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?

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, Treacy LJ said;

The general purposes of disqualification were expressed in R v Backhouse [2010] EWCA Crim 1111 at [21]:

"An order of disqualification has the purpose of protecting the public … 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 that is longer than necessary and should bear in mind the effects of a ban on employment or employment prospects".

Principles of the sort referred to above will continue to hold good for judges in calculating the "discretionary" element of a sentence of disqualification. As is obvious the new provisions importing an "extension period" or applying section 35B have the potential to alter the overall approach of the court where disqualification and custody are imposed.

In December 2008, I was instructed by all four defendants in this three-week trial. All defendants were found 'not guilty' of causing death by dangerous driving and the alternative dangerous driving charge, but convicted of a separate dangerous driving offence. I appeared at the Court of Appeal (Criminal Division) in the subsequent appeals against sentence. This case is a leading authority on the purposes of disqualification from driving; see Archbold 2019 at 5A-469 and 5A-477 and Wilkinson’s Road Traffic Offences at 20-26.

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.

Victim Surcharge 2016

An offender fined for any offence must pay a so-called "victim surcharge." Historically, it was £15. In 2012, it increased to £20-£120. The actual amount payable is 10% of the fine, rounded up or down to the nearest pound.

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.

Revenue raised from the Victim Surcharge is used to fund victim services through the Victim and Witness General Fund.

The following schedule applies to adult offenders:

March 2016 - Motoring law update

Sentencing Council - Allocation guideline - Determining whether cases should be dealt with by a magistrates’ court or the Crown Court

To be used from 1 March 2016. Revised definitive guideline on determining whether cases should be dealt with by a magistrates’ court or the Crown Court. The new guideline came into effect on 1 March 2016.

1. In general, either way offences should be tried summarily unless:

• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.

2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.

3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.

4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.

Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.

Committal for sentence

There is ordinarily no statutory restriction on committing an either way case for sentence following conviction. The general power of the magistrates’ court to commit to the Crown Court for sentence a er a nding that a case is suitable for summary trial and/or conviction continues to be available where the court is of the opinion ‘that the o ence or the combination of the o ence and one or more o ences associated with it was so serious that the Crown Court should, in the court’s opinion, have the power to deal with the o ender in any way it could deal with him if he had been convicted on indictment’

http://www.sentencingcouncil.org.uk/publications/item/allocation-guideline-revised/

R v Boyle Transport (Northern Ireland) Ltd [2016] EWCA Crim 19

On 25th February 2016 the Court of Appeal gave judgment in Boyle Transport (Northern Ireland) Limited v. R and R v. Patrick Boyle and Mark Boyle [2016] EWCA Crim 19, in which it quashed substantial confiscation and enforcement receivership orders. The case is an important one in relation to piercing the corporate veil in confiscation cases, and is the most detailed consideration by the Court of Appeal in this context of the general principles set out by the Supreme Court in Prest v Petrodel Resources Limited [2013] 2 AC 415.

The Driving Licences (Exchangeable Licences) Order 2016. SI 2016 No. 277

This Order (in force: 23rd March 2016) designates Switzerland under section 108(2)(b) of the Road Traffic Act 1988 as making satisfactory provision for the issue of certain classes of driving licence. This enables a person holding one of those licences to exchange it for a corresponding British licence. The licences affected are those issued in Switzerland authorising the driving of large goods vehicles and large buses (with or without a trailer). The Order provides that a Swiss licence authorising the driving of vehicles with automatic transmission is exchangeable for a British licence authorising the driving of vehicles with automatic transmission only.

DRUG DRIVE LIMITS UNDER REVIEW

Parlimentary written question.

Douglas Carswell: To ask the Secretary of State for Transport, what plans his Department has to update the Drug Driving (Specified Limits) (England and Wales) Regulations 2014, so as to reduce the amount of a drug that can be detected in blood for the purposes of the definition of that offence.

Andrew Jones: The Department is evaluating the new specified limits drug driving offence and a final report from the researcher is due at the end of 2016. The Department will consider its findings and assess whether there is any requirement to change the legislation, but currently there are no plans to amend the regulations. Thanks to the tougher law, police are catching and convicting more drug drivers.

ASSESSING FITNESS TO DRIVE - A GUIDE FOR MEDICAL PROFESSIONALS

The DVLA has published this guide - which includes the GMC Guidelines:

1. The driver is legally responsible for informing the DVLA about such a condition or treatment. However, if a patient has such a condition, you should explain to the patient:

a) That the condition may affect their ability to drive (if the patient is incapable of understanding this advice, for example because of dementia, you should inform the DVLA immediately) and;

b) That they have a legal duty to inform the DVLA about the condition.

2. If a patient refuses to accept the diagnosis, or the effect of the condition on their ability to drive, you can suggest that they seek a second opinion, and help arrange for them to do so. You should advise the patient not to drive in the meantime.

3. If a patient continues to drive when they may not be to do so, you should make every reasonable effort to persuade them to stop. As long as the patient agrees, you may discuss your concerns with their relatives, friends or carers.

4. If you do not manage to persuade the patient to stop driving, or you discover that they are continuing to drive against your advice, you should contact the DVLA immediately and disclose any relevant medical information, in con dence, to the medical adviser.

5. Before contacting the DVLA, you should try to inform the patient of your decision to disclose personal information. You should also inform the patient in writing once you have done so.

House of Commons Transport Committee - Road Traffic Law Enforcement

Seecond Report of 2015-2016

"Exceeding the speed limit was a contributory factor in 254 fatal accidents in 2014, 16% of all fatal accidents, as well as 1,199 serious accidents; this was the fourth most prevalent contributory factor in fatal collisions.29 is is distinct from “travelling too fast for conditions”, a factor in 169 fatal accidents (11% of all fatal accidents) in 2014, which does not necessarily imply exceeding the speed limit. Exceeding the speed limit can be dealt with by a warning, an FPN, a diversionary course (the National Speed Awareness Court, NSAC), or court proceedings. With the increasing use of this course, FPNs for speeding have more than halved from a 2005 peak of 1.98 million to 743,100 in 2014.30 e use of the NSAC has more than doubled over the same period."

Smoking in cars with children: Police 'cannot' enforce ban

According to the BBC, "No fines or court summonses were issued in the first three months of the law, a BBC Radio 5 live freedom of information (FOI) request suggests. The Police Federation said there was no "physical ticket" to enforce the law. The government said it was working with police and councils on arrangements."

Improvement to Crown Court DCS form

An improvement to the Digital Case System (DCS) means that advocates are able to make online edits to the pre-trial and preparation hearing (PTPH) form.

This means that advocates can carry on working within the DCS. The previous way of working required the user to download the form, edit, save and then upload back into the DCS.

Likewise, the indictment can now be edited online within the DCS by prosecution advocates. However, this applies solely to those applications to amend made on the day of the hearing.

Details here.

February 2016 - Motoring law update

R v Taylor [2016] UKSC 5

BACKGROUND TO THE APPEAL

Under section 12A of the Theft Act 1968 the offence of aggravated vehicle taking is committed where a person has committed the ‘basic offence’ of taking a vehicle without authority, and “owing to the driving of the vehicle, an accident occurred by which injury was caused to any person” (s12A (2) (b)). If the injury is fatal, the offence carries a maximum of 14 years imprisonment.

On 23 June 2012, the appellant and another man called Marriott took a van belonging to Marriot’s employer, without the latter’s consent. While driving it, he collided with a scooter on a bend in a narrow country lane. The driver of the scooter was killed, and the appellant was later found to be over the drink drive limit and uninsured. The appellant was charged jointly with Mr Marriott with aggravated vehicle taking contrary to s12A of the Theft Act 1968 and with causing the death of the scooter driver whilst uninsured contrary to s3ZB of the Road Traffic Act 1988.

The Crown accepted that there was no fault in the manner of the appellant’s driving. A Not Guilty verdict was therefore directed on the Road Traffic Act count, in accordance with the decision in R v Hughes [2013] WLR 2461. The judge held that fault also had to be proved in relation to the accident on the aggravated vehicle taking count; a decision which the Crown appealed.

The Court of Appeal allowed the appeal, relying on R v Marsh [1997] 1 Cr App R 67, in which it was held that no element of fault was required in the offence of aggravated vehicle taking. But it certified a question of law of general public importance for consideration by the Supreme Court, namely “Is an offence contrary to s12A (1) and 2(b) of the Theft Act 1968 committed when, following the basic offence and before recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving the vehicle was involved in an accident which caused injury to a person”.

JUDGMENT

The Supreme Court unanimously allows the appeal, holding that the driving must have been at fault for a person to be convicted of aggravated vehicle taking under s12A of the Theft Act 1968. Lord Sumption gives the judgment.

REASONS FOR THE JUDGMENT

The reasoning in R v Hughes cannot be distinguished, because the offences under s12A(2)(b) of the Theft Act 1968 and s3ZB of the Road Traffic Act 1988 are both drafted in terms which require a direct causal connection between the driving and the injury.

Strict liability is typically imposed where the enactment is regulatory or “quasi-criminal”. Aggravated vehicle taking under s12A is neither: it is a serious crime, exposing defendants to the possibility of much longer maximum sentences. It imposes strict liability only to the extent that anyone who was party to the taking of the vehicle (and in the immediate vicinity at the time of the injury) commits the offence, whether or not he was driving at the time. The appellant’s driving explained how the vehicle came to be in the place where the accident occurred, but cannot be said to have caused it.

The test is as set out in R v Hughes: there must be “at least some act or omission in the control of the car which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death”

https://www.supremecourt.uk/cases/docs/uksc-2014-0157-judgment.pdf

Crader v Director of Public Prosecutions [2015] EWHC 3553 (Admin)

Mr Justice Blake - "Looking at the document that was before the justice as a whole it seems to me there were sufficient indications on its face that it was purporting to be a s.20(1) certificate made with the authority of the Chief Constable. It was a document emanating from the Hampshire Constabulary by a person who occupied a role as prosecutions clerk within that Constabulary, and that person was cognisant of the requirements of section 20 and was certifying in accordance with those requirements. 14. In those circumstances, section 20(7), far from assisting the appellant to impliedly insert a further requirement needed on the face of the certificate, demonstrates that the presumption that the certificate is what it purports to be applies unless or until the contrary is shown, and that could only be shown if someone had raised that as an issue, which was not the case here.

It was always open to anyone, the appellant at his trial or by correspondence if he was not going to attend, or the Justice themselves as to have enquired further. Here was no requirement on them to do so. If they were satisfied that they had a certificate purporting be a s.20 certificate. The reference in the case to the certificate appearing to be authentic means that the justices considered that it was what purported to be. They were correct in reaching that conclusion, accordingly, I dismiss this appeal."

News: Drug drive arrests on the rise

"Drug drive arrests have soared by up to 800% in a year after the government introduced tough new laws to catch and convict offenders, according to initial figures from police forces.

A new easy-to-use roadside swab test which can catch drug offenders was introduced on 2 March last year (2015). To mark the first anniversary, the government is launching a new advertising campaign targeted at young men who are most likely to drug drive – to make it clear that if you drug drive, you’re more likely to be caught and convicted as a result of the roadside swab."

https://www.gov.uk/government/news/drug-drive-arrests-on-the-rise

January 2016 - Motoring law update

1.  R. v Hogan [2015] EWCA Crim 1984

HHJ Morris - "The appellant was convicted of causing serious injury by dangerous driving and pleaded guilty to driving with excess alcohol. On 3rd June 2015 he was sentenced by the judge to 2 years' imprisonment for the causing serious injury by dangerous driving and 4 months' imprisonment for driving with excess alcohol to run concurrently. He was disqualified from driving for 6 years and until an extended driving test had been passed.

In Geale [2012] EWCA Crim 2663, this court said:

    "We respectfully agree that the main purpose of disqualification is to protect the public from the risk posed by an offender driving, and we agree that, where that risk is very low, a lengthy period of disqualification may be inappropriate, particularly where, as here, the offender is dependent upon driving for his livelihood and hence a lengthy period of driving disqualification will put particular financial strains upon him."

    However, such risk is not the only relevant criterion for the assessment of length of the disqualification period. In addition, there is or may be an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification. Furthermore, paragraph 30 of the Definitive Guideline makes clear that 'disqualification is a mandatory part of the sentence, subject to the usual very limited exception, and therefore an important element of the overall punishment for the offence.' When considering whether the length of the period disqualification is manifestly excessive, one therefore has to consider it in the context of the sentence imposed and the ancillary orders as a whole."

We bear in mind there should be a punitive element to disqualification and this was a bad piece of driving aggravated by the consumption of alcohol. However, we agree with [counsel] that there is nothing in the appellant's record to suggest this was other than an isolated offence or that a disqualification of this length is necessary for the protection of the public.

We have therefore come to the conclusion that the length of disqualification was manifestly excessive. In the circumstances, we quash the disqualification and substitute a disqualification of 3 years. The requirement to pass an extended driving test remains. To that extent alone this appeal is allowed."

2.  Alexander v Procurator Fiscal [2016] HCJAC 3

Lord Calloway - "At the Sheriff Court in Edinburgh, the appellant was convicted of dangerous driving contrary to section 2 of the Road Traffic Act 1988. The libel was that the dangerous driving consisted in the action of falling asleep on when driving in Longniddry, causing the appellant’s car to cross the central reservation and to collide with an oncoming car, causing damage to both cars and injury to the passengers in the other car.

The act of driving, which is deemed to be dangerous, still requires to be voluntary. Involuntary actions cannot form the basis for a conviction. Once a driver is asleep, his actions cannot be said to be voluntary, as he lacks consciousness.

However, the act of falling asleep, in the absence of special circumstances, is a voluntary act and, when it occurs in the context of driving, will usually be regarded as dangerous. That is because drivers who fall asleep:

“are always aware that they are feeling sleepy, ... there is always a feeling of profound sleepiness and they reach a point where they are fighting sleep ...”.

Although that is a passage of testimony quoted from R v Wilson [2011] 1 Cr App R (S) 11 (at p 13), it coincides with human experience (see AG’s Reference No. 1 of 2009 [2009] 2 Cr App R (S) 742 at 745; Kay v Butterworth (1945) 61 TLR 452). It does not require formal proof. A jury is entitled to infer, from the fact that a driver falls asleep, that, prior to falling asleep, he or she was aware of doing so and ignored the obvious dangers in so doing.

There may be special circumstances which make falling asleep involuntary. These include the onset of a medical condition, such as sleep apnoea, narcolepsy or a hypoglycaemic episode (eg Farrell v Stirling 1975 SLT (Sh Ct) 71; Macleod v Mathieson 1993 SCCR 488). However, a driver who knows of his medical condition, and can foresee that he may fall asleep, will be precluded from relying on that condition. It is for an accused to put any special circumstances in issue, and thereafter for the Crown to establish beyond reasonable doubt that the act of driving was nevertheless voluntary because the special circumstance ought to have been foreseen (Hill v Baxter [1958] 1 QB 279)."

3) Hughes v Pendragon Sable Ltd t/a Porsche Centre Bolton [2016] EWCA Civ 18

Mr Justice Cranston - "This appeal raises a number of not unfamiliar problems in the sale of goods: had the parties entered an agreement to agree, rather than an agreement for sale, because the price and specification for the goods were to be agreed later; was there a collateral contract, overriding the terms of the standard-form sale contract the parties signed; and what was the measure of damages when the seller failed to deliver what were goods in such high demand that substitute goods were not available?

In my view there was a collateral contract that if Porsche supplied a vehicle to Pendragon it would be allocated to Mr Hughes. The email of 23 March 2011 is a clear expression that that was what had been agreed, which Mr Mansfield accepted in his evidence. There is ample authority that the courts may treat a statement intended to have contractual effect as a contract collateral to the main transaction, in particular where one party enters the main contract because the statement is an assurance on a certain point. Mr Hughes was ordering the 911 GT3 RS from Pendragon and paying the deposit on 18 March 2011 because of the assurance that he would be first in the queue if Porsche allocated one to the dealership.

I would allow this appeal and award Mr Hughes damages of £35,000.”

4.  A consultation on changes to the Fixed Penalty Notice and penalty points for the use of a hand-held mobile phone whilst driving

This consultation seeks views on proposals announced in the Statement, namely

Increasing the penalty levels and Fixed Penalty Notice (FPN) for the offence of using a hand-held mobile phone whilst driving. Hand-held mobile phone use whilst driving is a dangerous activity which increases the risk of a collision.

This consultation considers proposals for increasing the FPN level from £100 to £150 for all drivers as well as increasing the penalty points from 3 to 4 for non-HGV drivers and from 3 to 6 points for those that hold a Large Goods Vehicle (HGV) licence who commit the offence whilst driving a HGV.

5.  A Bill to amend the Road Traffic Act 1988 to lower the prescribed limit of alcohol in relation to driving or being in charge of a vehicle; and for connected purposes.

The Bill is at the 2nd reading House of Lords stage. Proposed amendments:

(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.

“(a) 22 microgrammes of alcohol in 100 millilitres of breath"

“(b) 50 milligrammes of alcohol in 100 millilitres of blood"

“(c) 67 milligrammes of alcohol in 100 millilitres of urine"