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Judges get it wrong too

Royal Courts of Justice - hopefully they all know the law here

Motoring law is a niche area of criminal law that not every criminal solicitor or barrister properly understands.  It’s no great surprise.  I wouldn’t want to get involved in a serious fraud case because, although I’m an experienced criminal solicitor who has conducted minor fraud trials in the distant past, I do not have the expertise to properly represent somebody facing trial in a major fraud case.

Motoring law, and the drink driving offences I mostly handle, is every bit as complex as any other area of law and can be a minefield for the solicitor who doesn’t fully understand it.  That applies every bit as much to courts as it does to defence or prosecution solicitors.

Recently, I was representing a client who I knew had a previous conviction for failing to provide a specimen of breath at the roadside.  So, I wasn’t surprised to see that on his list of previous convictions, what did surprise me is that he had been disqualified from driving for 18-months.  I told the court that simply could not be correct – the court’s legal advisor looked confused and told me that an 18-month disqualification is a normal sentence for failing to provide.  I confess to feeling a sigh rising inside me that I managed to suppress long enough to explain to both the magistrates and their legal advisor that there are two types of failing to provide: the most common one is failing to provide at the police station and often results in 18-month driving bans.  However, the second type is very rare (so rare I’ve never come across another) and is relevant where the suspect fails to provide at the roadside.  The starting point for that offence is 4 penalty points not any disqualification.  My client had been convicted of the second offence and had no other convictions whatsoever.  While it's possible for a court to impose a discretionary disqualification, I cannot think of circumstances in which the offence could be so drastically aggravated to move from 4 penalty points all the way to an 18 month driving ban.

In my client’s first case, he had been stopped and required to provide a preliminary breath test at the roadside.  He refused thinking that he didn’t have to comply and was arrested.  At the police station, he provided an evidential sample and was found to be completely alcohol free.

Had the offence been committed at the police station on the evidential breath machine then the sentence imposed would match with the sentencing guidelines for that offence.  This leads me to the conclusion that when my client was originally sentenced, the magistrates used the wrong set of guidelines to pass sentence.  The thing that riles me most about this is that nobody in the court room noticed – not the legal advisor, not the prosecutor and not the duty solicitor who represented him back then!  That’s six people (3 magistrates and the others) who failed to appreciate that they were passing an outrageously inflated sentence because not a single person in the courtroom had sufficient knowledge of motoring law, i.e. the law the solicitors were being paid to know and that the magistrates had sworn to uphold.

Not so long ago many solicitors were general practitioners, maybe drafting a commercial contract on a Monday, appearing in the magistrates court on a Tuesday and preparing petitions for divorce on Wednesday but today the law is becoming so complex that GP solicitors are becoming a rare breed.  Even in criminal law, which used to be a specialism itself, the law has developed to a point where an entire room full of criminal solicitors can get the law wrong on what should be a very simple sentencing issue.

As a point of public policy I’m not sure that overly complex law is a good thing for the public; however, it is the reality of the world we live in.  So, whether you need a contract drafted, an ex-divorced or a minor motoring offence defended make sure the solicitor you instruct has the necessary skills to handle your case.


  1. I don't suppose any people in the courts "machine" could care less. Today all morality, probity, and considerations of justice has completely disappeared.

  2. The sentencing guidance does not appear to show two different offences. It seems that it is that that is incorrect. I wager the court followed the guidance provided to them. Do you look at the sentencing guidance? It seems to say must disqualify for at least 12 months. Have you raised it with the powers that be?

    1. The guidelines do deal with this offence - this is the problem that people who aren't experienced in motoring law struggle to find the information they need.

      Page 135 under the heading "Offences appropriate for the imposition of a fine or discharge" and "Part 1: Offences concerning the driver"

      Gives a maximum fine of L3 and 4 points with a starting point of a band B fine.

    2. I can see why the JPs saw page 128 and didn't realise 135 had more appropriate content. Surely the advisor is there to advise and prevent this type of thing.

  3. Not being a proponent of sentencing guidelines per se I am not surprised that the gnomes of Petty France should have s*** on their faces for this omission. Thankfully I cannot recollect ever having had to sit on such a charge.

    1. It's is very rarely charged. Either the person fails to provide at the police station or they do provide and fail the test so is charged with the more serious offences. Usually, in my experience at least, when somebody is found not to be drunk the police don't charge because the suspect has been arrested etc.

  4. A very helpful post, and one I shall (try to) recall if ever I am faced with such a scenario. I think it's important to stress that the real issue here is in the charging, not the court decision. Courts do try and check that the elements of the offence are made out, but if the offence has been wrongly charged, then they're essentially basing that assessment on the wrong criteria. Neither a DJ(MC) nor a 'lay' bench of justices actively seeks to go behind the charge, seeking rather to see whether it's made out. But the point here is well-made and I hope well-taken. Certainly, the (closed) 'Magistrates Today' forum has picked up on this and sought to give it the necessary publicity. One can but hope that the JCS and above all individual Justices' Clerks (all too many of whom seem to forget their first and indeed primary function, and focus on their administrative duties) will ensure that their legal advisers are alert to this eventuality, especially in areas with "gateway courts" (at which road traffic offences from across a wide region, such as the Thames Valley, are brought together in a single specialist court with justices who are used to dealing with such matters).


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