Is speeding a criminal offence?

Speeding is a criminal offence. However, it is not a recordable offence. A convicted offender would not have a criminal record, but DVLA records the outcome. The conviction is not recorded on the Police National Computer as a criminal conviction.

Imprisonable offences are recordable offences but speeding is not an imprisonable offence. There is a list of non-imprisonable offences that are recordable offences; speeding is not on the list.

DPP v Barreto [2019] EWHC 2044 (Admin)

The appellant, Ramsey Barreto, was driving whilst using his hand-held mobile phone to film a road traffic accident. The police prosecutor charged him with using a hand-held mobile phone whilst driving and he was convicted after trial in the Magistrates' Court. He appealed to the Crown Court where his appeal was allowed.

The Director of Public Prosecutions then appealed to the High Court. This case was heard by Lady Justice Thirlwall and Mr Justice Goss on 9th April 2019. Judgment was reserved to 31st July 2019.

Lady Justice Thirlwall:

This is an appeal by way of case stated from a decision of the Crown Court sitting at Isleworth quashing the respondent’s conviction for driving a motor vehicle while using a hand-held mobile telephone, contrary to Section 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.

The alleged offence took place on 19th August 2017. The respondent had been convicted after a trial in the Magistrates’ Court on 20th July 2018. His appeal was allowed on 15 th October 2018.
In summary: the respondent was seen filming an accident scene as he drove past it. He was using the camera on his mobile phone to do so. The question in this case is whether the filming constituted a breach of the regulations.

It is the appellant’s case that the regulation prohibits all use of a mobile phone while driving. It is the respondent’s case that the regulations are directed only to the use of phones and other devices for the purposes of interactive communication.

The answer to this appeal lies in the interpretation of legislation in the terms that Parliament chose to enact it rather than as it might be assumed to be.

Held: The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).  A non-exhaustive list of interactive communication functions is set out at Paragraph 6(c) which reads:

“interactive communication function”, includes the following:

(i) sending or receiving oral or written messages;

(ii) sending or receiving facsimile documents;

(iii) sending or receiving still or moving images; and

(iv) providing access to the internet…”

Whilst it is not necessary for the purposes of this case to decide this point there is an argument that sending and receiving messages includes the drafting or recording of the messages and the reading of them and not just the nanosecond of the transmitting or receipt of data. Without the data there is nothing to communicate. In the non-digital world interactive communication is not restricted to the posting of the letter, its sorting and its delivery.

Without the writing and reading of the letter there is no communication. In the digital sphere each aspect of the drafting, sending and reading/viewing/replying is an intrinsic part of using a device which performs interactive communication as defined. Since these issues do not arise in this case I say no more about them.

It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving. It is criminal conduct which may be prosecuted and on conviction may result in the imposition of penalties significantly more serious than those which flow from breach of the regulations. The same applies to any other use of the phone while driving.

APPROVED JUDGMENT TRANSCRIPT

ADVICE

It is for the prosecutor to prove that using a hand-held mobile telephone or device for the purposes of Section 41D of the Act and Regulation 110 of the regulations involved an “interactive communication function” such as those set out in Regulation 110(6)(c). This may be a problem for the prosecution and written representations should be made to the prosecuting authority in appropriate cases.

It may be possible to to overturn old convictions. Whilst this may be difficult in cases where a fixed penalty was paid or the defendant pleaded guilty at court, if a defendant was convicted after trial (especially where a finding of fact was made about the specific use) then the Magistrates' court may be prepared to re-open the conviction or otherwise the defendant could apply to the Crown Court to appeal out of time. There are procedures available to challenge a previous conviction - even after pleading guilty or paying a fixed penalty.

Please contact me by email for help with your case.

Mitigation

Sentencing Council Consultation - February 2019

The Sentencing Council is consulting on Expanded Explanations in the Sentencing Guidelines. Part of the consultation refers to mitigating factors.

As with the aggravating factors the numbering of these factors is purely for ease of reference and is not an indicator of relative importance. The numbering will not appear in guidelines.

We are proposing to provide expanded explanations for the following mitigating factors

M1. No previous convictions or no relevant/recent convictions

First time offenders usually represent a lower risk of re-offending. Re-offending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.

  • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.

  • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.

  • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.

M2. Good character and/or exemplary conduct

This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence.

However, this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

M3. Remorse

The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction at step four). Lack of remorse should never be treated as an aggravating factor.

M4. Self-reporting

Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction at step four).

M5. Cooperation with the investigation/ early admissions

Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction at step four).

M6. Little or no planning

Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.

However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence.

M7. The offender was in a lesser or subordinate role if acting with others / performed limited role under direction

Whereas acting as part of a group may make an offence more serious, if the offender’s role was minor this may indicate lower culpability and justify a reduction in sentence.

M8. Involved through coercion, intimidation or exploitation

Where this applies it will reduce the culpability of the offender.

  • This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.

  • Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.

  • This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.

M9. Limited awareness or understanding of the offence

The factor may apply to reduce the culpability of an offender

  • acting alone who has not appreciated the seriousness of the offence or

  • where an offender is acting with others and does not appreciate the extent of the

    overall offending.
    If the offender had genuinely failed to understand or appreciate the seriousness of the offence, the sentence may be reduced from that which would have applied if the offender had understood the full extent of the offence and the likely harm that would be caused.

    Where an offender lacks capacity to understand the full extent of the offending see the guidance under ‘Mental disorder or learning disability’ below.

M10. Little or no financial gain

Where an offence (which is not one which by its nature is an acquisitive offence) is committed in a context where financial gain could arise, the culpability of the offender may be reduced where it can be shown that the offender did not seek to gain financially from the conduct and did not in fact do so.

M11. Delay since apprehension

Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, and which has had a detrimental effect on the offender, the court may take this into account by reducing the sentence.

Note: No fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.

M12. Activity originally legitimate

Where the offending arose from an activity which was originally legitimate, but became unlawful (for example because of a change in the offender’s circumstances or a change in regulations), this may indicate lower culpability and thereby a reduction in sentence.

This factor will not apply where the offender has used a legitimate activity to mask a criminal activity.

M13. Age and/or lack of maturity

Age and/or lack of maturity can affect:

  • the offender’s responsibility for the offence and

  • the effect of the sentence on the offender.

    Either or both of these considerations may justify a reduction in the sentence.

    The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).

    In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

  • evaluate the consequences of their actions

  • limit impulsivity

  • limit risk taking

    Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

    Environment plays a role in neurological development and factors such as childhood adversity including deprivation and/or abuse will affect development.

An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but taking into account the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR.

M14. Sole or primary carer for dependent relatives

This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

In addition when sentencing an offender who is pregnant relevant considerations may include:

  • any effect of the sentence on the health of the offender and

  • any effect of the sentence on the unborn child

    In such situations the court should ask the Probation Service to address these issues in a PSR.

M15. Physical disability or serious medical conditions requiring urgent, intensive or long- term treatment

The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.

  • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.

  • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending;

  • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).

  • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing Judge when determining the sentence that it would be just to impose.

M16. Mental disorder or learning disability

Mental disorders and learning disabilities are different things, although an individual may suffer from both. A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment.

In the context of sentencing a broad interpretation of the terms ‘mental disorder’ and learning disabilities’ should be adopted to include:

  • Offenders with an intellectual impairment (low IQ);

  • Offenders with a cognitive impairment such as (but not limited to) dyslexia, attention

    deficit hyperactivity disorder (ADHD);

  • Offenders with an autistic spectrum disorder (ASD) including Asperger’s syndrome;

  • Offenders with a personality disorder;

  • Offenders with a mental illness.

    Offenders may have a combination of the above conditions.

    Sentencers should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious.

A mental disorder or learning disability can affect both:

  1. the offender’s responsibility for the offence and

  2. the impact of the sentence on the offender.

The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:

  1. the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control.

    • a relevant factor will be the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice);

    • in considering the extent to which the offender’s actions were voluntary, the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services will be a relevant consideration.

  2. any effect of the mental disorder or learning disability on the impact of the sentence on

the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.

M17. Determination and /or demonstration of steps having been taken to address addiction or offending behaviour

Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation.

The court will be assisted by a PSR in making this assessment.

Drink driving and disqualification

If the offence charged is contrary to section 5(1)(a) of the Road Traffic Act 1988 then the minimum disqualification period is 12 months. The minimum disqualification period is increased to 3 years if the offender has been convicted of a relevant offence within 10 years. The minimum disqualification period is increased to 2 years if the offender has two or more 56+ day disqualifications in the preceding 3 years.

The court will refer to the chart below when deciding upon the appropriate length of disqualification.

drink-driving-sentencing-guideline.png

The court will also refer to the following list of factors when deciding upon the appropriate sentence.

Statutory aggravating factors:

  •  Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction

  •  Offence committed whilst on bail

    Other aggravating factors:

    •  Failure to comply with current court orders

    •  Offence committed on licence or post sentence supervision

    •  LGV, HGV, PSV etc

    •  Poor road or weather conditions

    •  Carrying passengers

    •  Driving for hire or reward

    •  Evidence of unacceptable standard of driving

    •  Involved in accident

    •  High level of traffic or pedestrians in the vicinity

      Factors reducing seriousness or reflecting personal mitigation

    • No previous convictions or no relevant/recent convictions

    •  Genuine emergency established

    •  Spiked drinks

    •  Very short distance driven

    •  Remorse

    •  Good character and/or exemplary conduct

    •  Serious medical condition requiring urgent, intensive or long‐term treatment

    •  Age and/or lack of maturity where it affects the responsibility of the offender

    •  Mental disorder or learning disability

    •  Sole or primary carer for dependent relatives

Drug driving and disqualification

If the offence charged is contrary to section 5A of the Road Traffic Act 1988 then the minimum disqualification period is 12 months. The minimum disqualification period is increased to 3 years if the offender has been convicted of a relevant offence within 10 years. The minimum disqualification period is increased to 2 years if the offender has two or more 56+ day disqualifications in the preceding 3 years.

The court's guideline document refers to factors increasing seriousness. There's an exhaustive list:

• Evidence of another specified drug or alcohol in the body

• Evidence of an unacceptable standard of driving

• Driving an HGV, LGV or PSV.

• Driving a vehicle for hire or reward

If none of the aforementioned factors are present then the court should consider a disqualification period of 12-22 months.

If one or more of the aforementioned factors are present then the court should consider a disqualification period of 23-28 months.

If one or more of the aforementioned factors are present and one or more aggravating factors are present then the court should consider a disqualification period of 29-36 months. A non-exhaustive list of aggravating factors is published in the guideline document:

• Previous convictions (having regard to the nature of the offence, relevance and time elapsed)

• Location (e.g. near a school)

• Passengers

• High level of traffic or pedestrians

• Poor road or weather conditions

How much do barristers earn?

Every year, practising barristers must declare their total income (net of VAT) to the Bar Council. A practising certificate fee is payable depending on declared income for the previous year.

In November 2016, the Bar Council published a consultation regarding practising certificate fees. The consultation revealed how many (of 15,800) practising barristers are in each income band category:

how-much-do-barristers-earn.png

Approximately one-third of all practising barristers (31.7%) earn less than £60,000 p.a.

Approximately half of all practising barristers (51%) earn less than £90,000 p.a.

Approximately one-quarter of all practising barristers (27.2%) earn more than £150,000 p.a.

The aforementioned fees are subject to income tax and national insurance. Barristers in independent practice must also pay for travel, chambers fees, pension contributions, computer equipment, various mandatory subscriptions, and other unrecoverable expenses.

Special Reasons in Speeding Cases

How to avoid penalty points for speeding

If an offender pleads guilty to a speeding offence he may escape endorsement if he can establish that there are Special Reasons not to endorse his licence.

The onus of proof to establish special reasons is on the defendant and the standard of proof is on the balance of probabilities. Special reasons must be supported by evidence. If the court finds special reasons then it is not bound to not endorse penalty points; it merely means that a discretion to not endorse then arises. To amount to special reasons a matter must:

  1. be a mitigating or extenuating circumstance

  2. not amount in law to a defence to the charge

  3. be directly connected wiht the commission of the offence

  4. be one which the court ought properly to take into consideration

Examples of Special Reasons in speeding cases

  • Emergency; Whittal v Kirkby [1946] 2 All ER 552

  • Emergency (hypoglycaemic attack); Warring Davies v DPP [2009] EWHC 1172

  • Illness (incontinence); Marks v West Midland Police [1981] RTR 471

  • Absence of signage; Burgess v West [1982] RTR 269

  • Solicitors’ clerk late for court; Police Prosecutor v Humphreys [1970] Crim LR 234