In relation to certain offences, the law requires that a driver must have been warned at the time of the offence unless summoned within fourteen days or at a written notice of intended prosecution served on him or her within fourteen days. Frequently drivers will only be aware of a road traffic offence has alleged when a notice of intended prosecution is served on them as the registered keeper of the vehicle or if information identifying them as the driver at the relevant time has been provided by the registered keeper of the vehicle.Timescales are strict, and the law involved, complex. This is particularly so in relation to the contents of the notice and the timescales observed in relation to the service of it. Although the Notice of intended prosecution is an administrative process, it is important because if the required procedures are not followed accurately, it may invalidate proceedings for an offence as a result of the information provided by the Notice.
Road Traffic and Motoring Offences
For many people, the only time they have contact with the criminal law is when they receive a Fixed Penalty Notice or a Magistrates Court Summons for a road traffic offence.
The fear of losing a driving licence and the unfamiliar legal process involved can cause sleepless nights and worries. Losing your driving licence could mean losing your job.
Road traffic law can often appear to be a minefield of strange legalities and technical jargon. However, there are always ways through this and at Eric Robinson Solicitors, we can help you make sense of it all, and get the best result, whether driving a private or commercial vehicle and whether you are local to our offices in and around Southampton, or Nationwide. We have access to forensic and accident reconstruction experts who help us, in appropriate cases, in advising you. Read on for an explanation of some of the more common types of offence and information about how we could help ensure that you keep your licence.
Frequently a Notice of intended prosecution is accompanied by Notice under Section.172 sent to the registered keeper, requiring information to be given as to the identity of the driver of the vehicle at the time of a suspected offence. The registered keeper will have 28 days to respond and a failure to do so is an offence in itself. Sometimes additional persons, who have information that could lead to the driver of the vehicle being identified, must respond as well in the event that they are also served with such a Notice. A person served may have a defence if for any reason they are not able to identify who the driver was at the material time. Limited companies are not able to rely upon the defence unless it is reasonable for the company not to have kept records. Careful scrutiny of documents and any records kept is crucial to successfully defend such an offence, and we can assist you with this.
An offence of speeding may be committed by exceeding the speed limit for the road in question and/or by exceeding the speed limit for the class of vehicle being driven. Heavy goods vehicles and cars towing caravans and trailers, for example, may exceed the speed limit on both counts. Speeding may be detected by the use of Home Office approved detection equipment (fixed, portable, or average speed cameras, for example) or even the opinion of a police officer in certain circumstances. Challenges to the equipment can be very complicated and technical, and may well necessitate the instruction of specialist experts, but there are also strict controls as to the use and operation of relevant speed detection equipment. Persons convicted of speeding will be required to pay a fine and are likely to have to pay a contribution towards prosecution costs as well as the victim’s surcharge. In addition 3 to 6 penalty points will be imposed and the Court also have the power to impose discretionary disqualification for the offence. Sometimes, as an alternative to prosecution or to the issue of a fixed penalty notice, a driver may be given the opportunity of attending on a Speed Awareness Course. There is a fee to pay for attending on such a course, but if you do attend, your driving licence will not be endorsed with penalty points.
A person is guilty of careless driving if the quality of the driving concerned fell below standard to be expected of a competent and careful driver. This means that all drivers, regardless of age, experience or qualification, are judged in the same way. Every case will depend upon its own facts and, because of this; defences will usually involve a challenge to factual evidence given by prosecution witnesses. At Eric Robinson Solicitors we have many years’ experience in examining and cross-examining witnesses at trial. We can assist you in challenging evidence of this nature. In the event of conviction, the offence is punishable by a fine, and you can expect to have to contribute towards prosecution costs and to pay the victim’s surcharge. In addition 3 to 9 penalty points may be imposed depending upon the seriousness of the case and the Magistrates also have power at their discretion to disqualify you from driving.
Should death be caused as a result of careless or inconsiderate driving, or by careless driving when under the influence of drink or drugs, then far more serious offences are committed which will be tried in the Crown Court and more likely than not result in sentence of imprisonment being imposed. It is essential that you should be represented by experienced Solicitors should you face such allegations both at the police station when the offence is under investigation, and at Court should it then be charged. We have lots of experience in dealing with such cases, and you can be assured that your case is in good hands and will be efficiently and you can be assured that your case is in good hands and will be efficiently and competently dealt with in your best interests, should we be instructed on your behalf.
Dangerous driving is a very serious offence that is similar to careless driving but which involves a quality of driving that falls far below the standard that would be expected of a competent and careful driver. This is judged by the standard of the reasonably prudent motorist, and is often difficult to understand. You will need professional help in advising you as to your plea in the light of the admitted facts. Driving at very high speeds can be considered dangerous driving, as can particularly aggressive styles of driving, whether or not accidents result. The offence is made worse should it be committed whilst a driver is under the influence of alcoholic drink or drugs. As with careless driving, defences will often involve in a challenge to the facts of the case as portrayed by the prosecution witnesses potentially by showing to the Court that the quality of the driving admitted did not fall far below the standard that would be expected of a competent and careful driver. It is possible that a Court may find a defendant not guilty of dangerous driving but guilty of careless driving in the alternative, if it believes that this is appropriate on the facts. Dangerous driving cases can be heard either in the Magistrates Court or in the Crown Court depending upon the view that the Magistrates Court takes as to the level of seriousness involved. The offence is imprisonable maximum penalties of six months imprisonment in the Magistrates Court and two years’ imprisonment in the Crown Court, in both cases with or without a fine in addition. If convicted of dangerous driving, the sentence will be disqualified from driving for a minimum period of twelve months and required to take an extended driving test at the end of the disqualification period.
Should you be convicted of causing death by dangerous driving, the offence can only be heard in the Crown Court and will inevitably involve a lengthy and complex investigation of the prosecution evidence as to the quality of the driving and potentially as to the issues arising from the death. The employment of specialist experts is quite likely. A lengthy sentence of imprisonment can be expected on conviction at the Crown Court.
Motorists will be aware of the many different types of road signs and signals available from their knowledge of the Highway Code. There are specific regulations concerning the size, shape and positioning of such signs and signals, which may also include those on the road itself. If it is alleged that you have infringed a road sign or signal, you may do so on the basis of fact (by disputing that you did in fact infringe the sign or signal) or because of the lawfulness of the sign or signal. The regulations are complex, and we can help you find your way through them. In addition to a fine (with prosecution costs and the victim’s surcharge on top) offences of this nature carry 3 penalty points and the Magistrates also have discretion to disqualify.
There are at least ten types of offence under the Road Traffic Act 1988, which cover driving, being in charge of a vehicle, or attempting to drive a vehicle, whilst being unfit or over the drink drive limit.
There will be usually be direct evidence to show that a person was driving the vehicle and that at the material time you were driving on a public road or other place to which the public have access. What is and what is not a road or public place can be complicated and difficult to resolve. Sometimes the evidence can be circumstantial, such as if the suspect has the car keys in their pocket, the bonnet of the car warm, and they are hiding nearby.
Being in charge of the vehicle as opposed to driving it is more than just being the registered keeper of it. A successful defence could hinge on showing that in spite of being over the legal drink drive limit; they were not actually going to drive the vehicle whilst over that legal drink drive limit.
The amount of alcohol that a person has consumed is usually measured by the police taking a road side breath test, and then a further evidential breath test at a police station. The police have the right to demand a road side breath test if:
- They reasonably suspect an individual to have alcohol in their body; or
- They reasonably suspect the driver of having committed a traffic offence; or
- There has been an accident.
Refusing to cooperate with the road side test is an offence in itself. The road side test may give a positive reading and if this is the case, an arrest will usually follow. Further testing then takes place at the police station. Once there, you will be asked to provide two further samples of breath. The police will take the lower of the two readings to be their evidential reading. The machine will produced a printed receipt which will also contain the calibration data for the machine. The police can also request samples of blood or urine, although this is not the standard procedure. The prescribed legal limits of alcohol in blood breath and urine are:
- A maximum of 35 micrograms of alcohol in 100 millilitres of breath;
- A maximum of 80 milligrams of alcohol in 100 millilitres of blood; and
- 107 micrograms of alcohol in 100 millilitres of urine.
The procedure for obtaining specimens is strict, and must be followed by the police very carefully. If they fail to do so or the machines are otherwise operating defectively, then a successful defence to a prosecution may follow.
Failing to provide a specimen of breath at the police station is an offence in itself, and is often easier for the prosecution to prove. It can result in a longer period of disqualification at Court.
Where a person has consumed alcohol after driving before a request is made by the police for the provision of a specimen of breath, it may be possible to show by means of a “back calculation” that the amount of alcohol in your body was below the legal limit at the time of driving. This is likely to require supporting evidence and, in most cases, expert evidence.
Driving with excess alcohol will attract disqualification for at least twelve months, but the length is scaled to reflect the level of alcohol in the body. Where a driver has committed a previous offence of drink driving within the previous ten year period, the offence attracts a minimum period of disqualification of three years. Most offences of drink driving will also result in a fine or in the most serious cases imprisonment can be imposed of up to six months. If you are convicted of “being in charge” disqualification is discretionary but the driving licence must be endorsed with up to 10 penalty points. A prison sentence of up to three months can also be imposed.
If you do not hold the minimum level of motor insurance required by law, for the offence to be committed, there is no need for the prosecution to show that your vehicle was being used at the relevant time or even on the road at all. With insurance offences the burden of proof rests with you to show that at the relevant time relevant insurance cover was in place. Very often this can be done by producing a copy of a valid insurance certificate and, if you are an employee, a defence may be available to you if you can show that you were employed by the vehicle owner, that you were driving it within the scope of your employment, and that you neither knew or had reason to believe that you were uninsured.
It is also an offence for a person to cause or permit someone else to use a vehicle on a road or other public place without insurance as noted above. Fines are generally imposed for no insurance offences and your driving licence will be endorsed with 6 to 8 penalty points. The Court is able to disqualify you from driving at its discretion.
It is an offence to be driving on a road on a motor vehicle otherwise then in accordance with a licence to drive a vehicle of the class being driven. Unless a provisional licence has been secured (and the vehicle driven whilst displaying learner plates and being properly supervised) a person will generally not have a driving licence because a test has not been passed. Sometimes however, it may arise if a person drives after the passing of a period of disqualification and before a new licence has been issued to the driver.
The offence requires the vehicle to be driven. This may seem a simple concept, however, technical arguments are available to determine whether a person is driving or not and cases will tend to turn on their own facts. Much will depend upon the extent to which the driver was able to control the movement and direction of the vehicle concerned. Persons convicted of the offence will be required to pay a fine, the victim’s surcharge, and quite probably a contribution towards prosecution costs, as well as having their driving licence endorsed with 3 to 6 penalty points. If the class of vehicle being driven required an HGV or PSV licence, punishment is likely to be greater.
A person is guilty of an offence if, whilst disqualified from holding or obtaining a driving licence, he obtains a licence or drives a motor vehicle on a road. Such offences are treated seriously by the Court because it involves the deliberate ignoring of an order made by a Court on a previous occasion. It follows that the prosecution have to prove that the person previously disqualified by a Court is in fact the same person as he or she who is now charged with the offence. You may well need assistance from us to ensure that the required proof exists, as it can be quite technical. Further, the prosecution will also have to prove that the defendant was aware of the previous prosecution that led to him or her being disqualified in the first place. Generally they will have been present in Court, but some Courts do have a practice of imposing disqualification in a defendant’s absence.
Persons convicted of disqualified driving will have their driving licence endorsed with 6 penalty points unless further disqualified by the Court, as it common. As noted, the offence is a serious one and has a maximum penalty of six months in prison in the Magistrates Court. Defendants convicted of this offence are frequently sent to prison, making it very important that we represent you.
It is unlawful to drive a vehicle or ride a motor cycle while using a hand held mobile phone or device that “performs an interactive communication function by transmitting and receiving data”. This means that if while driving, you pick up, or use such a device, then you will be breaking the law. It is however, permissible to use hands free mobile phones, satellite navigation equipment and two way radios though if the police think that you are being distracted and are not in control of your vehicle, you could still be stopped and penalised. You will have a defence if your hand held mobile phone was used to call the emergency services on 112 or 999 in the event of a genuine emergency and when it is unsafe or impractical to stop driving in order to make the call. The offence is punishable by fine and the endorsement of 3 penalty points.
It is the duty of the driver of a vehicle to stop at the scene of an accident in which personal injury is caused to another person or damage is caused (other than your own vehicle) and, if required to do so by some other person having reasonable grounds, to give your name and address and the name and address of the owner of the vehicle (if different) as well as the registration number. The law also says that if you do not do so, you must report the accident to a police station or to a police constable as soon as reasonably practicable and in any event within 24 hours of the accident taking place. If injury has been caused, there is a further obligation to produce a certificate of motoring insurance to a police officer or to some other person having reasonable grounds.
These are serious offences which can result in substantial fines as well as imprisonment for up to six months. The Magistrates are obliged to endorse a driving licence with 5 to 10 points but may, at their discretion, instead to choose to disqualify you from driving. Accidents frequently involve factual evidence which may be challenged. The issues that can arise are numerous, but we can help you.
There are many complicated and complex regulations that relate to potential vehicle defects that apply both to private motor cars and to commercial heavy goods or public service vehicles.Frequently, these regulations need to be very carefully considered to determine whether an offence has been committed or not. Typical defects might include:
- not having a vehicle excise licence
- not having an MOT certificate
- defective brakes
- defective steering
- defective tyres
- defective exhaust
- defective lighting
- the general condition of the vehicle, it’s accessories or equipment is such as to involve a danger of injury
- no goods vehicle plating certificate
- exhaust emissions (in relation to vehicles over 3.5 tonnes)
- insecure load
- excessive numbers of passengers as to involve danger of injury
- no operator’s licence
- speed limiter not used or incorrectly calibrated
- tachograph not being used or not working.
This is not an exhaustive list and where such offences have been committed, fines can be substantial. Penalty points (usually 3) maybe endorsed in relation to certain of these offences.
Complex rules and regulations apply to road transport and differ according to whether heavy goods or public service vehicles are being driven. They govern how many hours may be driven and the breaks that need to be taken. There are three sets of rules that could apply namely EU rules, AETR rules or GB Domestic rules which applies depends on the type of vehicle that is being driven and the country in which it is being driven. The facts of every case will need to be scrutinised carefully to ensure compliance or breach and to ensure that no exemptions apply.
Careful records much be kept of hours worked on weekly record sheets and operators are expected to check and sign them. Tachograph’s may be used some circumstances to maintain these records but if so all rules in relation to the (inaudible 1.18) and use of the tachograph must also be complied with. Again, these records will need to be carefully examined and a check undertaken to ensure that none of the exemptions apply. Penalties will be financial.
When a driver acquires 12 or more penalty points within the previous three years, they are subject to disqualification for a minimum period of six months. The period could be greater than this if previously disqualified under the “totting up” provisions. When calculating the penalty points the Court will take into account all those that have been acquired in the three years up to the date that you committed the new offences awaiting sentence. It is important to recognise however that where an offender falls to be sentenced for several offences carrying penalty points that all occurred at the same, whilst each offence will attract penalty points, only the offence with the highest number of points will count towards the “totting up”.
It is sometimes possible to argue that exceptional hardship would be suffered if a driver is disqualified under the totting up procedure, and it amounts to hardship that is over and above that which might normally be expected to be suffered. The Court will need to hear evidence from the driver, and possibly others in support to show that exceptional hardship might be suffered through the loss of a driving licence. Careful case preparation is necessary to ensure that the Legal Argument presented to the Court is as strong as it can be. If successful, the Court has the discretion to either disqualify a driver for a shorter period or not at all.
Newly qualified drivers are in a different position. If within two years of passing a test, a newly qualified driver accumulates six or more penalty points, their licence is automatically revoked and it will become necessary for a second test to be passed before such a person is once again able to secure a full driving licence.
Some offences carry mandatory disqualification. In other cases, the Court has a discretion to impose disqualification or alternatively to endorse a driving licence with penalty points. Where special reasons are present however the Court may refrain from either imposing disqualification or from endorsing penalty points. These special reasons must relate to the particular facts of the case and not the particular circumstances of the offender. There is no definitive list of what is or what is not a special reason, and there are lots of cases to consider. The prospects of success will differ greatly and we will be able to advise you in greater detail having regard to your own particular circumstances. This is important because the onerous of establishing a special reason rests with the defendant and will need to be supported by evidence. Again meticulous case preparation and Legal Argument, is crucial.
Any driver convicted or sentenced by a Magistrates Court has a right of appeal to the Crown Court. There is a strict time limit of 21 days from the date of sentence for doing so and within that time, notice of appeal, giving brief grounds, must be served on the Court and the Prosecution. The Court may sometimes be willing to hear an appeal even though the time limit has passed. The appeal will be by way of a rehearing of the original evidence but in the case of a sentence, the Judge will restrict his observations to the fairness of the sentence that was imposed. To appeal against conviction and/or sentence can be a daunting prospect, particularly if a driver has represented him or herself at the Magistrates Court Proceedings. We can reconsider the matter on your behalf, review the evidence and present your case in the best possible light, thereby relieving you of the stress and burden of presenting your own case.
If a driver has been unfortunate enough to have been disqualified from driving for a period in excess of two years but less than four years, it is possible to make an application to the Court for the early return of your driving licence once at least two years has passed from the date of the original disqualification. The time limits are greater where the original period of disqualification exceeds four years. The application will need to be well supported by evidence and you will need to be clear about your arguments. It may be necessary to secure supporting evidence, from a Doctor for example, to show that a driver is no longer alcohol dependent where the original period of disqualification was for drink driving.
Road traffic law can be complex, but at Eric Robinson Solicitors we have the experience and depth of knowledge to help you. We can offer this service both locally and nationwide. Contact a member of our specialist team to find out more.