He appealed to the High Court who quashed his conviction. The judgement criticised the form the police use when they require the keeper of a vehicle to provide information about the driver.
A speed camera caught Lord Howard’s car in Lewisham travelling at 37mph in a 30mph zone. The police sent a combined to notice of prosecution and requirement to provide driver details to Lord Howard who was the registered keeper. He replied by completing the form. He crossed out the words “I was the driver” and added “the driver was me or my wife”.
Section 172 Road Traffic Act 1988 says (for the purposes of Lord Howard’s case):
Section 172(2)(a) that the police may require the registered keeper of a vehicle to give them details of the identity of the driver.
Section 172(3) that if the registered keeper does not give those details they are guilty of an offence.
Section 172(4) that the registered keeper has a defence if they prove that they “did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.”
Lord Howard was relying on the defence in section 172(4) Road Traffic Act 1980.
Magistrates’ Court case
The police prosecuted Lord Howard for failing to provide driver information. His case went to a trial in the magistrates’ court. At the trial he said that he did not know who was the driver and could not with reasonable diligence have ascertained who the driver was. The prosecutor said that the form that Lord Howard sent back to the police was not completed properly. He had not written down his wife’s details (presumably her name and address). The district judge who tried the case agreed with the prosecutor and found Lord Howard guilty.
The judge said that Lord Howard failed to identify the driver so he was guilty under section 172(2). She said that it was credible that Lord Howard could not remember who was the driver but as he had not identified the driver the “reasonable diligence” test in section 172(4) did not apply.
Appeal to the High Court
Lord Howard appealed the case to the High Court. Two judges at the High Court overturned the decision of the judge in the magistrates’ court and quashed Lord Howard’s conviction.
They said that:
Lord Howard had not provided details of the driver.
He had not shown what steps that he had taken to identify the driver.
The form sent out by the police contained no space to give further details.
The judge in the magistrates’ said that Lord Howard should have filled out Part 2 of the form with his wife’s details.
But the form itself said that Part 2 was only to be used if the person filling out the form was sure that another person was driving.
Lord Howard did not know who was driving so he could not fill out part 2.
There was no correct way to complete the form when the registered keeper did not know who was driving.
So, what does Michael Howard have in common with Christine Hamilton?
The papers have called this “The Hamilton Defence” since Christine Hamilton used it in 2003. She was found not guilty at Manchester Magistrates’ Court when she said that she could not say whether she or her husband Neil Hamilton had been driving at 63mph in a 50mph zone on the M62 near Rochdale.
The first thing is make absolutely every enquiry that you can think of.
Ask everyone who could have been driving.
Work out what you were doing that day. Look in your diary for clues.
Check work records for clues.
Look in your mobile phone to see if there are any text messages, emails, GPS locations that might help you.
You must be sure that there is absolutely nothing further that you could do to identify the driver.
If you have still drawn a blank my advice is to do the following:
Complete the form saying “I am unable to identify the driver.”
Either write on the form or send a covering letter. Givethe name, address, date of birth (and driver number if you have it) of every person who could have been driving.
I know that Michael Howard’s case says that just saying something like “the driver was me or my wife” was enough but why run the risk. Give all the details you can to protect yourself. By the time you read this article the police may have changed the form. You might not be able to rely on the same defence again.
If you get it wrong the police will prosecute you for failing to provide driver information. The penalty if you are convicted is 6 penalty points a fine of up to £1,000.00 and a victim surcharge of 10% of the fine. If you plead guilty the prosecutor will ask for £80.00-£135.00 costs. If you plead not guilty, take the case to trial and lose the costs can be £620.00.
Definition of careless driving (drive without due care and attention)
A person is guilty of careless driving (drive without due care and attention) if he or she:
Drives a mechanically propelled vehicle
On a road or other public place
The way they drive falls below what would be expected of a competent and careful driver
Careless driving and driving without due care and attention are the same thing in law.
What about inconsiderate driving?
Inconsiderate driving is also an offence. Prosecution for inconsiderate driving are quite rare. The maximum penalty is the same as for careless driving although courts normally impose a less severe sentence.
A person is guilty of inconsiderate driving if he or she:
Drives a mechanically propelled vehicle
On a road or other public place
Without reasonable consideration for other persons using the road or public place
Emerging from a side road into the path of another vehicle
Tuning a car radio, when the driver was avoidably distracted by this action
Using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably distracted by that use
Selecting and lighting a cigarette or similar when the driver was avoidably distracted by that use
The maximum sentence for careless driving in the magistrates’ court is:
An unlimited fine and
Either 3-9 penalty points or a disqualification from driving
In theory courts can impose an unlimited fine and an unlimited driving ban but in practice they never do. Because every case is different the courts have guidelines which depend the seriousness of the offence.
Interpreting sentencing guidelines is more of an art than a science. Read the guideline for more details.
In summary, courts determine two things:
Is there higher culpability?
The decision is based on:
Excessive speed or aggressive driving
Carrying out other tasks while driving
Vehicle used for the carriage of heavy goods or for the carriage of passengers for reward
Tiredness or driving whilst unwell
Driving contrary to medical advice (including written advice from the drug manufacturer not to drive when taking any medicine)
Is there greater harm?
The decision is based on:
Injury to others
Damage to other vehicles or property
High level of traffic or pedestrians in vicinity
This gives the starting point for sentence:
Higher culpability and raised harm
Fine 150% of weekly income
7-9 points or consider disqualification
Either higher culpability or raised harm
Fine 100% of weekly income
No higher culpability and no raised harm
Fine 50% of weekly income
The court then goes on to adjust for other aggravating and mitigating factors.
Courts give a discount on the fine of up to ⅓ for a guilty plea. There is no discount for points or disqualification from driving.
The police can issue a driver with a fixed penalty for careless driving (drive without due care and attention).
The fixed penalty is for:
3 penalty points
The police have discretion over the the issue of a fixed penalty. They usually follow guidance issued by the National Police Chiefs Council. That guidance suggests that a fixed penalty is appropriate for all inconsiderate driving and less serious careless driving. A fixed penalty is usually appropriate where there are no victims, no collisions and no public complaint.
Examples of cases appropriate for a fixed penalty for careless driving (drive without due care and attention) are:
Driving too close to the vehicle in front
Failing to give way at a junction (no evasive action by another driver)
Overtaking and forcing into a queue of traffic
Wrong lane at a roundabout
Ignoring a lane closed sign and forcing into an orderly queue
Lane discipline such as remaining in lane two or three when lane one is empty and there is no other vehicle to overtake
Hand brake turns
Examples of cases not appropriate for a fixed penalty for careless driving (drive without due care and attention) are:
Fast overtakes and lane hopping
Weaving with other driving having to evade
Pulling out in front of other moving vehicle that needs to brake
Overtaking and causing the approaching vehicle to brake or take evading action
Pulling in causing the overtaken vehicle to brake or swerve
Wrong lane at roundabout causing another vehicle on the roundabout to brake or swerve
Staying in lane two or three with vehicles behind being held up or forced to pass on nearside
Driver Alertness Course
The police can offer a driver alertness course for less serious cases of careless driving.
The guidelines for offering the course are similar to the guidelines for offering a fixed penalty.
The course lasts one day and the driver has to pay a fee. The court of the driver alertness course varies across the country. In most areas the cost is around £150.
Drivers can only do the course once every three years.
Should I accept a fixed penalty or go on a course?
If you agree that your driving was careless you should accept a fixed penalty or go on a course. Never reject the course or the fixed penalty and ask for the case to go to court. A court case will almost always cost more than £100 and will result in at least 3 penalty points.
If you do not know whether your driving was careless you should get some legal advice before you make the decision.
If you do not agree that your driving was careless you should probably not go on the course of accept the fixed penalty. But it might be a good idea to get some legal advice. A solicitor or a barrister can tell you what your prospects of success at a magistrates’ court trial will be. If there is a strong case against you it might be better to accept the offer from the police.
Notice of intended prosecution
One of the following must happen for someone to be convicted of careless driving (drive without due care and attention):
The driver is warned at the time the offence is committed that they might be prosecuted
The driver is served with a summons within 14 days of the offence
The police serve the registered keeper of the vehicle with a notice of intended prosecution within 14 days of the offence
There is no need for any of the these things to happen when there has been an accident.
If you receive a requirement to provide driver details you must respond. Failing to identify the driver is an offence which results in a fine of up to £1,000 and 6 penalty points.
The police do not always interview drivers for careless driving. When the police want question a driver it can happen in several ways:
Roadside interview under caution
Interview at home under caution
Interview at a police station
Police officers are entitled to ask questions at the scene of an incident. When questions are part of an initial investigation to find out what has happened and who was involved there is no need for them to give a caution, offer legal advice or record the interview.
It is good practice to record any comments that have been made in pocket note books and ask the person to confirm that the comments were made.
Most officers now have body-worn cameras, so any comments made at the scene are recorded on video.
Interviews under caution
Once a person is suspected of committing an offence (including careless driving) the police must:
Give the caution (You do not have to say anything but it may harm your defence if you fail to mention when questioned something that you later rely on in court. Anything you do say may be used in evidence.)
Inform the suspect that they have the right to free and independent legal advice
Record the interview (in writing, in audio or on video)
Interviews under caution can happen
At the roadside. Many road traffic interviews happen at the scene of an incident (often in the back of a police car). They are usually recorded in writing but new rules mean that they can be recorded on the officer’s body-worn camera.
Interview at home (or another location). Interview at a police station. It is quite unusual for a driver to be arrested for careless driving. Police station interviews are normally voluntary.
Police officers increasingly deal with road traffic investigations by posting out a questionnaire. Drivers are not obliged to complete the questionnaire. You might want to get some legal advice before you sign anything.
Should I agree to be interviewed by the police?
You are always entitled to consult a lawyer before you agree to a police interview. Every case is different. Sometimes it is better to be interviewed, other times it preferable not to agree to be questioned. It is just not possible to give general advice. Consult a solicitor if you are not sure.
When you are questioned by the police you are entitled to have a solicitor or a legal adviser present.
Legal aid will pay for a solicitor or an accredited police station representative to be present. There is no means test so everyone can get this service. Legal aid may not pay for a consultation before the interview or advice afterwards,
If you want a lawyer you can have:
The duty solicitor
Your own legal aid solicitor
Another solicitor of your choice who you will have to pay for yourself
Outcome of a police investigation
Once the police have completed their investigation into careless driving there are four possible outcomes.
No further action
Driver alertness course
Prosecution in the magistrates’ court
The police refer a case to the magistrates’ court in one of four ways:
Single justice procedure notice
Charge and bail
Summons or charge and bail are rarely used for charges of driving without due care and attention. This article talks about the most common procedures: single justice procedure and postal requisition.
Single justice procedure
Cases are started by the police issuing a single justice procedure notice. The notice usually contains a written charge and details of the case against the driver. Sometimes they include copies of witness statements and a schedule of unused material.
The person charged has 21 days to respond to the notice by sending a plea of guilty or not guilty to the magistrates’ court named in the notice. Replies can be made online or by post.
There is no formal court hearing or fixed court date. A single magistrate will deal with the matter in an office with a qualified legal adviser.
There are three options for each charge:
Plead guilty and not come to court
Plead guilty and request a court hearing
Plead not guilty
Guilty and not come to court
If the driver pleads guilty and does not ask for a court hearing a single magistrate will look at the case. They can do two things:
Decide on sentence and tell the driver by post what has happened.
If the magistrate thinks that a disqualification from driving is appropriate they will send the case for a full hearing in the magistrates’ court. The court will write to the driver with a hearing date and ask them to attend in person.
Guilty and request a court hearing
If the driver pleads guilty and asks for a court hearing the single magistrate will adjourn the case for a hearing in the magistrates’ court. The court will write to the driver with the hearing date when they will be sentenced by magistrates or a judge sitting in a public court building.
If the driver pleads not guilty the single magistrate will refer the case to a full magistrates’ court for a trial.
A postal requisition for driving without due care and attention is a way of starting a prosecution by sending the driver a written charge and notice of a court hearing.
In most cases the driver can choose whether to enter their plea of guilty or not guilty by post or in person at the hearing.
If they plead guilty they are convicted and the court will sentence them. If they plead not guilty the case will be adjourned for trial.
Guilty or not guilty
You should plead guilty if:
You agree that the allegation against you is correct and
The allegation against you describes driving below the standard of a careful competent driver
If you do not agree that the allegation is correct or that the driving was careless you should plead not guilty. It is a good idea to get some legal advice.
If you are not sure it’s a good idea to get some advice too.
When you plead guilty you have the opportunity to present mitigation to the court by:
Completing the mitigation box in the online guilty plea
Writing to the court
Appearing at a court
Asking a solicitor or a barrister to represent you at a court hearing
Mitigation is information that will help the court pass a more lenient sentence.
Pleading not guilty
When you plead not guilty the magistrates’ court will fix your case for a trial. Sometimes there will be a pre-trial review or a case management hearing but usually the trial is fixed at the first hearing (or by the single justice).
When you plead not guilty you need to consider:
Consider prosecution witnesses. You need to read all the prosecution witness statements and decide which ones you agree are correct and which ones you dispute. If you do not agree with what a witness says you must tell the court and the prosecutor that you want that witness to come in person to the trial so that you can challenge their evidence. If you agree that a witness is correct then agree the statement and they will not need to come to the trial. Their statement can be read out.
Trial issues. Tell the court and the prosecutor what you dispute and what the trial will be about.
Defence witnesses and experts. If you have any defence witnesses or experts you should tell the court so that they can allocate time at the trial for their evidence.
Availability. Tell the court if you or your witnesses have any dates that you cannot attend court for the trial.
You must attend your trial. If you do not the court will go ahead without you and you may be confined in your absence.
There are a few rare occasions when you might not need to be at court for your trial. Don’t even think about it without speaking to a solicitor or a barrister first.
Magistrates or a judge decide whether the prosecution case is proven so that they are sure of guilt. There is a fixed order of the trial.
Prosecution opening statement.
Prosecution witnesses give evidence. They are questioned first by the prosecutor then cross examined by the defendant (or their lawyer).
Agreed prosecution evidence is read.
Defendant gives evidence if they choose to. The prosecutor cross examines the defendant.
Defence witnesses give evidence. They are questioned first by the defendant or their lawyer then the prosecutor cross examines them.
Closing speech by the prosecutor.
Closing speech by the defendant (or their lawyer if they have one).
Fixing a case for trial and conducting a trail can be difficult. Getting the witness requirements and trial issues wrong could mean that the trial is lost before it even begins. Courts regularly hear trials for careless driving with unrepresented defendants. There is no rule that you have to have a lawyer but a little advice early on can pay back in the long run.
Following a guilty plea for careless driving (drive without due care and attention) the prosecutor usually asks for £35-£85.
Following a conviction after trial the prosecutor usually ask for at least £620.
The prosecutor will not be entitled to any costs after an acquittal after trial.
Legal aid is not usually available for careless driving charges. In some rare cases legal aid might be available. Consult a solicitor with a legal aid contract for more information.
The duty solicitor at court will not deal with a careless driving charge.
Insurance policies with legal cover sometimes cover the costs or a police investigation or a prosecution.
Defendants found not guilty are usually entitled to a defence costs order. Legal costs can be recovered at legal aid rates. Those rates can be less than most solicitors will charge.
If a magistrates’ court convicts you then you can appeal the conviction to the Crown Court.
If a magistrates’ court passes a sentence that is excessive you can appeal to the Crown Court.
In rare cases the High Court deals with appeals from the magistrates’ court.
If you are convicted of driving without due care and attention and you did not know about the proceedings you might be able to make a statutory declaration. That will quash the original conviction and start the case again from the beginning.
In this article I will show you how to improve your speaking voice in court. All you need is a smart phone with a voice recording app and a short paragraph of text. You will hear an improvement in your voice with just three short speaking exercises which you can do on your own or with a friend. You might even make your next plea in mitigation or closing speech more persuasive. Continue reading “Improve you advocacy in ten minutes with this easy exercise”
The revised Magistrates’ Courts Sentencing Guidelines came into force on April 24, 2017. Press reports said that there have been major changes to the way that the police and magistrates’ courts will deal with speeding cases.
The changes are pretty minor. Fines in court for the highest speeders are likely to go up by 50%, everything else remains the same.
Has there been a change in the law?
No, there is no change in the law at all. The statutory penalties for speeding remain exactly the same:
3-6 penalty point or a discretionary disqualification and
Maximum fine of £1,000 (or £2,500 on the motorway
Is there any change to the fixed penalty system?
No, most drivers will still receive a fixed penalty of 3 points and £100.
In cases where speeding is below a certain threshold the police routinely offer a fixed penalty. There is no change to the thresholds so anyone who would have received a fixed penalty will still get one after April 24, 2017.
The changes only affect the fines imposed on drivers who have to go to the magistrates’ court.
So what has changed?
The guideline fine has increased for higher speeds only. It will affect drivers convicted of speeding:
Over 40mph in a 20mph zone
Over 50mph in a 30mph zone
Over 65mph in a 40mph zone
Over 75mph in a 50mph zone
Over 90mph in a 60mph zone
Over 100mph in a 70mph zone
The new guideline is identical to the existing guideline for lower speeds (up to 40mph in a 20mph zone; 50 in a 30; 65 in a 40; 75 in a 50; 90 in a 60; and 100 in a 70). Nothing has changed for those cases.
How much have fines gone up?
The new guideline suggests higher fines for higher speeds (above the limits mentioned in the previous paragraph). The old guideline suggested a Band B fine, the new guideline suggests a Band C fine.
In most cases a Band A fine is 150% of weekly take-home pay. It can be from 125% to 175% of weekly take home pay.
In most cases a Band B fine is 100% of weekly take-home pay. It can be from 75% to 125% of weekly take home pay.
What is the expected increase in fine for an average case?
A typical case that might be affected by the new guideline is as follows:
Speed of 101mph in a 70mph area
Guilty plea at the first opportunity (this means that the fine will be reduced by ⅓)
Weekly take home pay of £440 (this is the amount that the court assumes you earn if they do not have any information such as a means enquiry form)
£293.33 Fine – 100% of £440 less 1/3 for guilty plea
£30.00 Victim surcharge – 10% of fine, minimum £30
£85.00 Prosecution costs – typical amount claimed
£440.00 Fine – 150% of £440 less 1/3 for guilty plea
£30.00 Victim surcharge – 10% of fine, minimum £30
£85.00 Prosecution costs – typical amount claimed
A difference of £146.67
The new guideline does not affect the suggested disqualification of 7-56 days or 6 points.
Any good news for drivers?
There is no change to the suggested number of penalty points or driving disqualification. But, in the old guideline there was an upper limit covered by the guideline. Drivers who were over the upper limit in the guideline could expect a disqualification in excess of the suggested upper limit of disqualification which is 56 days. The new guideline has no upper limit and places all very high-speed drivers within the highest sentencing category. This means that drivers with a very high speed (e.g. over 100mph in a 70mph zone) are now brought within the guideline and can realistically expect a maximum ban of 56 days.
Will drivers respond to the harsher speeding laws?
Few drivers know how sentencing guidelines in the magistrates’ courts work. Almost no drivers will know that the maximum guideline fine has increased from 100% to 150% of weekly take home pay. In a typical case affected by the new guidelines the total fine, victim surcharge and costs will go up from £408.33 to £555.00.To suggest that drivers will slow down because the likely penalty has gone up by £146.67 does not make sense. If a motorist is going to drive at over 101mph on the motorway an increase in the possible fine will not make them slow down to 100mph where the fine is 33% less.