Sunday, 17 July 2016

Case report: Appeal against sentence

Frank's sentence was reduced on appeal thanks to argument advance by his lawyer

Today, we attended a Crown Court to conduct an appeal against sentence imposed on a young man accused of failing to provide aspecimen of breath for analysis.

The brief facts are that police officers came upon a vehicle that had been crashed into a roundabout causing damage to the car and a sign post. The Crown’s case in the magistrates’ court had been that the defendant, Frank, had deliberately refused to provide a specimen of breath. Frank said he only refused because he wanted to speak with a solicitor first. For reasons that are unclear but now subject to an official complaint, the prosecution denied he had ever asked for a solicitor and the court sentenced on the basis that the defendant deliberately refused to provide and was not doing so because he wanted legal advice before providing the specimen.

What difference does this make? If a person has an honestly held but unreasonable excuse for failing to provide then they are likely to be fined and sentenced to between a 12 and 16 month driving disqualification. If they simply refuse to provide then they face a driving ban of 17 – 28 months plus a community order, which usually means unpaid work but can include a curfew and electronic tag among other orders.

In this case, the magistrates sentenced Frank to a driving ban of 20 months and a band D fine – these are imposed where the court feels a community order is appropriate but is for some reason unworkable. A band D fine is calculated as being between 200-300% of a defendant’s weekly income.

We advised Frank to appeal on the basis that the evidence disclosed to the defence was silent on whether he asked for a solicitor or not so it was wrong of the court to reject Frank’s assertion that he had asked for legal advice without hearing any evidence.

At the appeal hearing, the Crown maintained their position that Frank had not sought legal advice or mentioned it as a reason for failing to provide a specimen of breath for analysis. We called evidence from Frank to show that he had asked for legal advice and that he would have provided a specimen had the advice been for him to do so.

The Crown failed to warn any of their witnesses to attend, which left the judge pressing the prosecutor for an explanation as to precisely what Frank had said to the police. It was at this point that the prosecutor admitted Frank had told the police he would comply with their requests once he had spoken to a solicitor. The prosecutor admitted this had happened on two or three occasions – information that had been withheld from the defence earlier in the case. Despite this admission the prosecutor continued to try to argue that Frank’s comments about legal advice were not enough to count as a request to legal advice.

On Frank’s behalf, Nick Diable argued that saying he would comply after speaking with a solicitor could only be taken to mean that Frank was requesting legal advice. It simply made no sense to interpret it any other way. Nick also pointed out that the Crown asserted that Frank had been given his rights and entitlements properly, which would mean he was told he had a right to free and independent legal advice. There was no evidence from the Crown at all, but even they could not point to anything in the hearsay that formed their entire case and say “this is when Frank was told he did not have the right to a solicitor before providing the specimen.”

The court heart the arguments and concluded that Frank must have asked for a solicitor and there was no evidence he was told he could not have one before providing a specimen. The appeal was allowed and Frank’s sentence was reduced accordingly.

Following the hearing, Frank was asked whether he had any comments about the service he received from London Drink Driving Solicitor and said, “The case was handled superbly with the right balance of advice and empathy. Nick was a pleasure to deal with. No hesitation to recommend him to anyone in the same situation, he took the negative clear away in a very professional manner.”
Frank’s father who supported him throughout the case said, “We were both very grateful for your dedication and hard work… Thanks for everything, you managed to turn a very bad situation into a lesser worry.”

If you find yourself accused of an offence involving drink, drugs and driving then you can get expert legal advice by calling 020 8242 4440.

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