Will the barrister tell me what the fees are in advance?
When I am instructed on your case, I like to keep everything as simple as possible. The worst thing in the world is when a client turns to me and says, (after a piece of work has been done) “ oh, I wasn’t expecting you to do that.” Or “ I wasn’t expecting to have to pay for that service.”
I often find that the easiest way to run a case, and to organise a case for someone, is to break it down into manageable sections, and come to an agreement with them before any work is done, about what work is actually being done , and what that work will cost.
Organising in advance like that will mean that no one is surprised by any fees. So everything and all the work done is arranged good time prior to the work being done, and for a fixed fee that won’t catch you by surprise.
Well, of course, one of the other benefits is that if you do come to someone and you don’t know whether you have got a case, most people, most barristers I shall say who do Public Access work and are Public Access qualified will sit down and give you a free consultation at the beginning just to access whether you’ve got a case and give you the initial advice. In many occurrences and instances, people will come to a barrister, say “ Do I have a case?” and after looking at it, examining it, they may not have a case. It is one of the first steps in any event. If you are on the fence about whether or not to bring a case, why not use the 15 minutes, half an hour, even an hour of discussions just to see whether that is the case, you can continue with that.
Inquests and public enquiries are unlike ordinary court hearings, because, as their name implies, they are inquisitorial proceedings, whose primary purpose is to investigate a situation and to arrive at a conclusion. Whether that conclusion concerns the cause of someone’s death in the case of inquest, or a government appointed inspector’s recommendation to a government body, in a relation to a matter of public interest.
Why are inquests held?
Inquests are held in order to establish the cause of death in situations, where the death are not natural causes. Those who become involved in inquests are obviously the bereaved of the person, who has very sadly died, and the person who may be found have been wholly or partially responsible for that death. For example, the driver of the car involved in an accident, in which the decease died. Whichever side the individual is on, they will undoubtedly have a vested interest in the outcome; whether it’ll be an inquest or enquiry, the adversarial skills of an experienced barrister in cross-examining witnesses and making speeches (what lawyers call submissions) to the coroner in an inquest, the inspector of an enquiry, can make or break the case.
Can I bring a barrister into an inquest?
The huge advantage of being represented in either type of the hearing is that the experienced advocate can bring a professional and objective detachment to the case; unaffected by understandable emotion affecting those, who are personally involved, and unaffected by any personal agendas. The independent and experienced advocate is able to put the most persuasive case before the hearing to the very best advantage of the side that he is representing. It cannot be overstated that effective representation during the course of the inquest in particular, can be pivotal if not determinative as to the likelihood of any subsequence proceedings, particular of a criminal nature.
Can an inquest lead to a prosecution?
If a prosecution does follow, then the way which the evidence unfolded and was addressed before the inquest, can itself have a very real and direct bearing upon any subsequence trial. There may also be consequential civil claims by the estate of the decease person, or an injured employee who’s seeking damages. In both inquests and enquiries, continuity of representation is obviously a vital element. And if the case becomes a criminal prosecution, it will involve considerable adversarial skills being required before the jury.
How can I prepare for an inquest?
I have the resources of a team of highly experienced investigators from a variety of backgrounds, who can assist under my direction with the preparation of any case that goes before an inquest. I can assist you with the selection and briefing of any necessary experts that are required.
A driver who doesn’t wear an adult seatbelt commits an offence against the rules for seatbelts made under the Road Traffic Act 1988 (“RTA 1988”). Similarly, for someone aged 14 years or more, to sit in the front or back of a motor vehicle, without an adult seatbelt commits to an offence.
Who commits offences for not wearing a seatbelt?
Only the person failing to wear the belt commits an offence. So if the driver is wearing a belt, and his front seat passenger isn’t, the passenger commits to an offence, but the driver doesn’t.
At what age are you liable to an offence for not wearing a seatbelt?
However, please note that if the front seat passenger is under 14 years of age, and is not wearing a belt, then the driver does commit an offence, whether he, the driver is wearing his seatbelt or not. These rules apply, assuming that there are adult belts fitted to the vehicle in question.
What are the penalties for not wearing a seatbelt?
The penalty for breaching these rules for an adult is level 2 fine maximum of £500. These offences are not subject to penalty points.
It’s an offence under section 4(1) of the Road Traffic Action 1988 (“RTA 1998”) for a person to drive, or attempt to drive mechanically propelled vehicle on a road or other public place, while unfit to drive through drink or drugs.
So what’s driving?
99 out of 100 times, there is no issue; but what if you’re pushing the car? Then it’s a question of fact for the court, as to the degree, and extend to control of the movement and the direction of the travel of the vehicle. For example, if someone is pushing a car, it might be held to be driving; it could depend on whether or not his hand was on the steering wheel through the window as he pushed it, and so on and so forth.
What’s the definition of a mechanically propelled vehicle?
Well, that includes a car, a motor bike, a tractor and so on.
What about a road or other public place?
Well, a road includes any road or other public high way, including bridges. For example:
a pub car park during opening hours, and sometimes afterwards would be a public place.
A place to which the public has access, such as a pub festival car park, the fields that would be a public place.
What is a private place?
Well, that might be your own garden or drive.
What is “Unfit to drive?”
What does that mean? How is that assessed? Well, for example, if an officer saw somebody swerving from one side of the road to the other for no apparent reason, that could be used to support the inference the drive was unfit to drive.
What’s the penalty for driving whilst unfit?
Well, the penalties include:
6 months prison;
an unlimited fine;
disqualification from driving for a minimum of 12 months is obligatory, unless the court finds especial reasons exit. And if the court doesn’t disqualify, then it would still endorse between 3 and 11 penalty points on your driving licence.
If you are at risk of losing your driving licence, and you are wondering whether to instruct a lawyer, ask yourself: if you had lost your driving licence, and you had to pay to get it back, how much would you be prepared to pay?
You may well find that instructing a barrister is much more cost effective than you would have expected. Not only that, you can pay by way of fixed fees, so you will know your budget in advance.
One example I can give you, is that a client of mine who emailed me saying,“If I am convicted, I will lose my job. If I lose my job, I will lose my home, and if I lose my home, I will lose my custody application for my child from my previous marriage.”
So if your driving licence is at risk, do ring for a no-obligation, free consultation with a lawyer, and see whether we can save your driving licence.
Today I’m going to talk to you about a real case: a client of mine who contacted me in the last few weeks, who had reached 12 penalty points on her driving licence. She was petrified of being disqualified, and I’m going to explain to you how her case was prepared and presented, and how we managed to avoid a disqualification in her case.
12 points on your licence usually means a minimum6 month ban
As you know, if you reach 12 or more penalty points on your driving licence, you are liable to be disqualified for a minimum of six months, unless you can show that you would suffer exceptional hardship. If you can show that exceptional hardship would follow, then there’s a discretion within the court to either not disqualify at all, or to disqualify for a lesser period. Now, in my client’s case, (and, of course, I’m explaining all of this to you with her permission) she and her family lived in a rural village.
How exceptional hardship was used, when avoiding a driving ban:
The nearest railway station was 12 miles away. The nearest main town was 14 miles away. There was a very limited bus service in her village. It ran from Monday to Friday only, there were two buses in the morning and two in the late afternoon. Therefore, anyone who lived in this village, if they were going to have a normal life, had to have a car, or the benefit of a car. In her case, she was married with two children.
The two children were teenage daughters. Each daughter had medical and physical disabilities, and each had been classified as a ‘special educational needs child’ (SEN Child). As a result of which, each had to attend special schools. One of the difficulties she faced was that the schools were several miles away from the village. Each school was several miles apart from the other school, and from the home address. Of course, she had to take the children to school at about the same time of the day, and they had to be brought back at about the same time of the day; so that alone was an onerous task.
In addition, in the case of these two children, because of their medical and mental conditions, they had to regularly go to GPs’ appointments, hospital appointments, consultants’ appointments, and so on, and so forth. So the amount of driving that was required, just because of her two daughters, was enormous; and it would have been very difficult – if not impossible – to look after the children properly without the use of a car.
Hardship on fellow workers
Turning to the business side of things, the mother was one of two directors of a publishing company. She and her co-director had set up this company about two to three years before. It was very hard work in the early stages, but they were beginning to reap the rewards of the early hard work and the business had now taken on a few clients. Now, the mother’s role in the business was very much a marketing role, as well as delivering services. So she had to visit clients in London, she had to visit clients in Norfolk and the surrounding counties. She had to deliver presentations, teach on courses, and so on, and so forth. In order to do that, again, a car was necessary. Now, if she were disqualified, the co-director couldn’t have fulfilled her role, because the co-director’s role was very much an office based role. His duties were involved online marketing, and other office based activities. So if she were to have been disqualified, it would have adversely affected the interest of the business, and therefore of the co-director. And of course the court is particularly sensitive to hardship caused to innocent parties, such as, her own children or the co-director. By definition they are innocent; they have not been involved in any wrong doing. And if they are going to suffer hardship, a court will be quicker to find that exceptional hardship follows; as opposed to the situation where the only person is going to suffer is the driver.
Bringing focus on to the mitigation of your case
So therefore, essentially, we established two areas where the mitigation focused. The first is on her home life, and the interests of her daughters. The second was her business life, and the interest of her co-director and any employees of the business. Obviously, I saw my lay client in conference, long in advance before her court appearance, and we carefully went through her mitigation. Once we identified the areas of mitigation, we then needed to seek corroboration of that mitigation.
Finding evidence of your mitigation
So I therefore, advised her to obtain letters of reports from a number of people, such as the social worker who was familiar with the children and their difficulties, explaining what those difficulties were, and how the lack of a car would adversely impact upon the children. Secondly, from the GPs of the daughters, from consultants of the daughters, the consultants who attended to their various medical conditions, and so on, and so forth. I also asked her to obtain a google map for example, and to mark on the map where the village was where they lived; where the two schools were; where the nearest main town was; where the nearest rail way station was, and so on, and so forth. So that the court would be able to see at a glance the amount of the travelling that needed to be undertaken in a course of their ordinary lives. I asked for them to get the reports from the schools. And turning to the business side of things, I asked her to get a letter from her co-director explaining the divisions of roles, and how loss of her licence would adversely impact upon the business. I asked her to get letters from some of the business clients saying that the contracts stipulated she had to visit them not the other way around, and where they were located, and so on, and so forth. I even asked her to obtain a report from her accountant because sometimes the courts would say, “We’re going to ban you anyway, you can pay for taxis to take you and your family around.” So to deal with that, I needed a letter from the accountant to indicate that the overall level of the household income was actually very low, and there was no way that she would be able to afford taxis. So in this way, we were able to put together a bundle of material. Copies of this were obtained, and then when we attended court, copies of the bundles were handed up to the magistrate, so they could read these bundles before we addressed the court.
Preparing for your day in court
At court on the day, because of the burden of proofing the exceptional hardship would follow, I had to call my lay client to give evidence. Now, of course you would probably be daunted at the prospect of giving evidence before a court, but bear in mind, my lay client had been through this with me; I’d explained to her in advance, the kind of questions I would be asking her; we discussed in advance the kind of answers she would be giving; I’d explained to her in advance that she was liable to be cross examined, even if only gently, by the court clerk or prosecutor. And so she was fully prepared for giving evidence. And she was able to do that in a relatively relaxed way. Once she had finished giving evidence, the position was now it was my turn to address the court to draw it all together by reference to her evidence and to the documentation which we had supplied to the court. And to put her case at its highest, to make the most persuasive case possible for not disqualifying her, and I am glad to say, that in this case, it all worked very well, because at the end of the day, she wasn’t disqualified at all.
Find the best lawyer you can, to help you prepare your case.
So if you find yourself in this position; and if you think you are capable of doing that all on your own, by all means do. I would advise you to instruct the best lawyer that you can find, who specialises in this type of work, so that your case can be prepared at its highest. So that you can prepare a bundle of materials, which is directly relevant, and which corroborates your case, so that when you go into court, you are well prepared and you know what to expect. And so that when your case has finally to be summed up before the magistrates, that he is in the best possible position to put your case across in the most persuasive manner possible. If you do all of that, you may well find that despite your expectations, that in fact, you can avoid a disqualification all together.
Contact ShenSmith Barristers today, to help you avoid a driving ban.
I recently received a question about driving without headlights. Effectively, a young driver had got in a car, and driven quite innocently, but driven home and forgot to put his headlights on. He told me, quite candidly, that the reason he didn’t put his headlights on was simply because he forgot. He could see quite clearly because there were road lighting. And he felt he could drive properly. So what it was, was a casual mistake, but of course we all know that’s quite a dangerous mistake, because he may have been able to see but I had to advise him that people coming at him and driving towards him potentiality wouldn’t see him, which of course, we know could end up in disasterous results.
In those circumstances, he was charged by the police when the police saw him -as it unfortunately happen to drive pass the police, and he was charged with careless driving. Now, that was a charge that isn’t specific to headlights, but of course as we know – because he was driving without headlights, and he was a danger on the road. He was careless and not turning on headlights when drove home. So that’s the question I was asked: “Is it an offence to drive without headlights on at night?” And of course, not specifically an offence, but you will be charged with careless driving or you could be charged with careless driving, which is a serious offence.
One thing that the public have latched onto is what they term as ‘loopholes’. Often people are prosecuted and they want to avoid the case by some kind of loophole.
I can give you an example of a case I did quite a long time ago; When I was asked to defend a motorist in North London who’d been involved in a collision and he was prosecuted for driving without due care and attention. Now it’s my duty to advise my client as to the strength of the evidence because there’s no point in contesting a case if they’re only going to be convicted. Because it wastes your time, it wastes the court’s time, and it costs more. After all, you have to pay a costs order at the end of the day and the costs are likely to be more if you’ve contested the case.
Having said that, if i advise someone in private that ‘the evidence looks strong, and what you’re telling me doesn’t really amount to a defence’ but that person wants to plead ‘not guilty’ anyway, then it’s my duty to represent the client in accordance with the instructions you’ve given me.
For example, if you say “I caused that collision but I don’t consider that I was driving without due care and attention” – it might be nonsensical but if those are your instructions and you insist on pleading not guilty then I will represent you.
Now, in this particular case, the client told me he wanted to plead not guilty, I couldn’t really see a defence – it was quite clear there were prosecution witnesses who were going to say that my client had driven into the back of another car. But of course the trial started, based on the clients instructions, and I found myself cross-examining witnesses.
I noticed, after a little way into the trial that the prosecution advocate had not elicited the name of my client; for example, he had referred to ‘the driver of the Ford Cortina’ as opposed to the driver of the Ford Cortina being Mr X.
Now, there was a long way to go in the trial and there were many opportunities for him to elicit evidence of the identity of my lay client. But noticing that he hadn’t’ sought to identify him with the first witness made me think that it’s always possible that we’ll get to the end of the prosecution case and he still won’t have done it. I didn’t think it very likely, but it’s my duty as a defence advocate to keep my eyes and ears open, and see if i can spot a “loophole”.
What I did in this particular case was, I tried to give the Crown and the Court a false sense of security. So, I didn’t aggressively examine the prosecution witnesses, I didn’t challenge their accounts at all, in fact, but I didn’t refer to the driver of the Ford Cortina as Mr X, I simply referred to him each time i asked a question as “The driver of the Ford” or “The driver of the Cortina” or “The other driver”.
One way and another, we got all of the way through the prosecution case without anybody eliciting the name of the driver of the Ford Cortina, so there was no formal evidence of his identity. At the end of the prosecution case, rather than call the defendant to give evidence in his own defence, I made a submission to the Court that there was no case to answer, based on the fact that there was no evidence that the man in the dock had been the man driving the Ford Cortina. Although the prosecutor opposed that application, the Court was obliged to accede to the application because no evidence had been called. So, therefore, my lay client was acquitted, and furthermore, a costs order was made in his favour. So my lay client went home a very happy man having been acquitted, having got an order for his costs, and the prosecutor looked a rather silly man. So there’s an example of how, when it appears all is lost and there is no way out, there might be. If you keep your eyes and ears open, the prosecutor might make a mistake.
Now I certainly don’t advocate contesting cases where the evidence is strong, and there’s no clear defence on the face of the papers, but if my lay client insists that he wants to plead not guilty, so long as he doesn’t expect me to misrepresent his instructions, then i’m prepared to, and obliged to represent my lay client. So that’s one example of a loophole that’s always stayed with me.
So, I’ve been asked to tell you another “loophole” story.
I was asked to defend a man who had been in a road traffic accident shortly after midnight. The accident had occurred in North London. There were quite a few prosecution witnesses who were going to give evidence against my lay client, but my lay client insisted he wasn’t guilty. I thought the evidence was strong, but my lay client insisted on pleading ‘not guilty’ despite the advice I gave him. Therefore, the case commenced and the early witnesses for the Crown said that the incident had occurred a few minutes after midnight. However, upon closer cross-examination, it transpired that although they had said that in their written statements the time that had been given for the accident had actually been provided by the ambulance services when they’d arrived. The eye witnesses (those who were at the scene initially) said the accident had actually occurred a few minutes earlier, perhaps 10 or 15 minutes earlier (prior to the arrival of the ambulance).
Now, there’s a rule in existence about time limits in summary matters. Broadly speaking, an‘Information’ must be laid within 6 months of the offence being committed. An‘Information’ is a formal collection of details about an allegation which are essentially submitted by the prosecution to the court. The information must be laid within 6 months of an offence.
Now, it always pays as an advocate to pay close attention to detail because you never know when that detail is going to assume much greater significance. One thing I’d noticed about this particular case at the outset was that the Information had been laid on the very last day of the time limit. It had been laid a full 6 months after the incident. Now that, in itself, didn’t provide a defence. It didn’t even weaken the prosecution. But, once the eye witnesses started saying there was a 10 or 15 min delay before the ambulance services turned up and, based on the fact that the Crown took the time of the incident as being about 7 minutes past midnight, it suddenly occurred to me that there could be a loophole in the offing.
So, I continued to cross-examine the witnesses and I elicited from all the civilian witnesses, or most of them, that there had been a 10 or 15 min delay before the ambulance services had turned up. It was established during the prosecution case that the time of the accident had been taken from the ambulance men. The ambulance men had made statements saying the time they’d arrived (which was about 7 or 8 minutes past midnight). I’d given the Crown and the court a false sense of security by asking, not silly questions, but by asking questions which made it seem as though the nub of the allegations weren’t being disputed. So they had no reason to be on edge or to be mentally sharp.
So, having noticed that the time of the accident in the Crown’s charge was based on the time the ambulance men had arrived and that the actual evidence in the case was that the accident had occurred 10 or 15 minutes before (they had arrived) I rose to my feet, at some point during the Crown’s case towards the very end, and, under the guise of being helpful to the court and the Crown, I suggested that the Crown apply to amend their allegation to the day before because the evidence had been that the offence had been committed just beforemidnight. So not seeing any harm in this, the prosecutor duly rose to his feet and applied to amend the charge to the day before. The court not understanding what was afoot, acceded to that application.
So, the charge now was that the offence had been committed one day earlier. Which meant of course that the information had been laid one day out of time, and no one else had noticed that, but I had. So upon the case for the Crown concluding I rose to my feet to make a submission of ‘no case to answer’. The submission was, in effect, that the information had been laid out of time, and, therefore the defendant was entitled to an acquittal. The prosecutor opposed the application. His submissions finished just as 1 o’clock was reached so we had to break for lunch. That gave the Magistrates time to consider their ruling. I left my bag in the well of the court – it was one of the old-style London Magistrates’ Courts. The court was being locked over lunch anyway and at 13:55 I came back to court when the court was open. As the prosecutor walked in I noticed he walked into my bag not realising it was there. And I couldn’t help but notice that he kicked my bag! He didn’t realise it was my bag, or he wouldn’t have kicked it. But that was how frustrated he was because he fully expected the court to rule against him. The court came in at 2 o’clock and ruled against him. Obviously I felt a bit sorry for the prosecutor, but he should have been awake and he wasn’t. My client was acquitted and again a costs order was made in his favour.
So, that’s just an illustration of the fact that if your advocate is sharp, pays attention to detail, and, focuses throughout the case, that there might be a means of securing an acquittal even although the evidence is strong.
Now, I wouldn’t want it to be said that Mr Rupasinha makes a virtue out of securing acquittals for his lay clients through loopholes, but, if you think about it, it would be entirely wrong if I am defending a lay client and there’s a material gap in the Crown’s case, if I didn’t seek to secure the acquittal of my lay client based on that gap. What would the alternative be? Am I meant to keep it to myself and not mention to my lay client that there’s a loophole in the case? Should I side with the Crown and tell them without telling my lay client, “Actually there is a loophole there, do you want to close it?” No, of course not. As a defence advocate, when you are instructed to defend someone, you should do so to the best of your ability within the rules; and if you come to me, that’s what I’ll do.