Delighted this week to represent a gentleman snapped driving at 89mph in a 50mph zone. This puts him ABOVE the highest category in sentencing guidelines, which call for a 56 day qualification.

But after hearing mitigation, the Magistrates imposed only 6 points, a fine, and costs.

Magistrates do listen and respond to a well presented case!

Uber, apps, and the evolving situation for taxi companies and taxi drivers.

Back in 1959, Uxbridge Magistrates heard a case in which a private hire driver, Mr. Cogley, was alleged to have been “plying for hire” in an unlicensed hackney carriage at what was then called simply “London Airport” and is now Heathrow. The dusty report of the case – it is often referred to as “the airport case” -  tells us that London Airport has TWO terminals – the North and the Central – and that Mr. Cogley’s car was equipped with a new-fangled two-way radio that enabled him to be called to carry would-be passengers who made a booking at a desk inside either terminal, and that there were advertisements for the service in the terminal, and even free telephones that enabled passengers to contact the booking desk. Uxbridge Magistrates found Mr Cogley guilty – but the High Court took the opposite view.

Perhaps surprisingly, Mr. Cogley’s 56 year old case remains the leading authority on what amounts to “plying for hire” under the Metropolitan Public Carriage Act. But then, that very Act is itself is 145 years old!

In April 2015, Uxbridge Magistrates had to consider the question all over again: this time with a driver who had been parked on the departures forecourt of Heathrow T4. An officious policeman had discovered his car to be there using the Uber app and came over to ask what he was doing there. As a result, the unfortunate driver found himself facing a charge which, if he were found guilty, would have cost him his livelihood – because what ever penalty the court might impose, TfL will invariably revoke a private hire driver’s licence is he is convicted of a “taxi offence” such as plying for hire.

Thankfully, the magistrates on this occasion took a sensible view and after hearing two hours of evidence and legal argument, and deliberating for thirty minutes, not only acquitted my client, but awarded him payment of his costs from Central Funds.

So what, in 2015, is “plying for hire” ?

These are the essential ingredients of the offence:

·      The car must be ‘exhibited’ to the potential hirers as being available to them – so the question of where the car is parked is always an important one.

·      There must usually be ‘solicitation’ of passengers. This can be by advertisements on the which would be visible to potential passengers, or could be by something the driver says or does: if you stand outside your car gesturing towards it to possible passengers, you will almost certainly be guilty. If you sit in it and do nothing, you’ll be on safer ground.

·      Merely waiting for possible hirings can be enough: but the prosecution must make the court sure that you were waiting for bookings other than through the private hire office with which you work.

Since this case began, UBER has reached an agreement with Heathrow’s authorities to make the airport a “dead zone” so that cars subscribed to the Uber app will not be visible to potential passengers using UBER in the airport.  But clearly in THIS case, the bench did not accept the prosecution’s contention that by making the presence of his car at the airport known through Uber, my client was committing the offence of Plying for Hire. Perhaps, therefore, Uber threw in the towel too soon!

Magistrates Court decisions are not biding on any other court so my client’s success this week cannot be taken as a guarantee that others in a similar position would get the same result. Had he been convicted, we would have asked the Divisional Court to revisit “plying for hire” and a new “airport case” might have gone into the books. Until it does, the extent of this offence will remain a murky area of the law in which those accused might be well advised to seek expert advice.

54 Points and still on the road!

The story of Keith Baldock – still driving with 54 points on his licence – is one of many concerning drivers who have managed to stay on the road with more than 12 points on their licence, that have hit the headlines in the last twelve months. You can see more details here: http://www.kentonline.co.uk/kentish_gazette/news/keith-baldock-13012/

Each story is attended with comment that it is scandalous for such drivers to be on the road, and imputations that magistrates are soft and judges overly lenient. The explanation is in fact usually rather more complex.

Mr. Baldock appeared in the Crown Court because he faced charges of theft: he had driven around filling stations, stealing fuel to a total value of about £500. He also faced five charges of driving without insurance – an offence which carries a minimum of six points. The judge gave him six points (a total of thirty) and went on to say that he was making no order for disqualification because Mr. Baldock was looking for a job, and needed to be able to drive, to get one.

Circuit Judges, sitting in the Crown Court – and their clerks -  are far more used to dealing with robberies, rapes, and cases involving drugs and serious violence, than motoring offences. Driving without insurance is something that comes before them only when it is “sent up” from the Magistrates Court along with other offences. In fact, almost all motoring matters are “summary only” offences, which on their own do not find their way to the Crown Court. So it’s even rarer for a Crown Court judge to have to consider the need to disqualify when a driver reaches or exceeds twelve penalty points. Demanding to see a defendant’s licence, or a DVLA print-out, before dealing with him for a motoring offence, would be routine at the Magistrates’ Court where benches and legal advisors are on the eagle-eyed lookout for a totter. Not so in the Crown Court.

A court CAN disqualify for any offence of driving without insurance: disqualification is discretionary for that offence, and always on the table. In saying that he made no order for disqualification, the judge in Keith Baldock’s case may well have been saying that he was not going to exercise that power for any of the five offences before him. And totting up seems not then to have been drawn to his attention until it was too late.

Too late? The “slip rule” provides that a judge in the Crown Court can adjust a sentence – upwards or downwards – if an error is drawn to his attention within 56 days. After that, it’s simply too late. And by the time the DVLA wrote to the court to point out that Mr. Baldock’s latest thirty points would give him a total of 54 and make him an egregious candidate for disqualification, the 56 days had passed.

Should we worry too much? Probably not: cases like this are exceedingly rare. There are hundred of thousands of road traffic cases a year and the vast majority of them are dealt with by our courts without error of any kind, let alone errors of this magnitude. There will always be mistakes in any endeavour in which human beings are involved.

An unusual example of commiting multiple offences at the same time

Well, here's one for the end of a busy week......this person will benefit from good legal advice I suspect.

Learner driver accompanied only by a parrot caught speeding on motorway

UK Parliament debates driving offence penalties

On 27 January 2014, Members of Parliament debated driving offences and penalties.

You can read the contributions for yourself by following the link at the bottom of this article. The debate took place against the background of the Sentencing Council's current consultation on guidelines for sentencing motoring offences, and was an acknowledged effort to influence that process.

The contributions were frequently illustrated with vivid descriptions of the devastation to families caused by death on the roads - and the often uncomprehending response of the grief-stricken to what they perceived to be overly lenient sentences for crimes they see as akin to murder. It can't be an easy job, as an M.P., to have to face at your constituency surgery, the distraught family of a son and daughter-in-law, killed by a speeding motorist who'd already clocked up ELEVEN driving bans, when his uninsured car, with the police in hot pursuit, swerved out of control across the road and instantly killed them. The temptation to download it all on the floor of the commons is clearly one that some members are not equipped to resist.

The views of those who have lost someone close to them in circumstances such as those, deserve understanding and respect for the genuine tragedy that underlies them. But the "hanging's too good for them" (yes, I exaggerate just a tad there) response of most contributors to the debate was in my view a cheap, populist response to a serious and complicated issue. There were shrill demands for manslaughter prosecutions, life sentences, and lifetime driving bans and a clear desire for tougher penalties for all offences causing death or injury.

The law already provides for a maximum penalty of fourteen years' custody for causing death by dangerous driving, whilst the maximum sentence for manslaughter is imprisonment for life, with the actual sentence in the hands of the Judge.  M.P.s who called for manslaughter prosecutions may have forgotten that "causing death by dangerous driving"  is an offence that was created to address a particular problem: juries were notably unwilling to convict those who had caused death by driving, of an offence carrying the same potential penalty as murder. In fact the eleven-times disqualified driver referred to above, received ten years' imprisonment - a sentence well within the range of those typically handed down for manslaughter where there has been deliberate violence.

The existing sentencing guidelines for causing death by dangerous driving divide offences into three classes of seriousness, depending on the degree and obviousness of the danger involved in the driving. Given that in all cases, we are looking at the same awful consequence of the offence - the death of another person - then surely it must be right, that penalties should reflect in their range, the degree of blame attaching to the offender.

Dangerous driving in itself may involve no more than knowingly driving a car with a dangerous defect - perhaps a damaged tyre. It is an offence that is frequently dealt with in the Magistrates' Court, and often does not result in a custodial sentence. But ANY offence of dangerous driving could, with the right combination of misfortunes, lead to the death of a blameless person. Are those chance circumstances really to elevate sentences from the level of community orders, to lengthy terms of imprisonment? Some honourable members would appear to think so.

For every case of a child mown down by a reckless, heedless monster, there is one of the usually careful and conscientious (and frequently elderly) driver who makes a horrific error of judgment, resulting in tragic loss of life. It is no exaggeration to say that such a driver can be as severely mentally scarred by the offence, as the relatives of the deceased. Offences of that nature don't perhaps play so well in parliamentary speeches - but the spectrum of sentences needs to provide for the least serious offences, as well as for the worst.

"Careless driving" is merely driving that falls below the standard to expected of a careful and competent driver. It is an offence dealt with daily in most magistrates courts in the land, with three points and a fine: think of the driver reversing onto the road, who didn't see you and caused you to swerve. Then imagine you were riding a bicycle close to the pavement and couldn't get out of the way: when the back of the car hits you, the startled and terrified elderly driver goes for the brake and hits he accelerator by mistake. Should a moment's inattention really take someone to gaol?

At the heart of these questions, is the real purpose of sentencing. If that purpose is to deter crime, and to alter the behaviour of those who might commit it then there can be no place for simply vindictive sentences calibrated according to the outcome of the behaviour in question. There is an obvious injustice in visiting different consequences on essentially the same behaviour, as a result of chance circumstances that led to a particular outcome, no matter how great the tragedy of that outcome. Where the consequences of a person's actions are not reasonably foreseeable, those consequences should play no part in sentencing.

The Sentencing Council - whose remit was visited by Parliament as recently as 2009 - is required to consider the impact of its guidelines on victims. The Justice Select Committee of the House is a statutory consultee as is the Lord Chancellor. In these circumstances, it is difficult to see the Parliamentary "debate" (I use the inverted commas because in a conventional debate, both sides of the question get an airing) as anything more than grandstanding by M.P.s with an eye to their local paper's front page.

Click here to read the transcript of the debate.

Click here to download the current sentencing guidelines on causing death by driving.