Road traffic law - areas of challenge Aim Some areas which are common to many road traffic cases

can frequently be challenged: Timeframes 14 days and six months Providing information section 172 Failure to provide breath specimens possible defences following refusal Special reasons key issues to consider Exceptional hardship key issues to consider Abuses loss of evidence - prosecution indications

Edward Culver, Argent Chambers (October 2008)

Speeding I never knew I would be prosecuted One of the most obvious ways of challenging prosecutions, especially for speeding tickets is carefully checking the notices of intended prosecution (aka NIPs). What offences do NIPs apply to? Section 1 of the Road Traffic Offenders Act 1988 provides that for certain offences: Defendant must have been warned at the time of the possibility of prosecution for the offence; or D must have been served with the summons within 14 days of the offence; or Notice of the possibility of the prosecution must have been sent by the prosecutor within 14 days of the offence either to the driver or to the registered keeper of the vehicle.

This is satisfied if D is charged within 14 days of the incident and given a copy of the charge sheet. (Sage v Townsend May 27 1986). Only one of the three requirements needs to be fulfilled to satisfy the section. Notice to the driver or the registered keeper is sufficient. The list of the offences to which section 1 applies are in schedule 1 to the 1988 Road Traffic Offenders Act. It includes speeding, driving without due care and attention, failure to comply with traffic signs (e.g. jumping red lights), and leaving a vehicle in a dangerous position, but not failing to comply with a requirement of a pedestrian crossing regulation (Sulston v Hammond [1970] 2 All ER 830). Failure to comply means there cannot be a conviction for the offences to which it applies. Do NIPs always have to be served? There is an exemption (for the prosecution to serve a NIP) under section 2 (1) of the RTOA if an accident occurred as a result of the presence of the vehicle either at the time or immediately afterwards. The NIP would not be required for even the most minor accidents which did not involve a third party, but a NIP is required if the D is unaware of an accident taking place (Metropolitan Police v Scarlett [1978] Crim LR 234 and Bentley v Dickinson [1983] RTR 356. These cases are now restricted to cases of minor accidents which could have been missed, as opposed to serious accidents which could not have been missed but for post-traumatic amnesia. The rationale is simple if you are unaware of an accident at the time you would be unable to check the area and gather evidence; the same could not be said of a major RTA. The idea is to save the police having to serve NIPs in a multiple RTA they have enough to worry about. The accident need not involve a collision involving the driver of a car. Lack of awareness can be more relevant when the motorist was not involved in an accident, but caused it, e.g. by going the wrong way down a dual carriageway which led to an oncoming vehicle hitting a tree. This could be an accident within section 2 (1) and the NIP requirements could be avoided as a result (Bremner v Westwater (1993) 1994 SLT 707). This should clearly be argued if it is raised.

Edward Culver, Argent Chambers (October 2008)

Wilkinsons suggests that if the prosecution tried to serve a NIP but did so badly e.g. out of time, they could still argue that an accident occurred and section 2 (1) applied. I think this would be arguable if it was an accident of which the driver was aware, why try to serve a NIP? There is no definition of accident, but a deliberately caused collision would qualify mendacity does not make the impact outside section 2 (1), and an accident need not involve an impact swerving off road has held to be enough (Bremner, ante). Who bears the burden of proof? The burden of proof is on the defence to show he did not hear the warning/ receive the letter i.e. it is presumed that the prosecution have complied with section 1 and for the defence to show on a balance of probabilities that they have not. If it is alleged that neither the driver or the registered keeper had the NIP, both should give evidence the fact that the driver has not received it is not sufficient if the registered keeper is a different person (and he has received it, or just as importantly, it is presumed he has received it.). Service of oral NIPs? The fact that officers did not spell out in exact terms that prosecution was a possibility need not take the events outside section 1 being stopped and cautioned and charged for an offence on the roadside would be sufficient. Although this was a Scottish case (Lindsay v Smith (1990) 1991 SLT 896) and is likely to be followed, it seems the absence of any contact by way of NIP in this case was not important as the motorcyclist was charged at the roadside and this is unusual in England. If the warning was not given at the time and no other warning was given the NIP requirements have not been fulfilled and the prosecution will fail: the possibility of intended prosecution should be given at the time the offence was committed. This is a question of fact and degree and the test is what is reasonable: in the absence of what is unreasonable or unjustifiable the conviction will stand. (R v Okike [1978] RTR 489). Several hours later can be at the time; being at the scene is not essential; a warning at 4pm for an accident at 8.30am on the same day is not at the time (Cuthbert v Hollis 1958 SLT (Sh. Ct.) 51). The words of the warning are not prescribed and some flexibility can be provided, but a warning that there may be dangerous driving charge is not a warning under section 1 for a subsequent excess speeding prosecution (Parkes v Cole (1922) 86 JP 122). There is some scope for arguing that a warning was not heard or understood, but this is fraught with difficulty and the circumstances in which a sober and capable driver who was not in an accident who might be unable to comprehend appears limited, although possible a diabetic pulling over onto a dangerous position on a road could be an example, or someone who is deaf. Service of summons/ NIP 3 ways of doing this (section 1 (1A), 1 (2) and (3)) these apply to NIPs. Personal service Leaving it with a person at his last known or usual place of abode

Edward Culver, Argent Chambers (October 2008)

Sending it by post in a letter addressed to him at his last address or place of abode (by registered post, recorded delivery service or first class post, addressed to him at his last known address.) [A claim that a NIP was sent by second class post may be possible but is unlikely to occur or be upheld] Service is deemed service to have occurred even if it is not received. This is an irrebuttable presumption if served by recorded or registered post; rebuttable if served by first class. Realistically proof of service to the correct address will be sufficient for the Crown I never received the post is not a good defence. The fact that the notice was only received more than 14 days after the incident is also no bar to proceedings, if it was posted in time for the summons to be received within the period stipulated. E.g. Incident on 1 October. NIP sent 2nd. Received 10th. Incident on 1 October. NIP sent 2nd. Received 15th. Incident on 1 October. NIP sent 12th. Received 14th. Incident on 1 October. NIP sent 14th. Received 15th. Incident on 1 October. NIP sent 13th. Received 16th. Incident on 1 October. NIP sent 15th. Received 16th. A properly addressed letter sent by post will be deemed to be received when it would be delivered in the ordinary course of post, unless the contrary is proved (Interpretation Act 1978, section 7). The fact that the defendant did not see or know of the NIP until after the fortnight makes no difference if the D is on holiday, the butler took it, a child hid it, or the dog chewed it. The notice needs to be served on someone who is authorised to accept service. Personal service can be to someone entitled to collect post on anothers behalf e.g., a partner living with someone, even though the recipient did not receive it. The last known address is the place where the person would normally expect to receive correspondence. E.g. police interview someone and then send a letter to the hospital where the interview took place, but the D discharged himself early, then this would not be good service (see Phipps v McCormick [1971] Crim LR 541). The last known address is the last known permanent address at which he may be expected to receive correspondence should not be interpreted too literally (not the last known address in these terms). Notice may be on the defendant or on the registered keeper to be good. Service on companies is good service if delivered to the registered office, but all that is necessary is that it is in receipt of a responsible officer of the company within 14 days. This appears to conflict with authorities suggesting service on someone who could accept post would be sufficient (families) as it suggests an additional step for companies. This may be arguable, but responsible officer is likely to be interpreted widely and any delay in passing it to the responsible officer will probably be attributed to the company.

Edward Culver, Argent Chambers (October 2008)

What if the driver does a runner? Reasonable diligence If the neither the drivers nor the registered keepers identity could not have been discovered with reasonable diligence in time for a summons or notice to be served within the 14 day period, the requirements of section 1 (1) do not need to be followed within the time period (section 2 (3)). Conduct which contributes to the police not being able to comply within the 14 day limit excuses the police e.g. driving off before a number can be taken or providing incorrect details. If the police have the time/ information which would enable them to find out the registered keeper or driver within 14 days, their failure is their fault and late service means the NIP would fall outside the 14 day section 1 (1) requirements. This means not only those who are hit by speed cameras but also those who make off at the scene of an accident (R v Bolkis (1932) 97 JP 10) when police noted the drivers number. What if there are flaws in the notice itself? The aim of the NIP is to ensure drivers are not taken unawares long after the offence when his recollection is dulled and witnesses may be difficult to trace. If the notice is defective does it prejudice the defendant? A less serious offence than the one originally specified would not be such a defect; lack of details of the nature of the driving or even the driving offence itself are not necessarily fatal to the notice. Key to the usefulness of the defect is whether it materially misled the defendant; a misstatement is not enough. However, the prosecution cannot amend a NIP they can only issue a new notice. Errors of time, place and date need not be fatal, but the type of allegation and nature of the offence will all affect this; it is a question of fact and degree. i.e. careless driving on a several miles long stretch of road when there had been no accident might be too vague, particularly when the area was built up as it may affect the ability of the defendant to obtain CCTV images; this could also be considered if there were Gatsos in a particular place, some of which were obscured. In my view claims for defective NIPs are only likely to be successful if prejudice can be shown, in contrast to the provisions relating to the timing of service of the NIPs themselves (which are strict).

Edward Culver, Argent Chambers (October 2008)

So much for NIPS - what about 6 month time limits? Section 127 of Magistrates Court Act 1980 provides that informations must be laid within 6 months of the commission of an offence or the matter of complaint arose. Informations are laid when they are received by the court, i.e. the office of the clerk to the court or, if applied for orally, in court. The information should be laid by a person, not a company or group of people e.g. Hampshire police, although the only case on this found the information was not defective for this reason; however the person signing the information must have authority to do so and if a mistake is made in this regard which leads to a delay, then the information would be out of time and invalid. Are there any exemptions to the 6 month time limit? Some offences can be started outside the 6 month time limit. These are those caught under section 6 of the RTOA 1988, as specified in Schedule 1 of the Act. These relate to driving whilst under a disability not notified to the Secretary of State or false statements about physical fitness, but also include failure to surrender a driving licence, driving whilst uninsured, and driving whilst disqualified. These cases may be proceeded with more than 6 months after the incident but no more than 6 months from the date sufficient information came to the attention of the prosecutor (this means discovery not investigation). A long stop of 3 years is in place so no proceedings may be brought more than three years after the date of an offence. All indictable and either way offences are also excluded from the time limits. What counts towards the time limits? Calendar months count to the same day in each month or the day before e.g. six months from 30 July would mean an information laid on the 31st January would be out of time; e.g. an information laid on the 31st March would be out of time if laid on the 1st October, even though September only has 30 days. A Crown Court judge acting as a district judge under section 66 of the Courts Act 2003 is also bound by the timeframes under section 127 of the Magistrates Court Act. This can produce problems for matters pleaded out (to different offences), but an amendment to an information out of time is possible under the courts discretion, if there is no prejudice to the defendant, the new allegation arises out of the same facts, and it is in the interests of justice to do so. The CJA 2003 changes the regime in that public prosecutors can now institute criminal proceedings by issuing and service of a written charge and a requisition. These are in force in some Magistrates Courts in London to a limited extent. They effectively allow some police personnel to start proceedings themselves.

Edward Culver, Argent Chambers (October 2008)

Drinking It wasnt me driving Section 172 of the Road Traffic Act 1988 requires the person keeping the vehicle to provide such information as to the identity of the driver as he may be required to give, or any other person who shall be required to provide information which is in his power to give and may lead to identification of the driver. Taking points for someone else is a crime perverting the course of justice. Expect 3 months in prison. Section 172 provides a defence if the identity of the driver is not known. Previous loopholes have now been closed returning a form which is not signed may still count as a confession as the court could infer that the form was sent to the correct address and the registered keeper returned it (Mawdesley v Chief Constable of Chesire Constabulary [2004] 1 All ER 58 QBD). A string of cases has made clear that the requirements do not infringe the right against selfincrimination. Defences The defence in sub-section (4) is for individuals, whether as owners of the vehicle or the person who has it in his power to provide such information as to who the driver was, if they can show they did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was. One way is to suggest that the vehicle was elsewhere at the time; it is then for the police to prove their case, probably with photographic evidence. If the information is to be provided by someone other than the keeper of the vehicle, it is for the prosecution to prove that the person had information which may have led to the identification of the driver and which it was in his power to give. Sub-section (7) requires that when written notice of the requirement to provide information is served by post, the recipient must respond within 28 days from when it was served on the recipient. A person is not guilty of an offence if he gave the information as soon as reasonably practicable after the 28 day period expires, or it that is has not been reasonably practicable to give it. Proof of posting the information is important here, and statements from staff, ideally with proof of returning the information are crucial. The reasons being that if a response is made and then the details have to be provided again (perhaps blaming some summer student) then the original information is likely to be out of time. Although the information need not necessarily be in a specified format, it cannot be given orally. In practice police tend to serve matters twice before commencing prosecutions. Details of the notice should be checked carefully as incorrect details which have led to the intended recipient not receiving the notice requiring the information may well prove fatal to the prosecution. Care should also be taken as to the person to whom the vehicle is registered is it to an individuals spouse and not the officer of the company? This may not prove fatal to the notice and the requirements, but it would go to assist the available defence of reasonable diligence.

Edward Culver, Argent Chambers (October 2008)

Proof of posting by the police is required see section 69 of the Courts Act 2003 (i.e. rule 4.2 of the CPR). This is usually done by the officer providing a statement that he posted a letter. It should be noted that as well as bodies corporate being responsible for failure to provide details, a director, manager, secretary or other similar officer of the body corporate, can be guilty of the offence and liable to be prosecuted and punished. The Crown would have to prove that the offence was done with the consent or connivance of, or be attributable to the neglect on his or her behalf. The offence is failure to provide details, not the e.g. speeding index offence. Offences committed after 24 September 2007 are punishable with 6 penalty points, as a result of the Road Safety Act 2006 (rather than 3 points). Discretionary disqualification and obligatory endorsement remain. A level 3 fine is also payable (1000). An enhanced fixed penalty of 120 is also payable.

Edward Culver, Argent Chambers (October 2008)

Drinking and legal advice Failing to provide a specimen of breath without reasonable excuse is an offence (section 7 of the Road Traffic Act 1988). It is not uncommon for clients to claim they wanted legal advice before agreeing to provide a sample of breath. Usually the prevention of a defendant obtaining legal advice will lead to the inadmissibility of an interview. Legal advice can only ever be denied for up to 36 hours with the authority of a superintendent on specified grounds and only for indictable offences. The caveat on the right to legal advice does not therefore apply to section 7 offences which are summary only and relate to causing death by careless driving, driving whilst under the influence of drink or drugs, and driving or drunk in charge of a motor vehicle. Once the excuse is raised, it is for the prosecution to negative it i.e. if there is a possibility of a reasonable excuse the defendant should be acquitted. Failure to provide now carries a starting point sentence of 12 weeks custody, for deliberate refusal or deliberate failure to provide where there is evidence of serious impairment (May 2008 guidelines). And a ban of 29 to 36 months. Two defences are commonly put forwards. (Reliance on bad legal advice is no defence). A genuine physical or mental inability to blow can be a defence (R v Lennard (1973) 1 WLR 483), and a causative link between the incapacity claimed and the inability should be shown (e.g. R v Brodzky [1997] RTR 475n). Trying hard is not sufficient (but great mitigation). Pre-existing medical conditions should be raised at the time and any claim where the medical condition which is relied upon is not notified to the police e.g. asthma is almost certain to fail. Medical evidence should support a defence on this basis and is all but essential. Post accident stress is not enough on its own. An attempt to blow and/ or evidence of compliance is important. Usually this can be found in a custody record/ MGDD/A. Establishing defences on this ground are likely to depend on the medical evidence provided the better the evidence in this regard the better the prospects at trial. The burden of proof is important to remember. The second common claim is that the defendant did not give a sample because he was not allowed to speak to a solicitor. This is a good ground of challenge. The key case is DPP v Kennedy [2002] EWHC 2297. Defendants cannot avoid the obligation under section 7 to provide a specimen on the basis of obtaining legal advice, but the right to legal advice remains. It is a proportionate limitation on this right that the obtaining of legal advice does not delay the breath test procedure: but if a lawyer is immediately available it will not delay the proceedings; denial of such a right is important and if the refusal is predicated by a refusal to provide access to legal advice the exclusionary discretion of section 78 PACE can apply to the entire breath test procedure. Generally speaking total denial of access to a lawyer one of the most important and fundamental rights of a citizen will provide a good ground for arguing section 78 is triggered. In failure to provide cases the usual premise is that if legal advice had been provided there would have been compliance with the procedure: therefore admission of the drink/ drive procedure is more prejudicial than probative and should be excluded.

Edward Culver, Argent Chambers (October 2008)

Kennedy and associated cases suggest that if the provision of legal advice will not delay the procedure more than a few minutes it should be allowed - a seven minute delay is not a significant breach what is more important is the fact that the advice was available (or potentially available) and not sought at all; if it had been the offence would not have occurred. This is ideal as custody sergeants are unlikely to allow access of any sort. The denial is usually recorded on the custody record. Access to a duty solicitor will delay matters if the call is not answered immediately so it is usually important to have a solicitor in mind a 45 minute wait for the call centre to provide the details would be too much of a delay. In Gearing v DPP [2008] EWHC 1695 (Admin) a delay of 23 minutes for the advice to arrive was held to be too long. In Kirkup v DPP [2003] EWHC 2354 a breach of section 58 for 7 minutes was held to be insufficient to merit the exclusion of the evidence under section 78 PACE. However, if a specific solicitor is sought by phone and denied the case of Kennedy may apply. Similarly if a (duty) solicitor is present in the custody area. The immediacy of the assistance available is crucial. The lack of any effort by the police to seek legal advice may be sufficient to suggest the FTP is tainted. The advice sought must also be specific i.e. it must relate to the taking of the test, otherwise it may be considered too generic and a delaying tactic, effectively why the case went against the appellant in Kennedy itself. Custody tapes should be sought so there can be no claim that it was too busy to call a solicitor, and to show the high number of other people in custody increasing the likelihood of a solicitor being in the custody area or waiting outside. Failure to provide the tapes of the custody area, or their loss, may provide grounds for an abuse argument. The burden of proof is on the prosecution to negative it (reasonable excuse). Cases are attached.

Edward Culver, Argent Chambers (October 2008)

Special reasons not just shortness of distance Number of considerations should be examined Chatters v Burke [1986] 3 All ER 168. Seven matters fell to be considered: How far the vehicle was driven In what matter it was driven The state of the vehicle Whether the driver intended to go further The road and traffic conditions at the relevant time Whether there was any possibility of danger by coming into contact with other road users or pedestrians What was the reason for the car being driven.

Exceptional hardship impact on others and alternatives Section 35 Road Traffic Offenders Act 1988 excludes hardship except exceptional hardship (see Owen v Jones [1988] RTR 102). Evidence needs to be called. This exception only relates to penalty points disqualification i.e. totters. Abuses Loss of evidence Ebrahim v Feltham Magistrates Court [2001] 2 Cr App R 23 Delay leading to prejudice, even though the summons is in time - R v Clerk to the Medway JJ, ex p. Department of Health and Social Services [1986] Crim. LR 686 and Wei Hai Restaurant Limited, Ken Chik, Stella Wong v Kingston Upon Hull City Council [2001] EWHC Admin 490 (Wilkinsons para. 2.05) Indications R v Guildford Youth Court [2008] EWHC 506 (Admin), March 3 2008 (attached)

Edward Culver, Argent Chambers (October 2008)