Using a Mobile Phone while driving – Expert Legal Advice

Graham Walker from Roadtrafficlaw.com offers some expert advice on using a mobile phone while driving. View the video and please leave any questions or comments below!

Charged With Speeding In Scotland? We can help…

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• We are the only firm in the UK to have ever visited the GATSO Camera factory in Holland.
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Please do not hesitate to telephone or e-mail us regarding your case.

SPEEDING

The flash of a GATSO camera in your rear view mirror is often the start of that sinking feeling that lets you know that your licence may be jeopardy. That is probably when the worry sets in. If no formal notice, termed a Notice of Intended Prosecution is received within 14 days. (Exceptions being where it is a company car or a hire car) then you can stop worrying as you are required to receive such a notice within 14 days of the contravention.

In the event that the Procurator Fiscal’s office seek to initiate proceedings in the absence of any NIP (Notice of Intended Prosecution) then objection should be taken at the first calling of the case. Successfully defending a charge of “speeding” in Scotland is a technical job and it needs someone with the knowledge, experience and court craft to win.

The NIP can be issued verbally by Police Officers if you have the misfortune of being stopped by the Police at the time. In cases where injury or damage to property has occurred then the requirement for an NIP does not apply.

We often advise clients to make no comment when questioned by the police, beyond the formal details, of name, address and sometimes, date of birth.

In road traffic cases, the accused person, if required under Section 172 of the Road Traffic Act 1988, is obliged to give information, within his knowledge about the identity of a driver of the vehicle involved in any such incidents. Failure to provide such information constitutes a separate offence. The European Court of Human Rights decided that drivers do not have a right of silence and ARE required to answer the identity question in terms of Section 172 of the Road Traffic Act. “Failure to provide”, attracts a 6 penalty point endorsement.

After the “speeding” matter has been reported to the Procurator Fiscal’s office, proceedings are likely to be initiated by way of summary complaint. (Citation) The validity of a complaint depends upon a number of  factors.  Typographical errors can generally be disregarded, however more fundamental errors can bring the case to an abrupt end if challenged at the correct stage of proceedings.  A fundamental nullity such as the particular court having no jurisdiction in the case or the case being “time barred” cannot be amended and will vitiate proceedings. Issues such as jurisdiction, time bar and competency can be complex and can have a significant bearing on how the case proceeds. Therefore the knowledge of an experienced solicitor is invaluable at this stage.

The dramatic rise in speeding prosecutions and the increasing number of speed cameras and traps peppered around the country means that we now have more people than ever before with live penalty points on their licence. Points are relevant from date of offence to date of offence.

Mistakes can be made at the most basic level. In one of our cases, it became apparent that the distance allegedly travelled had been underestimated by approximately one third, thus producing an enhanced speed measurement. We sent out our trainee solicitor, Martin Black to measure the  distance and were amazed that indeed this was the case. The Crown deserted the case on the basis of the evidence that we could then present to them. No need for the time, inconvenience and expense of a trial!

Avoiding disqualification

Where a driver, accumulates 12 or more points in 3 year period, he /she will be liable for a mandatory disqualification period of 6 months.

If you have  9 points on your driving licence and they were imposed within three years of the present offence (From date of offence to date of offence) then you are liable to be disqualified under the “Totting Up Procedure”.

However, all is not lost. You may be able to argue that “Exceptional Hardship” would occur if you lost your licence.

The hardship must be “exceptional”. If you can persuade the court that others, not just you, would suffer badly. For example, that they would lose their job or business, or be unable to pay their mortgage, then you might persuade the court to impose the points but refrain from disqualification. It is extremely difficult to persuade the court not to impose the disqualification. A proof is normally set and you would require to bring evidence of the exceptional hardship to court. This may be the evidence of an accountant, an employee, medical records etc etc. We would suggest that you really need experienced legal assistance to successfully present such cases.

If you have a speeding case pending please call 0800 612 9597 or email gw@roadtrafficlaw.com for FREE advice and an online case consultation

Traffic Offence Scotland

Sentencing Guidelines Scotland

Every case depends upon its own facts and circumstances and the personalities in the court where your case will be heard. For an informed discussion and advice on what you may expect by way of sentence in your own case just call us on 0800 612 9597 or go online to www.roadtrafficlaw.com/ask_a_lawyer.htm

o There are no sentencing guidelines currently in existence in Scotland. In other jurisdictions like England the Magistrates are issued with guidance on sentencing.

o Sentencing is a matter for the judge at first instance, who will consider each case on its own merits.

o The judge’s discretion is tempered by statute which may provide for particular sentencing options, and occasionally, mandatory sentences and the decisions of the Appeal Court.

o Section 197 of the 1995 Act, headed, “Sentencing Guidelines, provides: Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act. Sections 118(7) and 189(7) empower the Appeal Court, when disposing both solemn and summary appeals, to pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case. The Appeal Court has apparently seldom used this power to issue advisory judgments on sentencing matters.

Why

o The sentencing system in Scotland has the advantage of being flexible and fair: each sentence will be tailored to the specific circumstances of the offence and the offender. The sentencing process is wholly undertaken by an independent judge who will have heard all the relevant evidence.

Developments

o Recent research has found that although there is little evidence of widespread inconsistency in sentencing in Scotland, there is nonetheless a general perception of inconsistency.

o Consistency in sentencing is seen as an essential part of fairness and justice: like cases should be treated alike. Consistent sentencing which is transparent and predictable is said to be important to maintain public confidence in the justice system. It also allows practitioners to provide better advice to their clients.

o The Scottish Government has produced a consultation paper, Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals (September 2008) in which the establishment of a statutory sentencing advisory body a Scottish Sentencing Council (SSC) is proposed. The SSC’s main function would be to prepare draft sentencing guidelines for approval by the Appeal Court. Consultation closes on 21 November 2008. This paper followed a report by The Sentencing Commission for Scotland, The Scope to Improve Consistency in Sentencing (2006), which had made similar recommendations.

The Position In England

General

o The Sentence Guidelines Council (SGC), advised by the Sentencing Advisory Panel, is responsible under the Criminal Justice Act 2003 for producing sentencing guidelines. Before the SGC was established, the Court of Appeal had responsibility for producing sentencing guidance.

o Guidelines are produced for particular offences and classes of offences as well as on overarching principles, and issues such as reduction in sentence for a plea of guilty.

Road Traffic Offences

o Most of the relevant SGC guidance on road traffic matters is contained in the current Magistrates Guidelines (also produced by the SGC), which has a section on motoring offences (pp 117-140).

o Each offence (or class of offence) has its own separate guideline which charts the reasoning process that magistrates should follow when sentencing as well as giving a suggested appropriate range of sentences depending on the circumstances of the particular offence.

o The guidelines are generally structured as follows:

1. Name of offence and statutory provision

2. Statement of statutory minimum or maximum; whether statute provides any mandatory sentence

3. Reasoning process to be followed

 Form preliminary view of the appropriate sentence

o Appropriate starting point

  Circumstances of the offence’s starting point range

o Effect of aggravating/mitigating factors

  Non-exhaustive lists of factors indicating higher or lower culpability

  Consider offender mitigation (circumstances of offender)

Consider guilty plea reduction

 Consider ancillary orders

 Decide sentence and give reasons

The full version of the Guidelines is available at: http://www.sentencing-guidelines.gov.uk/docs/magistrates_court_sentencing_guidelines_update.pdf

Extracts from Magistrates Guidelines Road Traffic Offences

The following tables are extracted from the current Guidelines and show starting points and ranges for common road traffic offences according to the circumstances of the offence. They do not reproduce the guideline for any particular offence in full. Reference is made to bands of fines: the approach to financial penalties is dealt with in detail in the Guidelines at pp 147 et seq.

Excess alcohol (drive/attempt to drive) (s 5(1)(a) RTA 1988)

Dangerous driving (s 2 RTA 1988)

Speeding (s 89(10) RTRA 1984)

Police Stations Procedures for Requests for Blood or Urine Samples in Drink Driving Cases

Sections 7, 8 and 9 of the Road Traffic Act 1988 provides the procedure which must be followed by the police when samples of blood/urine are taken.

The admissibility of those specimens as evidence against a motorist depends upon the procedures being followed correctly. We always seek the 4:8:1 form that should be a record of the procedures followed and often therefore acts as the cornerstone of our cross examination in such cases. We will also seek sight of the EC/IR intoximeter log to ensure that it was working properly on the day of the given sample.

As a suspected drink driver you have a legal obligation to provide a laboratory sample when one of the four reasons set out at section 7(3) occurs. BUT before such a sample is taken the driver needs to be provided with certain information by the police:

• he has to tell the motorist the reason under terms of s.7(3) why breath specimens cannot be taken or used in this matter;
• he should tell the driver that in those circumstances he is required to give a sample of blood or urine, but that the officer will decide which. Many drivers believe that they have the choice but this is wrong, the choice is with the police officer dealing with the case.
• he must warn the driver that a failure to provide the sample required may result in prosecution;
• and if he has asked for a sample of blood,
• he should ask the driver if there is any medical reason why a specimen cannot or should not be taken by a doctor.

When, in the circumstances set out at section 8(2), a driver may choose to replace a breath specimen by supplying a laboratory sample,

The officer should inform the driver of the nature of the option open to him and what will be involved if he exercises it;

• he must inform the driver that the specimen of breath which he has given containing the lower proportion of alcohol exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath;
• he should inform the driver that in the circumstances he is entitled to claim to have this specimen replaced by a specimen of blood or urine if he wishes; We have heard countless tales of drivers claiming that the police officer told them not to bother as it would serve no real benefit to them this is rubbish, you should, where the opportunity arises ask for a blood sample to be provided. If there are medical reason why you cannot give blood then make sure that these reasons are stated and recorded.
• The police officer should ask the driver if there are any medical reasons why a sample of blood cannot or should not be taken. Having read the above if you think the procedures for you were any different then get in touch and we may be able to win your case and save your driving licence.