Caught Using a mobile phone whilst driving?

Caught Using a mobile phone whilst driving?

The Allegation

Jim had been seen using a mobile phone by a police officer when he was stationary at traffic lights. Jim did not deny using a phone nor holding a speaker to his ear (the actual phone being in a cradle on the dashboard). However, as he drives for a living he wanted to know if he had a defence to the charge (as a conviction could have resulted in the loss of his licence).

The Meeting

We met as soon as Jim received notice of the allegation in the post. My view was that there could be a defence in law based on the fact that the speaker had been detached from the phone (there was no physical connection between them) and the speaker was not an ‘interactive communication device’ within the meaning of the relevant regulation and case law.

The Trial

We met early at Lavender Hill Magistrates’ Court on the day of his trial. The officer who had stopped Jim was called as a prosecution witness. I questioned the officer and confirmed that he had neither seized nor examined the speaker. I then made a legal submission that ‘there was no case to answer’ (even before the defence case was opened). The court retired to consider the submission and after a long delay returned dismissing the case against Jim directing that a ‘Not Guilty’ verdict be entered.

Conclusion

Jim had won his case on a technicality without even having to give evidence! Costs were awarded in his favour. He comments, ‘My barrister was excellent from start to finish. He advised me wisely to begin with and then had the knowledge and experience to guide the court expertly to the conclusion he sought.’ At Kent Traffic Law we regularly consider allegations of mobile phone use against clients. If you consider you have been wrongly accused or would like to know if you have a defence in law don’t hesitate to get in touch.

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Speeding and Careless Driving

Speeding and Careless Driving

A Case Study

The Background

This case study involves speeding and careless driving. Michael had been seen by police officers speeding at over 40mph above the speed limit. They put the accelerator down and chased him. When he belatedly saw them approaching very quickly from behind he was hurried into an ill-judged manoeuvre which almost caused a high-speed collision. Consequently, he was accused of both speeding and driving without due care and attention.

The Advice

When Michael came to see me he had intended to plead, ‘Not Guilty’ to careless driving and to admit the speeding matter. Based upon his own account I advised him that he would probably be convicted of careless driving anyway. I explained that the sentence might well be markedly harsher if convicted after a trial (as opposed to admitting guilt by pleading ‘guilty’.) As Michael was desperate to minimise the length of any driving disqualification, as his job depended on his licence, he was anxious to make the right decision. He decided to follow my advice and admit both offences. I advised Michael of the evidence he needed to gather by way of mitigation in time for the court hearing.

The Hearing

Michael could reasonably have expected a driving disqualification in the region of 3 months (even after ‘Guilty’ pleas). Instead, the court was persuaded simply to endorse his driving licence with penalty points! Michael could hardly believe his good fortune as this meant that he would be able to keep his licence and his job.

Conclusion

With careful consideration of plea, advance preparation for the hearing and persuasive representation in court surprisingly good results can sometimes be obtained.

Michael said

‘’When I engaged Sunil I had no idea how the court process would work or what the merits of my case were.  I would have admitted to the speeding and probably contested the careless driving allegation.  It is only having received clear advice from Sunil when I met him that I understood my interests lay in admitting both allegations (even although my job depended on my driving licence).  Due to the excellent advance advice and an equally assured handling of proceedings in court on the day (both were essential) Sunil was able to steer the court to the very sentence I would have asked for.  I could not have asked for better. Thank you, Sunil.’

Read more about Sunil Rupasinha here

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Failure To Provide a Specimen

Failure To Provide a Specimen

A Case Study

Failing to Provide a Specimen of Breath

The Background

Joseph is a professional of outstanding good character but for once in his life, he went for a drink and took his car with him! He was stopped by the police and breathalysed at the roadside. Having provided a positive specimen he was arrested and conveyed to the police station to provide an evidential specimen. In his anxiety, he failed to provide the specimens of breath as required at the station and he was charged with this offence. Upon receiving my advice he decided to plead ‘Guilty’.

The Issue

Joseph had underestimated the gravity of the offence he had committed (which I find to be common). He did not appreciate that, as well as the undoubted consequences to his career, that he faced, potentially, an immediate custodial sentence. He was devastated. He was anxious to know if there was anything that could be done to lessen the likelihood of such an outcome. We met in advance of the hearing and I advised him to obtain a reference which set out the potential professional consequences of a conviction to his future career. When Joseph sent me the draft I suggested some important amendments (which were later made and signed off by the referee).

At Court

Joseph and I were the first client and lawyer pairing to sign in at court. (I had advised Joseph to attend at 0855 hours before the doors opened so that it would be more likely that his case would be called on very early, if not first, in the list. I have found that it can be much more difficult to obtain optimum results for my clients when those earlier in the list have already been sentenced harshly for similar or even less serious cases). I then spoke with the prosecutor before the case was called on (the prosecutor summarises the case to the court and so how the case is outlined by him can be critical to sentence). I handed in the reference and then sought to persuade the court to deal with Joseph by way of a community penalty even though he appeared to have passed the ‘custody threshold’. Fortunately, the court obliged.

Conclusion

Joseph’s principal concern had been to avoid an immediate custodial sentence. His secondary concern was to minimise the impact upon his career (in the sense that the lighter the penalty the less likely he would be referred to a professional disciplinary panel). Both of these aims were achieved. It is now likely that Joseph will be able to pursue his career with minimal disruption.

Joseph said, ‘From first to last Sunil gave me expert, straightforward guidance and advice without which it would have been easy to panic and make a poor decision. In any case such as this there are many factors to take into account. Until it’s all over and you have actually seen your case dealt with in court it is impossible to fully understand all of the relevant factors. I am so glad that I trusted and engaged Sunil to fight my corner. He clearly does have a full understanding of what is required to obtain the best possible result. The professionalism and care taken by Sunil was exemplary.’

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Can Pleading Guilty To Speeding Reduce The Penalty?

Can Pleading Guilty To Speeding Reduce The Penalty?

A Case Study

The Case – Dealing With a Speeding Summons

Henry was accused of speeding at 46mph in a 40 mph limit and had received a speeding summons. He needed his driving licence for his job. His employer’s insurers would not cover any of the drivers in the fleet who had more than 6 penalty points on their licences. Henry already had 6 penalty points on his licence and so was desperate to avoid a conviction.

The Advice

When I met Henry I advised that he would almost certainly be convicted if he contested the case and that his penalty would be harsher if he were convicted following a trial rather than if he were sentenced following a ‘Guilty’ plea. Henry advised me that after he had received the speeding summons he had booked 7 days off work following on from his court hearing date.

At Medway Magistrates’ Court Henry changed his plea to ‘Guilty’. The court was advised that he had booked 7 days off work and that he would lose his job if he received any more penalty points. I asked the court to disqualify him (for 7 days only). The court considered the matter carefully and then elected simply to ban him for 7 days without imposing any penalty points! Thus the court enabled Henry to keep his job.

Conclusion

It is sometimes possible, if one knows the rules and a client’s circumstances well, to persuade a court to take an unusual course which will suit the client better than he could have imagined.

Henry said: ‘I was so happy to have engaged a genuine motor offence specialist barrister. I believe this made all the difference. The solicitors I had contacted clearly were not as knowledgeable as Sunil. An excellent grasp of the rules and a very persuasive manner in court enabled Sunil to prevent me from receiving a further 3 penalty points. Without Sunil’s expert advice and guidance I would have lost my job and the roof over my head. I am very grateful to him.’

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Totting Up and Exceptional Hardship

Totting Up and Exceptional Hardship

A case of fixed penalty tickets and a well constructed exceptional hardship argument

David had received 3 fixed penalty tickets for speeding in 30 mph zones (never at more than 35 mph).  When he received a fourth notice for speeding in a 30 mph zone he knew he was at risk of a ban and he contacted me.  I advised him that the ban would be for a minimum of 6 months.  He was horrified and asked what could be done.  This is his story.

David had started a new business as a publisher.  He had one fellow director whose role was office based.  David’s role was to travel to clients’ offices and deliver training classes.  He lived in a remote part of Oxfordshire miles from the nearest railway stations.  His children both attended special needs schools and had irregular timetables meaning they had to be driven to and from school.  The business was in its infancy meaning that loss of his licence as a result of multiple fixed penalty tickets would be a terminal blow affecting not only David and his family but also that of his fellow director. 

David gave me the background to his case over Skype (as it was not convenient to meet in person).  I advised him to obtain letters from his children schools, from their social workers and medical practitioners and from his fellow director.  I advised him of what the letters needed to cover and how they should be phrased for maximum effect upon the court.

The Submission

This was that loss of licence would end the business which was not well enough established to survive the loss of David’s licence with equally damaging consequences to the family of the fellow director. Furthermore, David’s children, would not only have difficulty in attending school but also regular medical appointments with specialist doctors in Oxford.  The letters that had been prepared in advance were also handed into the court. 

The Finding

Oxford Magistrates’ Court found that the consequences of disqualification would indeed have included ‘exceptional hardship’ and exercised its discretion not to ban David at all.  The potential consequences to innocent victims, such as the children, in this case, is often accorded more weight by the court than the consequences to the motorist concerned.  However, careful preparation and effective presentation paid off in this case. 

David said that “loss of licence would have simply been a disaster for me and my family.”

 

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