What is a Single Justice Procedure Notice?

A single justice procedure notice is a notice which is sent by post under a relatively new kind of Magistrates’ Court procedure.  It is only used in relation to non-imprisonable offences such as speeding, failing to provide the driver’s details, driving without due care and attention, driving without insurance, using a mobile phone while driving and so on.  It is not used for imprisonable offences such as drink driving or failing to stop and exchange details following an accident.

 

What is the procedure?

The addressee must respond within 21 days of service of the Notice stating whether a ‘Guilty’ or ‘Not Guilty’ plea is to be entered to the allegation(s).  If the matters are admitted, then, in due course, the appropriate penalty will be determined by a single Justice who sits in private with a legal adviser.  The Defendant will subsequently receive notification of the sentence imposed which could include an order to pay a fine, costs, a victim surcharge and the endorsement of penalty points.  The aim of this procedure is to expedite the justice process whilst also saving on costs.  It can be more convenient for the accused in simple cases in which it is not sought to contest the case, for example, for someone who wishes to admit an allegation of speeding expecting a relatively light punishment such as a fine and the endorsement of 3 penalty points.

 

How should I complete the Single Justice Procedure Notice?

You can either send the documents back in the post or, for traffic offences, complete the forms online at makeaplea.justice.gov.uk.  You can plead ‘Guilty’ and ask to be sentenced in absence or in court.  In either case you have the option of setting out your mitigation in writing on the form.  If you plead ‘Not Guilty’ you can expect to be provided with a date when your case will be heard in court.  You will be expected to set out your defence on the form.  It is very important that you read all of the documents carefully so that you understand your options.  Some police forces adopt different procedures as to which documents are enclosed with the Notice. Some also send the evidence such as photographs and witness statements.  Consequently, you may be asked to indicate whether you require the attendance of witnesses.  If you don’t require their attendance but do contest the case the evidence may be read at court without the witnesses attending which means that you would have lost your opportunity to question the witnesses at court.  This could mean that the evidence against you is accepted without challenge by the court.

 

What are the most common pitfalls?

Sometimes people don’t reply to the Notice.  If you don’t reply you may be convicted and sentenced for the offence in your absence without having any opportunity to put forward a defence or mitigation as the single justice will base his or her finding on the case papers supplied by the police.  Sometimes, people just do not understand the options set out in the Notice, or, they do not understand the law applicable to the offences alleged. This can lead to people denying offences of which they are in fact, on their own account, ‘Guilty’.  Conversely, people sometimes admit offences of which, based on their own account, they are in fact ‘Not Guilty’.   The forms can be misleading.  I frequently receive calls from people advising me, for example, that they were speeding at over, say,  100 mph, that they wish to plead ‘Guilty’ but opt for being sentenced in absence.  However, in any case in which the Justice is of the view that the court should consider disqualification a Defendant will be called to a court hearing for consideration of a driving ban.   (A ban will be considered in cases in which Defendants were speeding at 91mph or more).  Suppose the Defendant cannot afford to lose his or her licence.  At this stage, having been notified of his court date, he may well instruct a barrister to represent him.  However, if he has already completed the mitigation section (which he would have done as he had hoped to be sentenced in absence) he may well find, in due course, that the mitigation on the form is, or appears to be, inconsistent with the way in which his barrister would have preferred to present his case thereby complicating the task of avoiding a ban.  Therefore, if you think you may be going to instruct a lawyer to attend court with you it may be worth considering making that instruction before, not after, the Notice is completed.

 

Conclusion

Always consider whether you have a defence to the charge or whether ‘special reasons’ might apply in which case you may be able to avoid a ban or endorsement with penalty points (even though you admit the offence).  If you wish to plead ‘guilty’ but attend court for sentencing be very cautious about setting out your mitigation on the form as people sometimes set out matters which aggravate the offence(s) in the eyes of the court.  Bear in mind that if the offence(s) you are admitting take your points tally to 12 or more (for offences committed within 3 years of each other) that you will be liable to a ‘totting’ disqualification of at least 6 months.  In either this situation, or one in which a single offence on its own calls for the consideration of a driving ban, such as speeding well in excess of the limit as per the example set out above, you are most likely to be called to court for consideration of a ban even in you elect to be sentenced in absence.  Finally, do ensure that you read all of the papers very carefully so that you fully understand your options.  Failure to do so could result in a conviction or a ban which might have been avoided.

 

Sunil Rupasinha

Specialist Motor Offence Barrister

If you seek help or advice in completing a Single Justice Notice please don’t hesitate to contact me.

London Landscape

Boutique legal practice or national law firm. Which should you choose?

You have a legal problem for which you need advice and, potentially, representation in court.  To whom should you turn?

Before I jump in to discuss a legal problem it may be instructive to consider a medical analogy.  Let’s suppose you have some rather concerning symptoms such as intermittent but sharp chest pains.  You visit your gp, by definition a generalist, who listens to your heart using her stethoscope.  She seems a little unsure of the best way forward.  She gives you a choice of taking no action (‘let’s just wait and see how matters develop’), offering a prescription for a course of drugs or referring you to a cardiologist.  Which would you choose?

In a similar way, if you have a legal problem, you have a comparable range of options.  You can take no action.  (Believe it or not, some clients who consult me only do so after having ignored a problem for as long as possible.  This can result in a sharp reduction in options).   Secondly, you could consult a generalist lawyer (whether a barrister or a solicitor) although this could leave you a little uneasy as to whether you have actually been given the best advice.  Or, you have the option of consulting a specialist in the relevant field.

With the ongoing liberalisation of the legal market and the benefits of competition there is now a wide range of choice.  You could consult a firm of solicitors with a national reach, or a generalist local firm, or a boutique firm (as in a small, niche practice) or, given recent changes in the regulatory system, go straight to a public access barrister.  Which factors should you take into account?

Most of us would want to access the most skilled and expert advice we could find.  We would also like continuity of service in that we would probably prefer to be dealt with, in the main, by a small team led by one experienced practitioner rather than being pushed form ‘pillar to post’.  And, if we are not asking too much, we would also like such assistance to be provided without us having to take out a second mortgage to pay the fees.  Is it possible to access advice containing all of these characteristics in one place?  I venture to suggest that the answer is, ‘yes’, in the form of the boutique practice.

I have recently joined a group called the Hexagon Legal Network which is run by solicitors.  Within the membership are small firms of solicitors specialising in a wide range of areas of practice.  If you were to engage such a firm it is likely to be run by experienced yet approachable individuals.  You can expect to receive continuity of service without the level of costs imposed by those firms with national reach.  In short, you can access in one place expert advice which won’t cost you the earth delivered with a personal touch.

What about public access barristers?  Nowadays you can engage a barrister directly who specialises in the area of law you need.  If you need litigation services (such as correspondence being sent and received on your behalf, your lawyer going on the court record, the taking of witness statements etc) then you will probably be well advised to consult a solicitor.  However, if you require expert advice and first class court room representation then the public access barrister may well provide the ideal solution.  Given that he is a sole practitioner the costs are likely to be highly competitive in comparison with the prices charged by national firms of solicitors specialising in the same area.  (This is certainly the case in my field ie that of defending motorists facing loss of driving licence.)

 

Conclusion

In today’s market there is a plethora of options for the user of legal services.  Of course, there is never going to be a ‘one size fits all solution’ in that there will always be institutions and companies for which resort to a national firm of solicitors is affordable and convenient.  At the other extreme there will always be individuals with routine legal issues for whom the priority is obtaining legal aid or being charged the lowest possible fees.  For such clients the generalist high street solicitors’ firm may be the best solution.  However, there is a large range of discerning clients between these two extremes for whom the boutique practice (whether in the form of a firm of solicitors or that of a public access barrister) with its characteristics of expertise delivered with a personal touch and at an affordable price, may, in fact, provide the ultimate solution.

 

Sunil Rupasinha

Specialist Motor Offence Barrister

If your driving licence is at risk please don’t hesitate to contact me

Specialist Drink Driving Lawyer

What are the penalties for Drinking and Driving?

Drinking and driving, why you shouldn’t have ‘one more for the road’…

 

If you are convicted of drinking and driving the penalties can be severe.  Depending upon the concentration of alcohol found to be in your breath, blood or urine, you can be sent to prison for up to 6 months or ordered to undertake a community penalty such as community service or ordered to pay a fine (with no maximum set).  Coupled with the above penalties will be a mandatory driving ban of at least 12 months.  The length of the ban could, of course, be much longer than the minimum 1 year (such short bans are usually reserved for those found to be only just above the drink drive limit) and could be as long as several years.  You may also have to pay costs as well as, what is termed, a ‘victim surcharge’.  If all of that weren’t enough, you also lose your ‘good character’ (a lawyer’s term for those who do not have criminal convictions).

It can’t get any worse, can it?

Yes, it can.  In my experience, drink drive cases are often linked to accidents or other factors which aggravate the offence still further (which in themselves can lead to the involvement of the police).  The police have the power to prosecute for multiple offences arising out of the same incident.  Even if the police only prosecute for drink driving the fact that there was, for example, a collision can act as an aggravating factor for sentencing purposes.  In other words, the sentence is likely to be even more severe depending on the extent of the aggravating factors.

It can’t get any worse, can it?

Yes, it can.   The consequences of a drink drive conviction, for all those whose jobs are dependent on their driving licences, is loss of job.  This, in turn, can result in loss of home (if mortgage payments can’t be met) and relationship difficulties and so on.  For some, such as those in high end professions or who are in positions of trust, the fact of such a conviction can lead to a disciplinary hearing the attendant consequences of which can be devastating.  For example, I have recently had several clients who advised me that they might lose their jobs depending on how the court sentenced them.  (These clients did not require their licences as a condition of their employment, but, they nevertheless faced disciplinary hearings which could have led to loss of job, for example, if they had been sentenced to community penalties instead of by way of fines).

Can anything be done to mitigate the penalties?

Yes, it can.  I find that in all cases there is some mitigation relating to the offence or to the Defendant’s background circumstances (usually both).  The range and variety of mitigation is infinite and varies from case to case. It is necessary to sift through the individual circumstances of each case to assess what is worth putting forward and what is not.  Often I advise my clients to obtain support for the mitigation, in one or more respects, in advance of the hearing.   At the hearing, adopting the correct approach both to the prosecutor and the court, combined with presenting the mitigation to best effect, always softens the penalty.  This can prove to be the difference between a prison sentence and a community penalty or between a community penalty and a fine.  The length of the ban can also sometimes be reduced.  Therefore, it is not a case of ‘all those who enter here lose all hope’ (as so much can still be done) but it is so much better just to avoid drinking and driving in the first place!

Sunil Rupasinha

Specialist Motor Offence Barrister

 

 

 

 

 

 

requirement to provide drivers details

Motor Offences – Telephone Enquiries and the Law

If you have received a notice of intention to prosecute there will be a requirement to provide details of the driver.  But what if the driver wasn’t you or worse still what if you know the driver is disqualified? We received an enquiry last week from an anonymous caller.  It went something like this:

Q         I have received a notice asking who was driving my car one day last month.  It was my boyfriend but he is disqualified from driving.  He had to drive but did so without my permission.  Will he be sent to prison if I answer truthfully?

A         The courts take offences of driving whilst disqualified seriously as it involves ignoring a court’s order.  It does carry the risk of prison.

Q         I need my car for my job.  I already have 12 points on my licence but managed to avoid a 6 month ban recently by arguing ‘exceptional hardship’.  If I say it was me driving and take the points what will happen?

A         It is a criminal offence, perverting the course of justice, to mislead the courts in order to take points for someone else.  People can be sent to prison for this.  Also, you cannot rely upon the same grounds in support of an ‘exceptional hardship’ argument put forward on the last occasion.

Q         What if I don’t respond to the notice?

A         That itself is a separate offence carrying a fine plus 6 penalty points.

 

So, what should I do?

As you can see, enquirers do call sometimes with dilemmas.  I receive calls daily and always try to give some helpful guidance during an initial call.  Often enquirers ask whether their defence will succeed or whether they will be disqualified from driving.  However, in all but the simplest of cases, such questions cannot be answered without a full examination of the facts.  The picture may give you a clue as to whether the caller found my answer to her final question to her liking….

 

Sunil Rupasinha

Motor Offences Barrister

 

‘Special Reasons’ for the avoidance of either a disqualification or for the avoidance of an endorsement of penalty points

What are ‘special reasons’ and when do they apply?

From time to time and in certain situations a driver at risk of losing his or her driving licence may argue Special Reasons. However Special Reasons must possess the following characteristics in that they are:-

mitigating or extenuating circumstances;

not, in law, a defence to the charge;

directly connected with the commission of the offence; and

are matters which the court ought properly to take into consideration when imposing sentence.

For the lay person the above is a bewildering array of conditions.  Making matters even more complex is that they must be interpreted in accordance with case law (past cases which shed light on how the courts interpret these conditions).  They should be distinguished from submissions of ‘exceptional hardship’ in a case in which a solicitor or barrister is seeking to avoid the imposition of a ‘totting’ ban; these are something entirely different (see my article on ‘How to save your Driving Licence even with 12 penalty points’).

Typical examples of special reasons are those of a Defendant accused of ‘drink driving’ who claims that his drinks were ‘laced’.   In such a case, the Defendant would have to establish that but for the ‘lacing’ he would not have exceeded the drink drive limit.  Another example is that of someone driving without insurance who claims that he was misled by another into believing that he was properly insured or that the vehicle was driven only the shortest of distances.  It must be remembered that the circumstances of each individual case must be analysed carefully to establish whether they do, or could, amount to special reasons (in the light of the case law mentioned above).

The burden of proving that special reasons exist is upon the defence and the legal standard to which they must be proved is ‘more likely than not’.  It must be remembered that a Defendant who pleads special reasons will normally plead ‘Guilty’ to the offence itself (as special reasons are not a legal defence to the charge).   The Defendant will have to call evidence in support of his or her contentions.  If the court is satisfied that they do exist in any given case the court then enjoys a discretion either not to ban a Defendant who faced what would otherwise have been an obligatory ban (or to disqualify for a shorter period than would otherwise have been the case) or not to endorse points on a driving licence in a case in which penalty points would normally have been endorsed.  Therefore, even in a case in which special reasons are found to exist, it remains necessary to persuade a court to exercise its discretion in favour of the Defence.

In conclusion, the law and procedure involved in pleading that special reasons exist and that the worst consequences of conviction should be avoided are complex and tricky and can, in some instances, be akin to ‘walking a tightrope’.  However, the skilfull presentation of a special reasons submission can sometimes offer an escape route for a Defendant seeking to avoid either a disqualification or the endorsement of penalty points.

 

Sunil Rupasinha

Motor Offences Barrister

 

 

How to Appeal to the Crown Court against conviction and / or sentence from the Magistrates’ Court for a motoring offence

How to Appeal to the Crown Court against conviction and / or sentence from the Magistrates’ Court for a motoring offence

Right of Appeal

All Defendants have an automatic right of appeal to the Crown Court, if they pleaded ‘Not Guilty’ against conviction and / or sentence, and if they pleaded ‘Guilty’ against sentence only.  There is a time limit of 21 days from the date of sentence within which to appeal (although very often the Crown Court will retrospectively extend the time if asked).  In order to appeal the appellant simply has to complete a notice of appeal and supply it to the relevant parties.  If an appellant knows he is going to appeal straightaway he can complete and submit a notice of appeal on the occasion of his sentencing in the Magistrates’ Court and hand a copy to the court and to the Crown.  Otherwise, the form can be obtained online (here:  https://www.gov.uk/appeal-against-sentence-conviction).

Suspension of Disqualification pending the hearing of your Appeal

Often an appellant who has been sentenced in the Magistrates’ Court will want any disqualification imposed to be suspended pending the appeal.  Fortunately, one can apply to either the Magistrates’ Court, which imposed the sentence, and / or the Crown Court, which is to hear the appeal, to have any ban lifted pending appeal.  If you wish to make such an application you should specifically state upon the appeal form that you are also appealing against the order of disqualification and that you wish to apply to have your ban lifted pending appeal.  A good time to make such an application is immediately upon sentencing (assuming you know that you are going to appeal and that you submit an appeal application straightaway).

Procedure upon Appeal

An appeal is by way of a re-hearing.  Appeals are usually heard by a Crown Court judge and two magistrates (not a jury).  If it is an appeal against conviction the court will hear the case anew from start to finish with evidence being called by both parties.  The appellant can call new witnesses not previously relied upon or the same witnesses as he or she chooses.  If the appeal is against sentence only the court will hear the facts from the Crown before hearing on behalf of the Appellant.

If you appeal the Prosecution may well instruct a barrister to deal with the hearing.   The Appellant can expect to be cross-examined by him or her if appealing against conviction, arguing special reasons, or, if trying to avoid a ban by establishing ‘exceptional hardship’.  If you were to lose your appeal the Prosecution would be entitled to ask you to pay their costs – which could be far higher than those in the lower court. If you represented yourself at the Magistrates’ Court, or you were not satisfied by the representation that you received, you may wish to consider instructing an expert in this type of case.  Don’t forget that if your appeal is successful an application can be made for a Defendant’s costs order (for costs to be assessed and paid out of central funds).

Sunil Rupasinha

Motor Offences Barrister

UK Driving Licence

Early return of Driving Licence following a disqualification

Did you know that you can apply for the early return of your licence following a disqualification?  If you have been banned from driving by a court for more than 2 years you can apply for the return of your licence after a certain period has elapsed (this period varies according to the length of the ban)

  • If the disqualification was for less than 4 years, after 2 years have elapsed
  • If it was for less than 10 years but not less than 4 years, when half the period of the ban has elapsed
  • If it was for 10 years or more, or for ‘life,’ when 5 years have elapsed.

Any such application would be made to the court which imposed the original ban.  (If the disqualification was for 2 years or less, or you have been banned until a driving test is passed, then your only option would be to consider appealing against sentence which, of course, involves making an application to a higher court).  Even those who have been banned for 3 years or more because of a second drink driving offence can apply (even if they have already been allowed a 25% reduction in the length of the ban due to the successful completion of a drink drive rehabilitation course).

 

What might the court take into account in determining the application?

The law recognises that circumstances can and do change and that what might have been an appropriate length of disqualification at the time of sentencing might no longer be apt.  After all, suppose an applicant has the opportunity of a new and better job, of taking an active part in charity, of being a carer for an elderly person or some other activity (or combination of activities) which are dependent upon the early return of his or her licence?  The courts can and do consider such matters.  However, you can expect the Prosecution to oppose your application.  Therefore, you should prepare your grounds thoroughly producing evidence to support your contentions where apt.  Don’t forget that if your application fails you can expect the court to make a costs order against you and that you will not be able to re-apply until a further 3 months has elapsed.  Furthermore, having failed once a court might be sceptical of any subsequent application.

 

However, above all, bear in mind that if the court thinks it proper having regard to the applicant’s character, conduct and all other relevant circumstances, including the nature of the offence, it does have the power to remove a disqualification early in which case the next step will be for the applicant to apply to the DVLA for his or her licence.

 

Sunil Rupasinha

motor offence barrister