In the Little Britain sketch show the moody character who blindly relies on whatever her computer tells her has produced one of the comic duo’s most successful catchphrases, “The Computer Says No!”
Mr David Wannell, a Marketing Consultant based in Arundel, was certainly not laughing when he was convicted for failing to provide a specimen based on what a machine said. I was shocked when the Magistrates at Mid Sussex Magistrates’ Court chose to ignore one of the strongest expert testimonies I had come across saying the machine was faulty. This case is even more relevant now that the government's budget cuts will most likley lead to more shoddy prosecutions than ever.
When stopped by the police if you fail to provide or fail a roadside breath test, the Police take you back to the Police Station to give an evidential breath test. Occasionally they will ask for a blood or urine sample but not without good reason. However, if you refuse to blow into the machine at the Police Station, this is classed as an entirely separate offence of Failing to Provide a Specimen. To deter people from deliberately refusing to co-operate at the police station, the guideline penalty for this offence is a 24 month ban whereas the minimum penalty for drink driving is a 12 month ban.Problems often arise with the machines because it can be difficult to blow into them so they record a satisfactory reading. Some machines require a steady slow breath whereas others require a strong blow into them. You only have a limited time to blow a reading that registers and if you fail to give two complete samples during that time you will face prosecution for the failing to provide offence. The only defence to this offence is if you have a reasonable excuse for failing to provide. This could be, for example, if you suffer with asthma (although you should have told the police about any medical condition that makes it difficult to blow before even beginning the test.)Two samples are required because if there is a big breath difference between the samples, the machine is meant to flag this up to the officer so that they choose to take a blood or urine sample. This is to protect the defendant so as to be sure the police have an accurate reading.In Mr Wannell’s case, when the maintenance log for the machine he was trying to blow into was reviewed by his solicitors and forensic experts, it was noticed that there were around 9 occasions where there are recorded serious breath differences but the instrument did not flag these up by displaying the error message BREATH DIFFERENCE. The log was updated manually by the police officer who conducted the tests and so while one mis-transcription may be possible, nine were unlikely – and in the log of the instrument in Mr Wannell’s case, all of the logs where there was a big difference between the two readings, the logs were recorded by different officers. If the machine did not show an error message when there were big differences between the two readings, this suggests a serious software problem with the machine and added to his defence that he was unable to blow into the machine rather than unwilling to.
As if this was not enough to convince the Magistrates that something was up there were also a high numbers of tests where the breath readings recorded were below the legal limit. This should have given rise to suspicion because if they blew over the limit at the roadside, it is unlikely their alcohol levels will have dropped by the time they reached the police station. With a correctly operating machine, there should be very few tests giving results below 30mg/100ml. In Mr Wannell’s case the instrument he was required to blow into had had 77 recorded instances where tests gave results below the legal limit suggesting that either no roadside test was carried out or that the roadside testing instruments used were not properly calibrated.
The number of breath differences recorded in the log [52] was substantially in excess of what the experts consulted would expect and suggested to them that there was a serious systemic problem with the infra-red system in this instrument. This conclusion was reinforced by the number of associated failures [89].
This log recorded approx 730 tests on suspected persons and thus the rate of problems was nearly 20%. There was in addition no pattern to these problems which appear to be random with failures to provide samples per page varying from zero to 7.
Despite all of these problems being explained by experts at his trial on 30 June 2008 at the Magistrates’ Court, the lay Magistrates chose to convict leaving Mr Wannell in the frustrating and devastating position of having to raise the funds to appeal a conviction that should never have happened.
I was shocked when David was convicted. I had no doubt the evidence we had gathered would be enough to secure his acquittal but as if often the case in Magistrates’ Courts, the people entrusted with the task of hearing the case either did not understand the complex scientific issues raised or they just chose to rely on the machine blindly despite the evidence we presented to cast significant doubt on its reliability and accuracy.
This was no motoring loophole but involved a genuinely innocent motorist who was the victim of a faulty machine and a court system that is crying out for review. Thankfully we went on to overturn the conviction at Lewes Crown Court but Mr Wannell paid handsomely to clear his name. His legal bill came to over £20,000. He was eventually refunded in full by the court but to those who cannot afford to pay for justice to be done, this is simply not good enough....
Thursday, 17 February 2011
Thursday, 9 December 2010
Case Study: Parking Ticket Rescinded - Leaves (Or Snow) On The Sign
In one case where a parking ticket was appealed against because of leaves covering the road traffic sign indicating restricted parking, the appeal was allowed. The appellant, issued with a Parking Charge Notice (PCN) for parking in a restricted area appealed on the ground that the signs had been obscured by foliage and therefore not visible.
The Adjudicator found that, while the sign in question was in good condition it was insufficiently visible during August (the time of the alleged contravention - when the trees were in full leaf) to alert the appellant, a visitor to the area, to the presence of a restriction. The appeal was allowed.
The Adjudicator found that, while the sign in question was in good condition it was insufficiently visible during August (the time of the alleged contravention - when the trees were in full leaf) to alert the appellant, a visitor to the area, to the presence of a restriction. The appeal was allowed.
Drivers may do well to use this case for snow-covered signage if unlucky enough to receive a ticket.
Can other motorists use Bus Lanes during the bad weather?
Another issue causing confusion to drivers is whether they were permitted to drive in a bus lane so as to avoid hazardous ice and snow covered lanes. Is this legal or are drivers who do so risking prosecution?
The same laws apply whether you are driving on a clear day or in adverse weather conditions. In any circumstances bus lanes are solely for the use of buses or other vehicles that are listed on the road sign unless the signage is superseded by police/local authority temporary signage. Bus lane contraventions are normally enforced by camera. A Parking Charge Notice (PCN) is only payable if the council has a visual record of the contravention.
If a motorist receives a notice of intended prosecution for contravening signage and using a restricted bus lane, it is anticipated that leniency would prevail with regards to any appeals for such notices to be withdrawn.
Last winter and the current arctic conditions have involved some the worst weather conditions in the UK for decades. As a consequence the courts would have to adopt a common sense approach or thousands of motorists could be landed with unfair fines.
If you find yourself in receipt of a notice, fine or summons and you believe the extreme weather conditions should be taken into account, you may be fortunate and avoid a fine or penalty. However, in future, you should bear in mind that, if the law is applied by the letter, there may not be the leniency most laymen might expect.
Hopefully, the UK will not be visited by such extreme conditions for many years to come. Amongst pleas for better gritting plans to be implemented, I expect there to be much clearer guidance issued by the Police and Highways Agencies for the future.
If you need further advice or assistance with any motoring legal matter call us on freephone 08000 85 27 84. Our ‘phones are manned throughout the day, evenings and weekends - even on Christmas day and during all bank holidays.
Can snow suspend parking restrictions?
If you do receive a ticket for parking your car on a double yellow line but the lines weren’t visible due to snow then, unless there was clear signage or road markings to notify the motorist that there were restrictions in place, you should have a valid defence.
You may think that the snow would mean that parking wardens would stay at home. However, since 2008, notices have been capable of being issued from CCTV evidence which do not require human input in catching the offending drivers. In order to appeal against a ticket issued in such circumstances, photographic evidence that shows the hidden double yellow lines and lack of signage can help.
The difficulty you may face as a result of the parking laws introduced a couple of years ago is that it is lawful for the council to send a ticket to you several weeks after the alleged contravention making it impossible for you to gather the necessary evidence to appeal the ticket.
In the extreme weather conditions we have suffered this December, it would be a defence for a motorist to argue that snow made it impossible to see or adhere to parking restrictions. The difficulty you may face is being able to present specific and accurate evidence of these conditions if you don’t receive a ticket until after the alleged contravention.
You could refer to weather reports on the day and hope this would be sufficient but as the new parking regime is still relatively new, only time will tell if local authorities will pursue motorists when extreme weather conditions were in place.
Clear Windscreens
Clear visibility when driving is a legal requirement, yet many motorists have taken illogical risks, driving in the snow with reduced visibility. The Road Vehicles (Construction & Use) Regulations 1986 (as amended) specify the minimum levels of light that must pass through the windscreen and front side windows of a vehicle.
The limits are:
- Motor Vehicles first used before 1 April 1985: The windscreen and front side windows must allow at least 70% of light to be transmitted through them.
- Motor Vehicles first used on or after 1 April 1985: The light transmitted through the windscreen must be at least 75%. The front side windows must allow at least 70% of light to be transmitted through them.
A fixed penalty of £30 can be imposed as a minimum.
It is down to Police discretion as to how they deal with the offence. However, be warned that, whilst the offence of driving with reduced visibility is punishable by a fine only, the police could decide to report you for the more serious offence of careless or even dangerous driving if you drive around without waiting for your de-icer to take effect.
A motorist can be faced with a prosecution for careless driving punishable by between 3 to 9 penalty points and a hefty fine for simply failing to adhere to the Highway Code.
Thursday, 17 June 2010
Miss Justice fights for motorists and wins!!!!
Miss Jeanette Miller, Founding President and CEO of the Association of Motor Offence Lawyers (AMOL) has truly earned her nickname of “Miss Justice” today after legal action launched by the Law Society against the government was a resounding success.
The saying “from small acorns do oak trees grow” springs to mind as back in September 2009, outraged by the impending implementation of these regulations, Miss Miller launched an e-petition on the no.10 website. By the time the petition closed, it had attracted almost 22,000 signatures:
http://petitions.number10.gov.uk/CostsRecovery.
Despite this strong objection, The Ministry Of Justice proceeded with the implementation of these most unjust rules designed to cap the costs of a successfully acquitted defendant. The petition attracted the support from many high profile figures including 26 QC’s and the Criminal Bar Association have fully endorsed the sentiments behind the petition. The petition was also backed by many legal and motoring organizations. Following the petition, the Law Society took up the helm and launched judicial review proceedings against the government in January 2010.
The judgment - handed down today by Lord Justice Elias and Mr Justice Keith - has ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases. The court said:
“The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.”
Upon hearing the news, Jeanette said:
“I am truly delighted that on this most important issue, justice has been done. The months of hard work and campaigning have paid off to ensure that those who are innocent will not be left with financial ruin to contend with after clearing their names.”
Commenting on the judgment, Law Society President Robert Heslett said:
“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state. The High Court’s ruling strikes down the previous Lord Chancellor’s plans, which would have meant that many people who were ineligible for legal aid and who were acquitted could have been seriously out of pocket because of the limits on the costs that they could recover.
“This was entirely at odds with the accepted principles of justice. It was quite wrong for the previous Government to devise such a scheme and I am delighted that the court has struck it down.
“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state”
- Robert Heslett
“The Society is pleased to have been able to champion the rights of the individual in this way so that people who are wrongly accused of offences to recover the reasonable costs of clearing their name. As the High Court said, this attempted change to the law was of 'some constitutional moment' and we are delighted that this policy cannot now continue.
Law Society Chief Executive Desmond Hudson added:
“Opposition to this policy was a key plank of the Society's Manifesto Delivering Justice in the run up to the general election and opposed by the Conservatives and Liberal Democrats when in Opposition. We are glad that this policy has been halted in its tracks. We recognise that there are severe financial constraints on the Ministry of Justice budget but we would urge the Government not to seek to overturn this judgment.
“Unnecessary and inappropriate prosecutions should be avoided so that innocent people are not forced to go through the trauma and cost of trial process in the first place. Government should look at the system as a whole and we are keen to work with them on this.”
Background notes
Miss Miller campaigned for signatures to her e-petition in 2009 which preceded the judicial review proceedings. She was also greatly involved in assisting the Law Society in compiling their case against the government and disclosed detailed information and statistics from her own specialist motor defence firm, Geoffrey Miller Solicitors, for use in the case. The Law Society’s case was a judicial review of the previous Lord Chancellor’s decision to introduce a scheme to limit the amount of costs that acquitted defendants can recover from central funds.
The case concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.”
Courts are either able to make summary assessments or they can refer cases to be taxed by the National Taxing Team.
Until last October, regulations made under the Act stated that the test to be applied in determining awards of costs was to be the test set out in section 16. Accordingly what was a “reasonable” hourly rate for a solicitors firm was determined by reference to the rates charged by comparable firms with similar expertise and in a similar locality. Equally, in relation to the level of counsel instructed, the proper question was the reasonableness of the instruction.
This scheme came under scrutiny by the MoJ as a result of budget overruns and the impact of a small number of very high cost cases. It decided therefore to take advantage of a power contained in the Act to set rates or scales for payments of costs out of central funds and to introduce a scheme which limited recoverable costs to legal aid rates.
The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800).
The point at issue in the litigation was relatively simple: can the Lord Chancellor in setting rates or scales decide what is “reasonable” to allow the defendant, even if as a consequence the amount that will be recovered falls well short of the amount the defendant actually incurred?
In his judgment given today, Lord Justice Elias made it clear that the statute does not allow the Lord Chancellor to decide what is reasonable. In setting out a scheme of rates and scales, he has to respect the statutory purpose set out in the Prosecution of Offences Act. The Act was intended to provide reasonable compensation for successful defendants. By implementing rates and scales which did not compensate defendants the Lord Chancellor had acted unlawfully.
For more information about Miss Justice and the work she does, please visit www.motoroffence.co.uk
The saying “from small acorns do oak trees grow” springs to mind as back in September 2009, outraged by the impending implementation of these regulations, Miss Miller launched an e-petition on the no.10 website. By the time the petition closed, it had attracted almost 22,000 signatures:
http://petitions.number10.gov.uk/CostsRecovery.
Despite this strong objection, The Ministry Of Justice proceeded with the implementation of these most unjust rules designed to cap the costs of a successfully acquitted defendant. The petition attracted the support from many high profile figures including 26 QC’s and the Criminal Bar Association have fully endorsed the sentiments behind the petition. The petition was also backed by many legal and motoring organizations. Following the petition, the Law Society took up the helm and launched judicial review proceedings against the government in January 2010.
The judgment - handed down today by Lord Justice Elias and Mr Justice Keith - has ruled unlawful an attempt by the previous Lord Chancellor, Jack Straw, to cap the costs paid to people acquitted in criminal cases. The court said:
“The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.”
Upon hearing the news, Jeanette said:
“I am truly delighted that on this most important issue, justice has been done. The months of hard work and campaigning have paid off to ensure that those who are innocent will not be left with financial ruin to contend with after clearing their names.”
Commenting on the judgment, Law Society President Robert Heslett said:
“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state. The High Court’s ruling strikes down the previous Lord Chancellor’s plans, which would have meant that many people who were ineligible for legal aid and who were acquitted could have been seriously out of pocket because of the limits on the costs that they could recover.
“This was entirely at odds with the accepted principles of justice. It was quite wrong for the previous Government to devise such a scheme and I am delighted that the court has struck it down.
“This is a great victory for the Society on behalf of innocent people who have been prosecuted by the state”
- Robert Heslett
“The Society is pleased to have been able to champion the rights of the individual in this way so that people who are wrongly accused of offences to recover the reasonable costs of clearing their name. As the High Court said, this attempted change to the law was of 'some constitutional moment' and we are delighted that this policy cannot now continue.
Law Society Chief Executive Desmond Hudson added:
“Opposition to this policy was a key plank of the Society's Manifesto Delivering Justice in the run up to the general election and opposed by the Conservatives and Liberal Democrats when in Opposition. We are glad that this policy has been halted in its tracks. We recognise that there are severe financial constraints on the Ministry of Justice budget but we would urge the Government not to seek to overturn this judgment.
“Unnecessary and inappropriate prosecutions should be avoided so that innocent people are not forced to go through the trauma and cost of trial process in the first place. Government should look at the system as a whole and we are keen to work with them on this.”
Background notes
Miss Miller campaigned for signatures to her e-petition in 2009 which preceded the judicial review proceedings. She was also greatly involved in assisting the Law Society in compiling their case against the government and disclosed detailed information and statistics from her own specialist motor defence firm, Geoffrey Miller Solicitors, for use in the case. The Law Society’s case was a judicial review of the previous Lord Chancellor’s decision to introduce a scheme to limit the amount of costs that acquitted defendants can recover from central funds.
The case concerned the Prosecution of Offences Act 1985, section 16 which gives the courts the power to award costs to successful defendants of such an amount “as the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings.”
Courts are either able to make summary assessments or they can refer cases to be taxed by the National Taxing Team.
Until last October, regulations made under the Act stated that the test to be applied in determining awards of costs was to be the test set out in section 16. Accordingly what was a “reasonable” hourly rate for a solicitors firm was determined by reference to the rates charged by comparable firms with similar expertise and in a similar locality. Equally, in relation to the level of counsel instructed, the proper question was the reasonableness of the instruction.
This scheme came under scrutiny by the MoJ as a result of budget overruns and the impact of a small number of very high cost cases. It decided therefore to take advantage of a power contained in the Act to set rates or scales for payments of costs out of central funds and to introduce a scheme which limited recoverable costs to legal aid rates.
The Government estimated that its new scheme would save £20 million each year. The cost of this was to be borne by individuals, an average of £16,200 per case in the Crown Court, representing the difference between the average costs of a privately paid case (£19,000) and the average cost of a legally aided case (£2800).
The point at issue in the litigation was relatively simple: can the Lord Chancellor in setting rates or scales decide what is “reasonable” to allow the defendant, even if as a consequence the amount that will be recovered falls well short of the amount the defendant actually incurred?
In his judgment given today, Lord Justice Elias made it clear that the statute does not allow the Lord Chancellor to decide what is reasonable. In setting out a scheme of rates and scales, he has to respect the statutory purpose set out in the Prosecution of Offences Act. The Act was intended to provide reasonable compensation for successful defendants. By implementing rates and scales which did not compensate defendants the Lord Chancellor had acted unlawfully.
For more information about Miss Justice and the work she does, please visit www.motoroffence.co.uk
Tuesday, 12 January 2010
Innocent Motorists Are Admitting To Offences....
.... to avoid cost of court defence
A company director who contacted me for advice last month has admitted a motoring offence he says he has not committed after becoming one of the first to be caught by controversial new rules on court costs.
Ian Harrison, is being deterred from contesting a phone-driving fine due to the cost. Ian Harrison says he cannot afford to take his case to court because even if he won he would have to pay nearly all his legal bills of at least £2,000. The 53-year-old has instead opted to accept a £60 fine and three penalty points.
Since October, criminal defendants in England and Wales have only been allowed to claim back lawyers’ fees at the legal aid rate of £60 – often less than a quarter of the real charge – even if they are acquitted, leaving innocent people heavily out of pocket unless they plead guilty or represent themselves.
Before these new rules were implemented, I started a petition on the Number 10 website which attracted 21,947 signatures.
The petition closed on 07 November and has been acknowledged by the Prime Minister's office but to date, no official response has been issued. This may be due to the fact that The Law Society is seeking a judicial review of the regulations, which affect all defendants who do not receive legal aid. Now that legal action has commenced in the High Court, the government may be less willing to provide a formal response to the issues raised in the petition as this could conflict with their legal stance in response to the Judicial Review proceedings.
Thirty MPs have signed a Commons motion criticising the new rules. However, I think many more would have signed it if the EDM had been tabled earlier within the Parliamentary session.
In 2008, 37 per cent of all cases in magistrates courts were motoring offences.
Mr Harrison, a deputy manager of a firm of bailiffs in Bolton, was issued a penalty notice for using a mobile phone while driving earlier this month, but he says he was using a Bluetooth device which is legal.
When I spoke to him I was pretty convinced we would succeed in securing his acquittal at court if he chose to contest the proceedings. I had to warn him, however, that even if he won his case he could be liable to pay nearly all of his costs, likely to reach more than £2,000.
When interviewed by reporters who covered this story he said “I don’t have that sort of money so I’m just going to take the fine and the three points. If I had been able to get my costs back then because I had a good chance of winning I would have gone for it. But even if I’m vindicated I’ll still be the loser because I’ll have lost £2,000.”
We have seen a drop of 34 per cent in the number of motorists taking their speeding claims to court in November 2009 compared with November 2008, when costs were still met from central funds. There has been little change with the more serious offences like drink driving and dangerous driving as people are still contesting these charges due to the serious ramifications of a conviction. However, with an offence that carries points and poses no risk of a ban, most drivers seem to be admitting to offences rather than be out of pocket. A scenario I predicted would happen when launching the peitition.
Figures from the Ministry of Justice show that 24 per cent of the 1.4 million motorists taken to court in 2007 were cleared, which meant nearly 380,000 drivers recouped about 80 per cent of their costs. Legal aid is not available for most motoring cases and defending speeding cases typically costs at least £2,000, while costs for fighting a drink-driving charge can range between £5,000 and £10,000.
The Ministry of Justice hopes to save £25 million a year by paying only legal aid rates.
Robert Heslett, president of the Law Society, said: “The human cost of this grossly unfair regulation cannot be underestimated.
“It will result in financial disaster for many innocent people, who, having been cleared of any wrong doing, will have endured the stress of these charges, and then face legal fees running into the thousands for the privilege.”
The Law Society’s judicial review has been backed by the Police Federation of England and Wales. Stephen Smith, the deputy general secretary of the federation, which defends officers accused of wrongdoing, said: “The result of the proposed change will put the Federation under severe financial strain or place police officers in a position where the direct cost to them is prohibitive of fighting a charge that they categorically deny.
“To that end, the new regulations are unfair and a backward step to equal access to representation and justice.”
“It will result in financial disaster for many innocent people, who, having been cleared of any wrong doing, will have endured the stress of these charges, and then face legal fees running into the thousands for the privilege.”
The Law Society’s judicial review has been backed by the Police Federation of England and Wales. Stephen Smith, the deputy general secretary of the federation, which defends officers accused of wrongdoing, said: “The result of the proposed change will put the Federation under severe financial strain or place police officers in a position where the direct cost to them is prohibitive of fighting a charge that they categorically deny.
“To that end, the new regulations are unfair and a backward step to equal access to representation and justice.”
I remain hopeful the review and the increasing pressure on the Government from the Law Society, MPs and the public would force ministers to review the legislation.
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