Friday, 16 October 2015

Sentencing mistakes

Do judges need to read up on the law?

Almost exactly a month ago today I reported a case I had dealt with in which a magistrates court had failed to understand sentencing law in a drink driving case.  A few weeks later and I find myself writing on exactly the same topic.

In the previous case, the court at least had the excuse that the offence charged was an unusual one that has a very similar name to a very common offence - in today's example the court has no such excuse.

Today's example involves a defendant who was represented by a general criminal law solicitor rather than a motoring law specialist; he entered a guilty plea to failing to provide a specimen of breath for analysis.  For sentencing purposes failing to provide for analysis (as opposed to failing to provide at the roadside) offences fall into two categories.  First are offences of failing to provide a specimen while driving or attempting to drive.  In these cases the court must impose a driving disqualification of at least 12 months.  Where there is evidence of serious impairment coupled with a deliberate refusal or failure to provide the starting point for a first time offender is 12-weeks imprisonment and a disqualification of up to 36 months.

The offence can also be committed by people who were in charge of their vehicle.  This is far less serious and, while imprisonment is possible, the sentencing guidelines indicate that only the most serious offences will result in prison for a first time offender.  So far as the disqualification is concerned the court does not have to ban a driver and the guidelines do not say a disqualification is certain until the person is seriously impaired and deliberately failing or refusing to provide.  For most offences, a fine will appropriate coupled with 10 penalty points.  When a driving ban is imposed, the longest that should be imposed on a first time offender is 12-months.

This is why I was surprised to be approached by a new client who pleaded guilty to failing to provide while in charge and received an 18 month driving ban.

I do not know whether this ban was imposed by a lay bench or a district judge but either way it is very concerning that nobody in the room knew that the offence they were dealing with has its own sentencing guideline that should be followed.

I have experience of district judges failing to understand the law properly.  In one case, a judge sentenced one of my clients to a 2 year driving ban following a guilty plea to failing to provide while in charge.  I was able to intervene and the sentence was reduced to an appropriate level - unfortunately, it seems that not all advocates are familiar enough with the law to prevent the judiciary imposing unnecessarily harsh sentences on the people who come before them.

If you require legal advice, do not hesitate to contact me, Nick Diable, at London Drink Driving Solicitor on 020 8242 4440.

Tuesday, 6 October 2015

Recent case: drink driving appeal

Some questioning by the police at the roadside may breach police rules
A little while ago we represented a lady accused of drink driving at the magistrates’ court.  She lost her trial, quite unfairly her solicitor, Nick Diable, thought.  The appeal court agreed because last Friday they quashed her conviction and substituted a not guilty verdict.

Her troubles began when the police received an anonymous call from a member of the public claiming our client was a drink driving.  The police arrived at her home some time later, by which time she had consumed some alcohol with a friend.

The prosecution had relied on evidence from a police officer that was obtained quite improperly.  There are strict rules for when police officers may question a suspect and how they should go about doing so.  In this case, the police had questioned our client in her home and she had admitted driving the car; although she did not admit to have consumed alcohol before driving.  This particular police officer had breached the rules three times by:

·         Failing to caution the suspect;
·         Refusing her access to legal advice; and
·         Failing to properly record the interview (there were actually a number of separate breaches of the rules under this heading).

The magistrates who heard the original trial incorrectly refused to exclude the improperly obtained evidence.  Had they followed the law as they should have done then the prosecution case would have been over before it began.  Unfortunately, the magistrates did not follow the law and they compounded their error by failing to give sufficient weight to the evidence supplied by the defence, preferring instead groundless supposition put forward in the prosecution closing speech that had no foundation in any evidence before the court.

Nick advised his client to appeal the conviction and, last Friday, an appeal took place at a Crown Court in London.  Our client was relying on the “hip flask” defence, also known as “post driving consumption of alcohol”.  This is a defence in which you accept you drove and you accept you were over the drink driving limit when tested; however, you say that you only became over the drink driving limit after you ceased driving.

At the appeal hearing, the Crown Court applied the law properly and excluded the evidence of the police officer.  The police officer now gave evidence of a further admission to driving by the defendant that could not be excluded.  Because of that the case continued to a full re-trial.

During the retrial Nick Diable was again representing our client and he led the same evidence as at the trial.  This time he emphasised more strongly that the evidence from the defence had been the subject of cross-examination by the Crown and that the Crown had not been able to put up any evidence to contest the word of three separate witnesses for the appellant.

Nick reminded the court, as he had done at the original trial, that if they planned to convict then they must reach the conclusion that the three witnesses, all of whom were of good character and respectable people, had put their heads together to deliberately perjure themselves and pervert the course of justice; in other words that they had all conspired to lie.

The judge and magistrates deliberated and agreed that they could not conclude that the witnesses had deliberately lied.

Our client was acquitted.  We sought a Defence Costs Order to allow our client to record her legal fees in both the magistrates’ court and Crown Court.

If you find yourself accused of drink driving and you need an expert drink driving solicitor on your side then do not hesitate to contact us on 020 8242 4440.