Friday, 6 February 2015

How will the police decide if I should be charged with drink driving?

Camberwell Green Magistrates' Court

A question I’m often asked by clients is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

The police have four options in most cases.  They can, charge (or summons you to attend court), caution you, issue a fixed penalty notice or take no further action.

Cautions are rarely issued in motoring cases and are never used where somebody is accused of drink driving.  This is because drink driving carries a minimum 12-month driving ban, which only the court can impose so the case has to be dealt with at court.

Less serious driving allegations, such as speeding, may be dealt with by way of a fixed penalty notice, although in practice these are still dealt with by the court without you needing to attend the hearing.

How do they decide whether to charge?


First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  A straightforward drink driving case will have evidence of a police officer who sees the suspect driving and evidence that the person failed a breath test.  Although, we are frequently seeing cases where there is no admissible evidence of driving.  For example, the police might say “I was told by two separate witnesses that [Miss X] was driving.”  This is called hearsay and should not be admitted into evidence.

If the police decide that there is not enough evidence to charge then that is the end of the case.  If they decide there is enough evidence the decision maker must move on to ask themselves whether prosecuting the person in court is in the public interest.

Public interest

In 1951, Lord Shawcross, the then  Attorney General, said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

In drink driving cases, the prosecution will always reach the conclusion that a prosecution is in the public interest.  This is because of the risk of serious injury and death that can result from driving a car while over the drink driving limit.  It is also because drink driving carries a minimum 12-month driving ban that only a court can impose; so to be banned the police have to send every suspect to court.

Putting it all together

If the prosecution decide there is enough evidence to charge a person with drink driving then it is a foregone conclusion that they will decide it is in the public interest to prosecute that person in court.  In less serious motoring cases, it is possible to avoid a court appearance – always speak to an experienced motoring solicitor if you are facing a driving allegation... it could save your driving licence.

The whole process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

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