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.

Alcohol Abstinence and Monitoring Requirement

Courts can ban you from drinking alcohol

THERE IS AN UPDATE TO THIS POST.

Back in 2012 Parliament passed a law called the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. This made a lot of changes, very few of them to the benefit of people accused of a crime.

Among the many things LASPO did was to introduce Alcohol Abstinence and Monitoring Requirement to England and Wales as part of a Community Order or Suspended Sentence Order. The idea of compulsory sobriety schemes comes from the USA where they are used as a way to tackle high level alcohol related crime, such as drink driving and violence. The British model is based on one used in South Dakota but with some differences. There the alcohol abstinence order is paired with education aimed at changing an offender’s behaviour. In Britain, the alcohol abstinence order will not be accompanied by any particular education scheme. You might think that opting out of the cost of education is doing the job on the cheap and thus far less likely to be as successful as that in South Dakota, but we couldn’t possibly comment.

Before a court imposes an Alcohol Abstinence and Monitoring Requirement they must establish that the defendant satisfied four conditions:

1.       Consumption of alcohol by the offender is an element of the offence before the court OR consumption of alcohol by the offender was a factor that contributed to the commission of the offence.

2.       The defendant must not be dependent upon alcohol.

3.       If the court imposes an alcohol treatment requirement it must not impose an Alcohol Abstinence and Monitoring Requirement as well.

4.       The court has been notified by the Secretary of State that arrangements for monitoring of the kind to be specified are available in the local justice area.

We have emphasised the words “by the offender” because experience suggests there will be some prosecutors and some courts who will attempt to impose one of these orders where the defendant was not drinking but others were.

Once satisfied that the four conditions are met the court can impose an Alcohol Abstinence and Monitoring Requirement that lasts for a maximum of 120 days. The order will require an offender to abstain from consuming alcohol throughout a specified period or prevent him consuming so much alcohol that the level of alcohol in his body rises above a certain level to be specified in the order. To enforce this, the defendant will be required to submit to monitoring of his alcohol level.

The court can impose exceptions, although it is not clear in what circumstances they would be – perhaps a court might allow you a drink for your birthday.

It should also be noted that LASPO defines alcohol to mean “anything containing alcohol”. This would seem to include chocolate liqueurs and food prepared using alcohol.

Currently, these orders are only available to courts in the South London Justice Area – think Camberwell Green Magistrates Court – but you can expect them to be rolled out across the country very soon.

We have noticed that the Metropolitan Police now make a standard request for an Alcohol Abstinence and Monitoring Requirement to be imposed on everybody they charge with drink driving regardless of whether that person is appearing in court within the South London Justice Area. This is a very strong suggestion that, once available elsewhere, the police and prosecutors will routinely ask courts to impose Alcohol Abstinence and Monitoring Requirements as part of the sentence.

If you are facing court and would like advice on this or any other aspect of motoring law then do not hesitate to contact Nick Diable at London Drink Driving Solicitor on 020 8242 4440.

Reduction in driving ban: a case study

City of London Magistrates' Court

In a recent case, Nick Diable of London Drink Driving Solicitor, defended Mr S, who was accused of drink driving at the magistrates' court.  Mr S made it clear that he would be pleading guilty and would like some help reducing the length of the disqualification.

Mr S had been seen by police jumping a red traffic light and, when stopped, was found to be over the drink driving limit.  Mr S was arrested and taken to the police station where he the Evidential Breath Machine showed he had 74 mg of alcohol in 100 ml of breath, which is a little over twice the drink driving limit.  A first time offender should expect a driving ban of between 17 and 22 months upon conviction for a reading at that level.  Mr S's offence was aggravated by his jumping the red traffic light.

Mr S was advised to get character references that would show he is a responsible man who doesn't normally commit crimes.  S felt unable to approach anybody because he was genuinely ashamed that he had got behind the wheel while over the drink driving limit and couldn’t bring himself to tell people outside his immediate family - for obvious reasons immediate family are not the best character referees.

To his credit, Mr S had only driven a very short distance because he had quickly realised that his actions were a danger to others so had already ceased driving by the time the police followed him around the corner to stop him.  Nick was able to convince the court that as this offence was committed in the early hours there was nobody else about and so even though S jumped the red light there had been very little danger to other road users before S decided to stop driving.

S was genuinely ashamed of his actions and remorseful that he could have put other people in danger, even though he did not actually do so.  

After telling the court about the offence and S's attitude toward it, Nick told the court that they should reduced the driving ban to reflect both the mitigation and S's guilty plea.  This can be a difficult argument as many lawyers, judges and magistrates take the view that the driving ban is an ancillary order and not part of the sentence.  This means that it cannot be reduced to reflect a guilty plea and mitigating the length of the ban is much harder.

In this case, the magistrates’ accepted Nick’s submissions and agreed that the disqualification should be reduced both in light of the guilty plea and following the mitigation put forward by Nick on S’s behalf.

As a result, S was fined and disqualified from driving for 12 months.  He was allowed to take the drink driving rehabilitation course, which will further reduce his driving ban to 9 months instead of the starting point of up to 22 months.

Case report: successful submissions to the prosecution

EG was found drinking at the wheel of her car

A few weeks ago, Nick Diable of London Drink Driving Solicitor was instructed to represent a woman, who we’ll call EG, accused of drink driving.

The allegation was that on a recent Friday night she was drink driving her car while she had 64mg of alcohol in 100ml of breath.

Nick met EG before the first hearing took place – we always try to meet our clients well before court as that gives us the best opportunity to understand their account and gives them a chance to meet and ask questions of the solicitor who will represent them in court.  EG’s account was that she had driven to a night out with some friends.  The friends had been drinking during the journey and, although EG had consumed alcohol prior to driving she did not believe she would have been over the drink driving limit.  Once at their destination, EG parked her car and accepted some drinks from her friends.  This is called the hip flask defence and is so named because in the past men frequently carried hip flasks from which they would drink after crashing their cars.  It was said they did this to calm their nerves but it also effectively prevents a court finding against them in a drink driving trial, so who knows the real reason behind its origins.

EG accepted that she had been in her car with the lights on and engine running when she became over the drink driving limit and that she may have driven again that evening while she remained above the drink driving limit.  Nick advised her that on this account she was guilty of being drunk in charge of a motor vehicle but that the penalty would be either a short driving ban or 10 penalty points, i.e. far less harsh than a sentence for drink driving.  EG stated she was happy with 10 penalty points and would plead guilty to being drunk in charge if the prosecution could be persuaded by Nick to offer it.  A plan was agreed that Nick would obtain and consider the prosecution evidence.  If appropriate he would make representations that they should drop the case against EG.

We immediately asked for the prosecution evidence and received it the week before the first court appearance.  After analysing the evidence, it was clear that the prosecution lacked sufficient evidence to secure a conviction but could gain a conviction for being drunk in charge.  We made immediate representations to the prosecution that they should discontinue the drink driving charge – we deliberately did not ask them to substitute a charge of being drunk in charge because we are here to represent our client’s best interests not to advise the prosecution on potential charges they could bring against our client.  It has to be said that if they thought they could get a drink driving conviction based on the evidence they sent to us then you have to question whether they are at all familiar with drink driving law.

A prosecution solicitor who was clearly more familiar with drink driving law reviewed the evidence at court and agreed to substitute the drink driving charge for one of being drunk in charge.  This is a significant difference.  An alcohol reading of 64mg in breath on a drink driving charge would mean a 17 to 22 month driving ban plus a fine of 150% of EG’s weekly income.  Whereas a guilty plea to being drunk in charge would mean at worst a short driving ban and a fine of 100% of weekly income.

EG was very happy to plead to being drunk in charge as she accepted that she had committed the offence and should not have done so.

Nick Diable represented EG in court, telling the court that EG is a professional woman who recently graduated from university, holds a good job and has never been in trouble before – this is called personal mitigation.  Nick explained the circumstances of the offence and that EG fully accepted her guilty and offered the court her genuine apologies for committing the offence – this is mitigating the offence.  Learning how to mitigate is a very important skill for any criminal law solicitor and one I have discussed previously in other blogs.

The District Judge listened carefully and agreed to significantly reduce the sentence.  Instead of the short driving ban the judge could have imposed, he awarded 10 penalty points.  Instead of the 100% of weekly income fine that he would normally impose, the judge more than halved the fine.

EG was very happy with the sentence.

So, we can see that when a solicitor takes time to meet face to face with a client to discuss their case in detail, examines the prosecution evidence properly and acts on that information spectacular results can be achieved.

It’s always worth asking at the end of a case, how else could this have been approached?  The most obvious answer is that we could have kept quiet about the flaws in the prosecution case and gone to trial on the drink driving charge.  That was an option explained to EG, but she had very clear goals: first to end the case as quickly and cheaply as possible; secondly to keep her driving licence.  Taking the drink driving charge to trial would have been very good for us because it would allow us to charge EG more money, but that does not fit with EG’s stated goals.  One thing we will always do at London Drink Driving Solicitor is to work with a client to find out what they want to achieve in a case and then present the best options for achieving those goals, even if it means we can’t charge as much money because providing sound, honest advice is what we are all about.

If you would like to discuss a drink driving or drunk in charge case with Nick Diable get in touch on 020 8242 4440 or visit our website.