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Offence : Using mobile phone whilst driving

On 1 November 2019 the government announced that the law will be tightened to close a loophole that allows people to escape prosecution for hand-held phone use behind the wheel.
At present, the law prevents drivers from using a hand-held mobile phone to call, text, or otherwise communicate. ‘Driving’ includes being stationary if the engine is running, including in traffic queues and at traffic lights. A mobile telephone is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication.

“Interactive communication function” includes the following:

• sending or receiving oral or written messages;
• sending or receiving facsimile documents;
• sending or receiving still or moving images; and
• providing access to the internet;

People have escaped punishment where they have they were filming or taking photos while driving because it is argued that this form of phone use does not come under ‘interactive communication’.

Transport Secretary Grant Shapps today announced that he will urgently take forward a review to tighten up the existing law preventing hand-held mobile use while driving. The law will be updated and will prevent hand-held phone use in any capacity while driving going further to boost road safety and reduce accident rates.

It is anticipated that any driver caught texting, taking photos, using the phone as a torch, browsing the internet or scrolling through a playlist while behind the wheel will be prosecuted for using a hand-held mobile phone while driving.

The offence carries a fixed penalty of £200 and 6 penalty points, but if the matter proceeds to court the offence carries a maximum of up to £1000 and 6 points on your DVLA driving record. The fine can rise to £2,500 if you are driving a bus, coach or heavy goods vehicle. You may be disqualified from driving instead of receiving points if the offence is aggravated, and this may be for any period of time which the court deems appropriate.

You are also at risk of a totting disqualification should you receive 12 or more points within three years. This will in most cases result in obligatory disqualification of at least 6 months unless you can successfully argue exceptional hardship will arise from the disqualification.

The prosecution must prove beyond reasonable doubt that you were driving with a phone in your hand and in use. If you are under investigation for this offence contact one of our specialist road traffic law solicitors who will be happy to advise whether you have committed the offence. If you are guilty of the offence we can also assist you to achieve the best sentence and keep on driving.

We talk a lot in this Country about the benefits of a jury trial, how leaving the decision in the hands of 12 people chosen at random, is the fairest way of securing justice, but how does a jury decide?

Jury trial: How does the decision making process work?

 Ironically, the process of how a jury reaches its decision is unknown as laws prevent us examining jury decisions and questioning them on their findings.

 There are lots of academic studies, but in reality, they shed little light on the process.

 What we do know however is the legal process that guides them in their decision making and despite the lack of ‘hard proof.’ most lawyers actively support trial by jury.

How has the Internet affected the jury trial process?

 The power of Google and new networking spaces such as Facebook and Twitter can present challenges to a jury trial if jurors seek information from these sources. There is a good reason why certain information is withheld from a jury (for example previous convictions), and going behind explicit instructions not to discuss evidence with anyone other than a fellow juror when the jury is assembled, or seeking information from external sources, undermines jury trial.

 For this reason, jurors will be given clear warnings throughout the trial process.

How does jury trial selection work?

 We always start with 12; no criminal jury trial can commence with fewer jurors.

 For lots of reasons, however, a trial does not always finish with 12. Jurors may become sick and be unable to return, or in rare cases, they may be removed from a jury due to some misconduct during the trial. As long as the number of jurors does not fall below 9, a verdict can be reached.

Does a jury always reach a unanimous verdict?

 At all times, the Judge will be seeking a unanimous verdict from the jury, that is a verdict upon which all the jurors are agreed, so either guilty or not guilty.

 In the early stages of deliberation, a Judge is prevented by law from accepting a majority verdict, but the time may come when a majority decision is permissible. The timing of that will depend very much on the facts of the particular case.

 When a majority verdict becomes permissible, the jury will be brought back into court and advised accordingly. However, even at that stage, they will be asked to still arrive at a unanimous verdict if that is possible. If not possible, then a majority verdict will be acceptable.

What does a hung jury mean?

On occasion, it will become apparent to the Judge that the jury cannot reach a verdict, even a majority one. The Judge will often know this as the jury will write a note to explain the situation. The contents of that note will usually not be shared with the advocates, and this is often because ‘it contains numbers’, i.e. how many jurors are voting one way or the other. Such notes remain confidential in all trials.

 When a deadlock occurs a ‘give and take’ direction will be given, calling upon all jurors to use their collective wisdom to reach a decision.

What happens when the jury reaches their verdict?

 If the jury reaches a unanimous verdict the issue is settled, but if not, and the time is appropriate for a majority verdict, a majority may be acceptable.

 Whether a majority verdict is acceptable depends on the balance of votes, which in turn depends on how many jurors remain.

 The combinations are:

 Where there are 12 jurors: 11 – 1 or 10 – 2

Where there are 11 jurors: 10 -1

Where there are 10 jurors: 9 – 1

 (where the jury falls to 9 jurors, only a unanimous verdict is acceptable).

 If the verdict is not guilty, the defendant is free to leave court (assuming that there are no other matters remaining), if guilty, the judge will go on to consider sentencing.

What happens if the jury cannot reach a verdict?

 If despite further deliberation it becomes clear that the jury is deadlocked, the jury will be discharged, and the trial will be over.

 In these circumstances, the prosecution may either proceed with a new trial or abandon the trial (for example where it is clear at that stage that the evidence is weak).

How we can assist with the jury trial process

 We realise that the trial process can be difficult for both our clients and their families. We work hard at all stages to explain what is going on and what will happen next.

 It is your case and you ought not to be reduced to a mere bystander as the legal process occurs around you.

 As experienced trial lawyers, we do not lose sight of the person behind the proceedings.

 If you are charged with an offence or if your case is at the investigation stage, call us on 01442 242999 to speak to one of our solicitors for a free and confidential initial chat to see if we can help and advise you. Wheldon Law are experienced criminal solicitors based in Hertfordshire.

Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.

Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, the male is the recipient of a DVPN.

The effect of the DVPN is to force the recipient’s removal from the property for 48 hours; this will then be followed by an application to the magistrates’ court for a DVPO which can result in removal from the premises for a further 28 days.

The rationale is to give the supposed victim of domestic violence a ‘breathing space’ in which to seek assistance.

Can You Challenge a Domestic Violence Protection Notice?

Because of the relatively informal way in which DVPNs are issued, there is no realistic way to challenge them before they take effect, so later successful challenges will result in a mostly pyrrhic victory only.

However, you can challenge the application for a DVPO, and we can assist you in that process.

The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).

The facts, in this case, are typical of many of the cases that we see before the courts, and one particular, albeit by no means an uncommon feature was that the supposed beneficiary of the order, Mr Kerr’s partner of 8 years, did not actively support the making of the order.

The High Court upheld the legislative scheme in its entirety, observing that:

‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’

Is Kerr wrongly decided?

There is no case law cited in the judgment, and it is open to argument therefore whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327 where, when considering whether to make a restraining order the Court of Appeal observed:

‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How can we assist?

When new judgments come along, they are often presented as offering the complete answer to a legal problem, but in our experience, they seldom do. Recourse has to be had to earlier decisions, particularly ones not considered in any new case. We do not accept anything at face value, preferring to challenge perceived norms and advance alternative arguments.

If you are facing the prospect of a DVPO, then do not hesitate to contact Wheldon Law on 01442 242999 or enquiries@wheldonlaw.co.uk.

New details have emerged about forensic testing deficiencies at two of the country’s leading laboratories – Randox Testing Services (RTS) and Trimega Laboratories. Police are currently investigating the exact circumstances and a number of people have been arrested in connection with the investigation.

RTS and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases, with the accuracy of the tests of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.

Home Office Minister Nick Hurd told parliament:

‘Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.’

As a result, it is believed that the results from as many as 10,000 tests could be under question.

Is your criminal conviction safe?

If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice.

While the Crown Prosecution Service will be carrying out a review into criminal cases, this will take a considerable period of time and many will question whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.

Those affected will therefore wish to consider whether any further forensic testing ought to take place and even whether or not there are grounds to appeal. All convictions will need to be considered on a case by case basis.

Even if your case did not rely on evidence handled by the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and calls into doubt results and evidence from other forensic testing providers.

How we can help you

Regardless of whether we handled your case initially, our experienced team of lawyers has the expertise to ensure the safety of your conviction is beyond question.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted for a crime – including pleading guilty to an offence – please contact Wheldon Law on 01442 242999 or enquiries@wheldonlaw.co.uk.

What happens if you are accused by the police of a road traffic offence?

Because you were present at the time that the offence was allegedly committed and have been made aware of it by the police, the likelihood is that you will be reported by the police for consideration of prosecution.  Normally you will then receive a summons or postal requisition by post within six months of the date of the commission of the offence requiring you either to complete a form under the single justice procedure if you are pleading guilty and if the offence is a relatively minor one.  This means that the court could deal with you in your absence by way of a driving endorsement of a fixed number of penalty points, normally three, and a predetermined fine.

If the offence is a more serious one, then you may receive a postal requisition or summons requiring you to attend court on a specific date.  If you fail to do so, without good reason, the court might then issue a warrant for your arrest to bring you before the court.

What happens if you are arrested for a road traffic offence?

If the case is a particularly serious one and you have been arrested and been taken to a police station and possibly interviewed under caution, then you might be charged by the police there and then given a court date.  in those circumstances, you will normally be bailed to attend at court and if you fail to do so again without good reason, you may well commit an additional offence under the Bail Act and will be liable to arrest if the court issues a warrant not backed for bail.

If you have been arrested and have been taken to a police station for interview, you are entitled to free legal advice under the Duty Solicitor Scheme.  You are entitled to have a solicitor of choice and if you are a client of this firm or would like to be a client of this firm, you should ring our office number (01442 242 999) or ask the police to do so to arrange for legal representation whilst you are at the police station. We do operate an out of hours scheme which provides 24 hour coverage for our existing and future clients.

 

What happens if you commit a driving offence but are not stopped by the police?

If you have committed a driving offence but have not been stopped by the police at the time, then a different procedure is followed.  Typically, this would involve you being caught either on a speed camera or an automatic number plate recognition camera.

As the police cannot know who was driving, the notice of intended prosecution (NIP) will be sent out by the police to the person or company to whom the vehicle is registered at the DVLA at Swansea.

The NIP will set out the details of the alleged offence including:

• The vehicle registration
• The date the offence was committed
• The time of the offence
• The location of the offence

The registered keeper of the vehicle has a legal requirement to complete the NIP and return it within 28 days.  This is known as a section 172 notice.

The position is straight forward if you were the driver at the material time as all you will have to do is to enter your details.  If you were not the driver, there is a legal requirement on you to notify the police who was actually driving.  If you do not do this within the required period, you, as the registered keeper, will commit the offence of failing to notify the identity of a driver which in itself carries 6 penalty points and a fine.

If you were the driver and the offence is a relatively minor one, you may well receive a conditional offer of a fixed penalty with a fine at a fixed level and an endorsement of 3 or 6 penalty points on your licence.

What happens if someone else is accused of a road traffic offence whilst driving your vehicle?

If you were not the driver, you must tell the police who was driving.  If the registered keeper of the vehicle is a company, it may not be immediately apparent who the driver was, particularly if the vehicle is a pool vehicle.  In those circumstances, the company would be expected to keep records of who was driving the particular vehicle on any given date and if a company were to fail to do that, it may well end up on the wrong end of a prosecution for failing to notify the identity of the driver.

If you as an individual genuinely do not know who was driving the vehicle at the relevant time, you must return the notice of intended prosecution and you should write on it that you do not at this stage know who the driver was.  You can request photographic evidence or other evidence from the police to enable you to help identify the driver and you yourself should do all that you can to try and identify the culprit in the meantime. You need to be aware that if it was not you driving the vehicle, the person who was driving would need to be insured to drive that particular vehicle.

If your vehicle had been stolen prior to the date of the offence itself, in the normal course of events, you would have reported this to the police and would have been issued with a crime number. Clearly you should inform the police of this on the section 172 notice.

What happens if you do not know who was driving your vehicle?

If you were not the driver, once you receive the photographic or other evidence, and still cannot recognise or identify the driver, you should contact the police again and say that you are unable to identify the driver from the photographs and request any further evidence they may have.  If you do not receive any further evidence within 14 days, you should again reiterate that you have been unable to identify the driver and explain that you were not the driver at the time of the alleged offence.  You should then provide the police with a list of all possible drivers such as other insured persons who have access to the vehicle for the police to investigate.

If the police do not accept your claim that you were not the driver at the material time, you yourself may well be summonsed to court for the offence of failing to notify the identity of the driver.

Have you been accused of a road traffic offence?

If so, contact us on 01442 242999 and our specialist team of road traffic solicitors with years of experience in all aspects of road traffic law.  We will be happy to advise and assist you and provide representation in court should that be necessary.

 

Lights, Camera, Action – Modern Policing

 

Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’, and the government has announced that prison officers will shortly be assisted by this new technology.

 

What are Body-worn Cameras?

 

BWCs are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.

 

The evidence from these cameras can be used to support a prosecution, and some argue that with officers and others aware that their actions could be caught on camera, it will result in a positive effect on behaviour.

Is behaviour calmed when a camera is present?

 

It is usually accepted that we behave better when being watched, for example, we are less likely to speed past a roadside camera or get involved in unlawful activity.

 

In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations — and not elsewhere.

 

A study in Rialto California (USA) in 2012 appeared to show dramatic changes in police behaviour. Complaints against police officers were down 90% compared to the previous year. Critics, however, have been sceptical of this study, in part because only 54 officers participated.

 

That caution did not result in a slowdown of BWC deployment and by 2015 95% of US large police departments had deployed BWC or had committed to doing so.

 

Now, police forces in England and Wales are following suit.

 

Latest research

 

The Rialto findings seemed to accord with common sense, but a new 18-month study of more than 2,000 police officers in Washington (USA), published on 20th October has disclosed ‘almost no effect’ on police officer behaviour.

 

Are BWCs a waste of money then?

 

This is a controversial question, and there may be many reasons for the Washington findings.

 

Other arguable benefits of BWCs are:

 

• Detecting rogue officer behaviour after the event
• Accurate recording of evidence
• Building community trust in the police – In another new study that will be published in the November 2017 issue of the journal Policing, researchers interviewed 249 people who had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.

 

Conclusion

 

It would appear that the jury is out as to the efficacy of BWCs, supporters claim that there are definite benefits for both police and public, while detractors cite privacy concerns, sizeable public expenditure and a lack of cogent evidence to support their continued deployment.

 

What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully, so as not to fall into the trap of believing that ‘the camera never lies’. We often find that video evidence is taken out of context, is distorted, edited and on occasions when it might be thought helpful to the defence, goes missing.
Contact Tina Wagon on 01442 242999 or tina@wheldonlaw.co.uk if you would like to discuss any criminal law issues.

 

 

The sentencing process is the beginning of the end for many defendants, as they can receive and accept their punishment and prepare to move on with their lives.

However for some, the uncertainty may not be over as an appeal may be looming.

Who can go about appealing a sentence?

The Attorney General and Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal, as the sentence is regarded as ‘unduly lenient’.

The Attorney General may become aware of the case because the prosecution has referred it for consideration, or because any other person has brought it to their attention.

What offences does this apply to?

There is a long list of offences which may be referred for consideration, including:

• Any offence triable only on indictment, for example, murder and robbery. This provision includes youths tried summarily for indictable only offences.

• A range of offences sentenced in the Crown Court, including violence, sexual offences, drugs, immigration and slavery and trafficking.

• A range of terrorism offences

Is there a time limit for appealing a sentence?

A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing. There is no power to extend this limit.

What happens if there is an appeal?

The court will apply a 3-stage procedure. The court has expressed its role as follows:

‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build into the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.

Those new procedures required a number of steps to be taken before any such sentence could be increased:

• The Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient

• The Attorney General then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so

• The court then had to consider whether to accept and grant leave for the referral

Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether – even if it does consider it unduly lenient – it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’

What is an unduly lenient sentence?

It is not easy to spot such a sentence, as the sentencing exercise is always fact specific. Where there are sentencing guidelines in place, it may be easier to identify unduly lenient sentences, but not always. The task is often much more difficult when there are no guidelines, or there is particularly powerful mitigation.

The Court of Appeal test for undue leniency is:

‘A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.’

What happens if a sentence is found to be unduly lenient?

Where the court considers a sentence unduly lenient, it has a discretion as to whether to exercise its powers:

‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned’

What are the next steps for appealing a sentence?

After sentencing, your legal team should give you a preliminary indication as to whether your sentence is likely to be appealed, but remember that ultimately, they have no control over this part of the process.

In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage. Thorough preparation can make all the difference in the success of an appeal.

If you are concerned about any aspect of criminal law or sentencing, then do not hesitate to contact Tina Wagon on 01442 242999 or tina@wheldonlaw.co.uk