The Defence Brief

Insurance is a contract that remains in force until it expires or is cancelled As you may, or may not, know I specialise in motoring law and most of my work involves defending people accused of drink driving . With the drink driving often come other road traffic offences such as driving while disqualified and driving without insurance. It’s driving without insurance I want to talk about today because I think far too many police officers, solicitors, barristers and judges miss a key legal point when looking at these cases. I’ve received prosecution papers today for somebody accused of driving while disqualified and driving without insurance. The no insurance element is claim that the suspect did not tell the insurer about the disqualification. In his statement, the police officers says, “ [I] contacted [the insurer] who called me back informing me they would not consider the insurance policy valid as there were no convictions disclosed.” Looks like an open an...

  Drink driving law is more complex than many appreciate One thing I have found since specialising in motoring law is that it is an area that is poorly understood by many people, criminal lawyers and judges included. I have heard comments from fellow solicitors that include, “I don’t need any papers to advise him about his case, it’s only drink driving.” And, “there are no defences to drink driving.” Most worryingly I’ve heard more than one court legal adviser tell their magistrates that “it is impossible to avoid a driving ban following a drink driving conviction.” None of these things are true and I hope, through a series of blog posts, to give a brief glimpse into the law of motor vehicles and alcohol. In this first post I think it’s worth spelling out exactly what drink driving is and what needs to be proven to secure a conviction. The first thing to know is that there are two different types of drink driving and they require the prosecution to pro...

Above is the video of an assault on a police officer. As the video explains, the police saw an incident as somebody was ejected from a bar and went to see what was happening. As PC GIlder was dealing with a man another man ran up behind him and punched him to the back of the head knocking the officer unconscious. The attacker was fined £165, which by any stretch of the imagination seems unjustifiably lenient especially when viewed against sentences recently imposed for far less serious assaults on politicians. The story has been picked up by several news outlets including the Daily Star and the Sun newspapers. Unsurprisingly all of the reports criticise the very lenient sentence imposed on this attacker. Interestingly though, none of the reports name the man and all of the reports give broadly the same information that appears to have been lifted entirely from the video above and presumably a press release that accompanied it. This does give the impression that the reports ...

Does the law protect police drivers from prosecution?   The Metropolitan Police – that’s the one’s in London if you didn’t know – have released a video showing their officers using police cars to ram moped and motorcycle riders from their bikes. Watching the video with no context you could be forgiven for concluding that these are unreasonably heavy handed tactics that put lives at risk; however, police officers who I trust to know about these things have told me that these tactics are only used to end protracted chases where members of the public are put at risk and to catch the most dangerous offenders. The police conduct risk assessments as events are unfolding both by officers involved in the pursuit and by senior officers back at the police station monitoring events. This post is not about whether those tactics are right or wrong, instead I want to look at the potential legal consequences for police officers taking these actions and what, if anything, the law can...

Behind this doors: trials defendants are excluded from attending A couple of years ago the government introduced a new system of bringing prosecutions in the magistrates’ court, called the Single Justice Procedure Notice (SJPN). This procedure allows the police to initiate prosecutions more speedily than under the old system and effectively allows trials to be held in which the defendant is almost deemed guilty from the start. It can only be used for non-imprisonable offences but that can include a surprising range of allegations, e.g. it was recently used to prosecute an HGV driver alleged to have knocked down a cyclist. This new procedure arises from an amendment made to section 29 of the Criminal Justice Act 2003 that allows for criminal proceedings to be instituted by the service of a written charge. Where a written charge is issued the prosecutor must at the same time issue either a requisition or a Single Justice Procedure Notice, which is a document that requires ...

My typical view of the AXON website Legal practice, at least contentious legal practice, is all about evidence. One side brings a case by putting to the court and their opponent some evidence that they say proves their case. The other side responds by seeking to exclude, undermine or rebut that evidence, usually with evidence of their own. Exchanging evidence, call it discovery or disclosure as you will, is the all-important key to winning a case. Effective disclosure leads one side to thrown in the towel and give up. Failing to disclose leads to a loss in court, at best, and a wasted costs order at worst. Since evidence is so important you’d think somebody would have thought up a way to get that evidence to the people who need to see it quickly and efficiently while preserving the security of the information. I manage it in my firm through the use of encrypted uploads to secure cloud services and software that lets me to email the links to encrypted files that magically d...

Courts have wide powers in dealing with people convicted of drink driving Most people realise that once they are convicted of drink driving the court will take away their driving licence for at least 12 months, but most people aren’t too sure whether the court can also take away their car, it’s probably right to say that most people never think about it at all. The answer is, yes, a court can take your car from you if you are convicted of drink driving. Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 grants criminal courts the power to deprive a convicted defendant of any rights in property they to the property that was used to commit or facilitate a criminal offence or any property that the defendant intended to use to commit a crime, this specifically includes motor vehicles. It is called a Deprivation Order and means that a court can lawfully deprive you of your car not only if you are convicted of driving with excess alcohol but also if you a...

Serious questions for police following Liam Allen acquittal The Times front page carries a startling report today of a rape trial that ended in acquittal of the defendant, Liam Allan, on the second day of trial after the police revealed a cache of messages obtained by them from the complainant’s telephone that they had decided to withhold from both the prosecutor and the defence. It seems that in Mr Allan’s case the police had seized the complainant’s mobile telephone as evidence and interrogated it to obtain all messages contained therein. What happened next is unclear, the least damaging (to the police officers involved) theory is that they simply did not bother to read the messages. I’ll leave you to work out other possibilities. On day one of the trial, the complainant (who is still entitled to anonymity despite the prosecution being so sure that her allegations were entirely fabricated that they felt compelled to offer no evidence against the defendant) gave evidence ...

Knowing the law is vital to defending yourself in court The statutory warning sounds like something impossibly dull – any maybe it is if you’re not a lawyer – but it is something that is very important in drink driving cases. When the police suspect somebody of drink driving they must take a specimen of breath, blood or urine from them that can be analysed to show whether the person was over or under the drink driving limit at the time they drove. Parliament has laid down strict rules about what must happen prior to the police requiring that a person suspected of drink driving provides a specimen for analysis. Section 7 of the Road Traffic Act 1988 gives the police the power to require a person to provide a specimen and tells us that the person commits an offence if he or she fails or refuses to do without reasonable excuse. However, section 7(7) says that: “A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a f...

"Not the usual suspects" - police are on the lookout for drink drivers of all ages It’s only November but with Christmas less than six-weeks away you can be sure that police forces across the country are well into planning their Christmas 2017 drink driving campaigns. Last year saw thousands of people breath tested and thousands more arrested across the country for drink driving and police forces reporting a shift in the type of people being arrested. People often associate drink driving with young men; however, West Yorkshire Police reported in January 2017 that 40% of people arrested for drink driving were over 35 years old and of those a significant proportion were women. Dorset Police supported those sentiments labelling the majority of drink drivers as, “not your usual suspects”, pointing out that most of those arrested are normally law-abiding people who misjudged how much alcohol they could drink before driving. Drink driving the morning after a night...

How long will a pint stay in your system? Unless you check you do not know I’ve been prompted to write this post following a Periscope broadcast by @SgtTCS about drink driving and the use of home breath test kits. SgtTCS is a serving police sergeant whom I have followed on Twitter for many years. He is extremely dedicated to his work and to promoting road safety. He has used social media to campaign against all sorts of dangers that motorists encounter on the roads. This is his tweet with a link to the Periscope broadcast: Personal breathalysers - #31DaysLive Day 78 suggested by @jred196   https://t.co/ityxGz0cTJ — SgtTCS (@SgtTCS) October 17, 2017 First, I should say that I do not disagree with the points SgtTCS makes but, having spent many years representing drink drivers , I do feel that he, and many other police officers, underestimate the importance of breath test devices in helping people avoid drink driving. The argument from many seems to be th...

Prison officers demand Tasers to defend themselves I heard on the radio this morning that prison officers are calling for better protection against violent prisoners. Currently, I understand there are 19 attacks on prison staff every single day in British prisons. Understandably, those on the receiving end of it want to be able to protect themselves from such attacks. The suggestion is that prison officers be armed with taser guns and CS spray in addition to the batons they already carry, which many seem to feel is inadequate. In addition, they want stab vests and body worn cameras. The last is presumably to deter violence against them and capture evidence of it when it does occur. You can understand why they would want such protection when you hear stories of prisoners attacking each other over the most minor provocation and prison officers having to step in to break up the ensuing mess. As one anonymous prison officer says, "I've seen it first ha...