Wednesday, 23 November 2016

Halfords Boss sent to prison for drink driving a gold buggy in Norway: would he be convicted in the UK?

Mr Mason caught drink driving
Jonny Mason convicted in Norway
The chief finance officer at Halfords, Jonny Mason, has been sentenced to two weeks’ imprisonment, a £12,000 fine and a two-year driving ban after he was caught drink driving a golf buggy on a private golf resort under 10kph. Would he be convicted here in the UK and, if yes, would the sentence be as harsh?

What’s needed for a conviction? The prosecution must prove a few things to secure a conviction:

1.       D drove;

2.       The thing that D drove was a motor vehicle;

3.       The driving took place on a road or public place;

4.       At the time D drove he was over the drink driving limit.

In most cases, some or all of these points are uncontested but Mr Mason’s case is interesting because it raises issues on points that aren’t considered in most cases.

First we need to ask was Mr Mason driving? “Driver” is a common word and the law defines it more or less according to its dictionary definition. Things may seem more complicated in a golf buggy where two people can operate all or some of the controls at the same time. But that does not trouble English law where the courts have recognised since the 1970s case of Tyler v Whatmore that two people can drive the same vehicle at the same time. So, if Mr Mason were exercising control over the vehicle using any of the controls he would be a driver.

Next we consider whether a golf buggy is a motor vehicle. When people think of drink driving, I suspect that cars, motorbikes, vans and lorries are the first things that come to mind not golf buggies. Section 185 of the Road Traffic Act defines “motor vehicle” to mean “a mechanically propelled vehicle intended or adapted for use on roads”. Having conducted some research, it seems that golf buggies are not usually intended for use on roads, although some can be adapted for such use on a limited basis. By the way, I’ve also discovered that a second-hand golf buggy costs around £4,500+VAT – for less money you can get a well-used Yamaha R1, I know which one I’d prefer! Assuming that this golf buggy was not adapted for use on the road then the prosecution’s case would fail as they would not be able to prove that Mr Mason was driving a motor vehicle.

It should be noted that although he would not be guilty of drink driving, an astute prosecutor would want to consider the possibility of a charge under section 12 of the Licensing Act 1872, which criminalises drunkenness when in charge of a “carriage, horse, cattle, or steam engine”. This charge is very rare and so we won’t go on and consider whether a golf buggy meets the definition of a carriage (I’m assuming none run on steam power and nobody thinks they are horses or cows), we’ll just assume it is a carriage. To commit an offence under the 1872 Act, a person must be in charge on a highway or public place, which is convenient since that’s very similar to the requirement under the 1988 Act.

Is a golf course a “road or public place”? I find that this is the question that trips up most non-lawyers most often. There is a common belief that motoring law ceases to apply the moment you enter privately owned land. This is very far from the truth. A common example of this belief in practice are parents who take their children to a car park for early driving licence believing the child does not need a licence or insurance because the land is private. We should draw a big red line under this myth – it is not true! The question is far more complicated and ownership of the land is only one small part of the answer. You must also consider who has access to the land such as whether it is open to the public at large. In one case, I successfully argued that my client was not guilty of drink driving because the land he was on was only open to a subset of the public and not the public at large. A simple question to ask is whether you could walk across the land to get from point A to point B where both are public places. If the answer is “yes” then it is likely to be a public place. If the answer is “no” and the land is privately owned then it is probably not a public place.

Based on the report in the newspaper, I doubt whether Mr Mason was on a “road” for the purposes of the 1988 Act, which defines a road as “any highway and any other road to which the public has access and includes bridges over which a road passes”. The report says he drove from a beach bar, which seems unlikely as there do not appear to be any beaches near the resort. But, assuming the bar was within the resort then it will not be a highway to which the public has access.

So, in Mr Mason’s case we would have to ask whether the golf resort is open to the public at large. If it is only open to members and their guests, then it is not open to the public at large. Additionally, if there is no route across the land that a person could take to get from A to B then it is very likely that the golf resort is not a public place and so no drink driving offence could be committed there.

I assume Mr Mason accepts the alcohol reading and so there’s no point considering that.

Therefore, we can see that had this happened in the UK, it is very unlikely that Mr Mason would have committed an offence because a. his vehicle is not a motor vehicle; and b. even if it were his driving seems have taken place on land not open to the public.

Nonetheless, in Norway it seems that his actions were a criminal offence – no doubt much to his surprise. But, had he been convicted here what would his sentence be?

Without knowing the level of alcohol in Mr Mason’s system it is difficult to be precise on the sentence. But we can have a go at working it out. In Norway, prison becomes an option when a person is double the drink driving limit, which in Norway is 20mg per 100ml of blood. Here in England and Wales it is 80mg, in Scotland it is 50mg. We know that Mr Mason was sentenced to two weeks’ imprisonment, which we can assume means was at least double the limit, so we’ll use that as a comparison.

Had he provided a specimen with 40mg of alcohol in 100ml of blood anywhere in the UK, he would not have been prosecuted. Had he been double the limit in England and Wales he would be looking at a fine of a week and a half’s wages plus a driving ban of between 17 to 22 months. I have no reason to think he is not a man of good character so there would be no likelihood of his going to prison.

Given the speed, distance and low risk to other road users, he might have attempted to argue that there was a special reason not to disqualify him from driving at all, in which case he would have escaped with ten penalty points.

So, we can see that in the UK, Mr Mason's actions would not have been a crime. But, had he somehow been convicted he could have avoided the driving disqualification altogether. If you find yourself facing an accusation of drink driving (whether it’s a golf buggy or a car), call the experts at London Drink Driving Solicitor on 020 8242 4440 for specialist legal advice.

Sunday, 20 November 2016

Women more likely to be targeted by police in drink driving crack down

Woman breath tested on suspicion of drink driving
A third of all motoring offences committed by women involve drink driving

Now that we’re in late November the Christmas season is upon us (whether we like it starting so early or not) and companies, offices and friends will be getting together for the annual Christmas party.

The police know this – they’ll be having parties of their own – and they know that people get drunk at the Christmas party so they’ll be on the lookout for people drink driving on their way home afterwards.

Figures released by the insurance industry show that more than a third of driving offences committed by women are for drink driving and those most likely to drink and drive are in the 45 to 60 year age bracket.  Because women are so much more likely to commit a drink driving offence than any other type of motoring offence it seems likely that police officers on the lookout for drink drivers will target women in that age bracket.

Although most drink drivers are in their middle age, male drink drivers are most likely to be between 25 and 34 years old. Many people think that it is the young, inexperienced novice drivers who are most likely to drink and drive, but the figures show that the under-20s are the least like to commit an offence, along with those aged 61 and over.

A police officer in uniform has the power to require any vehicle to stop. He or she does not need to have a reason for stopping the car so long as they are acting in the execution of their duty. They do NOT have the power to require a breath test without good reason, this means that while they can conduct random stops they cannot conduct random drink driving tests. The police DO have the power to require a breath specimen at the side of the road if they suspect you have committed a drink driving offence – refusal to provide the specimen is a criminal offence that carries penalty points and a fine, the court has the power to disqualify you from driving as well.

Penalties for drink driving are harsh and courts take no account of whether a disqualification from driving will cause you to lose your job and home so, as always, our advice is not to drive if you have been drinking. But, if you have been accused of drink driving or any of the associated offences, such as failing to provide a specimen, being drunk in charge and so on, you can rely on the expertise of London Drink Driving Solicitor to provide you with the best possible defence at a reasonable cost.

You can call us 24 hours a day on 020 8242 4440.

Wednesday, 24 August 2016

Can you aid and abet a drink driving offence?

One question I am regularly asked is whether somebody can be guilty of aiding and abetting a drink driving offence. Aiding and abetting is one of those phrases that’s well known to the public and most people understand it to mean “helping and offender”. While that’s a reasonable everyday explanation the legal meaning is a little more complicated.

The full phrase is “aiding, abetting, counselling and procuring” an offence. None of the words are particularly well defined by the courts; since the abolition of the need to distinguish between felonies and misdemeanours aiding and abetting has always been charged using all four words.  Nonetheless, I will do my best to define each word for you:
1.            Aiding – occurs when an accessory to a crime offers help or assistance to the principal offender, e.g. by supplying a gun for use in a crime.
2.            Abetting – I will quote “Criminal Law: cases and materials” by Herring here, because it made me laugh.  “To be honest no one knows what abetting means”.  In NCB v Gamble [1959] 1 QB 11 Devlin, LJ. says that abetting is encouragement given at the time of the offence as opposed to procurement, which is encouragement given before the commission of the offence.  Personally, I think it’s just an old-fashioned word that means nothing except that some long dead lawyer insisted on the belt and braces approach to drafting and others trying to look clever took up the word rather than admitting they had no idea what it meant.
3.            Counselling – involves directing somebody to commit an offence.  The accessory may indicate that commission of a particular offence is desirable or may go further to incite or instigate the crime, e.g. King Henry’s words "Will no one rid me of this turbulent priest?" were interpreted by his followers as meaning he wanted Thomas Becket killed.  If that was his meaning, then perhaps that would be counselling… if he wasn’t King that is.
4.            Procuring – will occur when the principal acts as a result of the accessories actions, e.g. Peter hears of a conspiracy between Mark and John to kill him and so convinces Trevor, who has a grudge against Mark and John, to off them before they can top Peter.
There is nothing special about drink driving in law that would prevent somebody being an accessory to the offence and so you can be convicted of aiding and abetting a drink driving offence.

In 1990, the High Court heard the case of DPP v Anderson. In that case, Mr Anderson had been a pillion passenger on his friend’s motorcycle. In his police interview, Mr Anderson admitted knowing that his friend had consumed half a bottle of wine. Mr Anderson was acquitted by the magistrates at his trial but convicted by the High Court on appeal by the prosecution. At the appeal, the High Court said that at trial the prosecution must prove:
1.       That the driver had in fact committed an offence;
2.       The defendant was aware or reckless as to whether the driver was over the drink driving limit;
3.       That the defendant had aided, abetted, counselled or procured the driver to commit the offence.

So, before considering whether somebody aided or abetted an offence the prosecution must first prove that the driver actually committed an offence and that the aider or abettor was aware of the offence at the time it was committed or was reckless whether the driver was committing a crime. Mr Anderson committed a crime because he gave evidence that he did not think about whether his friend was save to drive at all. Once the prosecution have proven the first two points they must then show that the defendant’s behaviour fits the descriptions of aiding, abetting, counselling or procuring.

In a case known by the snappy title of Attorney General’s Reference (No 1 or 1975), the Court of Appeal held that somebody who laces another’s drink with alcohol knowing that the other person is going to drive is guilty of procuring a drink driving offence. Of course, that would be a special reason for avoiding a driving ban for the driver himself.

If you were prosecuted for aiding or abetting a drink driving offence and were convicted, what sentence would you expect?

The court is required to treat aiders and abettors in the same way as they would treat the principal offender, i.e. the driver. This means that a person convicting of aiding or abetting a drink driving offence will receive a minimum 12 month driving disqualification plus a fine and they could be sent to prison or made subject to a community order.

The exact length of the driving disqualification depends on the alcohol reading in the principal offender’s body at the time he drove and so can be much longer than 12 months. In particular, if you have a previous conviction for drink driving then you will be subject to the three-year minimum driving disqualification.

Anybody convicted of aiding and abetting a drink driving offence should consider arguing that the fact they did not drive is a special reason for not imposing the driving disqualification at all.

Many people accused of aiding or abetting a drink driving offence will have a defence to the allegation and so it is very important that you take proper legal advice from an experienced drink driving law solicitor. You can get that expert legal advice by calling 020 8242 4440.

Friday, 5 August 2016

Alcohol Abstinence and Monitoring Requirement - UPDATE

A short while ago we reported on Alcohol Abstinence and Monitoring Requirements. These are requirements that can be attached to Community Orders and Suspended Sentence Orders and require the person subject to them to abstain from consuming alcohol for a period of up to 120 days.

Alcohol Abstinence and Monitoring Requirements have now been rolled out across the country and can be imposed by any court making a Community Order or Suspended Sentence Order providing the Secretary of State has notified the court that facilities exist in their area to implement the requirement.

Before a court can impose the requirement it must be satisfied that the following four conditions are met:
  1. Consumption of alcohol by the offender is an element of the offence before the court OR consumption of alcohol by the offender was a factor that contributed to the commission of the offence.
  2. The defendant must not be dependent upon alcohol.
  3. If the court imposes an alcohol treatment requirement it must not impose an Alcohol Abstinence and Monitoring Requirement as well.
  4. The court has been notified by the Secretary of State that arrangements for monitoring of the kind to be specified are available in the local justice area.
If you are facing the imposition of an Alcohol Abstinence and Monitoring Requirement you should be aware that it is monitored by an ankle tag that you cannot remove and will require you to be at home twice a day for the tag to upload the information it collects to the monitoring company. This will mean that the requirement is unsuitable for anybody who plans to work or spend time away from home during the period of the requirement. In effect, the requirement will mean that you are unable to take holidays or travel away from home for more than a few hours per day without breaching the Order imposed upon you.

Therefore, it is important that any issues like this are raised with the court before the requirement is imposed.

If you are facing court and would like advice on this or any other aspect of motoring law then do not hesitate to contact Nick Diable at London Drink Driving Solicitor on 020 8242 4440.

Wednesday, 20 July 2016

Recent case: drunk in charge

Man asleep in driving seat of his car
Sleeping a night out off in your car can cause you a lot of trouble

Our client, Alun, was accused of being drunk in charge ofa motor vehicle after he was found sleeping in his car at 8am. Alun had no qualms about admitting he had been drinking and was likely to be over the drink driving limit. He was arrested and at the police station provided a specimen that showed he had 45μg of alcohol in 100ml of breath – he was thus 10μg over the drink driving limit.

Alun explained to police that he had been out at various clubs and had taken a taxi home. He said that he had attempted to show the police officer the taxi receipt but the officer refused to look at it. Alun was locked out of his home as he had lost his front door key while out and so decided to sleep in his car – when searched no house key was found but Alun was directly outside his own front door.

Despite him being a few feet away from his home, the police decided to charge Alun with being drunk in charge. So, he called the London Drink Driving Solicitor for help. He told us that he attempted to call his brother in the night to get his spare key but his brother did not answer – telephone records to prove this were produced. Alun told us that his brother would have brought the keys to him, which is exactly what happened when the police released him. We advised him that he had a full defence to the allegation as there was no likelihood of his driving – this is known as the “statutory defence”.

We prepared Alun’s case by obtaining expert evidence to show when Alun would have fallen below the drink driving limit and witness statements from his partner, who had been away on holiday, to show when she would have arrived home. We also took a statement from Alun’s brother confirming that he had received two missed calls and some WhatsApp messages from his brother while he had slept. Alun’s brother said that had he answered the calls he would have taken the keys to Alun and that is what he did do when Alun called him after being released by the police.

We also obtained copies of the police interview with Alun and prepared a transcript to show that the comments Alun made in interview did not reflect the summary prepared by the police.

Once everything was prepared, we wrote to the prosecution serving our evidence upon them and asking that they discontinue the case against Alun. They reviewed the material and discontinued the prosecution the week before Alun’s trial was due to take place.

Alun was very pleased and said that the result as not a surprised as, “… I was very confident that we were well prepared”.

If you require expert legal advice for being drunk in charge ofany other offence involving alcohol and motor vehicles, then do not hesitate to call London Drink Driving Solicitor on 020 8242 4440.

Sunday, 17 July 2016

Case report: Appeal against sentence

Frank's sentence was reduced on appeal thanks to argument advance by his lawyer

Today, we attended a Crown Court to conduct an appeal against sentence imposed on a young man accused of failing to provide aspecimen of breath for analysis.

The brief facts are that police officers came upon a vehicle that had been crashed into a roundabout causing damage to the car and a sign post. The Crown’s case in the magistrates’ court had been that the defendant, Frank, had deliberately refused to provide a specimen of breath. Frank said he only refused because he wanted to speak with a solicitor first. For reasons that are unclear but now subject to an official complaint, the prosecution denied he had ever asked for a solicitor and the court sentenced on the basis that the defendant deliberately refused to provide and was not doing so because he wanted legal advice before providing the specimen.

What difference does this make? If a person has an honestly held but unreasonable excuse for failing to provide then they are likely to be fined and sentenced to between a 12 and 16 month driving disqualification. If they simply refuse to provide then they face a driving ban of 17 – 28 months plus a community order, which usually means unpaid work but can include a curfew and electronic tag among other orders.

In this case, the magistrates sentenced Frank to a driving ban of 20 months and a band D fine – these are imposed where the court feels a community order is appropriate but is for some reason unworkable. A band D fine is calculated as being between 200-300% of a defendant’s weekly income.

We advised Frank to appeal on the basis that the evidence disclosed to the defence was silent on whether he asked for a solicitor or not so it was wrong of the court to reject Frank’s assertion that he had asked for legal advice without hearing any evidence.

At the appeal hearing, the Crown maintained their position that Frank had not sought legal advice or mentioned it as a reason for failing to provide a specimen of breath for analysis. We called evidence from Frank to show that he had asked for legal advice and that he would have provided a specimen had the advice been for him to do so.

The Crown failed to warn any of their witnesses to attend, which left the judge pressing the prosecutor for an explanation as to precisely what Frank had said to the police. It was at this point that the prosecutor admitted Frank had told the police he would comply with their requests once he had spoken to a solicitor. The prosecutor admitted this had happened on two or three occasions – information that had been withheld from the defence earlier in the case. Despite this admission the prosecutor continued to try to argue that Frank’s comments about legal advice were not enough to count as a request to legal advice.

On Frank’s behalf, Nick Diable argued that saying he would comply after speaking with a solicitor could only be taken to mean that Frank was requesting legal advice. It simply made no sense to interpret it any other way. Nick also pointed out that the Crown asserted that Frank had been given his rights and entitlements properly, which would mean he was told he had a right to free and independent legal advice. There was no evidence from the Crown at all, but even they could not point to anything in the hearsay that formed their entire case and say “this is when Frank was told he did not have the right to a solicitor before providing the specimen.”

The court heart the arguments and concluded that Frank must have asked for a solicitor and there was no evidence he was told he could not have one before providing a specimen. The appeal was allowed and Frank’s sentence was reduced accordingly.

Following the hearing, Frank was asked whether he had any comments about the service he received from London Drink Driving Solicitor and said, “The case was handled superbly with the right balance of advice and empathy. Nick was a pleasure to deal with. No hesitation to recommend him to anyone in the same situation, he took the negative clear away in a very professional manner.”
Frank’s father who supported him throughout the case said, “We were both very grateful for your dedication and hard work… Thanks for everything, you managed to turn a very bad situation into a lesser worry.”

If you find yourself accused of an offence involving drink, drugs and driving then you can get expert legal advice by calling 020 8242 4440.