The Defence Brief

  Drink driving law is more complex than many appreciate One thing I have found since specialising in motoring law is that it is an area that is poorly understood by many people, criminal lawyers and judges included. I have heard comments from fellow solicitors that include, “I don’t need any papers to advise him about his case, it’s only drink driving.” And, “there are no defences to drink driving.” Most worryingly I’ve heard more than one court legal adviser tell their magistrates that “it is impossible to avoid a driving ban following a drink driving conviction.” None of these things are true and I hope, through a series of blog posts, to give a brief glimpse into the law of motor vehicles and alcohol. In this first post I think it’s worth spelling out exactly what drink driving is and what needs to be proven to secure a conviction. The first thing to know is that there are two different types of drink driving and they require the prosecution to pro...

My typical view of the AXON website Legal practice, at least contentious legal practice, is all about evidence. One side brings a case by putting to the court and their opponent some evidence that they say proves their case. The other side responds by seeking to exclude, undermine or rebut that evidence, usually with evidence of their own. Exchanging evidence, call it discovery or disclosure as you will, is the all-important key to winning a case. Effective disclosure leads one side to thrown in the towel and give up. Failing to disclose leads to a loss in court, at best, and a wasted costs order at worst. Since evidence is so important you’d think somebody would have thought up a way to get that evidence to the people who need to see it quickly and efficiently while preserving the security of the information. I manage it in my firm through the use of encrypted uploads to secure cloud services and software that lets me to email the links to encrypted files that magically d...

Royal Courts of Justice There’s been an argument between police officers and lawyers over the past couple of days on Twitter over whether an acquittal means somebody is actually innocent versus whether a conviction means somebody is actually guilty. In law the position is quite clear, if you are convicted you are guilty; if you are acquitted you are innocent (you may already be shouting at me that “not guilty” does not equate to innocent but you are wrong – everybody is presumed innocent until convicted. If you are not convicted, then you are innocent in law thus a finding of not guilty maintains a defendant’s innocence and you can properly say that a person found not guilty is innocent). One of the more interesting points raised in the police v lawyer debate is that a person can be acquitted in a criminal court but convicted in a civil court. I think it’s an argument that is strong on its face but when looked at in more detail is quite weak. So, it’s worth exploring in a...

How you give evidence is every bit as important as what you say Giving evidence can be a daunting experience for many people and even those who are used to public speaking can find the formality of a courtroom off-putting.  In this post, I hope to give you a better idea of what will happen when you go into court and how you can maximise the impact of your evidence. Procedure Whether you are a witness for the defence or prosecution the process of giving evidence is the same.  Just remember that unless you are the defendant you must wait outside the courtroom before you give your evidence unless the court has agreed you can enter the room sooner. Being sworn in First, you will be called into the courtroom by a member of the court staff who will direct you to the witness box.  You will be asked whether you have any religious beliefs.  If you do then you will be handed the appropriate religious book along with an oath for you to read.  If you are not ...

Do we make it too easy for dishonest witnesses to lie? When a matter comes for trial the procedure is for the prosecution to call their evidence and prove that the defendant is guilty of the offence(s) against him. In ye olden days, the prosecution would call witnesses who could say, “I saw X do Y” and would then use this to build the case against the defendant. The accuser would give evidence before the judge, jury and defendant – the defendant would face his accuser and the accuser would face the accused. I’ve always thought that this is a good idea – in my opinion it’s much harder to lie to the face of somebody who knows you to be a liar than it is to lie to somebody with no knowledge of the facts. Don’t believe me? Go have an affair, send your wife the photos of your liaison and then deny it to her face and see if she can see through your lies – go on, I double dare you and we all know you can’t get out of a double dare! Also, assessing a witness’s credibility...

There are whisperings of a crackdown on expert witnesses in the form of a toughening of the rules governing the evidence they give to the court. Currently expert evidence is governed by Rule 33 of the Criminal Procedure Rules as well as by the guidance issued by individual governing bodies, for example this is the General Medical Council's advice .  Other less well regulated areas have different, less or no real guidance for 'experts' to follow.  Even where guidance exists that doesn't mean it will be followed well, properly or even at all! A few years ago, I was counsel in a big cultivation of cannabis case where one of the central issues revolved around an accounting ledger written partly in English and partly in Vietnamese.  There was a dispute over whether a particular word translated into "grass" or "aunty".  The Crown contended the word was "grass" and referred to cannabis sales.  The Defence line was the word meant "aunty...