Appealing Driving Licence Ban

[bloomingflower]

Hi Everyone !

Can anyone give me advice or info with regards to my sons driving license ban? (Hes 20, and I love him to bits. Hes done some foolish stuff, but this one takes the biscuit !)

He was stopped for no car insurance !, he lost license and he is now appealing it...

Apparently there are mitigating circumstances..he says he had to drive his car in an emergency situation. His GFs mother is diabetic and had to drive her home so she could take her insulin. ( Sounds like he may of been speeding too, but he didn't tell me in his own words)

If that was the case, he should of called an ambulance. He was stupid to drive his car and risk losing his license. The Police and the Courts are now clamping down on peeps and take a dim view who have no insurance or tax etc..

Does anyone think his appeal will be successful?



Bf xx

[Tools]

Re: Appealing Driving Licence Ban

To be completely honest BF, I wasn`t exactly whiter than white during the 90`s and at one time was stopped for no Tax , MOT or insurance. I was given 6 points £200 fine and £30 costs. I was in the wrong, I knew it, and appeared at court to plead that no ban was imposed as I needed it for my job (believe it or not an MOT Nominated Tester at the time).

The Judge took note of my pleas and just gave me the points etc mentioned above. He really should have stood in court to plead his mitigating circumstances before the ban. If I had have been given a ban in court then I would have acceped it as I was breaking the law and was fully aware of the consequences.

He may appeal by all means, does he rely on using the car as part of his job?

Is the car now insured? If not will it be if he is allowed to drive again?

How long was the ban for?

A ban will also affect his premiums and I strongly advise he declares it to his insurer as if he doesnt that policy is void and he can again be prosecuted for driving without valid insurance.

Sometimes a driver may be given the option to go on further training courses instead of a ban, usually for speeding offences.

At the end of the day, he has nothing to lose by lodging an appeal, I say go for it. But he must accept at the end of the day he was breaking the law and must accept the punishment given.

[Paule]

Re: Appealing Driving Licence Ban

Can you clarify what happened at the scene.

I presume he then had to walk or get a taxi and that the car was towed?

What did the officers say regarding his MILs health problem?

Did he attend court for his ban? Did he have a solicitor or not?
If so, why didnt he give his reasons then.

As Tools has said, if their are genuine reasons the courts can use their discretion and award higher fines instead of a ban.

The Police are clamping down on these things, but I wont lecture, we all do stupid things.

If you are to appeal, I would advise you get a specialist solicitor dealing with traffic offences
(believe me, some are useless. I know from experience)

I would also advise you to post on PePiPoo: Helping the motorist to get justice which is a specialist motor/driving forum

PKea

[bloomingflower]

Re: Appealing Driving Licence Ban

[quote=Tools;80488]To be completely honest BF, I wasn`t exactly whiter than white during the 90`s and at one time was stopped for no Tax , MOT or insurance. I was given 6 points £200 fine and £30 costs. I was in the wrong, I knew it, and appeared at court to plead that no ban was imposed as I needed it for my job (believe it or not an MOT Nominated Tester at the time).

The Judge took note of my pleas and just gave me the points etc mentioned above. He really should have stood in court to plead his mitigating circumstances before the ban. If I had have been given a ban in court then I would have acceped it as I was breaking the law and was fully aware of the consequences.

Im not even sure if he had to go to court before the ban, there is missing info, and gaps from what he has told me... it was just a breif convo on the phone when he told me about the ban....

He may appeal by all means, does he rely on using the car as part of his job?

No.. he only uses it for getting him to work, shopping etc..

Is the car now insured? If not will it be if he is allowed to drive again?

He doesn't live with me and his dad, he moved out when he was 18 to live with his GF.. his GF now has to drive.. but am not sure if the their car is now insured TBH. (he doesnt really disclose much, only tells me what he wants to tell me) if he was still living at home, he would not be in this situation. (point Im trying to make is..If I was his GF, I would not of let him get in the car without insurance, full stop.)

How long was the ban for?

He didnt say...

A ban will also affect his premiums and I strongly advise he declares it to his insurer as if he doesnt that policy is void and he can again be prosecuted for driving without valid insurance.

Sometimes a driver may be given the option to go on further training courses instead of a ban, usually for speeding offences.

At the end of the day, he has nothing to lose by lodging an appeal, I say go for it. But he must accept at the end of the day he was breaking the law and must accept the punishment given. I totally agree with you Tools. he knew full well he was breaking the law and should accept punishment. Will now just have to wait and see what happens, the appeal has gone through, so now just waiting to hear back.. not sure how long it will take. [/quote





BF xx



Hi Tools.. I have answered your above questions in your post.. many thanxs for your reply!

Can you clarify what happened at the scene.

I presume he then had to walk or get a taxi and that the car was towed?

His dad helped him tow the car back to his flat

What did the officers say regarding his MILs health problem?
No info about this..

Did he attend court for his ban? Did he have a solicitor or not?
If so, why didnt he give his reasons then. No info..

As Tools has said, if their are genuine reasons the courts can use their discretion and award higher fines instead of a ban.

The Police are clamping down on these things, but I wont lecture, we all do stupid things.

If you are to appeal, I would advise you get a specialist solicitor dealing with traffic offences
(believe me, some are useless. I know from experience)

I would also advise you to post on PePiPoo: Helping the motorist to get justice which is a specialist motor/driving forum

PKea

Hi PKea !

I have also answered your questions in your post..thankyou for your reply and the above link...


Bfxx

[Paule]

Re: Appealing Driving Licence Ban

He had so much going for him.. Career in the Police,

If he is/was/was going to be in the Police force then he should know what to expect and should also be aware of his actions and the consequences.
as you said..

he knew full well he was breaking the law and should accept punishment

Obviously I do not you or your family or his GFs family, but my instinct is saying that, as he hasnt given you the full picture, his GF family and him may have come up with this excuse now to try and get him off.

If you get stopped by the Police for any reason, in my experience, the first thing out of their mouth is an excuse of some sort, whether real or genuine, so for this reason to appear now seems strange to me.

The CPS : Road Traffic Offences

Under section 143(1)(a) RTA 1988 "a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of that vehicle by that person.a policy of insurance .". Under section 145 the policy must be issued by an authorised insurer and must insure for death or bodily injury to any person, or damage to property, caused by, or arising out of, the use of a vehicle on a road in Great Britain, i.e. third party insurance.
A statutory defence is provided by section 143(3) RTA in relation to a driver who unwittingly drives his employer's uninsured vehicle.
Offences of causing or permitting the uninsured use of a vehicle should be regarded as being as serious as using a motor vehicle without insurance.
It can often be vital to correctly choose between using, causing or permitting. For the definition of using, causing or permitting, (see Wilkinson's 21st edition 1.205).
Where a driver has obtained a policy of insurance by deception, the policy will be valid so far as liability under section 143 is concerned until the insurers have taken steps to `avoid' it.

Procedure pre-trial
Notice of intended prosecution

Section 1 RTOA 1988 provides that a defendant cannot be convicted of certain road traffic offences unless he or she has been warned that the question of prosecution would be taken into consideration. Such a warning is normally known as 'notice of intended prosecution', or NIP.

A notice of intended prosecution can be given:

* either orally or in writing at the time the offence was committed. Such a warning need not be specific but may refer to some one or other of the offences to which section 1 applies. Whether such a warning was given `at the time' is a question of degree and the High Court will not interfere in a Magistrates' Court finding on the point if there is evidence to support that finding.
* By serving the defendant with a summons within 14 days of the offence; or
* By sending a notice within 14 days of the possibility of prosecution and specifying the nature of the alleged offence and the time and place where it is alleged to have been committed to the driver, registered keeper of the vehicle or rider of the cycle.
* The offences to which section 1 RTOA applies are listed in schedule 1 of that Act. They are, under the RTA:
o Section 2 (dangerous driving)
o Section 3 (careless driving/driving without reasonable consideration)
o Section 22 (leaving the vehicle in a dangerous position)
o Section 28 (dangerous cycling)
o Section 29 (careless cycling)
o Sections 35 and 36 (disobeying certain traffic signs and police signals)
* And under the Road Traffic Regulation Act:
o Sections 16, 17(4), 88(7) and 89(1) (speeding offences)
* or aiding and abetting any of the above.

Section 2 RTOA 1988 states that the prosecution does not have to comply with section 1 if, owing to the presence on a road of a vehicle in respect of which the offence was committed, an accident occurred at the time of the offence or immediately afterwards. However, a notice is still required if the defendant was unaware that there had been an accident: see Bentley -v- Dickenson [1983] RTR 356.

Under section 1(3) RTOA 1988 the requirements of that section are deemed to have been met unless and until the contrary is proved. You will not have to call evidence that section 1 has been complied with unless the defendant proves, on a balance of probabilities, that no effective notice was given. The issue can be raised at any relevant stage of the proceedings or decided as a preliminary point.

By virtue of section 2(3) RTOA a failure to meet the requirements shall not prevent conviction where the court is satisfied that:

* It arose because the name and address of the accused or the registered keeper could not with reasonable diligence be ascertained within the statutory time; or
* The defendant contributed to that failure by his or her own conduct.

You should remember:

* If the prosecution is taken by surprise by the issue, you can apply to adjourn to call a witness;
* If the prosecution is given advance warning that NIP is to be an issue, you should seek to resolve the matter by disclosing to the defence the grounds that the prosecution rely on, in order to seek agreement;
* Where a charge under section 2 RTA is sent to trial on indictment, the issue is one for the trial court, unless the prosecutor decided that there has been a fatal non-compliance with the requirement. In that event the case should not proceed unless the defence agrees to waive the point.

A claim that the requirements of the section have not been complied with is a popular technical defence. There are many decided cases on various aspects of the provisions. You should examine the position in each case with particular care. See (Wilkinson's 21st edition p 2.220) for a full commentary.

If there is the slightest doubt as to whether a notice should be served, the safest course is for a notice to be sent.

If there is doubt about the nature of offence committed, the notice should include all possible relevant offences.

Special reasons

Section 34(1) RTOA reads:

Where a person is convicted of an offence involving obligatory disqualification the court must order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period, or not to order him to be disqualified.

A special reason is one which is special to the facts of a particular offence. It is a mitigating or extenuating circumstance which is directly connected with the commission of the offence and which can properly be taken into consideration by the sentencing court. A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason: see Whittall -v- Kirby [1946] 2 ALL ER 552. Neither is a `special reason' a defence to the charge.

The prosecution has a duty to assist the court by ensuring that correct and full information, both in law and fact, is given.

Special reasons, particularly in relation to drink/drive cases, have generated a considerable body of case law and will most commonly be advanced in cases involving:

* driving in emergencies
* inadvertent consumption of drink or drugs.

In such cases you must ensure that you are familiar with the current law. See (Wilkinson's 21st edition Chapter 21).

Where special reasons are put forward in cases of drink and driving, the court must consider the following factors - see (Chatters -v- Burke [1986] 3 All ER 168):

* the reason for driving;
* the distance driven;
* the manner of driving;
* the condition of the vehicle driven;
* whether or not it was the driver's intention to drive any further;
* the road and traffic conditions at the relevant time; and
* the possibility of danger to other road users (the most important factor).

In DPP -v- Bristow [1998] RTR 100 the Divisional Court stated that the key question justices should ask themselves when assessing if such special reasons existed on which they might decide not to disqualify was this: what would a sober, reasonable and responsible friend of the defendant, present at the time, but himself a non-driver and thus unable to help, have advised in the circumstances, to drive or not to drive?

The onus of establishing special reasons lies on the defence, and the standard is that of the balance of probabilities.

The defence should also give notice that they will be seeking to advance special reasons. Failure to do so will entitle the prosecution not only to seek an adjournment but also to cross-examine the defendant on his failure to give such notice so that the court may consider whether that failure reflected upon his bona fides, see DPP -v- O'Connor [1992] RTR 66, an authority which is also helpful on the procedural requirements and the general approach to be adopted.

When notice is given, you should try and agree as much evidence as possible. You should consider carefully:

* the nature of the special reason and the evidence (including expert evidence) needed to rebut it;
* how much of the evidence can be properly served under section 9 Criminal Justice Act 1967;
* the issues raised by any defence expert.

[righty]

Re: Appealing Driving Licence Ban

I agree with Tools He should have claimed mitigation in court as I doubt his appeal will succeed as this info is not new.

A young friend of my daughter got caught doing over 100mph & came to me for advice My advice was that as all the technicalities (NIP etc) had been correct he admit his mistake admit he had been foolish & that he wouldn't do it again. He was banned for 14 days & that was only 3 months ago