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Road Traffic Offences

Updated: 14 June 2010

For drink/drive offences see Drink /Driving Offences, elsewhere in the legal guidance.

For careless driving, dangerous driving, and Taking/Being Carried in a Conveyance see the Policy for Prosecuting Cases of Bad Driving and the Guidance for Prosecuting Cases of Bad Driving, elsewhere in the legal guidance

Code for Crown Prosecutors - Public Interest Considerations

Many road traffic offences are minor in nature. For many offenders their prosecution will be their only experience of criminal law enforcement. It must be borne in mind that:

  • The prosecution of traffic offences is vital to the enforcement and promotion of road safety and the protection of the public, and
  • Some routine' prosecutions, for example under the Construction and Use Regulations and related provision of the RTA 1988, may have special significance for the traffic commissioners when dealing with licensing applications from heavy goods vehicle operators.

Such factors must be borne in mind when determining the public interest in prosecuting minor road traffic offences. Public interest factors which relate to particular offences will be dealt with below.

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Charging Practice

Causing Danger to Other Road Users

Definition, see Wilkinson's Road Traffic Offences (24th edition) A18.74.

This offence may often overlap with other statutory offences, namely:

  • Section 137 Highways Act 1980 (wilful obstruction of the highway) (Wilkinson's 6.201);
  • Regulation 103 Road Vehicles (Construction and Use) Regulations 1986 and (causing or permitting a vehicle to stand on a road so as to cause an unnecessary obstruction) (Wilkinson's 6.20);
  • Section 22 RTA 1988 (leaving vehicles in a dangerous position) (Wilkinson's 6.260);
  • Offences under the Criminal Damage Act 1971 (Wilkinson's 15.64);
  • Section 161A Highways Act 1980 (lighting fires so as to injure, interrupt or endanger users of a highway);
  • Section 131(2) Highways Act 1980 (obliterating or pulling down a traffic sign).

When considering the proper charge you should consider the appropriate venue for trial. There will be occasions where although the offence under section 22A is made out, the charging of one of the less serious offences listed above will be more appropriate.

Failing to Stop/Report an Accident

Definition, see Wilkinson's 7.04.

Section 170(2) of the Road Traffic act 1988 provides that the driver of the motor vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address, the name and address of the owner of the vehicle and the identification marks of the vehicle. The duty to stop means to stop sufficiently long enough to exchange the particulars above: Lee v Knapp [1966] 3 All ER 961.

Section 170(3) places an obligation on the driver, if he does not give his name and address under subsection (2) above, to report the accident to a police constable or police station as soon as reasonably practicable and in any case within 24 hours. The duty to report means "as soon as reasonably practicable": Bulman v Bennett [1974] RTR. It does not mean the driver has 24 hours within which to report the collision.

When the evidence reveals a failure to comply with both subsections (2) and (3), proceedings should be brought for both offences. The failure to stop is usually viewed as the more serious of the two.

A person who fails to comply with subsection (2) or (3) above is guilty of an offence punishable with a maximum sentence of six months' imprisonment.

Failing to Conform to a Traffic Sign

Offences against traffic signs and police signals are dealt with in Sections 35, 36, 37 and 163 of the Road Traffic Act 1988. The use of traffic signs is regulated by Part V of the Road Traffic Regulation Act 1984. See also the Traffic Signs Regulations and General Directions 1994 (S.1.1194/1519).

For pelican/zebra crossings and puffin pedestrian crossings see the Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (S.1.1997 No: 2400) (Wilkinson's B 37.01).

The expression traffic sign' is defined in section 64 of the Road Traffic Regulation Act 1984 and the colour, size and type of signs are prescribed by the Traffic Signs Regulations and General Directions 2002.

It is no defence that the driver failed to see the sign. No mens rea is necessary (see Hill v Baxter [1958] 1 All ER 193). A mechanical defect of which the driver was unaware, may amount to a defence (see R v Spurge [1961] 2 All ER 688), as will the loss of control over the vehicle due to circumstances beyond the control of the driver (see Burns v Bidder [1996] 3 All ER 29).

For further commentary see (Wilkinson's 6.01).

For Sections 35, 36 and 37 of the RTA see (Wilkinson's A18.99 - A.104).

For Section 163 of the RTA see (Wilkinson's A18.400).

For Part V Road Traffic Regulations Act 1984 see (Wilkinson's A13.65).

For Traffic Signs Regulations and General Directions 2002 see Wilkinson's B58.01.

For Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997, see (Wilkinson's B37.01).

It will often be appropriate to prosecute for both this offence and for careless driving as a result of the same incident of driving. You should not seek to secure convictions on both. Where there is a conviction for careless driving the lesser offence of failing to conform should be preserved at least until the chance of a reversal of the careless driving conviction has passed.

Driving/Obtaining a Driving Licence Whilst Disqualified

Section 103 RTA 1988 see (Wilkinson's A18.263).

A person may be disqualified following a conviction or by being under the minimum age for that type of vehicle. For minimum ages see section 101 of the RTA 1988, (Wilkinson's A18.257). Driving whilst under age does not constitute an offence of driving whilst disqualified (by reason of age) under section 103 RTA 1988 by virtue of section 103(4). A person who drives a vehicle on a road while disqualified by reason of age, commits an offence under section 87 RTA 1988, which prohibits a person driving a vehicle on a road otherwise than in accordance with a licence authorising him to do so.

There is a duty on a person who chooses to drive to ensure that he or she is entitled to do so. It is no defence for that person to say that he or she thought the disqualification had expired. It is no defence for a person disqualified in their absence to claim that they did not know that they had been disqualified. However, courts should be reluctant to disqualify offenders in their absence because of this problem.

A person disqualified under section 36 RTOA 1988 until a driving test is passed commits an offence under section 103 RTA 1988 if he or she drives whilst disqualified otherwise than in accordance with any provisional licence issued.

Mutual recognition of Driving Disqualification

With effect from 28 January 2010 mutual recognition of driving disqualifications between the United Kingdom and Republic of Ireland came into force.  For more information see Mutual Recognition of Driving Disqualification, elsewhere in the Legal Guidance.

Proof of Disqualification

Proof of disqualification is essential. In R v Derwentside Justices ex parte Heaviside [1996] RTR 384 the Court specified three ways in which a defendant could be proved to have been disqualified:

  • an admission under section 10 Criminal Justice Act 1967.
  • fingerprint evidence pursuant to section 39 Criminal Justice Act 1948.
  • evidence of a person who was present in court when the defendant was convicted on an earlier occasion and able to identify him as present in court.

Other circumstances in which the court has been satisfied that a previous disqualification has been established are as follows. In R v Derwentside Justices ex parte Swift, R v Sunderland Justices ex parte Bate [1997] RTR 89 a section 9 statement was admitted in evidence from a constable who stated that he knew the defendant and had been present when he had been convicted and disqualified for two years on a previous occasion.

In DPP v Mansfield [1997] RTR 96 the constable who had arrested the defendant for the current offence, and who was present at court, had also arrested him for a previous offence for which the defendant had been disqualified in the constable's absence.

In R v Mooney [1997] Crim LR 137 the defendant pleaded guilty but then successfully argued that there was no evidence to prove the previous disqualification; on appeal it was held that the court should have taken into account the admission of previous disqualification implicit in his guilty plea.

Recent cases have established that the three methods of identification of a person as described above were not exhaustive but merely examples.

In West Yorkshire Probation Board v Boulter [2005] EWHC 2342 (Admin); R v Burns [2006] 2 Cr. App. R. 16; and Olakunori v DPP [1998] C.O.D. 443 DC, it was established that there was no prescribed way that identification had to be proved as this could be proved by any admissible means. The above cases expanded upon the methods of proof outlines in R v Derwentside Justices ex parte Heaviside in particular allowing the Prosecution to rely up similarity of name, date of birth and address.

The offence of driving whilst disqualified, although a summary offence, can be included in the indictment if founded on the same facts or evidence, or if it forms part of a series of offences of the same or similar character as an indictable offence which has also been charged, see section 40 (3)(c) CJA 1988.

Public Interest Considerations

Driving a motor vehicle on a road whilst disqualified is a serious matter since it will usually involve the deliberate flouting of a court order. But where a disqualified person had had his driving licence returned in error by the DVLA, you should take that fact into account in deciding whether or not to proceed. Much will depend on the nature of the error and any explanation given by the defendant.

Generally the offence of driving while disqualified should not be withdrawn just because the defendant is pleading guilty to other offences. However, that course can be taken where the other offences are serious and are liable to result in a substantial term of imprisonment or period of disqualification, or the defendant has already been sentenced to a lengthy term of imprisonment in any event.

It is no defence that the defendant did not think he was driving on a public road. When such a point is raised, you should take into account the reason for the defendant's belief, the distance driven and the degree of risk, if any, to the public when determining whether it is in the public interest to proceed.

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Definition of a Motor Vehicle

The term 'motor vehicle' is defined in section 185(1) of the Road Traffic Act 1988 and section 136(1) of the Road Traffic Regulation Act 1984 as "a mechanically propelled vehicle, intended or adapted for use on roads".

Although this is the legal definition, ultimately it is a matter of fact and degree for a court to interpret as to whether or not a vehicle is a motor vehicle at the time of the incident.

The term mechanically propelled vehicle is not defined in the Road Traffic Acts. It is ultimately a matter of fact and degree for the court to decide. At its most basic level it is a vehicle which can be propelled by mechanical means. It can include both electrically and steam powered vehicles.

Intended or adapted for use on roadsis also not defined by statute and again ultimately a matter for the court to decide based on the evidence before it.

There has, however, been extensive case law on the subject and the main point that emerges is what is known as the reasonable man test as per the following cases:

Burns v Currell [1963] 2 All ER 297

B was found sitting in a go-kart. The kart had a rear-mounted engine, a tubular frame, a single seat, silencer, steering wheel and column, but had no handbrake, horn, springs, driving mirror or wings. There was evidence that B had only used the go-kart on the unadopted road once. He was convicted and he appealed on the grounds that the go-kart was not intended or adapted for use on roads and was thus not a motor vehicle to which the regulations applied.

The Appeal was allowed and the conviction was quashed. The test to be adopted was the 'reasonable man test'. There must be sufficient evidence before the justices to prove beyond reasonable doubt that such a 'reasonable man' looking at the go-kart would say that one of its uses would be a use on the road.

DPP v Saddington Times 1.11.2000

S drove an unregistered motorised scooter called a 'Go-Ped' on a road whilst disqualified and uninsured. The vehicle had a 22.5cc engine and was definitely a mechanically propelled machine. However, to prove the two most serious offences, the machine also had to be a motor vehicle, i.e. a mechanically propelled vehicle intended or adapted for use on a road.

At the hearing the magistrates found that the 'Go-Ped' fell far below statutory standards and would not satisfy road traffic legislation relating to motor vehicles. They decided that the vehicle was not a motor vehicle. The DPP appealed by way of case stated and also asked the Court to declare that the machine was a motor vehicle.

The courts held that the Go-Ped was a motor vehicle.

DPP v King [2008] EWHC 447 (Admin)

K was stopped by police whilst riding a 'City Mantis' electric scooter on a public road. The scooter looked like a bicycle except that it did not have any pedals or other means of manual propulsion and it was capable of speeds up to 10 miles per hour. K was charged with driving a motor vehicle whilst disqualified and with no insurance.

At trial the issue arose regarding whether the scooter was a motor vehicle. K was acquitted and the case was passed to the High Court following the decision of the trial judge for definitive determination of whether a 'City Mantis' electric scooter was a motor vehicle as defined in the 1988 Act. The Appeal was allowed and the case was remitted with a direction to convict. The scooter was a motor vehicle according to section 185 of the 1988 Act.

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The Segway Personal Transporter

Personal transporters, such as the Segway Personal Transporter are powered by electricity and transport a passenger standing on a platform propelled on two or more wheels. They are capable of speeds up to 12 mph. Under current legislation, the Department for Transport considers Segway Personal Transporters as motor vehicles, subject to road traffic laws.

The Department for Transports view is that the Segway Personal Transporter is a motor vehicle. The Vehicle Excise and Registration Act 1994 (VERA) states that every mechanically propelled vehicle used or kept on a public road should be registered and licensed. As self-balancing scooters are mechanically propelled they require registration and a vehicle registration licence (tax disc). Additionally, the user would need a driving licence and motor insurance. Other legal requirements relate to construction and use, and to lighting.

The DfT considers the Segway Personal Transporter to be a motor vehicle for the purposes of the Road Vehicles (Construction & Use) Regulations 1986.

To obtain registration, a vehicle would need to comply with basic safety standards. Most two-wheeled vehicles being registered are made in accordance with the European rules which came into operation on 17 June 1999.This is known as the European Community Whole Vehicle Type Approval (ECWVTA) and applies to vehicles capable of more than 4mph. A vehicle with a certificate of conformity to ECWVTA is eligible for licensing and registration in the UK.

The DfT is not aware of any self-balancing scooters which have ECWVTA. Indeed the European Commission have indicated to the DfT that:

"No EC whole vehicle type- approval has been sought as the Segways is not primarily intended to travel on the road. If this manufacturer (or manufacturer of a similarly propelled vehicle), should eventually decide to seek EC typeapproval for such a vehicle intended for road travel, [the Commission] consider that it would need to be on the basis of Directive 2002/24/EC on the typeapproval of two or three wheel vehicles."

The Commission has also advised the DfT that:

"Member States have the right to lay down the requirements which they consider are necessary to ensure the protection of road users (i.e. may fix the conditions for allowing non EC type-approved vehicles on its roads)."

However, in this country we have not introduced separate legislation on this subject. Further there is no separate legislation for non-EC type-approved vehicles.

Two or three wheeled vehicles not approved to ECWVTA could theoretically meet the requirements of the Motorcycle Single Vehicle Approval (MSVA) scheme. If so, they would be eligible for licensing and registration. However, despite such requirements being less stringent, according to the Department for Transport it would nevertheless appear to be difficult for self-balancing scooters to be rendered capable of passing the MSVA inspection.

Because self-balancing Personal Transporters do not meet the relevant requirements for use on UK roads, and because there is no separate legislation here for public road use by non-EC type-approved vehicles, they cannot be registered and licensed for use on a public road. As a consequence, any user of such a vehicle on a public road is likely at the very least to be committing the offences of using the vehicle without insurance and using the vehicle without an excise licence. Self balancing scooters do not currently meet the legal requirements and therefore are not legal for road use.

Requirements for driving documents

The Department for Transport and DVLA consider self balancing personal transporters to be motor vehicles within the meaning of Road Traffic Act 1988 and as such drivers will require a driving licence and third party insurance. A driver of a self balancing personal transporter will be in breach of section 87 and section 143 Road Traffic Act 1988.

Because Segways cannot be licensed for use on a road, they do not come within the categories of vehicle covered by a driving licence (the categories of vehicle which a driver is licensed to drive can be found on the reverse of the photo-card driving licence). Therefore, any person using a Segway on a road will be driving otherwise than in accordance with a driving licence. An analogy can be drawn from the case of DPP v Hay where it was held that once the prosecution have proved that the defendant drove the motor vehicle on a road, it is then for the defendant to show that he held a driving licence and that there was in force an appropriate policy of insurance, since these are matters that are peculiarly within his knowledge.

DPP v Hay [2005] EWHC Admin 1395

H was pursued by the police and observed driving at excessive speed. While going through a red light he collided with another car. The police could not speak to H, because he remained unconscious. Efforts were made to contact him, but H discharged himself from hospital and did not reply to messages. The police made no attempt to request production of driving documents.

At trial it was argued that H was under not duty to produce driving documents because he had not been asked to do so and that he had no obligation to stop and report the accident because the police were at the scene throughout the accident.

The justices accepted these submissions and dismissed the three charges of driving a motor vehicle otherwise than in accordance with a licence authorising the respondent to drive a vehicle of the class in question, contrary to section 87(1) of the Road Traffic Act 1988, using a motor vehicle on a road when there was not in force a policy of insurance in relation to that use, contrary to section 143(2) of the Road Traffic Act 1988 and failing to report an accident to the police within the prescribed time limit, contrary to section 170(3) and (4).

H was convicted of dangerous driving, the other allegations were dismissed. The prosecution appealed by way of case stated.

The Case was remitted to the justices with direction to continue to try the charges regarding sections 87(1) and 143(1) (a) of the Road Traffic Act 1988 and to convict the respondent of the section 170(3) offence.

(1) Where a defendant is charged with driving otherwise than in accordance with a licence and driving without insurance, and the Crown have proved that the defendant was driving a vehicle on the road, the non-issue by the police of form HO/RT/1 (requesting production of the documents) is not fatal to the prosecution case.

Segway use on Pavements

A Segway Personal Transporter may not be driven on a pavement in England and Wales. Under section 72 of the Highway Act 1835 (extends to England and Wales only) it is an offence to wilfully ride on the footway. Certain vehicles used by disabled drivers are exempted from these requirements but only where they use Class 2 or Class 3 invalid carriages. Self-balancing scooters are not classed as invalid carriages and so cannot be used on pavements.

Segway use on Private Property

Self-balancing Personal Transporters may be used on private property with the permission of the landowner. An example of this is where BAA has deployed a Segway Personal Transporter at Heathrow airport.

CPS Policy on Prosecution

Where the police refer a case involving a Self-balancing Personal Transporter to the CPS, the prosecutor should, as is usual, consider the facts of the case, having regard to the licensing considerations set out above, and apply the two stages of the full code test in the Code for Crown Prosecutors when deciding whether or not a prosecution should proceed.

Segway Guidance From the Department For Transport

Frequently Asked Questions

1."I have a self-balancing scooter and I want to ride in on the public road, is it legal for road use?"

No. Vehicles must be approved via ECWVTA or MSVA in order to be licensed and registered. Self-balancing scooters would not currently meet the requirements of these schemes so are not legal for road use.

2."I have been riding a self-balancing scooter on the public footway (pavement) outside my house, have I committed an offence?"

Yes. It is an offence under section 72 of the Highway Act 1835 to ride or drive a vehicle on the pavement. It is only an offence under this Act in England and Wales. In Scotland it is an offence under section 129(5) of the Roads (Scotland) Act 1984.

3."Where can I ride a self-balancing scooter?"

You can only ride an unregistered self-balancing scooter on land which is private property and with the landowner's permission. The Department for Transport would advise that appropriate safety clothing should be worn at all times.

4."I have seen people using electric bicycles on the road without registration. Why are they permitted but a self-balancing scooter is not?"

Bicycles are covered by different rules to those applying to self balancing scooters. Electrically Assisted Pedal Cycles must meet the requirements of the Electrically Assisted Pedal Cycles Regulations 1983. Electrically Assisted Pedal Cycles that conform to these regulations are considered to be pedal cycles and as such are allowed to use cycle facilities such as cycle lanes on the road and cycle tracks away from the road which other powered vehicles are prohibited from using. A self-balancing scooter does not meet these requirements as it cannot be pedaled.

Using a Vehicle Without Insurance

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 persona 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 1.159 - 1.192).

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.

Public Interest Considerations

The offence is equally serious, whether 'use' or 'causing or permitting' is involved. There is a clear public interest in prosecuting offenders. Uninsured drivers pose a substantial risk to other road users.

An allegation of driving without insurance should never be withdrawn as a matter of convenience when pleas of guilty are tendered in respect of other offences.

Defendants producing documents for court

Motorists are required to produce their documents to a police officer on demand or at a nominated police station within 7days. Where a summons is issued for failure to produce, the defendant may attempt to produce his documents at court. Production of driving documents at the police station in the first instance must be encouraged.

The National Protocol for Production and Inspection of Driving Documents 2002, see Annex A below provides guidance on production of such documents.

CPS staff, agents or court staff should not ordinarily inspect or verify driving documents paragraph 4 of the Protocol, in Annex A. The duty to determine whether any documents produced are valid does not pass to any other agency where a motorist fails to produce the required documents, therefore local arrangements should be agreed for the most effective method for the documents' validation by the police before the court proceeds. If necessary, the case should be adjourned for validation to be carried out by the police. It is a matter for police investigation.

Very exceptionally, a prosecutor may feel it appropriate to verify documents, but:

  • such proceedings must be properly recorded and the police informed;
  • no action should be taken or departure from the standard procedure made where this might prejudice the future interest of any victim;
  • prosecutors must be alive to the sophistication of fraudulently produced material.

Forgery and False Information, etc.: Charging Practice

Sections 173 and 174 RTA and sections 44 and 45 Vehicle Excise and Registration Act 1994 (VERA) create a number of offences concerning forgery, fraudulent actions and false statements in connection with various road traffic documents. These offences are triable either way and punishable with a maximum of two years' imprisonment on indictment.

Acts which breach these sections will often also amount to offences of a more serious nature which carry greater penalties. In such circumstances you need to decide which is the more appropriate charge. But usually charges under RTA and VERA should be preferred unless a defendant has committed a series of offences on a substantial scale for personal gain.

When dealing with offences specifically relating to the use of forged documents contrary to sections 173(1) RTA or section 44 VERA, you need to check that the document concerned is one of those listed within the relevant section. If the document is not listed, consider proceedings under regulation 7 of the Road Vehicles (Registration and Licensing) Regulations 1971 for exhibiting on a vehicle anything which could be mistaken for a licence. However, since that offence is summary only you will need to consider, if a defendant has been charged with other either way or indictable offences, charging an indictable offence under section 3 Forgery and Counterfeiting Act 1981 instead.

Similar offences can be found in the following Acts:

  • Section 65 Public Passenger Vehicles Act 1981 - the forgery or alteration of a licence, certificate or operator's disc issued under the Act, likewise the use with intent to deceive of anything resembling such a document. This is an either way offence;
  • Section 66 Public Passenger Vehicles Act 1981 - the making of a false statement of obtain such a document. This is a summary offence;
  • Section 115(1) Road Traffic Regulation Act 1984 - the misuse of parking documents by, for example, lending a ticket issued by a parking meter to another person. This is an either way offence;
  • Section 115(2) Road Traffic Regulations Act 1984 - making a false statement to obtain a parking authorisation. This is a summary offence.

Falsifying Tachograph Records: Charging Practice

The purpose of the legislation is to regulate the hours of work by the drivers of goods and passengers in order to protect the public against the risks which arise when such people suffer from fatigue.

The law relating to tachographs falls into two categories:

  • The European Community Rules as set out in EEC Regulations 561/2006 and 3821/85;
  • The domestic law contained in Part VI (sections 95-103) of the Transport Act 1968 (TA).

The rules governing the mechanical operation of tachographs are set out in EEC Regulation 3821/85 (see Wilkinson's 14.01-14.43).  The legislation is complex. The rules covering the hours permitted are set out in Regulation (EC) 561/2006 (see Wilkinson's 14.187).

Solicitors who defend such cases often specialise in this kind of work. Some police officers also specialise in this area and if the investigating officer has expertise, he will be pleased to offer his help and assistance. Each CPS Area should also have its' own trained specialists to help and advise.

A useful starting point to determine what rules apply to a particular vehicle on a particular journey is to establish, firstly, whether the Transport Act 1968 applies to the vehicle under section 95(2). Secondly, the classification of the journey undertaken must be determined in order to ascertain whether Regulation (EC) 561/2006 will apply. There are four categories:

  • International journeys or work;
  • National journeys or work;
  • Domestic journeys or work; and
  • "Mixed driving".

Thirdly, establish whether the vehicle concerned is a goods vehicle, or a passenger vehicle. Distinct provisions apply.

Fourthly and finally, to consider the application of any statutory exemptions. The burden of establishing an exemption under the Community Drivers' Hours and Recording Equipment (Exemptions and Supplementary Provisions) Regulations 1986 rests on the defendant on a balance of probabilities. See Gaunt and Another v Nelson [1987] RTR 1.

Obtaining Documentary Evidence

Section 99 TA empowers police officers and Department of Transport officials to require the production of records and documents, whether or not offences are revealed on the face of them. In Cantabrica Coach Holdings Ltd v Vehicle Inspectorate [2000] RTR 286, the Divisional Court held that:

  • it was clear that in requiring the production of records the Community legislature took account of the need to ensure effective checking;
  • while there was no express power to requiring the coach operator to hand over tachograph records to the Vehicle Inspectorate, the operator was nevertheless required to produce and hand over such records on demand if such a request was made to him;
  • it was within the discretion of the authorised officer whether he chose to inspect the records at the operator's premises or take them away for more thorough and detailed analysis;
  • the authorised officer should also permit the operator to take copies of any record he proposed to remove from the operator's premises.

Tachograph charts and other documents can be obtained in many different ways, for example:

  • section 19 PACE 1984 (Archbold 15-112);
  • section 99 Transport Act (Wilkinson's A4.01);
  • section 8 warrants authorised under PACE (Archbold 15-72) and section 7 warrants authorised under the Forgery and Counterfeiting Act 1981 (Archbold 22-38).
  • Note also DPP v Carey [1970] RTR 14 and Articles 14(2), and 15(7) of EC Regulation 3821/85.

Care should be taken in checking the power by which police officers obtained the documents. Note that the 6 month time limit in section 99(6) has no effect on the either way time limit and refers only to charts actually seized under this specific power, not to charts removed under the statutory powers.

National legislation must, wherever possible, be constructed to conform with community law. In Cantabria Coach Holdings Ltd v Vehicle Inspectorate [2000] RTR 286 the court took account of the need to ensure effective checking. It was clear that in requiring the production of a document or the handing over of records Article 14(2) of Council Regulation 3821/85 and section 99 Transport Act 1968 should be interpreted so that it was within the officer's discretion whether he chose to inspect the charts at the operators' premises or take them away for further analysis. Where an officer took the records away with him, the rules of natural justice permitted an operator to take copies of the records before they were removed, save in circumstances where, for example, the operator became obstructive or for some other reason that made it impracticable.

Note that the Codes of Practice under PACE apply to offences under this legislation as to any other. It is essential to check files when powers have been exercised to ensure the material sought to be exhibited has been obtained lawfully in order to rebut any application under section 78 of PACE. If such an application is made, bear in mind that section 78 gives a discretionary power to the court to exclude evidence. Many factors must be taken into consideration before the court even begins to consider exercising that discretion. The fact that there may be a doubt as to how material was obtained does not automatically prevent admission of the evidence.

Offences under Section 97 Transport Act 1968 - Charging Practice

Section 97(1), which is summary only, prohibits the use of a vehicle to which TA applies in which 'recording equipment' as stipulated in the Community Recording Equipment Regulations 3821/85 has either not been fitted or has not been appropriately repaired. But if an intent to deceive can be proved an either way offence under section 97AA or section 99(5) should be preferred instead.

  • These offences are directed at either the driver or the employer. The phrase "any person" includes, but is not limited to, limited companies or, depending upon evidential criteria, officers of such a company.
  • Liability falls upon any person who "uses or causes or permits to be used". The words 'uses', 'causes' and 'permits' are deemed to have the same meaning for the purposes of the TA as they have for the purposes of the Road Traffic Acts.

Where a vehicle is required to be fitted with a tachograph, it is a defence to a charge of using (or causing or permitting the use of) the vehicle when a seal on the recording equipment was not intact, to show (among other things) that the breaking or removal of the seal could not have been avoided (section 97(4)(a) of the Transport Act 1968].

However, to establish this defence, it is not sufficient for the defendant merely to show that the breaking or removal of the seal could not have been avoided by himself; he must show that the breaking or removal of the seal could not have been avoided in itself' (Vehicle Inspectorate v Sam Anderson (Newhouse) Ltd [2002] RTR 13).

Offences in Contravention of the Regulations - Section 96: Charging Practice

Section 96(11) TA creates offences for breach of the domestic drivers' hours code, while section 96(11)(A) TA creates offences for breaches of the European Community Regulations. In the great majority of cases the offence will fall within the second of these provisions.

  • Liability for these offences falls upon the "Driver" (for the Domestic Rules) or the "Offender" (for the European Community Rules).
  • Under section 96(11)(b) TA liability also falls upon "any other person (being that driver's offender's employer or a person to whose order the driver/offender was subject) who caused or permitted the contravention".

All these offences are summary, non-endorsable, punishable with a fine at level 4, and subject to a time limit of six months from the date of the offence.

In Skills Motor Coaches Ltd, Farmer, Burley and Denman (Case C-297/99), the European Court of Justice ruled that under Article 15 of EEC Regulation No: 3821/85 of 1985 a driver's obligation to record all other periods of work extends to:

  • Time which he necessarily spends travelling (from a point to take over a vehicle subject to that Regulation) which is not the driver's home or the employer's operational centre; and
  • Periods of driving spent by a driver whilst performing a transport service falling outside the scope of Regulation No: 3821/85 before taking over a vehicle subject to that Regulation.

Skills Motor Coaches Ltd operates passenger coaches from Nottingham and employed Messrs Farmer, Burley and Denman as drivers. The Vehicle Inspectorate contended that periods of time spent by Farmer and Burley in driving by car from their home or the coach depot to the point where they took over a coach should have been recorded manually on the coach's tachograph sheets. Similarly Denman, who on one occasion had done driving work which qualified as a regular national service falling outside the scope of the tachograph regulations before taking over a 'tachograph' coach should have recorded that earlier period of driving work on the tachograph sheets for that vehicle.

It was contended by the company and drivers that a driver who travelled from his home to the pick-up point for a vehicle could freely choose how he travelled so that time thus spent must be regarded as being freely disposed and forming part of a rest period. The court rejected that argument and held that time spent on activities having a bearing on driving, such as time spent reaching the pick-up point for a tachograph vehicle, would affect his state of tiredness and must be regarded as forming part of 'all other periods of work' within Article 15 of Regulation No. 3821/85.

The Court further held that driving time spent performing a transport service also constituted a period when the driver was actually engaged in activities liable to have a bearing on driving, during which he did not freely dispose of his time. A transcript of the judgement is available. Sections 96 and 97(1) create absolute offences for the driver/offender. This is not the case so far as the employers or persons in authority are concerned. There must be evidence upon which a Court can properly infer that an employer gave a positive mandate or some other sufficient act to 'cause' the offence to occur. Mere passive acquiescence is not enough - see Redhead Freight Ltd v Shulman [1989] RTR 1. Other recent cases on drivers' hours include Vehicle Inspectorate v Southern Coaches and Others [2000] RTR 165 and Vehicle Inspectorate v Nuttall [1999] Crim LR 674.

In the latter case the House of Lords held that the Community rules placed a responsibility on employers to use tachograph records to prevent contraventions and to promote road safety. Although the offence was not one of strict liability, 'permitting' in section 96(11A) was to be given a wide meaning of failing to take reasonable steps to prevent contraventions, to be governed by the objective standards of a responsible employer. Nothing less than wilfulness or recklessness would suffice. See also Yorkshire Traction Co Ltd v Vehicle Inspectorate [2001] RTR 518.

In Vehicle Inspectorate v Blakes Chilled Distribution Ltd [2002] 166 JP Jo.118, the Administrative Court held that the intent necessary to prove vicarious liability was established where it could be proved that an employer had failed to take reasonable steps to prevent contraventions by drivers, provided that such failure was not due to honest mistake or accident. Knowledge that an operating system was defective, and that that deficiency could lead to the commission of offences, was the only knowledge required of an employer as a basis for vicarious liability.

Forgery of Seals - Section 97AA - Charging Practice

Under Section 97AA TA a person who, with intent to deceive, forges, alters or uses any seal on recording equipment installed in, or designed for installation in, a vehicle to which section 97 applies, shall be guilty of an offence.

Offences are either way, punishable by way of fine in the Magistrates' Court or by imprisonment (maximum two years) in the Crown Court. Note that this offence requires an intent to deceive by misusing the seal in the manner stated in the section. Not only does the offence appear to cover a situation where the seals have been physically altered or tampered with, but also the use of a correctly manufactured and correctly placed seal where it can be proved that the mere use of the seal is accompanied by an intent to deceive.

In cases where there are no charts available, consideration should be given to prosecuting defendants for this offence where devices have been fitted or wiring/electronics have been tampered with to prevent the tachograph from functioning correctly.

Falsification of Driver's Hours - Records - Section 99(5)

It is an offence, under section 99(5) TA, for a person to knowingly falsify a tachograph entry made under section 97 or entries kept for the purpose of regulations under section 98 or under applicable Community rules. This is an either way non-endorsable offence, punishable summarily by a fine or by imprisonment (maximum two years) on indictment.

There is no direct binding authority on the definition of a 'false chart', but it is suggested that the following elements should be present:

  • The actus reus - the commission of an act, either by hand, driving the vehicle, manipulating the tachograph equipment or otherwise, which results in the making of a record which is false.
  • The mens rea - an awareness that what has been done has created a false record.

See also the decision of the Court of Appeal in R v Bishirgian, Howeson and Hardy [1936] 1 All ER 586 at page 591 and R v Osman, Mills and Chalker 09/01/93 (unreported, but copy of judgement held at HQ Library).

The Court of Appeal allowed a Reference by the Attorney General (Attorney General's Reference No. 1 of 2000 sub nom R v J T, Times LR 28 November 2000, [2001] 1 WLR 331, [2001] Crim LR 127), against a decision to acquit on the basis that the provision of a false tachograph record did not constitute forgery contrary to the Forgery & Counterfeiting Act 1981, section 1 and section 9. It was held that a tachograph chart that had been falsified came within section 9(1) (g) of the Act when a record was being made during a period when there wrongly purported to be a second driver who was driving, when in fact there was only one driver at the wheel. Despite the fact that offences involving falsification of charts have been both investigated and prosecuted as forgeries under the 1981 Act for many years, a combination of this decision and the Osman case demonstrates beyond doubt that false charts can constitute false instruments under that Act.

Any person who aids and abets, counsels or procures the making of such a false record can be charged under section 8 of the Accessories and Abettors Act 1861. See also the decision in R v J F Alford Transport Ltd [1997] Crim LR 745 in which the Court of Appeal held that a secondary offender had to intend to do the acts which he knew to be capable of assisting or encouraging the commission of the crime, but that it was not necessary that he should have intended the crime to be committed.

Where a substantial proportion of a company's operating records for a given period has been the subject of falsification and management are involved, it is almost always the proper course to recommend that the case should be dealt with on indictment. Care should also be taken to ensure that sufficient charges are put to enable the gravity of the offence to be reflected in the sentencing process.

Power to Prohibit the Driving of UK Vehicles - Section 99A

Section 266 of the Transport Act 2000, which came into force on 01 February 2001, inserted section 99A after section 99 of the Transport Act 1968. It gives police and vehicle examination officers the power to prohibit the driving of a UK registered passenger or goods vehicle.

The power will arise where:

  • The driver of the vehicle has failed to comply with a requirement made under section 99(1); or
  • The driver has obstructed an officer exercising his powers under section 99(2) or 99(3); or
  • It appears to an officer that in relation to the vehicle or its driver there has been (or will be, if the vehicle is driven on a road) a contravention of sections 96 to 98 of the Act or of the applicable Community rules; or
  • It appears to an officer that an offence has been committed under section 99(5) in respect of the vehicle or its driver.

The prohibition may be applied for a specified period, or without limitation of time. The driver must be given notice in writing specifying the reason for the prohibition and its duration. Directions may also be given to remove the vehicle and, if applicable, any trailer to any place specified. The prohibition may be removed by any officer if he is satisfied that the reason for imposing the prohibition no longer applies. Notice in writing to that effect must be given to the driver of the vehicle.

Any person who drives a vehicle subject to such a prohibition, or who causes or permits it to be driven, or who fails to comply with a direction to remove the vehicle to a specified place, commits a summary offence punishable by a level 5 fine.

This power to prohibit the driving of UK passengers and goods rectifies the previous anomaly whereby only the driving of foreign registered vehicles could be prohibited by virtue of the provisions of the Road Traffic (Foreign Vehicles) Act 1972.

National Jurisdiction

Whilst the Community Rules (EC Regulations) apply through the EC, the legislation which make it an offence to breach those regulations differs from country to country. The Transport Act 1968 does not apply to any other part pf the EC, including Northern Ireland.

Local Jurisdiction

Where the offence is triable summarily only, it will normally be heard by the magistrates' court which covers that area where the offence occurs, but all magistrates' courts now have jurisdiction to try any summary offence (section 2(1) Magistrates' Courts Act 1980 as amended by section 44 of the Courts Act 2003). See Wilkinson's 2.39 for further details.

Tachograph Cases and Public Interest Criteria

You should consider the following factors, whether you are prosecuting drivers' hours, breaches or falsifications:

  • assessment of the role played by each person in the company/operator in the case of large scale prosecutions;
  • whether there has been systematic flouting of the law resulting in widespread falsification of records endorsed by management. In serious cases a conspiracy charge should be considered;
  • consider using as witnesses persons who might be guilty of the offence or offences such as office staff and drivers where they have been threatened with the sack unless they continue to act illegally. It should, however, be remembered that the driver is the "person at the wheel;
  • falsification of records usually takes place to enable more journeys to be undertaken than would be possible during lawful working hours, thereby jeopardising road safety.

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Definitions of 'Road or Other Public Place'

The term 'road' is defined at section 142 of the Road Traffic Regulation Act 1984 as any length of highway or other road to which the public has access and includes bridges over which a road passes. The Concise Oxford Dictionary defines 'road' as a line of communication for use of foot passengers and vehicles; while in Oxford v Austin [1981] RTR 416 it was said to be a definable right of way between two points.

The expression 'on a road or other public place' is employed frequently in Road Traffic legislation, for example, in the drafting of moving traffic offences at sections 1-6 RTA. A public place is a place to which the public, or part thereof, have access.

See Wilkinson's 1.122 to 1.160 for further details.

See also DPP v Vivier [1991] Crim LR 637, DPP v Neville [1996] 160 JP 758 and Cutter v Eagle Star Insurance Co. Ltd, Clarke v Kato and Others [1998] 4 All ER 417.

Insurance cover is required for the use of a vehicle on a road or a public place.

See Wilkinson's A18.358.

The onus is on the prosecution to establish that a particular location was a 'road' or 'other public place'.

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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:

  • Section 2 (dangerous driving)
  • Section 3 (careless driving/driving without reasonable consideration)
  • Section 22 (leaving the vehicle in a dangerous position)
  • Section 28 (dangerous cycling)
  • Section 29 (careless cycling)
  • Sections 35 and 36 (disobeying certain traffic signs and police signals)

And under the Road Traffic Regulation Act:

  • 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 Dickinson [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. See R (on the application of Lawson) v Stafford Magistrates' Court [2007] EWHC 2490 (Admin) and Robinson v Abergavenny Magistrates' Court; Fine v Abergavenny Magistrates' Court [2007] EWHC 2005 (Admin).
  • 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 2.193 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.

Limitation of Time

For fuller commentary see Wilkinson's 2.41 - 2.50.

Many road traffic offences are purely summary and in most cases proceedings are taken by way of the laying of an information and the issue of a summons. Hence time limits are of particular significance since for various reasons substantial delay may occur before it is decided to institute proceedings. The point must also be borne in mind if it is intended at a later date to add further charges.

Laying of the Information

Section 127 Magistrates' Court Act 1980 states that for all summary offences the information must be laid within six calendar months of the commission of the offence, except where any other Act expressly provides otherwise.

The following points need to be borne in mind:

  • It is not necessary for the information to be personally received by a justice or by the clerk. It is enough that it is received by a member of his staff impliedly authorised to receive it. In R v Pontypridd Juvenile Court ex p B and Others [1988] Crim LR 842 it was held that an information could be laid by being input into a terminal at a police station of a computer system which was linked to the court, even though it was not printed out at the court end until later.
  • In computing the limitation period the day on which the offence was committed is not included.
  • So long as the information is laid within six months, the issue and service of the summons and the subsequent determination may all occur outside that period.
  • Laying an information within the six months' time limit before deciding whether or not to prosecute may result in the proceedings being stayed as an abuse of process; see R v Brentford Magistrates' Court ex parte Wong [1981] 1 All ER 884.

The six months' time limit applies to most summary road traffic offences, but statutory exceptions do occur. In particular:

  • Section 6 RTOA 1988.

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Exceptions to the Six Month Time Limit

Section 6 provides a special time limit for offences listed in Column 3, Schedule 1 RTOA 1988, and for aiding and abetting those offences.

When it applies, proceedings must be brought within six months from the date on which sufficient evidence came to the knowledge of the prosecutor to warrant proceedings but, in any event, they must not be brought more than three years after the commission of the offence.

Section 6 applies to the following offences under the RTA:

  • driving after making a false declaration as to physical fitness (section 92(10))
  • failing to notify Secretary of State of onset or deterioration of disability (section 94(3))
  • driving after such a failure
  • driving after refusal of licence under section 92 or 93 (section 94A)
  • failure to surrender licence following revocation (section 99)
  • obtaining driving licence, or driving, whilst disqualified (section 103(1))
  • using an uninsured motor vehicle (section 143)
  • making a false statement to obtain a driving licence or certificate of insurance (section 174)
  • issuing false documents (section 175).

Section 37 of the Vehicles (Crime) Act 2001 amends the time limit in the Theft Act 1968, so that proceedings relating to the unauthorised taking of a mechanically propelled vehicle may be commenced at any time within six months from the date on which sufficient evidence to bring a prosecution came to the knowledge of the prosecutor. It is also subject to the general requirement that any prosecution must be brought within three years of the offence taking place.

Under section 6(3) a certificate signed by or on behalf of the prosecutor, stating the date on which the necessary evidence came to his knowledge, is conclusive evidence of that fact. Such a certificate is deemed under sub-section (4) to have been so signed unless the contrary is proved.

In deciding whether to rely on the extended time limit, you should ensure that you are able to ascertain the date on which sufficient evidence to warrant proceedings came to the knowledge of a police officer investigating the incident, since this is a requirement of the procedure.

Failure to specify the date will lead to proceedings being terminated:  see David Burwell v DPP [2009] EWHC 1069 (Admin). In this case the appellant appealed by way of case stated against a decision that the prosecutor's certificate issued under the Computer Misuse Act 1990 was conclusive and that he could not argue that the prosecution was out of time. It was held that the court could not go behind the prosecutor's certificate save where the certificate was inaccurate on its face or in cases of fraud. However, the appeal was allowed on the basis that the certificate was invalid as it did not state the date when the prosecutor had sufficient evidence to warrant the proceedings.

The 'prosecutor' for the purposes of section 6 can be the investigating officer or the informant (see [1976] 140 JP Jo., 675) Swan v Vehicle Inspectorate [1997] RTR 187. See Wilkinson's 2.44).

The certificate is, therefore, likely to be signed by the appropriate police officer. However, if a Prosecutor is asked to sign a certificate, or to advise the police upon its format, the following example may be adopted. A copy should be provided to all parties and to the court.

Prosecutors Certificatepursuant to section 6 Road Traffic Offenders Act 1988

To my knowledge on < INSERT DATE >

there was sufficient evidence in my opinion to warrant proceedings against:

< Defendant Name >

of < Defendant Home Address >

for an offence or offences of:

< specify offence(s) >

pursuant to the provisions of section 6 of the said Act.

Dated the [date] day of [month] [year]

Signed: .............................................................................. ...........

Crown Prosecutor / Associate Prosecutor / Police Officer
[delete as appropriate or specify alternative]

 

When you consider instituting proceedings within the extended time limit period, you should take into account reasons for the delay and any degree of responsibility borne by the offender. In cases of the unauthorised taking of mechanically propelled vehicles, delay can often occur due to the gathering of forensic evidence where the offence is denied.

Further exceptions to the six months' time limit appear in provisions in other Acts identical in effect to section 6 RTOA 1988. The same considerations will thus apply. The exceptions include:

  • section 244 RTA 1960 [re offences under section 235 RTA 1960 and section 99(5) TA];
  • section 47(2) VERA 1994 [re offences under sections 29, 34, 35A, 37 or regulations made under the Act];
  • section 73 Public Passenger Vehicles Act 1982 (re offences under sections 65 or 66 of the Act).

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Alternative verdicts

Section 24 RTOA 1988 (as amended by the Road Safety Act 2006) allows a court which has returned a verdict of 'not guilty' to certain either way and summary offences to convict for a specified alternative offence provided that the content of the information or indictment amounts to an allegation of such an offence. Such alternative verdicts are permitted in relation to the summary offences of:

  • Driving or attempting to drive while unfit through drink or drugs (section 4(1) RTA).
  • Driving or attempting to drive with excess alcohol in breath, blood or urine (section 5(1)(a) RTA), and
  • Dangerous cycling (section 28 RTA).

Alternative verdicts under sections 4(1), 5(1)(a), 7(6), 4(2), 5(1)(b) or 29 RTA 1988 may be returned as appropriate, despite the fact that the six month time limit for those offences are likely to have lapsed.

It is important to remember, however, that the alternative verdict can only be returned where the jury or magistrates have found the defendant 'not guilty' of the substantive charge.  If the jury or magistrates are unable to reach a verdict on the substantive charge they cannot return an alternative verdict. Therefore, where a defendant is to be committed for trial on indictment for an offence to which section 24 RTOA applies it is good practise to lay informations in the Magistrates' Court for any summary offences which may be appropriate alternatives to those charges. They can be adjourned sine die at committal and reinstated for trial in the Magistrates' Court if the jury fail to reach a verdict in the Crown Court.

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Procedure - Post Trial

Connected Summary Offences

In cases prosecuted on indictment under sections 1, 2, 3A and 22A RTA 1988 it will be usual for related summary offences to be adjourned sine die, or for there to be a lengthy period of remand, in order to await the outcome of the trial at the Crown Court.

If different issues are in dispute and it is the intention of the prosecution to proceed regardless of the outcome of the Crown Court trial, you should consider asking for such summary offences to be heard first. If the defence objects and the Court upholds the objection, the prosecution cannot be properly criticised for any resulting delay. See also Restoration of Summary Offences after Trial on Indictment, below in this section.

Where there are other charges alleging offences contrary to section 12(1) Theft Act and/or section 103 RTA (among others) they can be joined in the indictment under section 40(1) Criminal Justice Act 1988 providing they are founded on the same facts or evidence, or form part of a series of the same or similar character, as an indictable offence which is also charged.

The provisions of section 41 Criminal Justice Act 1988 (section 41(8)) permit the Crown Court to deal with summary offences which are imprisonable or punishable with disqualification and which arise out of circumstances the same as, or connected with, indictable charges. The section does not apply if the Crown Court is concerned purely with matters which are triable only on indictment.

Restoration of Summary Offences after Trial on Indictment

Because of the restrictive provisions of sections 40 and 41 Criminal Justice Act 1988 it will frequently be the case that when the Crown Court trial for a driving offence has been concluded, there will still be outstanding connected summary offences. Furthermore, considerable time will have elapsed since the alleged commission of the offences.

Summary offences should only be restored for hearing if it is considered necessary to meet the justice of the particular case. When deciding whether to restore a summary offence, the following points should be borne in mind:

  • where the Crown Court has made specific reference to matters which it has taken into account when sentencing, you should not revive or continue with summary offences the substance of which has been reflected in such a sentence. See R v Little ILR 15.08.88.
  • if evidence of excess alcohol has been adduced at the Crown Court trial, it is more than likely that it will have been taken into account for the purpose of sentencing (this will obviously be so in the case of a trial for a section 3A offence);
  • where a defendant has been convicted of an offence contrary to sections 1 or 3A RTA, a summary offence should not normally be restored if the defendant has been disqualified for a period at least as long as the obligatory period for the summary offence;
  • the lapse of time between the date of the offence, the Crown Court trial and the likely date of hearing for the summary matters;
  • if the defendant has been sentenced to a period of imprisonment, restoration of a summary offence will seldom be appropriate.

Nevertheless, there will still be circumstances where the restoration of a summary offence, usually for excess alcohol, will still be appropriate if, for example, each of the factors listed above are outweighed by factors which favour prosecution in a particular case. For example, such a situation may arise where the outstanding summary offence is a drink/drive allegation where the accused is liable to a three year disqualification following a previous conviction. If such a course is adopted, the reasons should be made clear to the Magistrates' Court.

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 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.

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Expert Evidence

You should call expert evidence in any case where the defence expert's statement is incorrect, inconclusive or misleading. The authorities indicate that the courts will usually find expert evidence highly relevant and you should therefore try to assist the court as much as possible.

You should address the court, after the defence, on matters of law. You should remind the court that there is a two stage process:

  • first, to determine whether there are special reasons;
  • second, if there are special reasons, then should the court exercise its discretion not to endorse or disqualify (or to disqualify for a shorter period that the usual tariff of twelve months)?

The court will make its finding and pass sentence in accordance with sections 34 and 44 RTOA.

Where a defendant raises exceptional hardship as a reason for not being disqualified under the repeated offence provisions of section 35 RTOA 1988 it is appropriate for you to put questions to the defendant. This should be done with the approval of the court and in order to assist in determining the question of disqualification.

You may sometimes wish to challenge justices on their decision not to disqualify because of special reasons. Any challenge should normally be by way of case stated rather than judicial review. For reasons, see DPP v O'Connor [1992] RTR 66.

It is only in relatively few cases, however, that it be appropriate to mount a challenge. This is because the decision involves the exercise of discretion by magistrates. Provided they have considered all the relevant matters and directed themselves properly, the Administrative (Divisional) Court is unlikely to interfere. You should only consider an appeal if the Court has misapplied the law or its decision can be shown to be Wednesbury unreasonable.

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Annex A

National Protocol for the Production and Inspection of Driving Documents

Aim

1. The aim of this protocol is that motorists should be aware of and conform with an agreed national standard for the production of driving documents following a lawful request by a police officer.

Objectives

2. Motorists, who have been unable to produce their driving documents on demand, following a lawful request by a police officer, should produce them for inspection within the required statutory period at a police station of their choice.

3. Following such a demand, no motorist who has not produced his or her driving documents at a police station should produce them to a court in answer to a charge or summons without having previously produced them at a police station for inspection.

4. No member of the Crown Prosecution Service or agent acting for them, or member of the magistrates' court staff should ordinarily be required to inspect or verify a motorist's driving documents relevant to a prosecution before the court.

5. Records of all production of driving documents should be kept at police stations as a national standard to safeguard the needs of victims who may have a potential claim for personal injury or financial loss.

6. Motorists will be encouraged to obtain proper documentation before driving a motor vehicle on the road, thereby increasing the safety of other road users.

7. Proper and more efficient enforcement of the law relating to driving documents, and sanctions for failure to obtain or produce them as required, and the deterrence or detection of fraud, will improve public confidence in the criminal justice system.

Principles

8. Whether a motorist has valid driving documents to cover his use of a motor vehicle on a road is a matter for police investigation. The duty to determine whether any documents produced are valid does not pass to any other agency where a motorist fails to produce the required driving documents to a police officer on demand or at a nominated police station.

9. CPS and court staff are not trained in the detection of fraud. The involvement of CPS and court staff as witnesses involving driving documents should obviously be avoided wherever possible.

10. To assist victims in any future claim for compensation, a written record should be kept of all relevant details about the driving documents produced to the police.

Lawful Production of Driving Documents

11. This protocol recognises that motorists are required to produce driving documents to police officers following a lawful demand and that the documents may be produced at a nominated police station. Further a motorist who fails to produce the documents may commit an offence by their non-production.

Procedure Where No Documents Are Produced At A Police Station And Summonses For Apparent Offences Are Issued

12. Where no production is made at the nominated police station, the police may issue proceedings that allege either or both allegations that the motorist drove/used a motor vehicle without the proper documentation or that he or she failed to produce them as required by law.

13. A prominent notice should also accompany any summons alleging the document offences. This should inform the recipient that not only should the relevant documents, if they exist, be sent or handed to the court as required in the summons, but that before that date, the documents must firstly be produced at a police station for inspection and validation and for the police to note relevant details. A sample notice is attached at Annex A below.

14. Any such notice should also warn defendants of the seriousness of producing or attempting to produce any forged or unlawful documentation with attempt to deceive.

15. Ordinarily, the notice should indicate that production should be made to the police station originally nominated by the driver when the request for production was first made.

16. Local arrangements should be agreed for the speedy and efficient notification to the court that acceptable, or otherwise, production has been made. This may be by direct notification to the relevant police process office for transmission to the court or CPS office, and may include a written acknowledgement given to the person making production, which can be produced at court.

17. The notice should also state that production for verification cannot be made at court and that any attempt to do so will result in expense and delay for that person as the court will still require their prior production at the nominated (or locally agreed) police station. This may involve having the case stood down (or adjourned) while this production is made.

Defendants Attempting To Produce Documents At Court For The First Time

18. Should a defendant attempt to produce documents at court for the first time following a previous request for their production at a police station and it can be shown that the defendant was notified that production should initially have been made at the nominated police station, local arrangements should be agreed for the most effective method for the documents' validation by the police before the court proceeds to deal with any outstanding summonses.

19. Courts should be aware of the opportunity to proceed in the defendant's absence thereafter if either a satisfactory production is made, or the defendant does not cooperate and fails to return. Every effort should be explored to avoid unnecessary adjournments, though this may be unavoidable where there is no convenient nearby police station or the circumstances are such that an adjournment is unavoidable.

20. Where agreeable, and in the absence of any grounds for suspicion, it may be possible to agree (such agreement to include that of the defendant) the use of a facsimile copy or the documents to be sent to an agreed police station for verification and recording to take place while the case is stood down temporarily.

Defendants Who Refuse To Co-Operate

21. Should any defendant refuse to co-operate with the above procedure, not guilty pleas should be noted, and the case adjourned for trial or review. Arrangements should be made for the relevant officer to attend at the adjourned hearing to inspect and note any documentation produced. Bail should be considered for the period of any adjournment and the defendant encouraged to produce the relevant documents in the meantime. A warning as to increased costs should also be given, where appropriate.

Prosecution Costs

22. The issue of the defendant's conduct and any increased costs involved should be carefully considered and noted, and a departure made from the locally agreed standard costs application, where there has been an increase in prosecution costs.

Enforcement And Exceptions

23. The production of driving documents at police stations will be enhanced if all agencies co-operate and fairly and firmly abide by the terms and spirit of this protocol.

24. There may, from time to time, be cases that call for exceptional treatment and departure from the normal procedures. All agencies should be alive to these cases in the interests of justice and respond as required, but no actions should be taken or departure from the standard procedure made where this might prejudice the future interest of any victim. Proper recording should take place in any such proceedings and arrangements made for the police to be informed.

25. All who deal with cases where document production is made should be alive to the current sophistication of fraudulently produced material.

Training

26. The police should give consideration to training CPS and court staff in the methods used to produce fraudulent documents and have an agreed method of responding to any such documents that are produced in legal proceedings. The police should regularly update the CPS and court staff of any local or national criminal activity with regard to motoring documents and their use.

27. All staff, including agents, and magistrates who deal with motoring cases should receive training so that they may be aware of the terms of this protocol.

Annex A

DE 060301

PLEASE READ THIS NOTICE CAREFULLY NOW!

NOTICE TO PERSONS SUMMONSED TO COURT FOR EITHER NOT HAVING OR FAILING TO PRODUCE TO THE POLICE ANY RELEVANT DOCUMENTS FOR THE USE OF A MOTOR VEHICLE ON A ROAD OR PUBLIC PLACE

1. You have been summoned to attend court for either not having one or more documents, as required, for using a motor vehicle on a road (or public place). This might, for example be a driving licence or certificate of insurance. The summons may also allege that you failed to produce one or more of these or other documents as required by law following a request by the police.

2. If you do in fact have any documents that would cover your use of the vehicle on the road at the time you were asked to produce them, you must, as soon as possible, take immediate steps to produce them at the police station you originally selected when the police officer asked you to choose one (this police station will be called the nominated police station from now on). The police will then be able to check your documents and note the fact that you have produced them. Arrangements will then be made for the court to be informed about this. You should note however, that the production to the police of these documents now will not be a defence to any prosecution for failing to produce the documents within seven days of the date of the original request.

3. It may then be possible for your case to be dealt with in your absence, but only if you have been offered this opportunity in the other documents that are with the summons and you return the necessary documents to the court in time with the required details. If the court subsequently considers that you should be disqualified from driving, it will let you know when you should attend court.

4. It is not possible for you to have your driving documents checked at court.

5. For those that attend court without having driving documents checked at a police station, the case is highly likely be put off so that you can take the documents to the nominated police station and have them checked there. If time permits, you will be asked to return to court on the same day for your case to be completed. Otherwise, if there is no alternative, the case might have to be put off to another day for you to return if necessary.

6. Failure to produce your documents at the police station may well result in additional loss and inconvenience to you, and led to an application for additional prosecution costs for the extra work involved. Your co-operation is therefore in your own interests.

7. Attempting to or producing any document with intent to deceive may result in severe penalties.

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