Category Archives: Uncategorized

new speed limits through roadworks

Mile after mile at 50 mph even in the middle of the night and you’re the only car on the road can be frustrating in these days of converting to smart motorways, but you know those average speed cameras never sleep and you need to protect your licence, so on goes the cruise, or your right foot stays locked in position for 20 minutes. it a constant source of complaint.

Highways England has been listening and there are plans afoot to give some relief.

Whilst the workforce is in the carriageway, the speed limits will stay the same. It’s incredibly important that it does. When you’ve driven miles and miles at 70, it can seem mundane. But view it up close from the outside and you’d realise just how fast it is. With people working a few yards away from your lane, the slower speed is vital for their safety.

But when the workforce knocks off, or is on the other carriageway, it is being accepted that quite so much of a restriction is a little bit of overkill. We now have the technology to introduce variable limits even through roadworks. Don’t be surprised to find 60mph limits in the nighttime within a few months, or even different speed limits on different sides of the motorway.

We say, good common sense compromise, but still keeping people safe.

Keep Your Details Updated – A Cautionary tale

Ms. M is just getting over a very nasty surprise indeed. She divorced from her husband and moved to a new address. She informed as many people as she could think of doing. She told her insurance company and changed the address on her driving licence. One thing she didn’t do is change the address on her car’s registration document.

On 2 consecutive days last summer, Ms. M broke a temporary speed limit on the motorway. Careless, but not the end of the world for a driver with an unblemished driving history. She could expect to be offered a speed awareness course for one of the offences, and a 3 point fixed penalty for the other.

The police did their usual checks and sent the forms to her old address – they take their details from the car registration document that hadn’t been updated. Not surprisingly, there was no reply to either of the forms. So, 2 summonses were sent out. Again, there were no replies.

The result? In February, Ms. M was convicted of 2 offences of ‘failing to identify a driver’ and as well as a hefty fine she got 6 points for each – that meant a 6-month disqualification. It also meant that her insurance certificate was no longer valid. All without her having the slightest idea of the trouble she was in.

A few days later Ms. M was happily waiting to board a ferry when a check on her details by the port police led to her arrest for driving whilst disqualified. A few hours later, after a very unpleasant spell in a police station, she was put on bail to attend court charged with driving whilst disqualified AND driving without insurance…and she was still disqualified.

The next day, she contacted motoringlawbarristers.co.uk.

The very next day, we had the original cases relisted. Following a ‘statutory declaration’ the Magistrates allowed the cases to be reopened. Following a discussion between Ashley and the police prosecutor, it was agreed that she plead Guilty to the 2 speeding offences. The 2 ‘failing to identify a driver’ offences were withdrawn. Ms. M left court with a reduced fine and 6 points on her licence. Not as good a state as she would have been in if she had changed the address on her registration document, but at least she was no longer disqualified and we could concentrate on the serious offences she was still facing. (The court has the power to send you to prison for driving whilst disqualified.)

This is the point where a simple knowledge of the law is not enough and having a barrister with over 25 years’ experience helps. In reality, Ms. M was guilty of both offences. She had no defence. Even though she didn’t know it, she was driving whilst disqualified and she was driving without insurance. All that said, the prosecutors in the CPS are not robots and can consider all the circumstances. Careful negotiations behind the scenes in the days leading up to today’s court hearing paid dividends. It’s often the work you don’t see that’s crucial in the law, not the work you do see. The prosecution agreed that, whilst there was enough evidence in the case, it would not be in the public interest to pursue the matter further. Not only were both charges withdrawn, but Ms. M was allowed to reclaim her costs.

All’s well that ends well and Ms. M left court a very relieved woman.

The moral of the tale? Keep your details updated! (…but if you didn’t, contact motoringlawbarristers.co.uk asap.)

…But what if my iPhone is my SatNav?

Mobile Phones are in the news again. The police have launched a crackdown. The unmarked lorry you are overtaking may well be manned by officers who are specifically on the lookout for people using their mobiles and surely everyone knows now that a fine and 6 points is the penalty.

But there is so much confusion still out there as to what exactly the rules are. What if it’s your SatNav? What if its in a cradle? What if you’re parked up? What about a tablet that cannot make calls?

Starting with the simple stuff, if you are holding your phone and making a call then you are guilty. If you are holding the phone and sending text messages, or emailing, or snapchatting or instagramming you are guilty. (This also goes for any other apps that I am too old to know about.)

Even if you are just scrolling through checking the latest posts on FaceBook or reading emails or texts, this will still be taken as using the phone. It does not appear that you need to be using any interactive function to be deemed to be using it, so no games and no taking selfies.

Equally, looking at the phone in SatNav mode will also be deemed to be using the phone.

By the way, it doesn’t actually have to be a phone. The offence can be committed with ‘any hand-held device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.’ So that’ll be tablets as well.

If you are supervising a learner, all of these rules apply to you too.

Being stopped in traffic is no defence. If you absolutely, positively have to take or make a call, pull over, park, put your hand brake on and switch the engine off.

There are two defences. Firstly, you may ring 112 or 999. Secondly, if you are acting in response to genuine emergency and it is unsafe for you to stop driving in order to make the call, you will not be guilty.

Also, there has to be some sense in which you are ‘using’ the device. Moving it because it is uncomfortable in your pocket cannot really be said to be ‘using’ the device

So then, what about cradles?

A mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive function.

So then, as long as you do not need to hold the phone at all, there will be a defence. (Please don’t think that resting it on your lap throughout the journey so that you never need to actually hold it to make or receive a call is a way round this regulation. The defence has not been tried in a court so far, but I will confident to the point of certainty that it will fail if ever anyone does try it.)

This is not the end of the matter though. Firstly, where is your cradle? If it is attached to the windscreen, that can be an entirely different offence. The advice here is to invest in a cradle that will attach to your dashboard and will not cause any obstruction in your view.

Secondly, whilst touching one button will probably not cause a difficulty, dialling a whole number, or typing a text, or resetting a new post code is very likely to take away far more of your attention than the police are willing to allow. It is an offence to drive in a position that does not give proper control or a full view of the traffic ahead. Whilst it doesn’t attract the 6 points that using a hand-held phone does, it still comes with 3.

Best advice? If your car comes with SatNav, use it. Put the phone in the boot. It’s safer all round, and not just for your driving licence. Of course, if the police have already stopped you and you are facing a court hearing, the best advice is to contact us as soon as possible.

12 Points: What Exactly IS Totting Up?

12 Points – What Exactly IS Totting Up?

Most people know that you are in trouble if you reach 12 points. To a lawyer, when you reach 12 points, you have totted up – or to use the common phrase, you’ve become a totter.

When it comes to your licence, points definitely do NOT make prizes.

Most motoring law offences bring with them penalty points. The minimum you will ever receive is 3 – usually for a low level speeding offence – but there is quite a range. The faster you speed, the more points your offence may be worth. Certain offences bring a guaranteed 6 points – No insurance, using your mobile whilst driving or failing to identify a driver when required all fall into this catergory. If you are convicted of drunk in charge or failing to provide a specimen when being investigated for drink or drug driving you face disqualification. Even if you are not disqualified, you will find a whole 10 points added to your licence.

Before things start getting too technical, there are 2 things you need to know:

  1. As far as the court is concerned, points disappear after 3 years. (your insurance company may well see things differently, but that’s for another blog.)
  2. Points go on your licence on the day of the offence, not the day of you conviction – so there is no point trying to delay a court case in the hope that some old points disappear before you are convicted.

So what exactly is the law when it comes to totting up?

It starts with the Act of Parliament that’s says:

Where a person is convicted of an offence and the penalty points to be taken into account on that occasion number twelve or more, the court must order him to be disqualified for not less than the minimum period unless the court is satisfied, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.

The first important word here is must, which is why I underlined it and made it bold. This is not a situation in which the Magistrates will think about disqualifying you if you’re unlucky. All things being equal, the Magistrates’ will disqualify you – for a minimum of 6 months.

Of course, there is that second important word – unless. There is one, and only one, way to avoid a disqualification. That is to prove that the disqualification will cause exceptional hardship.

Exceptional Hardship

Everyone knows that lawyers have specific definitions for everything right?

Wrong. There is no definition of exactly what ‘exceptional hardship’ actually means.

One thing is for certain, though. In recent years, the Magistrates have taken far more note of the need for the hardship to be ‘exceptional’ than used to be the case. It has become ever more difficult to persuade a court not to disqualify.

(This is the point where you’d expect me to say “so you best get yourself the help of a specialist motoring law barrister.” …and you’d be absolutely right – you best get the help of a specialist motoring law barrister.)

It’s actually easier to say what exceptional hardship isn’t. It isn’t ‘mere hardship’ and it isn’t ‘inconvenience.’

Many courts take the view that ‘merely’ losing your job is not enough to say that the hardship is exceptional.

If you are facing the prospect of hitting 12 points, you really do have to look at all aspects of your life to show that there will exceptional hardship – and the hardship must be unavoidable. If there is a way round the hardship, then by definition, it is not exceptional. You have to consider everyone else in your life, whether it be at home or work.

Most importantly, you have to be able to prove it. Giving evidence under oath is the very minimum you’ll have to go through, but don’t expect to be able to prove anything if you don’t have the documents to back it up.

Just one more thing to throw in the pot – your case may be the 17th the Magistrates have heard that day. Human Beings can only listen to so much information. Prove it, but prove it quickly.

It’s all quite tricky really, but it is crucial to get things right. Many clients that we see drive 40 or 50,000 miles a year (which, of course makes it easier to accumulate the points) and every day off the road can cost hundreds of pounds. Bear in mind that 6 months equates to 130 working days and it doesn’t take a specialist to realise that the cost of being a totter really can be astronomical.

If only there were some experienced professional who could help…

A Very Short Case in Newport

A lovely July day in South Wales and a speeding trial that went faster than car had done on the M4. I was there. The Defendant was there. The Magistrates were there. The Prosecutor was there. The Police witness was…nowhere to be found. It seems the CPS overlooked the fact that they should call any evidence in the trial. Unsurprisingly, a Not Guilty verdict arrived in double quick time.

Speeding Sentences Explained

You’ve probably heard on the news that the sentencing for speeding has been stiffened up. The changes came into effect on the 24th April. Only offence committed after that date are affected, even if they haven’t been dealt with by the court yet. As ever, when lawyers get involved, the whole process is far more complicated than it needs to be. (Otherwise nobody would need a lawyer and that would never do!)

 

The sentence is in 2 parts. One affects your bank balance, the other affects your driving licence. Both are covered in the table below:

 

Speed Limit (mph)Recorded Speed (mph)
2041 and above31 – 4021 – 30
3051 and above41 – 5031 – 40
4066 and above56 – 6541 – 55
5076 and above66 – 7551 -65
6091 and above81 – 9061 – 80
70101 and above91 – 10071 – 90
Sentencing rangeBand C fineBand B fineBand A fine
Points/

Disqualification

Disqualify 7 – 56 days

OR 6 points

Disqualify 7 – 28 days

OR 4 – 6 points

3 points

 

 

Dealing with the financial side of things first, there are a number of factors to consider but in simple terms find the column that fits your case and then look at your ‘sentencing range.’ Your fine will be one of 3 bands – A, B or C.

Band A is 50% of your relevant weekly income

Band B is 100% of your relevant weekly income

Band C is 150% of your relevant weekly income

Your relevant weekly income is your weekly wage after tax and national insurance.

 

Simple enough so far? It would seem so, but again we can’t have it easy can we?

If you have no weekly income or you receive benefits, the court will assume your income is £120

If the court has no information about your income, it will assume you receive £440

OR, the court can make assumptions based on the circumstances – if you were driving a brand new Rolls Royce, the court may think you earn a little bit of money. Likewise, if you happen to be a Premier League footballer, the court may well decide that bring home a bit more than £440 per week.

We’re almost finished with the money side of things, but first we have to talk about ‘credit.’

The court does not want you to plead Not Guilty – it does their statistics no good at all – so you’re given every incentive to plead Guilty as soon as possible. Plead guilty at the first hearing and the court will knock a third off your sentence. Plead Guilty on the day of trial and you get a tenth off. Only if you are convicted after trial do you pay the whole lot.

All of this subject to the upper limits. The maximum fine for speeding on a motorway is £2,500. On any other road, it’s £1,000

Next comes the ‘victim surcharge’ that gets added any fine the court imposes. This will be 10% of your fine or £30, whichever is the higher.

Finally, you’ll have costs to consider. Plead Guilty on day one and you’ll pay £85. If you are convicted after trial, the prosecution will claim £620 – unless the trial involves expert witnesses. In that case, think of a number, double and then add a couple of thousand and that’s somewhere near the figure you’ll pay.

 

Now onto your driving licence. Again, you need to look at the table and find your column. If your case is in the 3rd, then it’s a simple case of getting 3 points onto your licence. Let’s be blunt, if this you then paying for lawyer is probably not worth it – even for the quality representation you get from MLB – unless, of course, this is pushing you up to 12, but that’s for another blog. Columns 1 and 2 are a different matter entirely. If you’re in column 2, then disqualification is a risk and you may need to think about a lawyer. If you’re in column 1 then disqualification is likely – this really is ‘get a specialist right now’ territory.

Whilst the financial side of things can be worked out with a calculator, once you’ve got your head around ‘banding’ and ‘relevant weekly income’ and ‘credit’ the question of points/disqualification is more of an art than a science. The court has to take into account the following aggravating factors:

  • Offence committed on prison licence
  • Poor road or weather conditions
  • Driving LGV, HGV, PSV etc
  • Towing caravan/trailer
  • Carrying passengers or heavy load
  • Driving for hire or reward
  • Unacceptable standard of driving over and above the speed
  • Location e.g. near a school
  • High level of traffic or pedestrians in the vicinity

Of course, the more of these factors that are present, the more likely the court will consider disqualification

The court is also directed to factors reducing seriousness or reflecting personal mitigation:

  • No previous convictions
  • Good character and/or exemplary conduct
  • Genuine emergency established

This can cover a whole multitude of mitigating features. The court will take into account a massive range of factors both for and against the driver.

So where, does leave you? Probably a bit confused. (As I said earlier, if we didn’t make it unnecessarily complicated, no one would ever need a lawyer.)

 

Of course, I should advise you not to speed, but you’re reading this so it’s fair to assume that that ship has sailed. Perhaps then, two more useful pieces of advice – 1) the closer you are to column one, the more you’ll be needing a lawyer 2) the more you prepare with your lawyer, the better your prospects of keeping your licence.