New sentencing guidelines for motoring offences

The Sentencing Council has published revised guidelines for offences in the Magistrates’ Court Sentencing Guidelines.

The guidelines apply to all offenders aged 18 and older who are sentenced on or after 24 April 2017, regardless of the date of the offence.

 

Careless driving

What's new: The Council decided to remove ‘inexperience of the driver’ from the lower culpability factors, and added ‘vehicle used for the carriage of heavy goods or for the carriage of passengers for reward’ to higher culpability.

Driving whilst disqualified

Failure to provide a specimen for analysis

Failure to provide a specimen for analysis (in charge)

Fail to stop/report an accident

What's new: The Council has changed the factor 'subsequently reported’ or ‘significant attempt made to comply with duty to ‘reasonably believed identity known’ in line with the suggestion.

Driving with no insurance

Speeding

What's new - An increase the penalty for the top band of seriousness from a Band B to a Band C fine - "to ensure that there is clear increase in penalty as the seriousness of offending increases."

Driving whilst unfit through drink or drugs

In charge when unfit through drink or drugs

 

 

 

 

Maximum sentences

Road Traffic Act 1988

Section 1 (causing death by dangerous driving) - 14 years

Section 1A (causing serious injury by dangerous driving) - 5 years

Section 2 (dangerous driving) - 2 years

Section 2B (causing death by careless driving) - 5 years

Section 3A (causing death by careless driving under the influence of drink or drugs) - 14 years

Section 3ZB (causing death by driving when unlicensed or uninsured) - 2 years

Section 3ZC (causing death by driving when disqualified) - 10 years

Section 3ZD (causing serious injury by driving whilst disqualified) - 4 years

Secton 4(1) (driving whllst unfit through drink or drugs) - 6 months

Section 4(2) (being in charge whilst unfit through drink or drugs) - 3 months

Section 5(1)(a) (driving or attempting to drive with excess alcohol) - 6 months

Section 5(1)(b) (being in charge of a motor vehicle with excess alcohol) - 3 months

Section 5A(1)(a) (driving with a specified controlled drug above specified limit) - 6 months

Section 5A(1)(b) (being in charge of a motor vehicle with a specified controlled drug above specified limit) - 3 months

 

Single Justice Procedure Notice

The Criminal Justice and Courts Act 2015 introduced the Single Justice Procedure which applies only to cases involving adults charged with summary-only non-imprisonable offences. The single justice procedure took effect from 13 April 2015. It will enable such cases to be dealt with by a single magistrate sitting with a legal adviser on the papers without the attendance of either a prosecutor or the defendant. The defendant will instead be able to engage with the court online (or in writing) and the case will not be heard in a traditional courtroom.

It will be for prosecutors to identify cases which might be suitable for the single justice procedure. These will be commenced by a written charge and a new type of document called a ‘single justice procedure notice.'

The single justice procedure notice will be sent to the defendant explaining the offence which has given rise to the proceedings, the options available to the defendant, and the consequences of not responding to the notice. It will be accompanied by the evidence upon which the prosecutor will be relying to prove the case.

The notice will give the defendant a date to respond in writing to the allegation - rather than a date to attend court. However, the defendant will have the right to request a traditional hearing in open court. If he wishes to plead not guilty, or otherwise wants to have a hearing in a traditional courtroom, the defendant can indicate these wishes in the response to the single justice procedure notice. In such circumstances the case will be referred to a traditional court and the case will be managed in the normal way.

In cases where a defendant pleads guilty and indicates that he would like to have the matter dealt with in his absence, or fails to respond to the notice at all, a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. The single magistrate can convict and sentence, or dismiss the charge as appropriate.

If a single justice considers at any point that it would be inappropriate to conduct the case under the single justice procedure, the justice can refer it to a traditional magistrates’ court.

 

 

IMPORTANT Advice

A Written Charge and Single Justice Procedure Notice must be issued "at the same time" and within 6 months of the index offence. The day of the offence is excluded from the calculation. Some police authorities are failing to adhere to the rules and proceedings are sometimes discontinued where this is the case. The court has no jurisdiction to hear a case commenced outside of the statutory time limit.

If you receive a Single Justice Procedure Notice then you should ascertain:

(i) the date of the alleged offence

(ii) the date on which a Written Charge document was issued.

(iii) the date on which a Single Justice Procedure Notice was issued.

(iv) were the aforementioned documents issued "at the same time?"

 

Section 15(2)(bb) of the Prosecution of Offences Act 1985 makes clear that for the purposes of that Act, proceedings in relation to an offence are instituted - "when the written charge and single justice procedure notice are issued."

Rule 7.2(5)(b) of the Criminal Procedure Rules 2015 states that - "an authorised prosecutor must issue a written charge not more than 6 months after the offence alleged." Note that section 29(2) of the Criminal Justice 2003 Act provides that - "where a relevant prosecutor issues a written charge it must at the same time issue ... a single justice procedure notice." A prosecutor must not issue a Written Charge document but defer the issue of the Single Justice Procedure Notice. 

It is clear from section 29(2B) of the 2003 Act, that the intended recipient of a single justice procedure notice is the defendant. It may be noted that the so-called "new method" of commencing proceedings places the obligation on the prosecutor to issue documents to the Defendant. This is done without reference to the court - although once a Written Charge is issued to the Defendant then the prosecutor must immediately inform the court officer - see Crim PR 2015, r.7.2(3).

I am aware that some police prosecutors have failed to adapt to the "new method" of instituting proceedings.  If proceedings are issued late then you may have a defence to the charge. If you require advice about this or are at risk of a driving disqualification then please contact me.

 

 

THE LAW PERTAINING TO SINGLE JUSTICE PROCEDURE NOTICES –

 

Criminal Justice Act 2003 c. 44

Section 29 - New method of instituting proceedings

 

(1) A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a "written charge") which charges the person with an offence.

(2) Where a relevant prosecutor issues a written charge, it must at the same time issue—

(a) a requisition, or

(b) a single justice procedure notice.

(2A) A requisition is a document which requires the person on whom it is served to appear before a magistrates’ court to answer the written charge.

(2B) A single justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates’ court specified in the notice a written notification stating—

(a) whether the person desires to plead guilty or not guilty, and

(b) if the person desires to plead guilty, whether or not the person desires to be tried in accordance with section 16A of the Magistrates’ Courts Act 1980.

(3) Where a relevant prosecutor issues a written charge and a requisition, the written charge and requisition must be served on the person concerned, and a copy of both must be served on the court named in the requisition.
 

(3A) Where a relevant prosecutor issues a written charge and a single justice procedure notice, the written charge and notice must be served on the person concerned, and a copy of both must be served on the designated officer specified in the notice.
 

(3B) If a single justice procedure notice is served on a person, the relevant prosecutor must—
at the same time serve on the person such documents as may be prescribed by Criminal Procedure Rules, and serve copies of those documents on the designated officer specified in the notice.

 

(3C) The written notification required by a single justice procedure notice may be served by the legal representative of the person charged on the person’s behalf.

Section 29(4) of the Criminal Justice Act 2003 is not yet in force. When it comes into force, a relevant prosecutor will not have the power to lay an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates’ Courts Act 1980.

 

Criminal Justice Act 2003 c. 44

Section 30 - Further provision about new method


(1) Criminal Procedure Rules may make—

provision as to the form, content, recording, authentication and service of written charges, requisitions or single justice procedure notices, and

(b) such other provision in relation to written charges, requisitions or single justice procedure notices as appears to the Criminal Procedure Rule Committee to be necessary or expedient.

...

(5) Except where the context otherwise requires, in any enactment contained in an Act passed before this Act—

(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c.43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),

(b) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a relevant prosecutor issuing a requisition), and

(c) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates' Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a single justice procedure notice (or to a relevant prosecutor issuing a single justice procedure notice).

(6) Subsection (5) does not apply to section 1 of the Magistrates' Courts Act 1980.

 

Criminal Procedure Rules 2015, Part 24

Single justice procedure: special rules

24.9.(1) This rule applies where

(a)  the offence alleged

(i) can be tried only in a magistrates’ court, and (ii) is not one punishable with imprisonment;

(b)  the defendant is at least 18 years old;

(c)  the prosecutor has served on the defendant

(i) a written charge,

(ii)  the material listed in paragraph (2) on which the prosecutor relies to set out the facts of the offence,

(iii)  the material listed in paragraph (3) on which the prosecutor relies to provide the court with information relevant to sentence,

(iv)  a notice that the procedure set out in this rule applies,

(v)  a notice for the defendant’s use if the defendant wants to plead guilty,

(vi)  a notice for the defendant’s use if the defendant wants to plead guilty but wants the case dealt with at a hearing by a court comprising more than one justice, and

(vii)  a notice for the defendant’s use if the defendant wants to plead not guilty; and

the prosecutor has served on the court officer

(i) copies of those documents, and
(ii) a certificate of service of those documents on the defendant.

(2) The material that the prosecutor must serve to set out the facts of the offence is

(a)  a summary of the evidence on which the prosecution case is based;

(b)  any

(i) written witness statement to which Part 16 (Written witness statements) applies, or (ii) document or extract setting out facts; or

(c)  any combination of such a summary, statement, document or extract.

(3) The material that the prosecutor must serve to provide information relevant to sentence is

(a)  details of any previous conviction of the defendant which the prosecutor considers relevant, other than any conviction listed in the defendant’s driving record;

(b)  if applicable, a notice that the defendant’s driving record will be made available to the court;

(c)  a notice containing or describing any other information about the defendant, relevant to sentence, which will be made available to the court.

(4) Not more than 21 days after service on the defendant of the documents listed in paragraph (1)(c)

(a)  a defendant who wants to plead guilty must serve a notice to that effect on the court officer and include with that notice

(i) any representations that the defendant wants the court to consider, and (ii) a statement of the defendant’s assets and other financial circumstances;

(b)  a defendant who wants to plead guilty but wants the case dealt with at a hearing by a court comprising more than one justice must serve a notice to that effect on the court officer;

(c)  a defendant who wants to plead not guilty must serve a notice to that effect on the court officer.

(5) If within 21 days of service on the defendant of the documents listed in paragraph (1)(c) the defendant serves a notice to plead guilty under paragraph (4)(a)

(a)  the court officer must arrange for the court to deal with the case in accordance with that notice; and

(b)  the time for service of any other notice under paragraph (4) expires at once.

(6) If within 21 days of service on the defendant of the documents listed in paragraph (1)(c) the defendant wants to withdraw a notice which he or she has served under paragraph (4)(b) (notice to plead guilty at a hearing) or under paragraph (4)(c) (notice to plead not guilty), the defendant must

(a)  serve notice of that withdrawal on the court officer; and

(b)  serve any substitute notice under paragraph (4).

(7) Paragraph (8) applies where by the date of trial the defendant has not

(a) served notice under paragraph (4)(b) or (c) of wanting to plead guilty at a hearing, or wanting to plead not guilty; or

(b) given notice to that effect under section 16B(2) of the Magistrates’ Courts Act 1980(a). (8) Where this paragraph applies

(a)  the court may try the case in the parties’ absence and without a hearing;

(b)  the court may accept any guilty plea of which the defendant has given notice under paragraph (4)(a)

 

 

Mitigation

In 2007, the Prison Reform Trust published a paper on the role of personal factors in sentencing. The research identifed the following mitigating factors cited by sentencers as affecting sentence.

1. The criminal act

  • Lack of seriousness/impact of offence
  • Played minor role in relation to others
  • Received ‘rough justice’ during criminal act

2. Immediate circumstances of the offence

  • Acted under pressure from/on behalf of others
  • Provocation/threat
  • Highly emotional/distressed
  • Lack of understanding of offence
  • Spontaneous/opportunistic offence
  • No intention to cause harm
  • Offence was ‘error of judgement’

3. Wider circumstances at time of the offence

  • Youth
  • Difficult family/social circumstances
  • Financial pressures
  • Social / intellectual limitations
  • Pressing personal or family need
  • Vulnerable/immature/naïve
  • Psychiatric illness/problems

4. Response to offence and prosecution

  • Remorse (and efforts at reparation)
  • Faced up to/understands criminal behaviour
  • Has been addressing problems since arrest
  • Co-operation with authorities
  • Letter from defendant to court
  • Court processes stressful and/or long-running
  • Has lost job and reputation
  • Defendant represented himself well
  • Serious demeanour in court
  • Supportive attitude of victim

5. Defendant’s past

  • Good character or limited/irrelevant/gap in previous offending
  • Difficult/deprived background
  • Has led a productive/worthwhile life
  • Has shown a general improvement in behaviour
  • Offence uncharacteristic/’let yourself down’
  • Engaged well with previous community punishment


6.  Defendant’s present and future

  • Family responsibilities
  • Can address/is addressing drug problems
  • Unlikely to reoffend/cause harm (general point)
  • Prison will not benefit defendant and/or the public
  • Supportive family/partner
  • Currently in work/training or prospects of work/training
  • Can address/is addressing alcohol problems
  • Can or may make amends for offending behaviour
  • Is a capable person
  • Letters of recommendation
  • Age (older)
  • Physical illness/disability
  • Non-English speaking (therefore prison would be especially difficult)

7.  Proportionality and consistency

  • Need to avoid over-long custodial sentence
  • Consistency with co-defendants
  • Has effectively spent time on curfew order (on bail)
  • Has spent time in hospital since offence
  • Totality principle

 

 

Is loss of employment sufficient to prove exceptional hardship?

Loss of employment poses some difficulty for Justices and there is conflicting case law.

In a Scottish case, Brennan v McKay (1996) 1997 SLT 603, a taxi driver pleaded guilty to speeding and on a further three penalty points being imposed, was disqualified from driving for six months. The accused appealed contending that as taxi driver he would suffer exceptional hardship as he would likely lose his employment and be unable to obtain alternative work, and this would have a substantial effect on his family. It was held that it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer, the question being one of fact and degree; that it was necessary to demonstrate not only that the accused would lose his employment but also that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused's business, his family or his long term prospects; that the justices were entitled to conclude that in the accused's case exceptional hardship had not been demonstrated.

In Owen v Jones [1988] RTR 102, the defendant was a serving police officer. It was submitted that if disqualified then he was likely to lose both his employment and his home. His solicitor asked the justices if they wished to hear evidence in relation to the submission, but they declined and found that the submission corresponded with their belief that the policy of the police authority concerned was to dismiss officers who were disqualified and the justices were of the opinion that the officer would, if disqualified, lose both his employment and home and that amounted to exceptional hardship. The prosecutor appealed. The appeal was dismissed and it was held that when considering the existence of exceptional hardship as being "mitigating circumstances" the justices were entitled to rely on their own knowledge so as to be able to say that they could dispense with evidence. However, Justices should not easily come to the conclusion that their belief is sufficient unless they are confident that it is well founded on a fact positively known to them from a past event. If justices do not have that confidence then it is incumbent to call for evidence from a defendant to establish that upon which he relies for the purpose of proving the exceptional hardship exists.

 

A defendant may give evidence that his occupation is driving, or his job entails driving, or he needs to drive to be able to get to work. The court must consider all the circumstances and can ask such questions as are reasonable. Some of the following may be relevant:

  • What is the impact/effect of the loss of employment?
  • How long has the offender had his job?
  • How far does the defendant travel to get to work?
  • Is public transport available?
  • Is there anyone else who can drive for the duration of the disqualification?
  • Can the defendant employ a driver?
  • If the defendant is an employer, is there anyone in the company who could drive for him, or take on the driving jobs?
  • What are the defendant's working hours/work pattern?
  • If the defendant loses his job, will anyone else be affected?
  • If the defendant loses his job, what is the likely effect on his long term prospects?
  • What skills/qualifications does the defendant have which might enable him/her to find alternative work?
  • Is the defendant the only wage earner in his household?

Duress and drink driving

A defendant who commits a crime under duress may in certain circumstances be excused liability. The defence can arise where the duress results from threats or the circumstances in which you find yourself.

Duress

The four elements of duress are as follows:

  1. That you reasonably believed that threats of death or serious injury had been made against you.
  2. That you reasonably believed that the threats would be carried out immediately and the threat was effective in the sense that there was no reasonable avenue of escape open to you to avoid the perceived threat
  3. That the threat of death or serious injury was the direct cause of you committing the offence.
  4. A sober person of reasonable firmness of your age, sex and character would have done what you did.

The prosecution must prove your guilt. It is for them to prove that the defence of duress does not apply. It is not for you to prove that it does apply.

Caselaw

There are several authorities regarding drink driving and duress.  Some of which are outlined in brief below:

DPP v Jones [1990] RTR 33

The defendant had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away. He continued to his home, a distance of one-and-a-half to two miles. The court held that the defence of necessity was available for a part of the journey to his house. The defendant did not even bother to check whether he was being pursued, whether on foot, or in a vehicle or in any other way. The defence of necessity did not avail the defendant other than for the initial part of the journey. It was unnecessary for him to have continued all the way home in his car. He could easily, especially as it appears that he was not being pursued, have pulled into a side road or into some other convenient place and proceeded for the rest of his journey home on foot. The defence of duress was not available to the defendant because he drove for a longer period than was necessary.

DPP v Bell [1992] Crim. L.R. 176

The defendant had been out drinking with some friends. Some trouble broke out which caused him to run back to his car pursued by others who were less than well disposed towards him. Fearing serious physical injury, he drove off for some distance in a state of terror. The fact that he drove only for some distance down the road and not all the way home was of significance. The defence of duress applied and had not been disproved by the prosecution.

DPP v Pittaway [1994] Crim. L.R. 600

The defendant ran 200yds home from a party outside which she had been the subject of angry words and unspecified threats from a man with whom she had formed a relationship, hid in her car for five minutes and then drove 200yds before being stopped. The man she was seeking to avoid was not in the vicinity at the time. In the court’s view, the justices had neglected to apply the objective limb of the test, since there was no evidence in either case of a threat of death or serious bodily injury.

DPP v Tomkinson [2001] R.T.R. 38

Following a New Year’s Eve party, the defendant was violently assaulted by her husband, who also injured himself and then departed in a taxi for hospital having left her without a phone, but saying that police were on their way and that she had better leave before he returned home. The police having failed to arrive, she left her house at about 6am to drive to her former home (where her children were) some 72 miles away. She was stopped by police about 9.30am and when breathalysed was found to be over the prescribed limit. The defence of duress did not avail her; she was no longer subjected to any effective threat of violence when she left the immediate area of her home in her car to commence the long journey from Harrogate to Sale, and there was no basis for the justices’ conclusion that a sober woman of reasonable firmness would or might have responded to the situation as the defendant did and drive 72 miles over the Pennines

CPS v Brown [2007] EWHC 3274

Mr Brown said that he had driven to avoid a violent confrontation following a threatening phone call. At the time he was stopped there was no evidence that the threat was continuing or that he reasonably believed he was being pursued. The case was remitted to the magistrates’ court with a direction to convict. The court did not have to resolve the question of whether or not the defence was available at the time he got into the car as it was not available when he was stopped.

Guilty pleas and ancillary orders

Q: Does a guilty plea entitle an offender to a reduced disqualification period, or a reduced number of penalty points?

A: No.

The Sentencing Council Reduction in Sentence for a Guilty Plea: Definitive guideline states at paragraph 2.6;

"A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving."

In R v Needham [2016] EWCA Crim 455, Treacy LJ in considering the extended driving disqualification provisions referred to the aforementioned guideline and at paragraph 41 said;

There have been no submissions that that approach should be modified as a result of the introduction of the new sections. We consider that the existing guidance should continue to apply."

 

 

 

R v Backhouse 2010 EWCA Crim 1111

R v Backhouse and others [2010] EWCA Crim 1111

COMMENT

In Needham [2016] EWCA Crim 455 at paragraph 17, Treacy LJ said;

"The general purposes of disqualification were expressed in R v Backhouse [2010] EWCA Crim 1111"

In December 2008, I appeared on behalf of all four defendants in a three week trial at York Crown Court. All four were found not guilty of causing death by dangerous driving but convicted of one count of dangerous driving. I appeared at the Court of Appeal (Criminal Division) in the subsequent appeals against sentence. The case is mentioned in Wilkinson's Road Traffic Offences 2016 [20.19], Blackstone's Criminal Practice 2015 [C7.37], Banks on Sentence and other texts.

The facts

"On Sunday 15th October 2006 the appellants and a friend of theirs took their high powered motorcycles on a 145 mile run from Sherburn-in-Elmet to the east coast of Yorkshire and back. Each rider, with the exception of one, drove very powerful 1000cc motorcycles. Analysis from CCTV footage from sighting at points along their route demonstrated that they were travelling at such high speeds as to amount to dangerous driving. The footage revealed that at one point, they had covered a distance of just over 28 miles in about 27 minutes. This indicated an average speed of approximately 62 miles per hour.

That route included a 3-mile stretch of road where the speed limit was 30 miles per hour or less. In order to maintain an average speed of around 60 miles per hour there would have been instances where the riders would have decelerated around bends or at roundabouts and then accelerated to speeds well in excess of the maximum limit in order to sustain an average speed. An experienced police officer undertook the same route in a high powered motor cycle, driving as far as possible within permitted speed limits. On two separate occasions it took him 37 minutes to complete that particular part of the journey.

Another section of their journey was calculated with reference to CCTV sightings. The group had travelled 10.12 miles in 10 minutes and 12 seconds, giving an average speed of approaching 65 miles per hour. The route took in a number of tight bends and junctions. A police motorcyclist attempted to replicate the journey. He kept at the lower speed limits but drove as fast as he could in the 60 miles per hour. He reached speeds exceeding 100 miles per hour on four occasions, but nonetheless failed to match the appellants' time. He completed the route in 11 minutes.

There was evidence from various eyewitnesses, some of whom estimated that the group was riding past them at speeds exceeding 80 to 100 miles per hour. The group was seen to be spread out across the road, side by side on their motor bikes. Three or four of them were seen to have been doing what are known as wheelies, that is deliberately raising the front wheel off the road at excessive speeds. Their companion was seen to break away from the group and to have gone on ahead of the others. He was seen by a witness doing a wheelie at speeds exceeding 100 miles per hour and then to lose control of his motor bike and hit a verge. Tragically he was thrown from his motorcycle and died at the scene.

When the judge passed sentence, he said that he considered that a significant element of the appellant's punishment was to take each of the appellants off the road for a very considerable period, as a way of protecting other road users, if any of these appellants were to ride a motorcycle in the way in which they were shown to have done in this case.

These four appellants were convicted of dangerous driving in the Crown Court at York on 12th December 2008. Each of them was acquitted of an allegation of causing death by dangerous driving [and a further charge of dangerous driving immediately before the fatal accident]. On 23rd January 2009 each appellant was sentenced to 9 months' imprisonment suspended for 2 years. Each appellant was disqualified from driving for 4 years and ordered to take an extended driving test."

The appeal grounds

"The submissions made by Mr Thompson, on behalf of all four men, is that no immediate term of custody was imposed, so that the consequences of the full period of disqualification are visited upon these appellants. He points to what he submits is a limited level of driving convictions in their cases, and points out that each had a clean driving licence at the time of the offence. He draws our attention to authorities which indicate that long disqualifications should be carefully considered by the courts, as they may lead to further offences being committed, by reason of a temptation to drive unlawfully, where a very long disqualification has been imposed. We have also taken account of those authorities which enjoin the court to have regard to the length of a period of disqualification in terms of a hampering effect upon an ability of an offender to obtain or maintain employment."

Judgment

"The essential question in this case is whether the judge imposed an excessive term of disqualification. He plainly reflected very carefully on sentence, and had the benefit of having seen these appellants during the course of the trial, and considering the detailed evidence given at the trial, concerning them and their driving. Notwithstanding Mr Thompson's submissions, we are not persuaded that in the circumstances the term imposed was excessive. It was undoubtedly firm but that was, in our judgment, what was needed. The judge was justified in having public protection at the forefront of his mind in this case."

The general purposes of disqualification

"The judge was justified in having regard to a need to protect the public and to demonstrate to these appellants their need to learn from what had happened. An order of disqualification has the purpose of protecting the public, and we take the view that such a purpose is served in this case, where the driving was deliberate and prolonged and where there is clear evidence of a failure on the part of the appellants properly to appreciate its consequences. Disqualification is also intended to punish and deter offenders and others. A balance, however, has to be struck and the court should not disqualify for a period which is longer than necessary and should bear in mind the effect of a ban on employment or employment prospects."

 

 

May 2016 - Motoring law update

Overview of TSRGD 2016

This circular explains the new structure of the regulations, and provides worked examples to help users navigate how the new document works. It highlights what the changes means at practitioner level and provides a clear link from the previous regulations to the new version.

The DfT circular should be read in conjunction with SI 2016 No 362 by all those involved in designing and implementing traffic management schemes, and in road traffic regulation generally.

 

Know your traffic signs

Updated DfT publication includes guidance on the signing system, regulatory signs, speed limit signs and all other signs.

 

R v Needham and others [2016] EWCA Crim 455

On 7th April 2016, a specially convened Court (Treacy LJ, Jeremy Baker J and the Recorder of Cardiff) heard seven otherwise unrelated cases to consider ss.35A and 35B - in particular how the provisions operate when multiple custodial sentences are imposed, the interrelationship between the provisions, the effect of remand time/qualifying curfew and whether it ought to be taken into account in setting the period of disqualification, the commencement and transitional provisions and pronouncement of sentence when the provisions are engaged. Judgment here.

 

 

April 2016 - Motoring law update

Preliminary Impairment Test - Form MG DD/F Version 6.0

New form - March 2016.

 

Victim Surcharge - increased surcharge - 8th April 2016

The Criminal Justice Act 2003 (Surcharge)(Amendment) Order 2016 provides that from 8th April 2016, the surcharge applicable to fines will be £30 - £170. The increased surcharge does not apply where a court deals with a person for a single offence committed before 8th April 2016, nor where there is more than one offence and at least one of those offences was committed before 8th April 2016. Sentencing Council information here.

 

The Traffic Signs Regulations and General Directions 2016

In force 22nd April 2016.

The Traffic Signs Regulations and General Directions 2016 (TSRGD 16) sets out what traffic signs in Great Britain must look like, what they mean and how they may be placed and illuminated. TSRGD 16 brings together, with changes, provisions previously set out in a number of instruments. In doing so, they provide a traffic sign regime that is less prescriptive than its predecessor.

 

The Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Specification of Relevant Prosecutors) Order 2016

In force 14th April 2016. Regulation here.

Section 29 of the Criminal Justice Act 2003 (“the 2003 Act”) gives certain prosecutors the power to bring criminal proceedings by written charge. This includes any persons specified by order by the Secretary of State. The Order specifies the Environment Agency, the Natural Resources Body for Wales, local authorities, train and certain tramway operators and TV Licensing/the BBC as relevant prosecutors for the purposes of section 29. This allows them to make use of the new procedure for trial by single justice on the papers for low level offending.

N.b. Section 29(4) of the Criminal Justice Act 2003 is still not in force.

 

Criminal Procedure (Amendment) Rules 2016

In force 4th April 2016. Guide here. Rules here and here.

In rule 2.2 the definition of ‘live link’ is amended.    

Rule 3.24 is amended to set the time limits within which a trial in the Crown Court must begin, in exercise of the power conferred on the Criminal Procedure Rules by section 77 of the Senior Courts Act 1981.

Rules 4.3 and 4.4 are amended to provide for service on the court officer of an application to a High Court judge for permission to serve a draft indictment.

Rule 10.3 is added to supply the procedure on an application to a High Court judge for permission to serve a draft indictment, in exercise of the power conferred on the Criminal Procedure Rules by section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933, as amended by section 82 of the Deregulation Act 2015.

Rules 17.3 and 17.5 are amended to clarify the procedure on an application to the court for an order under section 7 of the Bankers’ Books Evidence Act 1879.

Rule 21.4 is amended to require a defendant (i) to give notice of the introduction of evidence of his or her own bad character, and (ii) in the Crown Court, at the same time to give notice of any requested direction to the jury about the significance of that evidence.

Rule 24.3 is amended to provide for the identification of issues by the defendant at the beginning of trial in a magistrates’ court.

Rule 25.9 is amended to provide for the identification of issues by the defendant at the beginning of trial in the Crown Court. Rule 25.12 is amended to clarify the circumstances in which written witness statements must be read aloud in the Crown Court.

Rule 34.7 is amended to include explicit provision for applications for rulings during preparation for an appeal hearing in the Crown Court. Rule 34.11 is amended to include explicit provision for the conduct of case management by a judge without justices of the peace before such an appeal hearing begins, in exercise of the power conferred on the Criminal Procedure Rules by section 74 of the Senior Courts Act 1981.

Rule 45.3 is amended, and a note to the rule added, to draw attention to the application of time limits to the court’s powers to make some costs orders. Rules 45.8, 45.9 and 45.10 are amended to supply the procedure where the court requires assistance in assessing costs under one of those rules.

The rules in the current Part are substituted and rearranged, with some rules added, and some amended, to include new rules about production orders, search warrants and applications for the return of seized property, made in exercise of various powers recently conferred on the Criminal Procedure Rules. The new powers are contained in Schedule 1 to the Police and Criminal Evidence Act 1984, Schedule 5 to the Terrorism Act 2000, section 352 of the Proceeds of Crime Act 2002 and section 59 of the Criminal Justice and Police Act 2001, all of which are amended by section 82 of the Deregulation Act 2015; and in sections 157 and 160 of the Extradition Act 2003, amended by the Anti-social Behaviour, Crime and Policing Act 2014. The current rules about (i) orders for the retention of fingerprints (Section 5 of the new Part 47 rules), (ii) investigation anonymity orders (Section 6 of the new Part) and (iii) investigation approval orders (Section 7) are rearranged and renumbered but otherwise unchanged.

Rule 50.21 is amended to redefine the time limit for a respondent’s notice in reply to an extradition appeal to the High Court.

 

Claim back costs from cases in the criminal courts

NTT legal costs guides updated here.