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."

 

 

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:

Doncaster Crown Court

Doncaster Crown Court

College Road
Doncaster
South Yorkshire
DN1 3HS

Email: enquiries@sheffield.crowncourt.gsi.gov.uk

Phone: 0114 281 2400

Daily listing: here

Xhibit: here

 

 

Representation

There are still some situations in which you will need to instruct a solicitor as well as a barrister, but for the vast majority of motoring cases the public access scheme allows you to go directly to an expert barrister for advice and representation.

If you need representation at Doncaster Crown Court then please call Andrew Thompson on 0113 4677946 or 0207 7887993.

Cases undertaken

  • Trial
  • Committal for sentence
  • Appeal against conviction
  • Appeal against sentence
  • Application to remove driving disqualification
  • Death by dangerous driving
  • Death by careless driving
  • Dangerous driving
  • Motoring offences

 

Doncaster Magistrates Court

Doncaster Magistrates' Court

Doncaster Magistrates' Court
The Law Courts
College Road
Doncaster
South Yorkshire
DN1 3HS

Email: sy-doncmccrtoffice@hmcts.gsi.gov.uk

Phone: 01302 366 711

REPRESENTATION

 

There are still some situations in which you will need to instruct a solicitor as well as a barrister, but for the vast majority of motoring cases the public access scheme allows you to go directly to an expert barrister for advice and representation.

 

If you need representation at Doncaster Magistrates Court then please call Andrew Thompson on 0113 4677946 or 0207 7887993.

CASES UNDERTAKEN

  • Motoring offences
  • Trial
  • Committal for sentence
  • Application to remove driving disqualification
  • Death by dangerous driving
  • Death by careless driving
  • Dangerous driving

What is a "public place" in the context of the Road Traffic Act 1988?

This is a matter of fact to be determined by the court. The following have been held to be "public places":

  • The car park of a pub; Vannet v Burns (1988)
  • A hotel driveway; Dunn v Keane (1976)
  • A multi-storey NCP car park; Bowman v DPP (1991)
  • A hospital car park; DPP v Greenwood (1997)
  • The car park of a car dealership; May v DPP (2005)
  • A field used for point-to-point racing; Collinson (1931)
  • A field used for parking at an agricultural show; Paterson v Ogilvey (1957)
  • A privately owned caravan site; DPP v Vivier (1991)
  • Freight immigration lanes at a dockyard; DPP v Coulman (1993)
  • A school playground; Rodger v Normand (1994)

The following have been held not to be "public places":

  • Privately owned land next to a private club; Pugh v Knipe (1972)
  • A community centre car park; Havell v DPP (1993)
  • A company car park used by staff and customers; Spence (1999)
  • An internal roadway at a University campus; Cowan v DPP (2013)

Alcohol absorption, distribution and elimination

ABSORPTION

Food intake slows the absorption of alcohol and decreases the maximum BAC but it does not substantially prolong the peak BAC. In tests, regardless of stomach condition, the average time to reach maximum BAC was 41 minutes. In other tests, under realistic social conditions, the average time to maximum BAC was 12 minutes. 

Carbonated drinks tend to cause a more rapid absorption of alcohol and increase the initial BAC.

Gastric bypass surgery can substantially increase the rate of alcohol absorption.

Alcohol is not significantly absorbed by inhalation through the lungs or diffusion through the skin. Only negligible amounts of alcohol are absorbed after excessive use of alcohol based hand sanitiser.

The greater the concentration of alcohol, the more rapidly absorption will take place with a higher and earlier maximum BAC.

DISTRIBUTION

The distribution of alcohol throughout the body is:

Stomach/small intestine > Liver > Right side of heart > Lungs > Left side of heart > Body tissue (inc. brain)  > Right side of heart

ELIMINATION

The rate of alcohol elimination can be increased by the chronic use of alcohol.

Food intake not only slows the absorption of alcohol but increases the elimination rate.

A high protein diet increases the rate of elimination.

Women generally have a higher rate of alcohol elimination than do men.

For healthy individuals who drink occasionally, it is generally accepted that the average elimination rate from blood is 15 ug per hour.

Source: Wigmore on Alcohol, Courtroom Alcohol Toxicology for the Medicolegal Professional. 2011.

Driver error cited in more than 117,000 road traffic accidents

Analysis by the Institute of Advanced Motorists (IAM) has found that human factors continue to significantly outweigh other reasons for crashes on British roads, and have called again for drivers to look on improving driving skills as part of their lifelong personal development.

The figures from the Department of Transport show that in 2014 driver/rider error or reaction were cited as contributory factors in 74% of accidents, involving more than 117,000 casualties. Some 20,830 of these were in London alone.

Police can cite up to six factors for the cause of each accident they report.

The second highest factor was ‘behaviour or inexperience’ which was cited as a contributory factor in 26% of accidents, accounting for more than 40,000 casualties. In London the number was 9,508.

The main contributory factors were (reference 1):

Contributory factor reported in accident/Number of casualties/Percentage of accidents cited in

* Driver-rider error or reaction/117,524/74%

* Behaviour or inexperience/40,778/26%

* Injudicious action/39,354/25%

* Impairment or distraction/21,916/14%

* Road environment contributed/20,253/13%

* Vehicle defects/3,230/2%

Neil Greig, IAM director of policy and research, said: “People often blame their car, the road, or the other driver for the accidents and near misses that they have. These figures show that in the vast majority of cases, it’s the driver or rider themselves who is to blame.

“Changing attitudes is the key factor when it comes to reducing the numbers of casualties on our roads. People must accept responsibility for enhancing their own skills and recognising their limitations. The first step towards that is to think about advanced training and the right now you can get a free IAM taster session at www.iam.org.uk/lovedriving

He added: “It is not enough to leave people to their own devices once they have passed their test. Like so many other areas of life extra coaching pays dividends – and for a driver or rider, that means keeping their skills fresh by continuous assessment.”