Friday, 15 April 2011
Tuesday, 1 March 2011
Thursday, 17 February 2011
Miscarriage of Justice Dispensed By “Computer Says No!” Culture Within The Magistrates’ Courts
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....
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, 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.
Subscribe to:
Posts (Atom)
