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.

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