Appealing Against Penalty Points and Driving Disqualifications
The three main ways of changing a magistrates’ court decision are:
- Statutory Declaration
- Application to Reopen
- Appeal to the Crown Court
If you have been convicted without your knowledge, you may be able to make a statutory declaration. Once made and served correctly it has the effect of cancelling the previous conviction and sentence. This means that any disqualification or points are removed, although it may take some time for DVLA to update your records. The law is contained in s.14 and s.16E of the Magistrates Court Act 1980.
S.14 & s.16E Magistrates Court Act 1980
s.14.— Proceedings invalid where accused did not know of them.
(1) Where a summons has been issued under section 1 above and a magistrates’ court has begun to try the information to which the summons relates, then, if—
(a) the accused, at any time during or after the trial, makes a statutory declaration that he did not know of the summons or the proceedings until a date specified in the declaration, being a date after the court has begun to try the information; and
(b) within 21 days of that date the declaration is served on the designated officer for the court,
without prejudice to the validity of the information, the summons and all subsequent proceedings shall be void.
(2) For the purposes of subsection (1) above a statutory declaration shall be deemed to be duly served on the designated officer if it is delivered to him, or left at his office, or is sent in a registered letter or by the recorded delivery service addressed to him at his office.
s.16E Accused not aware of single justice procedure notice
(1) This section applies if—
(a) a single justice procedure notice has been issued, and
(b) the written charge is being tried, or has been tried, in accordance with section 16A.
(2) This section does not apply if the trial of the written charge has been adjourned under section 16B(3)(a) or 16C(3)(a).
(3) The proceedings subsequent to the single justice procedure notice are void if—
(a) the accused makes a statutory declaration that the accused did not know of the single justice procedure notice or the proceedings until a date that the accused specifies in the statutory declaration,
(b) that date is a date after a magistrates’ court began to try the written charge,
(c) the declaration is served on the designated officer specified in the single justice procedure notice within 21 days of that date in such manner as Criminal Procedure Rules may prescribe, and
(d) at the same time as serving the declaration, the accused responds to the single justice procedure notice by serving a written notification on that designated officer.
You can only make a declaration if you were unaware of the proceedings. It cannot be used if you forget to turn up for your court date.
Declarations should be made within 21 days of finding out about the proceedings.
You must tell the truth in your declaration. If you make a declaration that is not true, this could have the effect of rendering the declaration void which would mean that the sentence – including any disqualification – would not be set aside. If you wilfully or recklessly make a false declaration you could also be convicted of perjury which, is a very serious offence for which you can be sent to prison.
Once the conviction and sentence have been set aside, the proceedings will begin again. You will be required to enter a plea, just as you would have had to do if you had known about the proceedings.
Application to Reopen
The court can reopen your case in certain situations. If the case is reopened, the court can deal with all or part of your case again.
The power to reopen a case is contained in s.142 of the Magistrates Court Act 1980. For this reason, you may hear it referred to as a ‘section 142 application’.
s.142 Magistrates Court Act 1980
142.— Power of magistrates’ court to re-open cases to rectify mistakes etc.
(1) A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.
In a nutshell, the court can reopen your case to correct an error, or if it deems it in the interests of justice to do so. It is at the court’s discretion and is not a ‘right’. There is no time limit within which the matter should be considered for reopening. For these reasons, it may be sensible to consider lodging an appeal at the same time.
Once reopened, the court can rehear all or part of the case.
Appeal to the Crown Court
You have a right to appeal to the Crown Court against a decision of a Magistrates Court. The appeal must be lodged within 15 business days of the conviction. If you apply outside this time, your appeal may not be considered.
The appeal form must be sent to the Magistrates Court that originally dealt with your case. The court will send it to the Crown Court.
If you pleaded not guilty and were convicted, you can appeal against the conviction and sentence. If you pleaded guilty, you can only appeal against your sentence.
The Crown Court has the power to consider your case afresh. If you are convicted, it can reduce or increase your sentence. If you are unsuccessful in your appeal, you can be ordered to pay costs. You should therefore seek legal advice before lodging an appeal.
If you are appealing against a driving disqualification and need to drive in the meantime, you will have to make an application for the disqualification to be suspended. Lodging an appeal does not in itself suspend the ban.