary in traffic held at a red traffic light for an appreciable period of time with the engine likely not running. Pursuant to my advice J tendered a not guilty plea and in doing so expressly took issue with the allegation that he was driving at the material time.

The Police served two witness statements in support of the charge. The first witness statement related to the cyclist and the second witness statement related to the Police representative who requested the driver details in the post from J pursuant to section 172 of the Road Traffic Act 1988. Pursuant to my advice the attendance of both witnesses was required at trial. The attendance of the cyclist was required as there was an issue over the allegation of “driving”. The Police representative’s attendance at trial was required as there was a failure to make reference in the witness statement to correspondence which J had sent to the Police when responding to the driver details request. J in that correspondence had queried the lack of a date and time on the video evidence and had also urged the Police not to take any further action on evidential and/or public interest grounds. The Police also made a conditional offer of a fixed penalty which J rejected while renewing his representations to the Police. The Police representative had also failed to mention that further correspondence in the witness statement.

The court fixed a trial date at Croydon Magistrates’ Court. J had 9 penalty points on his licence for sentencing purposes and, if convicted, J would have been liable to a “totting-up” disqualification of at least 6 months.

When the matter came before the justices for trial the cyclist turned up to give evidence but was unable to remain at court for sufficient time to give that evidence due to child care commitments. Furthermore, the CPS had not warned the Police witness to attend the trial and had the trial proceeded would have been in significant difficulty proving the identity of the driver as that witness crucially was the witness who purported to produce J’s response to the driver request. The CPS decided in all the circumstances to offer no evidence against J and the charge was dismissed. A defence costs order was made in J’s favour. The acquittal of J meant that his licence entitlement was no longer at risk in terms of a “totting-up” disqualification.

This case demonstrates the importance of seeking specialist legal advice when facing an allegation of use of a hand held mobile phone while driving.

Tel: 01489 573473, Mob: 07970 216593
Barry Culshaw is authorised and regulated by the Solicitors Regulation Authority under SRA number 62582 whose rules can be accessed via www.sra.org.uk.