Driving Bans – Not Just for Traffic Offences
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 [2004] 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 [2005] EWCA Crim 1230 and compare with Cornell-Gallardo [2010] 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 jhowey@jfhlaw.co.uk 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.
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Targeting Drink Drivers; None for the road
The government has announced its intention to use new roadside breathalysers, in a move that could see a further 6,000 convictions per year for drink driving.
At the moment, the breath test procedure is carried out in 2 stages. A person who tests positive at the roadside will be arrested and taken to a police station for a further test to be administered. This is known as the ‘evidential test’ and is the one that forms the basis of any prosecution decision.
The gap in time between the first positive breath test and the one administered at the police station may be significant enough to ensure that a person blows a negative reading – this is due to falling alcohol levels over time (although in some cases the reverse can also happen).
While ‘back calculation’ tests can be carried out, the evidence base is such that they are seldom used for this scenario. Arguably, therefore, some drink drivers go free.
The legislation allowing for a definitive roadside evidential breath test procedure is already in place, but today the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use by 2020.
Around 460,000 breath tests are conducted each year, with some 59,000 people providing a positive reading.
Approximately 6,000 people provide a positive reading at the roadside but are found to be under the limit when tested at the police station – this change will see those people prosecuted.
In many instances these will be people who have ‘gambled’ on the quick lunchtime drink or have not allowed quite enough time to sober up from the night before.
The changes will also reduce the scope for so-called ‘loophole defences’, popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices have been rolled out. Experience tells us however, that as one legal challenge closes, another pops up!
The penalties for drink driving are severe, with minimum periods of disqualification, high financial penalties and punishing insurance premiums for many years to come. In many cases, offenders face the loss of employment. ‘One for the road’ often comes at a very high price.
How can we assist?
We are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law, and early advice should be sought in order to achieve the best outcome. Contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk.
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Driving disqualification – get your licence back
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 jhowey@jfhlaw.co.uk to arrange an appointment.
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