It may be an offence to fail to provide information as the identity of a driver when you receive a written request to do so from (or on behalf of) the police. If convicted, you face a hefty fine and 6 penalty points.
How long do they have to make the request?
A request must normally be served within 14 days of the offence being committed. There is case law where because a postal strike delayed the mail and it was delivered after the 14-day period, the offence was not committed.
If you have any doubt as to whether the notice was served within the requisite time, please contact us for further advice. In some circumstances a valid request can be made after the 14-day period, so do not ignore a request simply because you believe it to be out of time – always seek legal advice.
How long do I have to reply?
From the date the notice is served you have 28 days to reply, or “as soon as practicable after the end of that period”.
Right against self-incrimination
A number of case have dealt with this issue and, put simply, it doesn’t matter, the requirement to identify the driver does not affect your human rights. The court has said “those who choose to keep and drive a car can be taken to have accepted certain responsibilities” and those include the obligation to provide information upon request as to the driver.
What if I really don’t know who was driving?
If you genuinely do not know who was driving, you may have a defence to an allegation of failing to provide driver information.
The defence is that you “could not with reasonable diligence have ascertained who the driver of the vehicle was”. You need, therefore, to make all reasonable enquiries to find out who the driver was, and you will still need to reply to the request, providing what assistance you can. Again, it is best to seek early legal advice as a recent case involving the former politician Lord Howard, has opened up a number of interesting legal arguments.
I did not receive the request and now I have been summonsed, what do I do?
You may have a defence to the allegation. Please contact us for further advice.
What if I provide false information?
It can be tempting to name a spouse, or even someone abroad, in the hope of avoiding penalty points. To do so would amount to perverting the course of justice – which almost always results in a prison sentence. Chris Huhne, a former cabinet minister and his wife, Vicky Pryce, found this out the hard way. So, don’t do it.
It is a defence to show that there was no record kept of the driver and that the failure to keep a record was reasonable. The notice can be served by sending it to a secretary or a clerk, at the registered or principal office. It may seem obvious, but a company cannot be given penalty points, so the penalty here would be a fine.
In certain circumstances proceedings can also be brought against company directors, so a company cannot be used as a shield against prosecution for this offence. If your company operates a company car pool it would be wise to ensure that you have robust procedures in place in order to track vehicle usage.
Public funding may be available for such a case, so please contact us for further information.
How we can assist
The law concerning requests for driver information can be complicated. This article is intended to give only a very brief overview of the issues involved.
If you have any concerns or simply to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or firstname.lastname@example.orgRead More
Once again, there have been numerous news stories this week about deaths and serious injuries caused by bad driving.
There is a specific offence of dangerous driving, which carries a maximum prison sentence of 2 years. However, if that driving is a cause of someone’s death, the maximum sentence rises to one of 14 years. Since 2012, if the dangerous driving results in serious injury, then the maximum sentence is one of 5 years.
In each case there are minimum disqualification periods, very lengthy actual disqualifications and insurance premiums which will be significant for many years to come; some drivers may not even be able to secure insurance at all, at any price.
What is dangerous driving?
Dangerous driving is defined by section 2A Road Traffic Act 1988:
“…a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—
(a) the way he drives falls far below what would be expected of a competent and careful driver, and
(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
The test is an ‘objective one’ which means that it is not to be judged through the eyes of the actual driver but the eyes of a ‘competent and careful driver’. Effectively, therefore, it will be for a magistrate/judge, or jury to decide.
The crucial part of the test is that the driving falls ‘far below’ the standard expected, and it is this that on occasion makes advising in these cases such a very skilled task.
In some instances, it will be obvious that the driving falls ‘far below’ the required standard. So, if you drive at 100 mph on the wrong side of the motorway at night without lights, there is no room for debate.
But, what if, believing that you have sufficient sight of the road ahead, you overtake only to hit an oncoming vehicle in the opposite lane. Is that driving ‘far below’ the standard, or it is simply an unfortunate error of judgment, one that could perhaps be properly categorised as careless driving not dangerous?
There is no statutory definition of what is meant by “far below”, but section 2A(3) of the 1988 Act states that “dangerous” must refer to the danger of personal injury or serious damage to property.
We also know from case law that the driver’s particular skill or lack of is not relevant (Bannister  EWCA Crim 1571).
The Crown Prosecution Service regards the following as being examples of dangerous driving, but it must be stressed that ultimately it will be a matter for the court to decide:
- racing or competitive driving;
- failing to have proper and safe regard for vulnerable road users such as cyclists, motorcyclists, horse riders, the elderly and pedestrians or when in the vicinity of a pedestrian crossing, hospital, school or residential home;
- speed, which is particularly inappropriate for the prevailing road or traffic conditions;
- aggressive driving, such as sudden lane changes, cutting into a line of vehicles or driving much too close to the vehicle in front;
- disregard of traffic lights and other road signs, which, on an objective analysis, would appear to be deliberate;
- disregard of warnings from fellow passengers;
- overtaking which could not have been carried out safely;
- driving when knowingly suffering from a medical or physical condition that significantly and dangerously impairs the offender’s driving skills such as having an arm or leg in plaster, or impaired eyesight. It can include the failure to take prescribed medication;
- driving when knowingly deprived of adequate sleep or rest;
- driving a vehicle knowing it has a dangerous defect or is poorly maintained or is dangerously loaded;
- using a hand-held mobile phone or other hand-held electronic equipment whether as a phone or to compose or read text messages when the driver was avoidably and dangerously distracted by that use; R v Browning (2001) EWCA Crim 1831, R v Payne  EWCA Crim 157;
- driving whilst avoidably and dangerously distracted such as whilst reading a newspaper/map, talking to and looking at a passenger, selecting and lighting a cigarette or by adjusting the controls of electronic equipment such as a radio, hands-free mobile phone or satellite navigation equipment;
- a brief but obvious danger arising from a seriously dangerous manoeuvre. This covers situations where a driver has made a mistake or an error of judgement that was so substantial that it caused the driving to be dangerous even for only a short time. Cases that illustrate this principle include:
Att.Gens’ Reference No 32 of 2001 (2002) 1 Cr.App.R. (S) 121 (offender failed to stop at a junction where there was a give way sign, failing to see a taxi that was being driven across the junction perfectly properly and colliding with it);
Att.Gen’s Reference No 4 of 2000 2000]) EWCA Crim 780 (offender unintentionally pressed the accelerator instead of the brake);
Att.Gen’s Reference No.76 of 2002 (Hodges) (2003) 1 Cr.App.R. (S) 100 (offender drove across a junction marked by a give way sign and collided with a car that was being driven along the major road and had no explanation for his failure to see the other car) “this was a single misjudgement. It was a bad misjudgement but nevertheless a single one”
Some of the examples in the above list may seem surprising, for example where a person unintentionally pressed the accelerator instead of the brake. Again, it is worth stressing that much will depend on what actually happened, with concepts such as ‘…even for only a short time…’ being open to argument.
Similarly, when does ‘…failing to have proper and safe regard…’ (a legal duty anyway) stray over the line from being careless driving to dangerous driving?
And finally, is ‘overtaking which could not have been carried out safely…’ something that is inherently in danger of being judged by hindsight?
In stressful situations, particularly where serious harm has been caused, there is an instinctive reaction to think that the driving error must have been very serious.
What we know of course is that on occasion even the slightest error can result in very serious consequences. It is therefore vital that if you are going to be interviewed by police after an accident that you have legal representation from the outset.
It does not matter if you are arrested or have been asked to go for an interview under caution (a Caution +3 interview), legal advice and assistance at a police station is free of charge, regardless of your financial means.
Accident investigation and reconstruction is now an important consideration in these cases, allowing scientists and engineers to see exactly the cause(s) of an accident and the magnitude of error, often exposing the culpability of others.
Eye-witness testimony is not always reliable and is also often tainted by the result of the driving as opposed to the driving itself.
In some cases, it will be clear-cut, but there may still be room for manoeuvre and a plea to the lesser offence of careless driving may be an option.
How we can assist
Whether an act of driving amounts to dangerous driving is often not easy to ascertain, but our experienced lawyers routinely deal with all manner of driving cases, from the minor to the most serious.
Whether facing imprisonment or not, the loss of a driving licence is for many people an incredibly serious penalty in itself, so all steps should be taken to avoid that happening.
To discuss any aspect of your case please contact John Howey on 0207 388 1658 or email@example.comRead More
From June 4th, learner drivers are to be allowed to drive on the motorway. This is to encourage learner drivers to develop an understanding of how to drive on roads that are vastly different from the urban environment that most people learn to drive in.
There will be conditions attached though. Unlike non-motorway roads, where a learner must simply be supervised by someone aged over 21 who has held a full driving licence for at least three years, a learner on the motorway will have to be supervised by a qualified driving instructor, and be driving a dual control car.
There are no plans to introduce motorway driving into the driving test, and it will be left to the instructor and the learner to decide if they want to take advantage of this change.
Younger, inexperienced drivers are significantly more likely to be killed or seriously injured whilst driving than older drivers, and it is to be hoped that providing learner drivers with motorway experience may help reduce those numbers.
In other driving news, more than 26,000 motorists have been caught using a handheld mobile phone while driving in the first year since harsher penalties came into force.
Among these are 500 novice drivers who have had their licences revoked for using their phone behind the wheel in their first 2 years of driving. Drivers who acquire 6 penalty points in their first two years of driving have their licence revoked and have to retake their test.
On 1 March 2017, the penalties for this offence doubled from £100 and 3 penalty points to £200 and 6 points.”
If you have a query about a driving matter, please contact John Howey on 020 7388 1658 or firstname.lastname@example.orgRead More
What Happens in Rome, May Not Stay in Rome
Most people know that if you commit a criminal offence in the UK, the police will record details of the offence and any sentence you receive on the PNC (Police National Computer). But what happens if you commit an offence abroad? Will anyone at home ever find out about it? The answer depends on where the offence has been committed.
Offences in the EU
The UK is part of EU Council Framework Decision 2009/315/JHA; this means that if the foreign offence has an equivalent offence in England & Wales which is deemed “recordable”, it will be notified to ACRO (Automating Conviction Requests Office) who will add it to the PNC.
If a link to Scotland or Northern Ireland is identified, such as a place of birth or address, the information will be forwarded to the Scottish Police Services Authority (SPSA) and/or the Police Service of Northern Ireland (PSNI) as well.
Despite this, it is still often the case that offence information is not, for whatever reason, always reported back to the UK.
What is a “recordable” offence?
Where a foreign offence is received by the UK police it will be updated on to the PNC if it is listed as being a “recordable” offence as set out in The National Police Records (Recordable Offences) Regulation 2000.
The Regulation states that recordable offences are those punishable with imprisonment and those specified in the Schedule to the Regulation.
Until 2017, many driving offences committed abroad went unpunished. However, if you commit a safety related offence such as drink-driving, speeding, using a mobile phone while driving, ignoring a red light etc, the DVLA must provide your details to an EU country that request them.
Offences committed outside the EU
If you have been convicted in a country outside of the EU, the conviction details may be forwarded to the UK if you are a UK national. A lot will depend on which country is involved and how committed it is to the exchange of criminal records data, but as outlined below, even if the information hasn’t been automatically supplied to UK police, it may still be requested at a later date.
The UK is part of the International criminal conviction exchange, which enables police forces to easily exchange relevant information.
When a foreign national is arrested in the UK, for the majority of police forces the process of requesting a foreign criminal records check is now automated, taking around 10 minutes to process. If there is a European Arrest Warrant outstanding, that will be revealed by a standard PNC check.
Similarly, even if an offence committed outside of the UK has not been communicated to UK police, a request may still reveal it.
And what about foreign nationals who commit offences in the UK?
The UK will exchange records with foreign police forces in accordance with the above rules. To give you an idea of the popularity of criminal records exchanges, between March and November 2017 ACRO received more than 70,300 requests from EU countries alone.
Competent solicitors will advise you as to the impact of UK convictions if you are a foreign national and will also recognise that checks during criminal proceedings in the UK may reveal convictions from abroad.
This is important as the information could be used as part of a bad character application and may also be relevant to sentencing. Also, it will be important in multi-handed cases to ensure that the full criminal past of any co-defendant has been explored, as this may provide evidence in your favour.
What happens in Rome, or London, or anywhere else for that matter, may be a secret for now, but once criminal proceedings commence it is an altogether different story.
How can we help?
All of our lawyers recognise the International aspects of criminal justice; if you are facing investigation or proceedings for any offence, it is important that you get in touch with us as early as possible so that we can best protect your interests.
Contact John Howey on 020 7388 1658 or email email@example.comRead More
One of the most serious offences that can come before a court is ‘perverting the course of justice’, this is because it strikes at the very heart of the justice system.
Due to its seriousness, immediate custody almost always follows, yet there are a surprising number of people who commit this offence, thinking that they will easily get away with it.
“Offences of perverting the course of justice are intrinsically so serious that they will almost always attract an immediate custodial sentence unless there are exceptional circumstances justifying a different course” (R v Cronin (2017)).
The Panicked Driver
The scenario is a common one, one person in the family already has 9 points on their driving licence, and a notice of intended prosecution drops through the door in relation to another traffic offence.
A traffic offence that is in itself so relatively minor that it will only result in 3 penalty points and a modest fine. But, in this instance due to the previous points on the licence, it will possibly result in the loss of that licence. This was exactly the scenario that faced Chris Huhne in 2003, when he was a Liberal Democrat MP.
It might appear easy for another person to take the blame, perhaps even name a relative abroad; who would possibly find out?
Of course, this is the breeding ground for many a mistake – that belief that you will not be caught.
In reality, however, the police take a keen interest in these cases, and often it requires only a modicum of detective work to reveal the true offender.
The consequences can be horrendous, the points follow, as does the disqualification which now becomes a reality with no realistic prospect of arguing exceptional hardship, and worst of all, two people are arrested, possibly in the early hours, in front of friends and family, maybe even young children.
And finally, a prison sentence follows. All to avoid a few penalty points.
The irony is that in many cases the disqualification could have been avoided if early advice had been obtained from an experienced road traffic practitioner.
Many otherwise decent hardworking people find themselves before the court through decisions made in panic. Before acting always seek advice.
Contact John Howey on 02073881658 or firstname.lastname@example.org for advice on all road traffic issues.Read More
A Criminal Solicitor is required to join JFH Law’s established criminal law team. The successful candidate will have at least 2 year PQE in criminal work, and will have excellent legal knowledge and procedural understanding. The candidate must have duty solicitor status, and have prior experience in undertaking magistrates’ court trials. The successful candidate will be a confident advocate; higher rights of audience would be advantageous, but not essential. An interest in and experience of Extradition Law would also be an advantage. The candidate will be expected to undertake both legal aid and private paying files, and will have a keen interest in business development. They will be handling a varied and busy case load from start to finish.
This is an excellent opportunity for an enthusiastic criminal solicitor to join a dynamic and modern law firm with fantastic career progression opportunities.
Convicted Before A Magistrates’ Court – Can I Appeal?
Many people convicted before magistrates feel aggrieved at the outcome, and wish to consider an appeal.
A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.
For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.
The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.
So, what can I do about it?
The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction – you should not delay in contacting us.
If more than 21 days have passed, then get in touch as soon as possible as we can advise on ‘out of time appeals’.
When you contact us, we will also be able to consider whether other avenues of appeal, namely judicial review and appeal by way of case stated (both to the High Court) are more suitable.
I pleaded guilty, can I appeal?
You might be able to appeal against ‘conviction’ if you pleaded guilty, but only if your plea is ‘equivocal’. In this instance, there are two remedies that we can explore with you.
Do I need permission to appeal?
An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’, which means that you do not need any permission to appeal.
In effect, you are entitled to ‘2 bites of the cherry’ although there are some other issues, such as sentence and costs (see below) that you should consider first.
Is sentence suspended pending an appeal?
Your sentence is not suspended pending appeal, although:
– We can apply for bail if you are in custody, and
– Apply for any driving disqualification to be suspended.
If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.
What happens at the appeal hearing?
The crown court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.
We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.
We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.
If I lose the appeal, what happens?
If that happens, you will be re-sentenced by the crown court, and be liable for prosecution costs. We will discuss the costs implications with you in detail before any decision to appeal is made.
It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court, so, you may receive a higher penalty.
This is one of the risks that you need to balance – and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).
Can I get legal aid?
Some people are eligible for legal aid, and in some circumstances we can apply for legal aid on your behalf.
We will be happy to discuss fixed fee arrangements – the price of high-quality representation is almost certainly much less than you might imagine it to be. If you are successful in your appeal, some of your costs may be refunded.Read More
In some instances, it is possible to apply to a court and ask that a driving disqualification is ended early.
Therefore, if your circumstances have changed since being disqualified, it is worth discussing with one of our criminal law specialists whether or not you can take advantage of this legal provision.
What are the rules?
You can ask the court to reduce your disqualification period after you’ve been banned from driving for:
– 2 years – if the disqualification was for more than 2 but fewer than 4 years
– Half the disqualification period – if it was for between 4 and 10 years
– 5 years – if the disqualification was for 10 years or more
We are often asked by clients who have been disqualified for a second drink-driving offence whether they too can apply. The answer to that is yes, although the application will be complicated as the High Court has stated:
“I would only add that justices … may if they think fit regard a mandatory disqualification as one which they are somewhat less ready to remove than a discretionary disqualification.”
But it will depend, as always, on the individual circumstances of the case, in Boliston v Gibbons (1995) for example the High Court showed itself to be very sympathetic to the applicant’s plight.
What are the criteria?
The law states that:
“On any such application the court may, as it thinks proper having regard to—
(a) the character of the person disqualified and his conduct subsequent to the order,
(b) the nature of the offence, and
(c) any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”
In essence, what needs to be established is that there is some compelling reason why the ban should be brought to an end, such examples include employment opportunities, reliance on a vehicle for caring responsibilities, personal immobility etc.
Will the application be opposed?
It is very rare for an application not to be opposed, so we work incredibly hard to ensure that an impressive argument is put before the court.
Merely turning up and throwing yourself on the mercy of a court is unlikely to result in a return of your driving licence.
If the application is refused, can I make a further application?
Yes, you can re-apply again but must wait at least three months from the date of refusal.
How we can help
We can assist in preparing and presenting your application to the court. Our experienced team have significant advocacy expertise and are best placed to secure the return of your driving licence.
Is legal aid available?
Legal aid may be available subject to a means test. Private representation is available at competitive rates.
Contact John Howey on 020 7388 1658 or email@example.com to arrange an appointment.
As we put Halloween and Bonfire Night behind us, easing into those dark wintry nights, it isn’t long before Christmas is in our sights and party season gets underway.
As night follows day, this time also coincides with a national police initiative concerning drink driving, as forces across the country prepare for a spike in the numbers of those tested and arrested for drink and drug driving offences.
While these offences may not seem particularly serious when viewed against other offences, what is not often understood is the real impact that a conviction can have.
Research shows that loss of a licence leads in a great many cases to loss of employment, in turn to loss of housing as bills cannot be paid, and sometimes it is the final straw that breaks a relationship. The financial costs will be felt for many years thereafter as insurance premiums will be greatly increased.What we also see is that a great many people come before the courts with alcohol readings that are not high, and where offences have been detected the ‘morning after’. Offences that can be said to have been committed perhaps more out of ignorance than a wilful disregard for others.
A single error of judgment with devastating consequences.
What is a safe level of drinking if I propose to drive?
No alcohol is the safest level as it ensures that when you get behind the wheel, your reactions are not impaired to any degree at all.
Crucially it also prevents the guesswork that brings so many people before the courts.
Urban myths such as ‘2 pints are ok’ have long since been proved to be false, as have back of the envelope guesses as to how long it takes alcohol to leave the body.
Different people will deal with alcohol in different ways, and even this can vary for a single person depending on a multitude of factors. The alcoholic content of drinks is generally greater nowadays, and measures of, for example wine, bigger than before.
Merely feeling OK to drive is not a reliable indicator as to whether you are below the legal limit or not.
As we get merry, we reach a tipping point; we can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.
You do not hear a lawyer say this often – but we do not wish to see you this Christmas.
Think, before you drink and drive.
How we can assist
If you do find yourself in trouble, there is a lot we can do to assist.
The police must follow complex procedures to establish a case against you – we can ensure that this has been done.
We can also investigate issues such as ‘laced drinks’ and ‘special reasons’.
Well-presented mitigation can make a real difference to the outcome and even where a disqualification cannot be avoided, we can often achieve a reduction in length.
Drink-driving alcohol limit
England and Wales have the highest alcohol tolerance for drink-driving in Europe. To be guilty of drink-driving, a person must have more than 80mg of alcohol in 100ml of blood, 35 micrograms of alcohol in 100ml of breath or 107mg of alcohol in 100ml of urine. In Scotland, the limit is 50mg of alcohol in 100ml of blood. The only other European country with the same limit as England and Wales is Malta.
Some European countries have different limits for the type of driver. A lower alcohol limit is usually set for commercial drivers or newly qualified drivers. Other countries such as Romania and Croatia, have a zero tolerance to alcohol and any alcohol found in the blood will be a drink-driving offence.
In extradition proceedings, the Judge must be satisfied that the offence committed in the other European country is also considered a criminal offence in the UK. Therefore, many who have been arrested for drink-driving in zero-tolerance countries may not necessarily be guilty of an offence in England and Wales. If that is the case, then extradition cannot take place.
Methods of recording blood alcohol content
A further complication arises as many of our European counterparts have a different method of recording blood alcohol content found in drink-drivers. Romania, Poland and Lithuania do so as a percentage and it is not clear what that translates to compared to the readings used in England and Wales. Often at full hearings, there are arguments as to the correct calculation and translation into micrograms of alcohol per 100ml of blood from the different expression as found in the European Arrest Warrant.
The Crown Prosecution Service is responsible for providing this calculation and translation in each individual case. If they fail to do so, a Requested Person might be discharged as the District Judge cannot be sure that the offending behaviour corresponds to a criminal offence in England and Wales. As Mr Justice Blake says in Czech Republic v Kolman  EWHC 302 (Admin), District Judges ‘should not also need to become part-time experts in bio-chemistry.
Please contact John Howey on 0207 388 1658, or email firstname.lastname@example.org if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior SolicitorRead More