Should I instruct a solicitor or a barrister?

I have been accused of a motoring offence.  Should I instruct a solicitor or a barrister?

Until relatively recently the public could only engage the services of a barrister by instructing a solicitor who would ‘brief’ the barrister ie a client would engage a solicitor who, in turn, would instruct a barrister for the client.  Now there is a choice: the public can directly engage a barrister themselves without the need to instruct a solicitor at all or, they can still, if they wish, engage a solicitor who will instruct a barrister for them (which means paying for 2 lawyers when one could do!)  It seems that most people look online for a lawyer and speak to several before making a decision.  Consequently, when people first ring me I am sometimes told, ‘I have spoken to a solicitor who says pay me £X and I will arrange for a barrister to represent you’.  This comment gives rise to various issues.

Do you know how much the solicitor will pay the barrister?  

Usually the client has not thought to ask this question.  However, the proportion of the fee paid to the barrister is directly relevant to the barrister’s ability to obtain the best possible result.  You need the most able barrister you can afford.  After all, whether you retain your driving licence could depend on it.  However, the solicitor’s immediate financial interests are not aligned with yours in that the lower the proportion of the fee payable to the barrister the more of the fee the solicitor will retain.  

The fees that a barrister can command tend to depend upon a range of factors such as seniority, specialisation, and reputation.  At the cheapest end of the scale are ‘pupil’ barristers who enjoy a right of audience (to represent Defendants in court) after completing just 6 months of their pupillages but to whom the other factors mentioned above hardly apply (as they have not even fully completed their practical training).  Therefore, there is a direct correlation between the fees charged by the barrister and his or her ability (at least, as measured by seniority, specialisation and reputation – barristers of whom these things can be said are usually expensive to hire).  It will not have escaped the reader that this means there can be an inverse correlation between the proportion of the fees retained by the solicitor and the ability of the barrister instructed on behalf of the client to obtain the best possible result (in other words, the more of the fee the solicitor keeps the less will be available to instruct a barrister, and, the less available for the barrister the more junior and inexperienced he or she is likely to be).

Conclusion

When at risk of losing your driving licence you should consider whether delegating the choice of your barrister to a solicitor is in your best interests as the solicitor’s pecuniary interests may be in conflict with yours.  You should consider how this could affect the choice of barrister made on your behalf.  (A reputable solicitor will advise you of the seniority of the barrister, the proportion of the fee he or she is to be paid, whether he or she specialises solely in the field of law concerned etc).  You may wish to ask yourself if there is any clear advantage in instructing a solicitor at all in the circumstances of your case.  Of course, if you require litigation services (such as having letters sent and received on your behalf, your lawyer going on the record with the court, the taking of witness statements etc) then you should consider instructing a solicitor as they specialise in litigation services.  On the other hand, if you don’t require such services then an alternative is to directly instruct a public access barrister yourself thereby ensuring continuity of representation and that all of the fees you pay go towards securing the best courtroom representation you can afford.  After all, your licence could depend on it.

Sunil Rupasinha
motor offence barrister

Notices of Intended Prosecution (NIPs)

NIPs

The law (Section 1 of the Road Traffic Offenders Act 1988) requires that, for a person to be convicted of certain road traffic offences, he or she must

  • be warned at the time that he might be prosecuted for an offence, or,
  • be served with a summons within 14 days of the commission of the offence, or,
  • within 14 days of the commission of the offence he, or the registered keeper of the vehicle concerned, must be served with a NIP.

If none of the above occur it is a bar to conviction although it should be bourne in mind that the police are given a ‘get out’ clause in that, if they can show they acted with ‘reasonable diligence’ in trying to trace the accused/registered keeper but could not have been expected to do so within the time limit, then the limit may be found by a court not to apply.  Furthermore, if the accused makes it difficult for the police to trace him this can also be taken into account.  For example, suppose a registered keeper changed address but failed to notify the DVLA or the vehicle was in a company name rather than that of the driver.  Such circumstances could mean that the 14 day time limit would be held not to apply.  

There is a long list of offences to which this section does apply including driving dangerously, without due care and attention, speeding and certain offences of failing to comply with traffic signs. However, please note that the requirement to serve a notice within 14 days does not apply if the vehicle concerned was involved in an accident at the time of the offence.  By the way, don’t assume you will be able to avoid a prosecution just because the first you know of an allegation is when you are summoned to court for an offence months after the 14 day time limit has expired; if the police claim a notice was served by first class post it is presumed it was unless or until the contrary is proved ie there is a rebuttable presumption of good service.  In practice, this would probably mean you could only overcome this by attending your trial and giving evidence in your defence that the notice was not served.

The notice must comply with certain requirements including specifying the nature of the alleged offence and the time and place where it was alleged to have been committed.  NIPs are used in countless cases as it is very common for offences to be alleged after the event (for example, when a matter is subsequently reported to the police or when there is photographic evidence which leads the police with the details of the registered keeper but the vehicle was not stopped by the police at the time).  This often explains why NIPs are often served together with a notice requiring the registered keeper to identify the driver of the vehicle at the time of the alleged offence.

Section 172 of the Road Traffic Act, 1988, gives the police power to require the registered keepers of vehicles, to whom the section applies, to identify the driver at the time of an alleged offence.  Failure to do so, within 28 days of service of the requirement, is itself an offence (subject to certain statutory defences).  I have come across clients who have failed to respond to such notices in an attempt, for example, to avoid simple speeding convictions which would have been dealt with by way of a fixed penalty, such as 3 penalty points and a fine, only to find that failure to comply with the requirement to identify the driver is regarded as a more serious offence punishable by 6 penalty points and a fine!  Then, of course, there is the true story of Chris Hughne and Vicky Pryce (husband and wife, as they once were,) where she accepted responsibility for offences committed by him to save him from the imposition of penalty points only to result in them both, eventually, being sent to prison for trying to cheat the system.  

So, beware, don’t make the mistake of underestimating the importance of carefully considering any NIPs/S172 requirements that you may receive.  Failure to complete them honestly/properly can land you in much more trouble than you might expect!

If you need help or advice as to whether you have a defence or as to how best to complete an NIP please don’t hesitate to give me a ring.

Sunil Rupasinha (specialist motoring offence barrister)

National Motor Offence Solicitors’ ‘Success rates’ tables.  Too good to be true?

Introduction

You stand accused of having committed a road traffic offence.  It is essential that you maximise your chances of saving your driving licence.  You are looking for the lawyer, barrister or solicitor, who will give you the best chance of doing so.  You Google ‘success rates motor offence solicitors’ and find a whole series of solicitors’ websites laying claim to success rates of  between 95-100%.   Can you trust the claims made?

Legal Cases are rarely black or white

I regularly represent motorists who have pleaded ‘Guilty’ to speeding.  In 2016 I had a client who was sentenced for speeding at 127 mph. After considering carefully his mitigation the court elected not to ban him (at all).  How should this be compared with a solicitor who presents mitigation for a client who avoids a ban (let’s say for speeding at 91 mph in a 70 mph limit)?  You may think that it would be relatively easy to avoid a ban in the latter case compared with the former.  So, how much weight should each case be accorded in a ‘success rates’ table?

To take a variation on the above example I recently represented, upon a ‘Guilty’ plea, a man caught speeding at over 110 mph.  He was banned for 28 days.  As soon as we were out of earshot of the magistrates he made clear to me in emphatic terms that he regarded the sentence as a ‘result’ (he was thrilled that the ban was short enough to allow him to keep his job when he had justifiably expected a markedly longer ban).  If ‘success’ is gauged, in such cases, by the crude measure of  avoidance of a ban then his case would have had to have been registered as a ‘failure’ in any league table.  Yet, it was clearly a marked ‘success’ from his perspective (after all, the client’s is the only perspective that matters).  There are endless examples of cases resulting in bans but which the clients regard as ‘successes’ (such as another of my clients caught speeding at 97 mph in a 50 mph limit who received only a 7 week ban when he expected a 6 month ban and so on.)

Contested hearings have even more variables than ‘guilty’ pleas (too many to summarise in a short article of this type).  Consequently, they are even less suitable for measurement in any kind of ‘success’ table.  In any event, so called ‘success rates’ can only have any meaning if one is comparing like with like.  For this to happen the solicitors advertising ‘success rates’ would have to agree common criteria as to how ‘success’ should be measured. Ask yourself if the solicitors in question have published commonly agreed criteria by which their ‘successes’ can be measured.

So, the next time you read of a motor offence solicitors’ firm claiming to have an impressive ‘success’ rate, as measured by their percentage of ‘successes’ in motor offence cases, you might care to email them to ask for the criteria which they have agreed should be used. You might also care to see whether they have enabled their clients to post Google reviews (as opposed to selectively using testimonials).  I am asked from time to time what my ‘success’ rate is.  I don’t provide a percentage figure as to do so would, in my view, be potentially misleading and, therefore, unethical as each case has its own unique circumstances and turns on its own facts.

So how can you assess the abilities of lawyers you identify online?

You can and should make enquiries as to the professional competence and reputation of the lawyers concerned. This is not always as difficult as you may think.  Do ask yourself when considering ‘success rates’ and testimonials if they apply to the individuals who will be handling your case.   Do also check their qualifications (they may not all be solicitors or even legally qualified).  You may wish to make your own investigations – nowadays there is often evidence that can be checked. For example, you can ask lawyers to point you to publications / blogs they have personally written on their area of specialisation.  You can sometimes look at their Linkedin profiles to see how many personal recommendations have been posted about them and what they say.  And, of course, you can check Google reviews.  You can only check these if a ‘Google my Business’ entry has been made which enables any client to post a publically visible review.  Many motor offence defence lawyers do not allow their clients this opportunity.  Please note that as of September 2017 my clients are free to post reviews on Google.  Any reviews posted cannot be vetted by me (contrast this with the selective posting of testimonials on websites when only positive reviews are posted.)  Finally, so long as you ensure that your lawyer is experienced and specialises in the area of law with which you are concerned, then you will have done what you can to ensure you have the best representation available.  

Sunil Rupasinha
motor offence barrister

BBC Radio Kent Interview

Kent Traffic Law interviewed by the BBC
Dominic King and Sunil Rupasinha at the BBC Radio Kent Studios July 2017

The interview was wide-ranging covering such disparate topics as parking applications to nuclear proliferation on the Korean peninsula.