Most people know that driving bans may follow for serious road traffic offences or a series of lower-level traffic crimes as a result of ‘totting up’. Few of our clients know that disqualifications can follow in other cases. For example, using a vehicle to facilitate the commission of an offence.
What is the relevant law?
There are two relevant provisions in the Powers of Criminal Courts (Sentencing) Act 2000.
General power to disqualify
Section 146 provides for a general power to disqualify a person from driving following a conviction for any offence. There is no requirement for a vehicle to have been used during the crime.
In Cliff  EWCA Crim 3139, the court held:
‘In our judgment, it is not necessary for the offence to be connected to the use of the motor car. The section provides an additional punishment available to the court. That is not to say that a court can impose a period of disqualification arbitrarily. There must be a sufficient reason for the disqualification. The reasons will, of course, be open to scrutiny by an appellate court, as they are in this case.’
The disqualification period can be ‘…for such period as it thinks fit’.
The case law is not always consistent (see for example Bye  EWCA Crim 1230 and compare with Cornell-Gallardo  EWCA Crim 3151). An advocate must always be careful to scrutinise the facts of each case and challenge the making of such orders if appropriate.
Using a vehicle to commit an offence
The provisions under section 147 of the Act are much better known and can only be used where the offence is punishable on indictment with imprisonment of 2 years or more or is an offence involving an assault. The magistrates’ only have power in relation to the latter.
In order to impose a driving ban, the court must be:
‘…satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing, or facilitating the commission of, the offence in question’, or
concerning assault offences ‘…satisfied that the assault was committed by driving a motor vehicle’.
Again, the disqualification period can be ‘…for such period as it thinks fit’.
Some Judges appear to be very keen to use this power and impose driving bans, while it rarely seems to occur to others. It can be very much a lottery so far as the sentencing process is concerned.
The case law concerning this provision is complex and voluminous. All advocates need to ensure that they are not taken by surprise when it is mentioned (often with no notice) as part of the sentencing process.
All of our advocates are highly trained and able to respond appropriately to all sentencing and other issues.
How we can assist
If you need specialist advice on driving offences, please get in touch. Call John Howey on 020 7388 1658, or email email@example.com and let us help. We deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.Read 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 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 firstname.lastname@example.orgRead 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 when it comes to driving offences, 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.