The Road Law Guide

The LAW DOX Guide to

Motoring Matters in the Magistrates Court

First Things First - page 2 Pleading Guilty by Post - page 4 Adjourning the Hearing Date - page 6 Preparing for Court - page 7 The Court Proceedings - page 11 After the Court Case - page 15 Legal Aid - page 17

www.lawdox.co.uk 1 So you have been summonsed to appear at your local Magistrates Court sometime soon charged with a driving offence. Despite all the misgivings you may have you have decided that your best option is probably to plead guilty to the offence and get it over and done with, but, like most of us, you have never set foot in a Magistrates Court, and there is always a fear of the unknown. Are you doing the right thing? Should you instruct a solicitor? If not what is the procedure? What will happen? When? Will I get a chance to put my side of the story?

Hopefully over the next few pages we can answer these questions; give you some guidance on the people and procedure in the Magistrates Court; give you some tips on what to say in mitigation and how to say it; and help assess the potential outcome.

First things first 1. Just because you have been summonsed rather than arrested and charged does not mean it is a trivial case. It is generally a mistake to go to court without first receiving legal advice on any case resulting in injury; an allegation of dangerous driving; or any case which a third party can use to hold you liable in damages . 2. It almost goes without saying, but for any prosecution to succeed it is necessary for the police to prove that the person being prosecuted is the person who committed the offence. This is not always as straightforward as it may seem. If you were stopped by the police at the time the situation is different from the position if the vehicle was identified by a camera. 3. If you were not stopped and spoken to at the time of the offence, the police will send a “Section 172” Notice of Intended Prosecution to the registered keeper of the vehicle. Check that the Notice of Intended Prosecution was served on you, or the registered keeper of the vehicle within 14 days of the date of the offence (see our free pages at www.lawontheweb.co.uk/crimertonip.htm for more information). If it was not then you may have a defence. You can always use our Road Law Telephone Advice Service to speak with an expert motoring law solicitor about this or any other matter for a fixed fee of £40 at www.lawontheweb.co.uk/motoringfixedfeetel.htm. 4. If you are the registered keeper and you have received a Notice of Intended Prosecution and decide you are not going to complete it (or sign it) then we would suggest you at least discuss this with a specialist solicitor. This is true whether you were the driver at the time or not. This is a fast-changing area of law which is (as at April 2004) being prepared for testing at the European Court of Human Rights. There

www.lawdox.co.uk 2 are many bar-room advisers on this point who are wrong or out of date. Get legal advice if you are not sure what you are doing. 5. Check that the date on which the “information was laid”, which will be noted on the summons, was within 6 months of the date of the offence. If it was not then you may have a defence and you should again consult a specialist solicitor. 6. If you are offered the opportunity to plead guilty by post then this may be an easy and sensible option. You can either send the court your own plea in mitigation or one of our specialist panel solicitors can prepare this for you for a fixed fee (see www.lawontheweb.co.uk/motoringfixedfee.htm). There is more on this later, but bear in mind that if you plead guilty by post and the court then decide that they should consider disqualifying you, then your case will be adjourned and you will be invited to attend court and explain why you think you should not be disqualified. 7. When considering if you want to be represented by a solicitor there are a few things that you should take into consideration :- a) Unless the matter is serious, which usually involves the threat of a prison sentence, or it is technical or involves a point of law, then legal aid is generally not granted in road traffic cases. Even if granted Legal Aid is not always ‘free’. See later b) If you were to instruct a solicitor and fought your case and won, then some or all of the money you pay in solicitor’s fees and some other expenses, may be paid by the court out of Central Funds. c) If there are any civil proceedings pending, for example for an injury that you are alleged to have caused to another driver or pedestrian, then your insurance company may be willing to fund legal help in the criminal proceedings. It is worth at least checking with them. d) Check to see if you have any legal expenses insurance cover. Some policies (not many) may cover representation on motoring matters. e) If there is a risk that you may lose your licence having an experienced solicitor to put forward your version of events and mitigate on your behalf may well be a worthwhile investment. See our fixed fee service at www.lawontheweb.co.uk/motoringfixedfee.htm f) If you first passed your driving test within the last two years and might end up with 6 or more penalty points you may well want legal help to save your licence which the DVLA will otherwise revoke and you will then have to take your test again.

www.lawdox.co.uk 3 Pleading Guilty by Post In certain cases you will be offered the opportunity of pleading guilty by post. This simply means that the matter can be dealt with in your absence. The court will hear the details of the case as set out in the statement of facts, and then any explanation that you have given them in writing. They will hear nothing else, so you need to explain the circumstances of the incident to the court, and give them reasons for being as lenient with you as they can. Here are the matters that you should generally cover :- a) how you came to be speeding/driving carelessly etc. b) try and limit the damage by explaining that any contravention of the law was only for a short time eg whilst overtaking, momentary lapse in concentration (as appropriate of course). c) resist the temptation to blame someone or something else – it is often better to accept your guilt and apologise to the court and the police for your error. d) ask the court to accept that you have pleaded guilty at the earliest opportunity and ask them to give you credit for this. e) if you have a clean driving licence confirm this in your plea. f) explain to the court the importance of your driving licence to you, especially if you drive for a living, or driving is essential to you for work. g) if you cover more than the average number of miles in your car in a year then emphasise this to the court ie if you drive more than 10,000 miles per year. h) ask the court to take all these matters into account before sentencing you. i) indicate that this matter has taught you a lesson and that you have no intention of making the same error of judgment again or appearing before the courts again. j) if you have done something subsequent to the offence to make matters better then tell the court – eg an advanced driving course, selling a powerful vehicle and replacing it with a smaller one. k) if you were offered and rejected the offer of a fixed penalty the court will treat the fact that you forced the matter to be decided by the courts as an aggravating feature, so if you had a good reason for doing so - such as needing to get legal advice - say so. l) on the other hand if you were summoned and not given the chance of a fixed penalty when it would have been appropriate then that is a mitigating factor you should mention. (If you are not sure whether you should have had the option of a fixed penalty then check with a specialist) m) two general points:

www.lawdox.co.uk 4 i) resist any temptation to lie, even in a written plea of mitigation. Magistrates are worldly-wise in general and you may increase your penalty and the temptation for them to consider disqualification, which may cause you the inconvenience of a court visit you could have avoided ii) just because you have committed an offence does not mean you have to make it worse for yourself by referring to aspects of the offence or other things no one has accused you of. Sounds obvious, but it is amazing how often defendants do it in court, let alone in a written plea. Read the summons carefully!

Make sure that your letter gets to the court, together with your licence, at least 3 days before the hearing. If possible take it to the court in person, so that you know it is there. If not we would recommend you send it by recorded delivery. If you have one of the newer ‘credit card’ photo licences, make sure you send the whole of it including the supporting paper counterpart.

www.lawdox.co.uk 5 Adjourning the Hearing Date If you are not offered the chance to plead guilty by post, then you must attend the first court hearing. Failure to do so could result in the case being heard in your absence or a warrant being issued for your arrest or both.

Once you know the date of the hearing check that you can make it. It will probably show a time of 10am or 2pm. Unfortunately other summonses will also have been issued for the same date and time. In an urban area, for example, there may be upward of 30 cases on the list. Your case may be the first or it may be the last, so we recommend that you write off the whole day, if you are going to attend at court, particularly if you have no solicitor representing you, who can cajole the court clerk into calling your case early.

If for some reason you cannot make the court date, then you can ask the court if they will adjourn the hearing in your absence until another date. They will only do this if you have a good reason eg you have already booked a family holiday abroad, which means you will not be in the UK at the time of the hearing, or you have work commitments which you are unable to change. If this is the case we would suggest you ring the Court and explain the situation. Ask them to make a note of the telephone call on your file. You will then have to write to the Court Clerk and explain why you cannot make the hearing. Again we would suggest you send this to the court by recorded delivery if you cannot take it in person, and include a copy of the evidence in support eg a doctors note if sick, or a copy of the holiday booking confirmation.

www.lawdox.co.uk 6 Preparing for Court Once you have a court date that you know you can make you need to prepare for the hearing. If you decide to plead Not Guilty, then your case will not be dealt with at that first hearing. All that will happen is that you will be asked into court, asked to confirm your name and address and then asked how you plead to the charges that have been “laid” against you (ie which you face). Once you enter a Not Guilty plea to any charge the court case will usually be adjourned to another date, probably at least 4 weeks on (but more likely several more) for a pre-trial review, or if the case is straightforward a trial date may be set. If there are any dates that you cannot make you should advise the court before they settle the date on which you must return. At the pre-trial review the court will make the necessary orders in respect of witnesses and evidence and assess the likely length of the case, which will then be adjourned again to another date for the actual trial. You will need to have some idea of the number of witnesses you are going to bring and when they will be available.

Your case has then been set down for trial on that date, and you, and any witnesses your propose calling, will have to come to court on that day ready to answer the case against you and to cross-examine any witnesses the prosecution propose calling. The prosecution too will need to get their witnesses to court for that date.

There is no reason why you should not conduct a trial yourself, but generally we would advise that you instruct a solicitor. They have spent six years training, and have made countless court appearances (if you instruct the right guy/girl – see our mob at www.lawontheweb.co.uk/crimertosols.htm), so they tend to be quite good at it. They know the short-cuts, the ins and outs and may even be able to convince the prosecution that they are wasting their time, if you have a strong case. If you think you need expert evidence - such as where you disagree with the police about your speed you definitely need to think long and hard before doing it on your own.

The majority of people caught for road traffic offences hold their hands up and plead guilty to the offences with of which they have been accused. All but the most serious matters (dangerous driving and above) are triable only in your local Magistrates Court, so this is where the majority of motoring matters are heard. Just because you are pleading guilty does not mean that you should not prepare for the hearing. The court will hear only a brief summary of the case against you provided by the police. You will then be given your opportunity to explain the circumstances of the incident and to appeal to the court for leniency in the sentence they impose (this is called

www.lawdox.co.uk 7 mitigation). Even the best lawyers make some notes to remind themselves of what they want to say to the court in mitigation for their client. You should do the same. Here are the matters that you should think about covering :- a) how you came to be speeding/driving carelessly etc. b) try and limit the damage by explaining that any contravention of the law was only for a short time eg whilst overtaking, momentary lapse in concentration (as appropriate of course). c) resist the temptation to blame someone or something else – it is often better to accept your guilt and apologise to the court and the police for your error. d) ask the court to accept that you have pleaded guilty at the earliest opportunity and ask them to give you credit for this. e) if you have a clean driving licence confirm this in your plea. f) explain to the court the importance of your driving licence to you, especially if you drive for a living, or driving is essential to you for work. g) if you cover more than the average number of miles in your car in a year then emphasise this to the court ie if you drive more than 10,000 miles per year. h) ask the court to take all these matters into account before sentencing you. i) indicate that this matter has taught you a lesson and that you have no intention of making the same error of judgment again or appearing before the courts again. j) if you have done something subsequent to the offence to make matters better then tell the court – eg an advanced driving course, selling a powerful vehicle and replacing it with a smaller one. k) if you were offered and rejected the offer of a fixed penalty the court will treat the fact that you forced the matter to court as an aggravating feature, so if you had a good reason for doing so - such as needing to get legal advice - say so. l) on the other hand if you were summoned and not given the chance of a fixed penalty when it would have been appropriate then that is a mitigating factor you should mention. (If you are not sure whether you should have had the option of a fixed penalty speak with a specialist solicitor) m) two general points: i) resist any temptation to lie, even in a written plea of mitigation. Magistrates are worldly-wise in general and you may increase your penalty and the temptation for them to consider disqualification, which may cause you the inconvenience of a court visit you could have avoided ii) just because you have committed an offence does not mean you have to make it worse for yourself by referring to aspects of the offence or other things no one has

www.lawdox.co.uk 8 accused you of. Sounds obvious, but it is amazing how often defendants do it in court, let alone in a written plea. Read the summons carefully. n) one last point : The Magistrates Courts are stuffed full with people saying sorry. If you can, then make your apology different. Make it count. If the case against you includes an allegation that damage was done to someone else’s property or someone else inconvenienced or hurt, then showing how you have tried to make amends will always help. But be careful what you say as your words in court could be used against you in any civil claim. If you are not sure ask an expert to advise.

If possible try not to write out your entire speech, but just write out bullet points and then try and make each of these points to the Magistrates in your own words. If you are not confident enough to do this then you can write out what you want to say, but read it slowly and clearly to the Magistrates, making sure that they hear each point that you want to make. When you are nervous and you have something in writing there is a tendency to rattle through it too quickly. If this happens all your hard work and effort make come to nothing. If you do dry up and your notes are legible, you always have the option of handing them to the clerk and asking him/her to read it out. Or if you really think you will be hopeless on the day you could write it all out as a letter to the magistrates and hand it over. Not always the most impressive, but it can work.

You also need to dig out all the documents you need well before the court date. Find your driving licence, insurance and MOT certificate. You will certainly need to take your driving licence to court, and it is just as well to take the others with you too. Also take the original summons sent to you by the court. If you have one of the newer ‘credit card’ photo licences, make sure you take the whole of it including the supporting paper counterpart.

The other important aspect of preparing for court, is to always be prepared for the worst. This means preparing yourself for a large fine, the most points available for your offence, or even a disqualification. Check out what the possible penalties are either on our website or through our Road Reckoner service (www.roadreckoner.co.uk) so that you know what to expect. If you expect the worst then generally you will achieve much better than this. If there is a possibility that you could lose your licence, then do not drive to court. If you have been charged with a drink-related offence then you should certainly not drive to court as a ban is almost inevitable and in some cases involving drink is automatic.

www.lawdox.co.uk 9 As we have said before be prepared to wait. The cases in which solicitors are involved tend to be called first, so if you are representing yourself you are likely to have to wait for some time. Take a book or a newspaper or a magazine and try and be patient. When it is your turn you need to ready, as your case will suddenly be called and you will be expected to go into court immediately, and before you have taken a deep breath the Court Clerk will be asking you your name.

If you get the chance check out the court on a day before your hearing date. This will allow you to suss out where to park (if you are taking your car) or the trains/buses etc, and to familiarise yourself with the court, its layout and how it works. This means it will be less strange on the day itself. You can even sit in court and watch proceedings. They may not be road traffic matters, but the general procedures are the same.

www.lawdox.co.uk 10 The Court Proceedings The dreaded day will finally arrive. We suggest you dress smartly, as if going for a job interview, and make sure you are at court at least 15 minutes before the time stated on your summons. Make sure you take all your paperwork with you. If for some reason you cannot make it to court eg you are ill, then ring and tell them. But you will need to have a very good reason. Failure to attend at court can mean that it is dealt with in your absence, and in certain circumstances leaves you open to another charge of failing to appear.

The first thing you will need to do when you The People Involved get to court is report in, either at reception or Court Usher – their job is to to the Court Usher. Depending on the size of make sure defendants and witnesses are taken into court the courthouse and the number of courts when they are needed there may be one or more court ushers. There Court Clerk – he/she is the legal advisor to the court (and may be is usually an usher for each court that is sitting referred to as such) Defendant – that’s you ! that day. The ushers wear a black robe over Duty Solicitor – he/she is there their normal clothes, similar to an old- to advise any defendant on their rights fashioned teacher’s robe, and will usually Magistrates – these are the people who decide your fate, so have a clipboard showing the names of the be nice to them. They are not people due to appear in court that day. You lawyers, but are trained to listen to the arguments and then to need to find the usher who is looking after the decide the case. They do not wear wigs or gowns. court in which you are due to appear and then Prosecutor – this is the solicitor you need to speak with them to confirm that representing the police. He will have a large pile of files and you have arrived and that you are ready to prosecute all the cases in court proceed. It may be helpful to have your that day. It is unlikely that he will have looked at your case before summons handy. you are called into court. The Press – the court is open to the public and this includes the They will then advise you where you should press. The harder you try to keep your name out of the papers the wait. This will usually be adjacent to the court more likely it is to get in room in which you are appearing. Try not to stray too far from this area as your case can be called at any time, and the Magistrates get a bit miffed if Defendants are not available when they are called. Do not be afraid to ask any of the ushers or court staff for assistance. In addition to the list of court cases held at reception or by the ushers you will usually find there is a noticeboard on which all the cases are listed. You can check this to see which court you are in.

www.lawdox.co.uk 11 Once you have checked in with the usher you may be invited to speak with the Duty Solicitor. Unfortunately there is now a list of situations where a Duty Solicitor can refuse to help a defendant and certain situations where the Duty Solicitor must refuse to do so. See the section on Legal Aid below.

Now all you can do is wait. There is no way the usher, or any other person, can tell you how long you may have to wait. Cases are taken as they are ready, and as the prosecutor and the court see fit. It may be that there are a series of cases of a similar kind all listed for the same time, and the magistrates may decide to take these one after the other, or there may be matters which are “going short” ie will be over very quickly, which they may wish to dispose of. Once matters are underway the usher may be able to give you a better idea of when your case will be called, but sometimes short cases get complicated, which throws out everyone’s plans. We can only advise that you be patient. The court will usually rise at 1pm for about an hour, and if your case has not been heard in the morning you will be required to come back again in the afternoon, although you can leave the court building in the meantime.

Eventually your case will be called by the usher and you will be escorted into court, and usually into the dock. All courts look different, but the layout is usually something similar to the diagram below.

Sitting at the front on a raised platform will be the Magistrates. There are usually 3, but sometimes 2. In some courts a professional District Judge or (in Scotland) a Sheriff will sit, but this is not usual for traffic matters (except in some urban areas where it is more common so that more matters can be handled more quickly). In front of the Magistrates will sit the Court Clerk (now sometimes referred to as the Legal Advisor). His or her job is to advise the Magistrates on the law. They are not involved in deciding if you are guilty or not guilty or in what sentence the Magistrates should impose. They can advise the Magistrates on what sentence they are entitled to impose for any offence, and what information they are entitled to take into account when making a decision. As the defendant you will usually sit in the middle of the court room or along one of the sides. Sitting in front of the Magistrates and the Court Clerk (and facing them) will be the prosecuting solicitor (who represents the CPS [the Crown Prosecution Service]), usually to the Magistrates’ left, and your solicitor (if you have one) to their right.

www.lawdox.co.uk 12 Magistrates

Witness Box Court Clerk

Press & Public Gallery

Defence Prosecuting Solicitor Solicitor

Defendant

Once you have been called into court and taken your place in the dock the proceedings will start.

You will be asked to stand and confirm your name and address by the Court Clerk, and may be asked to produce your driving licence straightaway (or this may be done later). The charge(s), as detailed on the summons that has been sent to you, will be read out and you will be asked if you plead Guilty or Not Guilty to each charge.

If you enter a plea of Not Guilty to any of the charges then the case will be adjourned for a pre-trial review to be held or given a date for trial straight away. Any matters to which you have pleaded Guilty can be held over until the Not Guilty matter has been resolved.

If you plead Guilty to the charge(s) you will be asked to sit down and to listen to the details of the charges as put forward by the prosecuting solicitor on behalf of the police. The prosecuting solicitor will then generally read the statement of facts. Listen carefully to what is said. Remember this is the only information that the Magistrates will hear from the prosecution. Once the solicitor has finished it will be your turn, either through your solicitor, or yourself. This is your chance to explain what happened and why.

You should stand up and speak clearly and slowly and if the Magistrates should ask you a question address them collectively as “Your Worships”, or individually as “sir”

www.lawdox.co.uk 13 or “madam”. If you have any documents to back up what you are saying, or letters of support for example from your employer, you should produce them at this time and hand them in to the court. The usher will usually take them from you.

Once you have finished what you want to say the Court Clerk will ask if the prosecution are aware of any previous convictions. If there are any these will be put before the court. Details of your financial circumstances should also be given to the Magistrates. The Clerk may advise the Magistrates on certain aspects of law or answer any legal questions that they may have. The Magistrates will then speak amongst themselves, either while remaining in court, or they may adjourn and discuss the matter in private. Once they have made their decision they will return to court and they will ask you to stand. You will then be advised of the penalty that has been imposed upon you. This will usually take the form of points on your licence or a period of disqualification, plus a fine and usually a contribution towards court costs (of around £25 - £50).

If you are unfortunate enough to have been disqualified for 56 days or less, then your licence will be stamped by the court to this effect and returned to you. The stamp will tell you how long you have been disqualified for and you must not drive from that moment until the ban is over. However once the ban is over there is no need to obtain a new licence. If you are banned for more than 56 days then your licence will surrendered by the court to the DVLA, and once your ban has expired you will have to apply for a new licence. You can find full details on the DVLA website at www.dvla.gov.uk/drivers/endorsem.htm

If points are imposed on your licence then it will be retained by the court and sent to the DVLA, who will return it to you a short while later with the offence and penalty points on it. However if yours is one of the old paper licences the DVLA may write to you requiring you to ‘upgrade’ to the new photo licence for which there is a charge.

www.lawdox.co.uk 14 After the Court Case The conviction will remain on your licence for 4 years, unless it relates to an offence of causing death by dangerous driving or a drink-related matter, when it remains for 11 years. However the points are relevant for totting purposes for only 3 years from the date of the offence. If you accumulate 12 or more points within a 3 year time period you are will be banned for at least 6 months as a totter, unless you can put forward “mitigating circumstances” why you should not be banned.

Therefore if the offence for which you are about to appear in court may bring you to 12 or more points within the last 3 years, then you should be prepared to put forward such “mitigating circumstances” in order to retain your licence. Mitigating circumstances relate to you and how a ban would affect you. You have to show that being banned would cause “exceptional hardship” to you, or a member of your family, or others who depend on you eg loss of your job. If you are liable to be banned as a totter it is almost always worth consulting a solicitor for help and advice, if not also representation. If you have points on your licence it pays to use a If you first passed your driving test within the last two broker to shop around for you. Try Quoteline Direct years and the number of penalty points on your driving (http://www.quotesystem.co.uk/i pl/ipl.dll? licence totals 6 or more, your full driving licence will be run+quotelinedirect:/ipl/launcher( revoked by the DVLA (not by the court) under the New launch.htm,INML,10), the online arm of Wilsons Driver Regulations, until such time as you pass a further Insurance Group. They specialise in "non- driving test. standard" motor insurance for car drivers and bike You can apply for a provisional driving licence if you wish riders. One reader recently emailed us with this to continue driving but you are subject to "learner" comment conditions until you pass both the theory and practical "Great advice for drivers with convictions - saved parts of the driving test again. You have no right of £650!!!" appeal against the revocation by the DVLA in these and another said "I followed your advice circumstances, but can only appeal against the original and shopped round conviction. ending up with Quoteline Direct. This company are absolutely If you think the penalty imposed on you is too severe or fantastic and their has been based on inaccurate or misleading information, prices are superb, i'm paying £320-00 then you do have a right to appeal against the sentence now...... what a saving to the Crown Court, and in some situations the High [£400]....and for more benefits" Court. Any appeal has to be lodged with the Magistrates

www.lawdox.co.uk 15 Court within 28 days of the hearing. However we strongly advise that you take legal advice before appealing against either your sentence or your conviction. The higher court will have the power to increase your sentence as well as decrease it, and they also have the power to award further costs against you. You could end up with more points, a bigger fine, and more court costs to pay.

www.lawdox.co.uk 16 Finally - A Word about Legal Aid The chances of getting legal aid in motoring cases are rapidly diminishing. You can already mostly forget it in motoring cases which do not involve a likelihood of imprisonment.

If you do get it, then in cases which can only be heard in the Magistrates Court you will not have to pay any contribution and, at the moment there is no means test. But the government wants to change that and it is expected soon to change the rules so that Magistrates can make a ‘Recovery of Defence Costs Order’ against a guilty defendant. It is also likely that the means test will be reintroduced.

The Duty Solicitor at court is forbidden from assisting anyone who is there for a trial and from 17 May 2004 is also forbidden from assisting anyone unless the defendant is either in custody or is facing an imprisonable offence. Most motoring offences do not qualify therefore. Generally if you need a lawyer’s help don’t turn up at court and expect the Duty Solicitor to help. The probability is they will refuse unless you qualify, and they will do so even if the Magistrates refer you to them.

If you think you will need a lawyer, organise it in advance!

If you need help feel free to email us at [email protected] and we will do what we can.