Driver Avoids Totting Ban for a Second Time

Driver Avoids Totting Ban for a Second Time

A driver who had been disqualified for 6 months in the magistrates’ court after a second ‘totting up’ offence instructed us to help with an appeal. He had already successfully argued exceptional hardship around 18 months ago but had since committed a further driving offence.

Lucy Whitaker represented him in the Crown Court arguing that there were new grounds for the court to find exceptional hardship. Only if the court found that there were new circumstances could it consider an exceptional hardship argument.

The prosecutor opposed the argument that the grounds put forward were new. He stated that they had already been considered by the court on the last occasion and could not be taken into account by the court. The court disagreed and accepted our new argument.

After a lengthy hearing, the Judge and two magistrates agreed that exceptional hardship would be caused to the defendant’s grandmother. They, therefore, allowed the appeal and did not disqualify our client.

It is usually a difficult task getting a court to accept a second exceptional hardship argument within 3 years. It can be even more tricky in the crown court where the setting is very formal and rules are more strictly adhered to. Needless to say, our client was delighted that Lucy managed to save his driving licence.

 

 

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No Penalty Points for Driving Without Insurance

No Penalty Points for Driving Without Insurance

Driver avoids penalty points for driving without insurance using special reasons

We recently represented a driver who was caught driving without insurance because his policy had not been renewed. 

He had difficulties reading and writing and had relied on his mother to help him with emails and letters. When the letter arrived from the insurers informing him of the increase in premiums for the following year, his mother did not read it all. Unfortunately, she did not see the wording which asked the policyholder to take action if they wanted to renew it. 

Although the driver could not argue with the fact that he had been driving while uninsured, we could explain the circumstances to the court. This involved a hearing with family members giving evidence. After hearing all of the evidence, the court agreed that special reasons existed not to endorse his licence. The court accepted that he had relied on a person in a position of authority and that reliance was reasonable. It would be unfair to put points on his licence when he had no way of knowing that the policy had lapsed. 

Note: Driving without insurance usually carries 6-8 penalty points or a discretionary disqualification. 

If you have been charged with driving without insurance and require legal support, please contact us today.

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Company Not Guilty of Failing to Give Driver Details

Company Not Guilty of Failing to Give Driver Details

Our company client was acquitted of failing to give driver details after a trial in the Magistrates’ Court this week. One of its vehicles had been allegedly caught speeding and a request for driver details and notice of intended prosecution was sent out by the police.

The company did not receive either the notice or the reminder and could not respond to them. The prosecution insisted on proceeding to a trial despite the company giving other examples of mail having gone astray.

Lawyer Lucy Whitaker represented the company at the trial where an employee of the company gave evidence about the systems in place for dealing with mail. He told the court about the severe disruption to their mail resulting from the pandemic. Mail had had to be collected from the sorting office on numerous occasions and letters from banks and other organisations had never reached them.

The prosecution urged the court to convict on the basis that there was no written evidence of a complaint to Royal Mail or of any other mail going missing. Despite this, the magistrates confirmed that they were in no doubt that the requests for driver details had not been received and that if they had been, the company would have responded.

The company was found not guilty and accordingly no penalty imposed.

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The 14 Day Time Limit for Notices of Intended Prosecution – Loophole or Defence?

The 14 Day Time Limit for Notices of Intended Prosecution – Loophole or Defence?

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THE 14 DAY TIME LIMIT FOR NOTICES OF INTENDED PROSECUTION – LOOPHOLE OR GENUINE DEFENCE?

Back in 2018, David Beckham was reported as having relied on this ‘loophole’ to avoid a speeding conviction.

Whenever there is a report of someone in the public eye escaping a driving conviction, it frequently elicits a tirade of comments from readers.

Such comments often suggest that the individual only avoided conviction because of who they are and that such ‘loopholes’ are only available to the rich and famous, but that is not always the case.

The so-called 14 day Notice of Intended Prosecution (NIP) Rule was used by countless motorists in 2019 to avoid a conviction for speedingcareless driving, running a red light, and many others.

WHAT IS THE 14 DAY NIP RULE?

The law is contained in Section 1 Road Traffic Offenders Act 1988A summary is that:

Certain driving offences require a warning of possible prosecution to be served on either:

  • The driver at the time of the offence, or
  • The driver or registered keeper within 14 days of the alleged offence,

Important:
The requirement to warn of prosecution does not apply if there was an accident.
The requirement does not apply to all driving offences. For example, it does not apply to offences of using a mobile phone while driving. The full list of offences is contained in Schedule 1 Road Traffic Offenders Act 1988

Otherwise, for many driving offences the driver is usually stopped at the roadside and warned verbally by the police, or, they receive the NIP through the post.

The consequence of not complying with the NIP requirement is that there cannot be a conviction for the offences to which it applies. Eg, if the NIP was sent to warn of prosecution for speeding, but the requirements were not met, there can be no speeding conviction.

THE RULE IN PRACTICE

In criminal cases, the burden is usually on the prosecution to satisfy the court of a fact ‘beyond reasonable doubt’ or to put it another way, so that ‘the court is sure’.

However, in these cases, there is a ‘presumption of conformity’ with the NIP service requirement.

This means that the prosecution doesn’t have to give any evidence that its requirements have been fulfilled. It is for the defence to allege that they have not, and to call evidence to that effect. The burden of proof is on the defendant on the balance of probabilities ie. more likely than not. The defence must show that the driver and the registered “keeper” of the vehicle have not had the notice.

NON-CONFORMITY

When the defence of non-conformity is raised, they tend to fall into two categories:

  1. Cases where the NIP has been served late;
  2. Cases where the NIP has not been received at all.

Late service can often be easier to prove than non-receipt. If the postal date suggests that the 14-day rule has not been complied with, the task of proving non-conformity is relatively easy. But where the notice is not received at all, the only way to prove this may be to give evidence in court. It is then up to the court to decide whether they believe you or not.

With cases of late service, bear in mind that notices are not deemed served until two working days after the offence. Also, note that the date of the alleged offence is not counted in the calculations.

REQUESTS FOR DRIVER INFORMATION

This is where it gets a bit technical. These requests for driver information should not be confused with Notices of Intended Prosecution. They are often combined in the same document as a NIP, but they have different legal status. There is no requirement to request driver details within 14 days.

The power to request driver details is contained in s.172 Road Traffic Act 1988 and for this reason, they are often referred to as s.172 notices. If you do not comply with s.172 and give the information, you could be prosecuted for failing to provide driver details which usually carries 6 penalty points plus a fine.

What this means is that if you receive a combined NIP/ s.172 notice which has been served late, you should still give the details of the driver. You can then argue that there can be no prosecution for the offence to which the notice relates but avoid the risk of prosecution for failing to give details.

Of course, if you don’t receive the NIP you will not have received the s.172 Notice either. Therefore you should not be convicted of failing to give driver details as you have not received a request to do so.

DEFENCE OR LOOPHOLE?

Everyone will have their view on this. The term ‘loophole’ suggests something slightly dodgy or morally wrong which may not be representative of the facts.

The law requires us to abide by the rules and provide information within certain time limits. If we do not, we will normally be prosecuted.

By the same token, the police must abide by their own rules and time limits. If not, the driver will have a legitimate defence. Why should a driver be criticised for relying on a defence set out in law?

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Driving Using a Phone or Hand Held Device

Driving Using a Phone or Hand Held Device

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Legal Update ON DRIVING WHILST USING A MOBILE PHONE OR HANDHELD DEVICE

The Court of Appeal (Criminal Division) has finally provided some much needed clarification on the law regarding driving whilst using mobile phones and handheld device.

The Court explored the definition of ‘performing an interactive communication function’ which is required in order to secure a conviction.

THE LEGISLATION

The law is contained in Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles Construction and Use Regulations 1986The Road Safety Act 2006 which came into force on 27 February 2007 created a specific offence in relation to the use of mobile phones and handheld devices.

At that time, mobile phones could perform only a handful of the functions now possible. As such, the legislation was drafted to include the following interactive communication functions:

  • sending or receiving oral or written messages;
  • sending or receiving faxes;
  • sending or receiving still or moving images; and
  • providing access to the Internet.

For example, there was no reference to using a mobile phone to play music, take pictures, or make recordings. This then left the courts to interpret the legislation on their own – with very inconsistent results.

Many magistrates’ courts concluded that the purpose of the legislation was to prevent the phone being used for any purpose while driving. This meant that little regard was had to the function actually being performed by phone whilst it was held by the driver.

It also made it very difficult for legal professionals to advise clients on the prospects of success if they wanted to put forward a defence of not using a phone for an interactive communication function.

INTERACTIVE COMMUNICATION FUNCTION

The case of DPP v Barreto 2019, makes it clear that ‘interactive communication function ‘requires the transmission of data between the phone and another person or device. Therefore, taking a photograph or video on your mobile phone while driving does not fall within the ambit of this legislation. Of course, if you send a photograph then you will be transmitting data.

The prosecution must prove that the device was being used for an interactive communication function in order to secure a guilty verdict. In practice, this will be very difficult to do if the driver alleges that they were using the phone for another purpose. It is virtually unheard of for a police officer to inspect the mobile phone of a driver who has been stopped for this offence, even when the driver has offered to show the officer the phone. The police have simply relied on having seen the driver with the phone in their hand while pressing the buttons. It appears that this may no longer be enough for a conviction.

ALTERNATIVE OFFENCES?

This does not mean that drivers are free to use their phones while driving for non-interactive communication functions, because there is the risk of prosecution for a different offence. This will depend on the circumstances but alternative offences of driving whilst not being in proper control of the vehicle, careless driving and dangerous driving will be considered.

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Scotland’s Drug Driving Deaths on the Rise

Scotland’s Drug Driving Deaths on the Rise

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SCOTLAND’S DRUG DRIVING DEATHS ON THE RISE

Drug use among drivers who die in accidents in Scotland has increased since the country’s drink-driving limit was reduced in 2014, according to a new study.

This surprising finding has added weight to campaigners calling for Scotland to follow England and Wales’ example and introduce drug-driving limits, but it’s also raised a question of whether motorists have switched to drugs as a result of the tougher drink laws.

In December 2014, the drink-driving limit in Scotland was reduced to 50mg/100ml, leaving England and its Welsh neighbour with one of the highest alcohol limits in the world, at 80mg/100ml.

However, while a new drug driving law was introduced south of the border during 2015, Scotland isn’t planning on changing its legislation until next year.

But a study by researchers at Imperial College London has put pressure on the Scottish government to speed matters up after it suggested that drivers were swapping booze for narcotics in order to fool the police.

It found that out of the 38 fatal accidents that were examined in the year before the drink limit was tightened, evidence of illegal or prescription drugs was found in 14 of the drivers (37%).

This compares with 27 drivers in 51 fatalities (53%) in the year following the change in Scotland.

Alcohol was found in six of the 38 fatalities in the year before the law change, compared within nine out of 51 fatalities afterwards.

The research quoted a survey suggesting that many drivers do not believe their driving is adversely affected by drug use and also quoted research that suggested you were less likely to be caught drug driving than drink driving.

According to a Scottish newspaper report, a detailed analysis of the results found that the proportion of fatalities where cannabis was detected had not changed following the drink drive law change.

However, there was a notable increase in the number of opioids detected, which includes codeine, as well as antidepressants, cocaine, Valium and sleeping pills.

 

Drug Driving: The Facts

In England and Wales, it’s illegal to drive with legal drugs in your body if it impairs your driving.

It’s also an offence to drive if you have over the specified limits of certain drugs in your blood and you haven’t been prescribed them.

The list includes amphetamine, clonazepam, diazepam, temazepam and methadone. However, you can drive after taking these drugs if you’ve been prescribed them and followed the advice on how to take them by a healthcare professional and they aren’t causing you to be unfit to drive even if you’re above the specified limits.

There is a zero-tolerance approach to eight drugs most associated with illegal use and including cocaine, ketamine, LSD, cannabis and MDMA.

If you’re convicted of drug driving you’ll get a minimum of a one-year driving ban, an unlimited fine, up to six months in prison and a criminal record.

For more information or advice on a drink or drug driving charge, call us on 0115 784 0382, or fill in our contact form.

 

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