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.

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.

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.