The law on using a mobile phone whilst driving is confusing and many road safety campaigners say that it does not protect the public enough. Even lawyers do not agree about what the current law allows and prevents. Making calls, sending messages, using social media and browsing the web are definitely forbidden. The confusion arises around other functions of smart phone. How about using the phone as a satnav, a clock, a dictation machine or even just picking the device up of the floor. Continue reading “Using a mobile phone whilst driving: the law needs changing”
You have decided to plead guilty to speeding and you have a hearing date in the magistrates’ court. Maybe you have decided to go along without a lawyer. Here are a few things not to say in court.
Pleading guilty to speeding
Before you decide what to say to the magistrates about your case you need to remember a few things.
- You have pleaded guilty. That means that you accept that you were driving too fast. Don’t go along and deny that you were speeding. If you want to challenge the whole case against you then you should have pleaded not guilty.
- Say sorry. An apology and some remorse will go a long way. They could be your best mitigation.
- Don’t try to justify what you have done. It will not work. Often you can explain instead of justifying. It will go down much better.
- Watch out for banana skins. Some things can attract negative reactions. Think through what you are going to say. If anything could provoke a negative comment from a magistrate leave it out or think of another way to say it. Some things might find favour with one person but annoy someone else. Most of all, don’t take the risk of aggravating any of the magistrates.
Why are you in court?
There are all kinds of reasons that a speeding case might be in court. Each one requires a different approach. You need to think about different things to say in court depending on what you want to achieve. Here are some of the most common ones.
- High speed. Sentencing guidelines mean that the court are thinking about banning you for going too fast.
- 12 points or more. You face a totting up ban because you have too many points. You will most likely be disqualified for at least six months unless you can show that you (or others) will suffer exceptional hardship.
- Fixed penalty not accepted. The case was suitable for a fixed penalty ticket. For some reason the ticket was not issued or accepted.
Five things not to say in court
Speed cameras are a money-making scheme. They are just an unfair way to persecute honest motorists.
A magistrates’ court is not a good place to explain your own political views. Don’t forget that there will be lots of other motorists just like you receiving fines and penalty points, s in court the same day. There’s no point in complaining about the system to the very people who are the enforcers. It will reflect badly on you and make you look like you are not taking responsibility for what you have done. Remember you have just pleaded guilty.
If you want to complain about speed cameras, then go to your MP (or Twitter).
I drive 20,000 miles per year – I’m bound to get more speeding tickets.
This is a funny one. Sometimes it can go down quite well, and it can get some sympathy from the magistrates, especially if they do a lot of miles themselves. But there is a big risk. You ruin the risk of a negative reaction from the court. I have heard magistrates saying “Well if you are driving a lot of miles, you need to be extra careful.” Or even “You are telling us that you are going to be speeding again in the future.”
A much better approach is to say “I drive 20,000 miles a year and I understand that I need to be extra careful.” The magistrate who feels some sympathy for the high mileage driver can draw their own conclusions. And the magistrate who thinks that you should take more care knows that you recognise the problem and want to do something about it.
I don’t want the points on my licence in case I get caught again.
Why anyone would think that this is a good thing to say, I don’t know. You may as well say “I’m going to carry on speeding anyway. Please don’t do anything that will make it more difficult for me to carry on driving as fast as I like.”
Don’t say it.
There were loads of other cars doing the same speed. It’s not fair that only I am getting done for it.
Tough luck. You accept that you were speeding. It is no excuse that other people were doing the same as you. (Sorry, I sound a bit like a school teacher.)
You can deal with the point in another way and even get some sympathy by saying “I was driving with the traffic. Other vehicles on the road were doing the same speed. I realise that it is my responsibility to make sure that I am driving within the speed limit.”
I have been driving along this road at the same speed for years. I’ve never been caught before.
So you want to admit that you have been speeding every day. Really?
Any more examples?
I have heard all kinds of foolish things said in court, many of them by lawyers. If you have any good examples let me know in the comments section at the bottom of the page.
The Case of Lord Howard of Lymphe v Director of Public Prosecutions  EWHC (Admin 100) or what does Michael Howard have in common with Christine Hamilton?
Former Home Secretary Michael Howard (now Lord Howard of Lymphe) was found guilty of failing to provide driver information at a trial in the magistrates’ court. He told the police that he could not say if he or his wife had been driving.
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.
Who else has used this defence?
- Former Top Gear presenter Tiff Needell in 2006.
- Coronation Street star Bruno Langley (Tood Grimshaw) in 2016.
What should you do if you can’t name the driver?
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.
Read more about your rights when you receive a notice of intended prosecution.
What are the consequences of getting it wrong?
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.
The driving licence penalty points system is vast and complex. Here are a few pointers to help you keep the number of points down and hopefully avoid a driving ban.
You can check the number of driving licence penalty points you have on the DVLA website
You can look on the DVLA website to check your driving record. The site gives your licence status and the number of live penalty points. You will need this information to access the records:
- Post code
- Driver number
- National Insurance number
From 8 June 2015 the website will be the only place to check the record. Your paper counterpart will no longer be valid. Continue reading “Driving Licence Penalty Points – 12 Things You Need to Know”
What to do if you face a police investigation or a magistrates’ court case for careless driving (drive without due care and attention). A complete guide by specialist motoring solicitor Stephen Oldham.
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
- Other persons are inconvenienced by the driving
Where is the law?
Section 3 Road Traffic Act 1988 created the criminal offence of driving without due care and attention.
Section 3ZA Road Traffic Act 1988 gives the definition of driving without due care and attention.
Schedule 2 Road Traffic Offenders Act 1988 defines the sentence for driving without due care and attention.
The Sentencing Council have published sentencing guidelines for careless driving (drive without due care and attention).
Dangerous driving is a more serious offence which can result in a prison sentence . When driving falls far below the what would be expected of a competent and careful driver it is dangerous.
Read more about the difference between careless and dangerous driving.
Some examples of careless driving
The law doesn’t give any examples of careless driving (drive without due care and attention) but the Crown Prosecution Service have some typical cases in their charging policy.
- Overtaking on the inside
- Driving inappropriately close to another vehicle
- Inadvertently driving through a red light
- 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||5-6 points|
|No higher culpability and no raised harm||Fine 50% of weekly income||3-4 points|
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:
- £100 and
- 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
- Inappropriate speed
- Wheel spins
- 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.
Request for driver details
Sometimes the police send a requirement to provide driver details to the registered keeper, the driver or any other person who they suspect may be able to identify the driver.
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 questions
- Roadside interview under caution
- Interview at home under caution
- Interview at a police station
- Written questionnaire
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
- Fixed penalty
- Prosecution in the magistrates’ court
The police refer a case to the magistrates’ court in one of four ways:
- Single justice procedure notice
- Postal requisition
- 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.
Read more about choosing a lawyer for your motoring case. The original post is about drink driving but the principles are the same for carless driving (drive without due care and attention).
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.
02/03/2018 I have suspended the Stephen Oldham Solicitors chatbot to put my energy into other projects.
The Stephen Oldham Solicitors chatbot is the UK’s first robot motoring lawyer. It lives in Facebook Messenger and knows all about drink driving speeding, driving disqualification and more. It even has case law and sentencing guidelines for solicitor and barristers to access at court. Continue reading “My robot motoring lawyer can tell you about speeding, drink driving and other motoring offences”
Thought I’d do a quick watercolour whilst I was waiting for the judge at Chelmsford Magistrates’ Court.
Special reasons, special tea
After a hard morning at a special reasons appeal the driving solicitor is hungry for some pie. Lancashire cheese and onion for tea!!
Advice from a specialist driving offence solicior about the single justice procedure:
- What is the single justice proceudre?
- What cases does the single justice deal with?
- What to do when you receive a single justice procedure notice
- What happens if you plead guilty?
- What happens if you plead not guilty?
This guide is for you if you have received:
- A single justice procedure notice for speeding
- A single justice procedure notice for failing to give information relating to the identification of the driver