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.

How to save your Driving Licence even with 12 penalty points

The question I am asked most frequently by my ‘totter’ clients is,  ‘will the court disqualify me?’ 

Loss of driving licence is, for many of us, nothing short of a catastrophe.  This point was brought home to me once when I received an email from a client informing me that if she were to be convicted that she would lose her job, that if she lost her job she would lose her home as she would not be able to afford her mortgage, and, that if she lost her home she would lose her custody application for her child.  Clearly, the consequences of a driving disqualification can be severe and far reaching.

Although those committing offences resulting in the endorsement of 12 or more points on their driving licenses for offences committed within 3 years of each other are liable to be disqualified for a minimum period of 6 months this is by no means inevitable.  There is a discretion within the court, in certain circumstances, to disqualify for a shorter period or not at all.

How to avoid a disqualification 

The law allows a Defendant, or his advocate, to submit that ‘exceptional hardship’ would ensue were the Defendant to be disqualified.  If the court finds this to be the case then there is a discretion either not to disqualify at all or to disqualify for a reduced period.  Defendants should bear in mind that the onus of proving that ‘exceptional hardship’ would ensue is upon them; as it is a claim made by the defence to mitigate the penalty the burden of proving it is upon the defence.  Defendants would be well advised to prepare documentary bundles for the court in support of their contentions as well as to be ready to give evidence on their own behalf.  This could well involve being questioned by the court clerk or the prosecutor.  Submissions and evidence should, therefore, be meticulously prepared.

What types of factor are likely to be taken into account?               

The courts are mindful of the fact that for a Defendant to find him or herself in such a position she is something of a serial offender.  Guidance from reported cases is to the effect that, for example, even loss of a job, on its own, may not amount to exceptional hardship.  Why?  Simply because many people are at risk of losing their jobs if they lose their licences. In other words, loss of job is not of itself necessarily to be regarded as an ‘exceptional’ hardship as many would suffer in such a way if they were to lose their licences.  That is not to say that loss of job is not capable of being regarded as a relevant and important factor in such a case.  Whether or not the court sees it as such is a matter of fact and degree.  It is well established that the courts do pay more regard to hardship that would be suffered by innocent victims.  So, for example, if an elderly mother were dependent on her Defendant son’s income to house her,  but, that income would be lost if her son were to be disqualified, then that could, very probably, be regarded as a persuasive factor in determining whether  exceptional hardship had been made out.  Similarly, if a Defendant employed others who would lose their jobs if he were disqualified then this, too, could very likely be considered a weighty factor.  Case law illustrates that the class of factors that can be taken into account varies widely and is not closed.  Each case turns on its own facts.

Conclusion

So, if you, an employee, or, someone you know is a ‘totter’ what should be done?  First of all consider all the facts and background circumstances of the Defendant, and those dependent upon him, to establish if ‘exceptional hardship’ can or might be established.  Meticulously prepare so that the Defence is in the best possible position to meet the onus of establishing that ‘exceptional hardship’ would be suffered.  Finally, marshall one’s submissions to best effect to ensure they are put across in court in the most persuasive manner possible.  If one takes these steps this would tend to maximise one’s chances of a successful outcome without which the prospect of a minimum 6 month ban becomes highly probable.

 

If you are at risk of a driving disqualification you are welcome to contact me for advice.

Sunil Rupasinha (specialist road traffic offence barrister)

Speeding at 127 mph – Surely this Defendant would lose his licence

Recently I saw a client in conference.  He was concerned that he had been caught speeding at over 100 mph and that he would lose his employment.   In fact, he had been clocked at 127 mph! He intended to plead, ‘Guilty,’ but was very concerned about disqualification.

What do you think? Did he deserve to be disqualified?

I expect most of you will answer that question with a resounding, ‘yes’.  You will all have your reasons for condemning those who break speed limits.  They are breaking the law.  They imperil others as well as themselves and so on.  Many of us have no sympathy for those caught speeding.   But, let’s pause for a moment.  What about considering the context in which this offence was committed?

I am not going to set out the mitigation here.  However, don’t you think that anyone caught speeding is entitled to a fair hearing as to what the penalty should be?  Of course you do; we are all entitled to a fair consideration of our mitigation.  What does this mean?

In practice, this means that a court may take into account a number of criteria such as:-

  • Did the Defendant indicate he would plead ‘Guilty’ at an early stage and follow this up with a ‘Guilty’ plea at the first opportunity? (The courts give credit, as to sentence , to those who save court time and public money by admitting guilt rather than being found ‘Guilty’ following a trial);
  • Was there anything else wrong with the defendant’s driving? For example, did the manner of the Defendant’s driving give any cause for concern (other than the speed);
  • Was the Defendant co-operative with the police? (If it is a case in which he was pulled over);
  • Did the Defendant have a clean driving license? Perhaps it was his first ever offence after 30 years of driving, for example;
  • Were there any circumstances that would have meant a disqualification would have had an especially severe effect upon the Defendant? (such as loss of job and livelihood);
  • Were there any circumstances that meant others, who perhaps depend upon the driver, would also suffer if he lost his licence? For example, an ill mother or child who regularly depends upon the driver for hospital visits but who obviously bore no responsibility for the commission of the offence; and,
  • Were there any other circumstances which meant that the driver was just not himself that day? (The range and type of circumstances that could arise in any given case are virtually infinite).

In the case I refer to in the opening paragraph I took instructions from the Defendant well in advance of his court date with regard to the offence itself and his personal circumstances and I explained to him what evidence he needed to gather to support his mitigation.  Once this documentation had been gathered and his case was listed I represented him in court.

As the Defendant was driven away from court that day I expect he was thrilled that he had acted fully upon the advice I had given him in advance of his appearance as to what evidence should be obtained and that the court had been persuaded not to ban him!  Before you rush to judgement do bear in mind that the tribunal consisted of 3 independent and mature magistrates who made a reasoned decision, having heard the evidence, that it was not in the interests of justice to disqualify the Defendant from driving.

Therefore, if you are ever caught driving at well over the speed limit consider your options carefully.  If your case is well prepared and well presented it might just be possible to persuade the court not to ban you.

Sunil Rupasinha, 
Motor Offence specialist

Unless you can afford to be chauffeured this Christmas do take care of your driving licence

This Christmas don’t fall foul of the road traffic laws as the costs of a motoring conviction may be more hard hitting and wide ranging than you think…

It’s approaching Yuletide and we all like nothing more than to partake in festive activities at this time of year.  Office parties and celebrations reach their end of year climax just as winter is setting in and driving conditions are at their worst, a potentially troublesome combination for the nation’s motorists.   So, before you have ‘one more for the road’ you might want to consider just how expensive that last drink could be.

Sentencing for driving offences

If you are convicted of a road traffic offence the penalties can range from imprisonment or potentially unlimited fines to disqualification from driving or the endorsement of your driving licence with penalty points.  Often offences are dealt with by a combination of such penalties.  For example, driving or attempting to drive with excess alcohol is punishable with a driving disqualification of at least 12 months in addition to a potentially unlimited fine or up to 6 months imprisonment.  These are draconian penalties for the type of offence that can so easily be committed by otherwise law-abiding people.  In fact, an increasing proportion of such convictions appear to relate to driving the ‘morning after’ when, often, the offender genuinely did not believe he or she was over the drink drive limit.

Before you think smugly to yourself that you’re teetotal or otherwise not the sort who would commit such an offence do bear in mind that all offences which are endorseable with penalty points carry the potential risk of disqualification.  These include offences such as driving without due care and attention (which can involve no more than a momentary lapse in concentration from the standards of the ordinary prudent and competent driver), failing to stop and report after an accident, speeding, using a mobile phone, or, even having a defective tyre.  Did you know that for each tyre that is defective you are liable to be fined up to a maximum of £2500 plus have 3 penalty points endorsed upon your licence?  Therefore, if you were to have 4 defective tyres you could be banned from driving for a minimum of 6 months, as once you reach 12 penalty points on your licence, so long they have been endorsed for offences committed within 3 years of each other, you are liable to a minimum 6 month ban (unless you can show that ‘exceptional hardship’ would be caused in which case there is a discretion within the court to order a shorter ban or no ban at all).  You may consider such penalties to be harsh.  For some offenders this is only the beginning as there are often consequential losses of one sort or another which should also be taken into account.

 Consequential Losses

  • Devastation of Lives

I once received a phone call from a lady who had received 3 x SP30s (speeding in a 30 mph limit) and then committed a fourth such offence.  She had reached the 12 penalty point mark on her licence.  When she realised that she faced a minimum ban of 6 months, even though she had not on any of the 4 occasions exceeded 35 mph, she burst into tears.  She explained that loss of licence would mean she would be unable to fulfil her director’s role within her newly established and up and coming company which required her to drive to clients’ premises (spread across the south east) and deliver courses.  Even more heart-breaking for her was that she would be unable to ferry her special needs children to and from their different schools.  As someone who lived in a remote village in the countryside she was devastated to find that she would lose her licence unless ‘exceptional hardship’ could be established.  (Fortunately, in due course, we were indeed able to establish this and her licence and livelihood were saved).  Another client, a single man who had been speeding in excess of 100 mph on the M25, was in tears telling me that if his licence was taken away he would have nothing left as in the preceding 2 years he had lost his father and his family business.  Loss of licence would have meant loss of his job (as he was a travelling salesman who required his licence).  Even worse, in his case, was that the terms of his employment meant that if he lost his licence he would personally be liable to complete the payments  on the car his employers had bought for him (up to a further 2 years of payments were still outstanding.)  Again, fortunately, the court accepted his mitigation and his licence and career were saved.

The above examples are of people who considered that their lives would have been devastated had their driving licences been taken away.  Conviction can mean so much more than just a criminal record.  (On that score one should also take into account, depending on the offence, that for some countries, such as the USA, you may not be granted a visa if convicted of a road traffic offence. So, you could even become something of a pariah as well!)

  •  Insurance premiums

It is now the norm for insurance companies to take into account the penalty points on an insured’s driving licence in order to assess the premiums.  I recently discussed this with a gentleman who had, years ago, thought it a good idea to represent himself in court on a speeding matter in which he had tendered a ‘guilty’ plea.  He is an intelligent and articulate man and thought, understandably, that he did not need to engage a lawyer to represent him and put forward his mitigation.  He reasoned that he could afford to take such an approach as his job did not depend on his licence.  He recounted to me how he was banned for 7 days.  At the time, he would have preferred not to have been banned but he was not unhappy with this result until he received his renewal insurance quotation which he found had gone up by a factor of three!   Doubtless he wishes now that he had engaged a specialist road traffic lawyer as most, worth their salt, would easily expect to be able to deliver a plea in mitigation much more effectively than a layman and, hopefully, thereby have avoided a ban for the client.  Of course, this would have meant that his premiums would probably have only increased by a relatively small percentage instead of sky rocketing for the next few years (as insurance companies usually penalise heavily those who have been banned relative to those who have only had penalty points endorsed on their licences).

Of course, in any given case an insurance company will take into account a range of factors such as the age of the driver, where he or she lives, how much the annual expected mileage is, the type of car and so on which is why it is so difficult to generalise.  However, it now appears that many insurance companies will markedly increase premiums even for a first time speeding offence and that premiums can rise dramatically for several years following upon a driving conviction especially where the driver has been disqualified from driving even if only for a matter of days.

Conclusion

The ramifications of driving convictions to the individual and to businesses can often be far greater and much more durable than expected.  Most people have families, jobs, and responsibilities that would all be adversely affected by the loss of a driving licence.  This Christmas as the festivities near and the winter weather envelops us do take heed of the potential consequences to you and those around you should you be unfortunate enough to suffer a driving conviction.

Drive safely everyone and make sure you do nothing that would prevent you and your family from enjoying a Happy Christmas and a prosperous New Year.

 

Sunil Rupasinha (specialist road traffic offence barrister)

Driving without due care and attention: You are probably ‘Guilty’ of this more often than you realise

Definition

S3 of the Road Traffic Act 1988 creates the offence of driving without due care and attention or without reasonable consideration.  A person is to be regarded as driving without due care and attention if the way he drives falls below what would be expected of a competent and careful driver.  A court must have regard not only to the circumstances of which the competent and careful driver could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.  The related allegation of driving without reasonable consideration for others is made out in circumstances in which others are inconvenienced by the driving of the accused.  The latter is, therefore, an offence of lesser gravity.

Clear?  Understanding legal jargon such as is found in statutes and legal text books can be challenging even for lawyers never mind the lay public.  With this in mind I shall try to put the preceding paragraph into context.

The Law and Procedure

Driving without due care and attention is a summary offence. This means that it can only be tried in the Magistrates’ Courts.  Such trials are usually heard by a tribunal consisting of 3 lay magistrates. The court clerk’s role includes advising the lay bench on the law and procedure.  However, judgement as to the facts is for the Magistrates alone.  Therefore, after hearing evidence in a case it is they who will determine whether the Accused is ‘guilty’ or ‘not guilty’.

The Reality of Driving without Due care

In an allegation of driving without due care the court will assess the standard of the driving by reference to the hypothetical ‘competent and careful’ driver.  A strict application of the law to the way many of us sometimes drive could mean that we, even if momentarily, fall foul of the required standard of driving.  How many of us, for example, cross our arms whilst turning the steering wheel or eat something as we drive along happily dividing our attention between a combination of the following – driving, eating, listening to the radio and arguing with our partners?  In practice, of course, the poor driving habits that we sometimes practice will not usually come to the attention of the police unless there has been an accident or some other circumstance to bring it to their attention.  However, strictly speaking many of us probably, at some point on journeys, do sometimes commit the offence without us or anyone else realising we have done so!

The Penalty

A court will usually fine a Defendant (the fine is, in theory, unlimited although in practice it will be fixed by reference to the gravity of the particular offence combined with the Defendant’s ability to pay), as well as endorse his driving license with 3 to 9 penalty points.  There is a power to disqualify from driving although if that happens penalty points will not be endorsed upon the licence as well.  Of course, the Defendant will very probably also suffer markedly higher insurance costs when his renewal falls due.

If you would like advice concerning an allegation of driving without due care and attention please contact me.

Sunil Rupasinha (specialist road traffic offence barrister)

Caught speeding at a grossly excessive speed? Here’s what you can do to avoid or, at least, minimise the length of a ban

Since specialising in the defence of road traffic prosecutions the enquiries I most commonly receive go something like this

‘I have been caught speeding at 100 (plus) mph.  Can I avoid a ban?’

What you need to know

  • The Bad News: The Consequences
  • penalties for speeding include fines and either the endorsement of your driving licence with penalty points (3-6) or disqualification
  • Your insurance premiums over the next few years may well increase (by a significant margin if you are banned)
  • Penalty points will be added to any other points endorsed for offences committed within 3 years of each other; if the total reaches 12 or more, you will be liable for a ‘totting’ disqualification of a minimum of 6 months (unless you can establish ‘exceptional hardship’ in which case there is a discretion not to disqualify)

The Good News: You can mitigate the offence so as to avoid, or, at least, minimise the length of a ban

  • Indication of an early ‘Guilty’ plea helps to establish remorse
  • Set out your mitigation carefully (first in relation to the offence and then in relation to your personal background)
  • where possible obtain independent evidence (that you can show the court) in support of your mitigation
  • Consider taking a driving course to establish that you have learned lessons in advance of your sentencing hearing (there are short courses available aimed at changing attitudes to speeding). Production of a certificate to prove you have undertaken such a course can be beneficial.

Here are  some commonly encountered  ‘don’ts’ that do not usually go down well with the court

  • Obtaining a reference from someone (who was not present at the time of the commission of the offence) that says you did not speed deliberately –  (a sure way to annoy the court and, in any event, speeding without realising it can be worse than doing so deliberately as it shows lack of awareness)
  • Claiming that you are a skilful driver who had full control of the vehicle – (this tends to make the court feel you do not appreciate the gravity of the matter)
  • Claiming that your top of the range marque is so advanced it can be stopped more quickly than other ordinary cars – (don’t be taken for someone who thinks the law does not apply to him)
  • Complaining of the consequences of being banned, for example, that you will have to take public transport (the court may retort, ‘that is why we ban people’!)

Conclusion

For any lawyer who does not specialise in defending road traffic cases advancing mitigation in a speeding case can be a minefield of ‘dos and don’ts’.  I frequently find myself explaining to clients why some points, which they would like put before the court, will only aggravate their situation.  The best results are obtained by assessing all the facts, taking ‘on the chin’ those points which cannot be avoided, and, skilfully and persuasively making the most of the mitigation that is present.  In this way, even when speeding at over 100 mph, surprisingly good results can often be obtained.

Sunil Rupasinha (specialist road traffic offence barrister)

(If you face a driving disqualification don’t hesitate to contact me to see how I can help.)

Committed a road traffic offence? Do you need a lawyer?

There are cases in which there is no need to instruct a lawyer.  The most obvious ones are perhaps those cases involving fixed penalties for speeding or parking when the defendant knows he is guilty.  Then again, there are those in which specialist advice is essential.  I was recently telephoned by a man who said he had already pleaded ‘guilty’ to a road traffic offence.  This is his tale.

The Tale:  Drunk in Charge?

He rang me saying that he had had a row with his girlfriend and gone to his car with a bottle of vodka to drown his sorrows.  He drank the bottle of vodka in the car.  The car was in the car park to the flats where they lived.  He fell asleep in the car.  He was awakened by rapping on the window.  It was a police officer.  The car door was opened and he fell out onto the car park.  It transpired that he was well over the alcohol limit.  He was charged with being ‘drunk in charge’ because he had been in charge of the vehicle in that he was in the vehicle and had the car keys in his possession, and, he had been over the alcohol limit.  He said he had been charged and pleaded ‘guilty’ as he had no defence.

The Defence

I enquired as to whether he would have driven the car had he not been arrested.  He responded that he would not have done so as he was going to return to his flat but only once his girlfriend had calmed down in the morning.  I advised him that if he could have proven that he was not going to drive whilst over the limit that he would have been acquitted as an intention not to drive amounts to a defence to the charge (although the burden of proving the defence rests with the defendant as no one else would necessarily have known his intentions).  This took the man by surprise.  He told me that he had told the police that he did not intend to drive and that he had not thought they would have charged him if that had amounted to a defence.

The Consequences

The moral of the story is that one should always research carefully to see if there are any legitimate defences which one can properly use.  Road traffic law can be complex especially for the lay person.  There are situations where, to the ordinary motorist, it might seem that he has been caught red handed and that there is no point in seeking a consultation with a road traffic lawyer.  However, this tale illustrates why it can be prudent to seek advice before pleading ‘guilty’ with all the adverse consequences that follow on from that.  We will never know how many motorists have entered ‘guilty’ pleas to ‘get it over and done with’ or because they understood that they had no defence when in fact they could have contested their cases and saved their driving licences.  Remember, the consequences of conviction for a drink-drive related offence include a criminal record and very probably higher insurance premiums for years to come.

Sunil Rupasinha (specialist road traffic offence barrister)

The New Drug Drive Law

With effect from Monday, 2nd March, 2015, it has become an offence to drive, attempt to drive or to be in charge of a vehicle on a road or other public place when there is a specified controlled drug in the body of the offender.  The offence is committed if the proportion of the drug in the body exceeds the specified limit for that drug.  For the first time the new law will penalise not just those with illicit drugs in the body but also those who have prescription drugs (above the specified limits) in the blood stream.  The new offence will enable the police to charge many more drivers as there is no requirement to prove any impairment in the ability to drive under the new law.

The specified prescription drugs

The drugs specified include 8 prescription drugs namely

  • Clonazepam
  • Diazepam
  • Flunitrazepam
  • Lorezepam
  • Methadone
  • Morphine
  • Oxazepam
  • Temazepam

These drugs are widely prescribed for conditions such as insomnia, depression and anxiety, pain relief and other common conditions.  However, an offence is not committed unless the level of the drug in the body exceeds the specified limit.  There is a different limit for each drug.  Parliament has set the limits so that those who are taking the drugs in accordance with the prescriptions given to them by their doctors will not normally exceed the specified limit.  However, the government has also issued advice that if one is on high doses of such drugs it would be prudent to carry evidence, such as your prescription, with you to show the police should you be questioned.  It should be noted that the law does provide a defence to those who have been prescribed a specified drug for medical or dental purposes even where the level of the drug exceeds the specified level so long as drug is taken in accordance with the directions of the doctor or supplier of the medicine and in accordance with the manufacturer’s guidance.  However, this defence is not allowed if guidance not to drive within a certain period of taking the drug has not been followed.  (Please note that this defence is only available to the new law; it is not a defence to the previous and existing law which prohibited driving whilst unfit to do so through drink or drugs. 

The specified illicit drugs

The law also penalises those who have any one of eight illicit drugs in the body.  The drugs specified include

  • Cocaine
  • Cannabis
  • Ketamine
  • LSD
  • MDMA (ecstasy)
  • heroin
  • diamorphine

Again different levels are specified for each drug above.  Parliament has set very low, trace levels for these drugs so that anyone found with them in the body will be committing an offence.  Those who take such drugs should be alert to the possibility that drug traces could, potentially, remain in the body long after the drugs have been ingested and after any obvious intoxicating effects have disappeared.

Penalties   

Drug Driving is punishable with up to 6 months prison, a minimum one year driving disqualification and an unlimited fine.  The offences are summary only and can be tried only in the Magistrates’ Courts. The existing law of unfitness to drive through drink or drugs remains on the statute book. Therefore, anyone who drives with any intoxicant in the body, whether drink or drugs, which renders that person unfit to drive also commits an offence.  Intoxicants can include prohibited drugs, prescribed drugs and over the counter medicines.  Drink driving, drug driving and driving whilst unfit to drive through drink or drugs are all subject to the same penalties.

The government’s message is summed up by the then Road Safety Minister Robert Goodwill who said:

“This new law will save lives. We know driving under the influence of drugs is extremely dangerous; it devastates families and ruins lives.’’

“The Government’s message is clear – if you take drugs and drive, you are endangering yourself and others and you risk losing your licence and a conviction.”

Please feel free to contact me for advice should you face prosecution for a drink or drug drive allegation.

(NB the law set out above is correct at the time of writing)

Sunil Rupasinha (specialist road traffic offence barrister)