Defending Prosecutions

Receiving a Summons
Generally, the first notification of a hearing is the summons which normally arrives in the post.  The correspondence will set out the details of where and when the case is to be heard.
The summons sets out the alleged offence and the date and location it is said to have occurred.  It is also likely that the prosecution includes its evidence, such as witness statements, photographs, weighbridge results or tachographs – depending on the offence.  The summons will also outline the prosecution costs which are being asked for.
Most traffic offences will be dealt with in the Magistrates Court but some more serious offences, such as death by dangerous driving, will end up in the Crown Court.

Attending Court
Most Court hearings will be listed at either 10am or 2pm.  Often a number of matters are listed at the same time and so defendants will have to wait around until their case is heard.

Who decides your case?
If the case is heard in the Magistrates’ Court then the matter will be heard by either three magistrates or a District Judge.
The three magistrates are usually lay people and aren’t legally trained, whilst District Judges will be qualified lawyers.  Both magistrates and District Judges are assisted by a legal advisor, whose job it is to ensure that procedures are adhered to and that the magistrates are properly directed as to the law.

Entering plea
At the first hearing, a defendant is usually expected to enter either a Guilty or Not Guilty plea.  In unusual circumstances, no plea may be entered and the hearing adjourned.
If a Guilty plea is entered then it is likely that sentencing will take place that day.
If a Not Guilty plea is entered, then the matter will be adjourned for either a Case Management Hearing (prior to Trial) or a Trial .
A defendant can change their plea from Not Guilty to Guilty at any time they wish, but the earlier they enter a Guilty plea the more discount they will receive on their sentence.

The Trial / Sentencing Hearing
In both situations, the prosecution will set out its case first.  If it is a trial then this will be actioned through witnesses giving evidence.  If it is a sentencing hearing then the prosecutor will just read a summary of the facts of the case.
Next, the defence will put its case forward.  If this is a trial then it will, again, introduce evidence through witnesses.  If it is a sentencing hearing then the defence will just be providing mitigation which may, or may not, require the use of witnesses.
The decision
The magistrates or district Judge may well retire at the end of the case to make their decision, In complex cases you may not learn the outcome until a few weeks later but this is rare.
Once the magistrates or district judge have made their decision they will return to the court room to pronounce their decision.

Potential sentences
There are sentencing guidelines in the magistrates’ courts which provide rules on the type of sentence each offence should receive.  Depending on the positive and negative features of the particular offence,  the sentence will move up or down the range of available sentences.
An experienced lawyer should know what evidence is likely to persuade a court that an offence should be dealt with leniently and what evidence is not important.  The unrepresented individual may have some great mitigation to explain why they committed the offence but not appreciate its relevance and therefore leaving themselves with a more severe punishment than they deserve because it is never communicated to the Court.
The major difference between the driver and operator of a commercial vehicle and a private motorist lies in the fact that any conviction arising out of the use of a commercial vehicle may be reported to the Traffic Commissioner and there may be further sanctions, including the loss of an Operator’s licence. The action taken by the Traffic Commissioner will depend upon the nature of the offence, and, of course, the size of the penalty will be seen as a clear indicator of the perceived gravity of the incident.
The transport operator is, therefore, in a unique situation facing the possibility of a double penalty for a single offence: with the potential for the second penalty to have a far greater impact than the first.
Notwithstanding that threat, an operator can see many offences as being no more than part and parcel of the risks arising from the daily operation of commercial vehicles and, for that reason, will want to spend as little time and money on the problem as possible, but the fact that a conviction is likely to be reported should never be forgotten.
Another very real risk arises from the fact that many judges, understandably, have no knowledge either of the workings of a commercial vehicle, or of the administrative requirements of a haulage undertaking. Add to this, the fact that commercial vehicles and their drivers are always portrayed in the worst possible light and generally are blamed for any problem on the road. Unhappily many courts appear to welcome the opportunity to ‘strike a blow for the public’ and impose penalties that are disproportionate to the alleged offence.
It is against this background that an operator needs to decide whether or not the cost of representation in the court is likely to be justified by the result. The purpose of representation is to try to make sure that the court understands the circumstances in which the alleged offence came to be committed. In a case of overloading, for instance, whether in relation to the permitted axle weight or to the permitted train weight, the load may have been put on the vehicle many miles away from the operating centre, and it is not unknown for a customer to mis-describe the weight of a load.
Equally, the responsibility for the repair of, or for the maintenance of, a vehicle may have been contracted out to a company whose reputation was excellent even if a subsequent check by the enforcement authorities found faults.
These facts need to be explained to the court in sufficient detail to enable the court to understand the difficulties faced by the operator. It should be the job of the representative to persist with the explanation even if the court is initially hostile. It is arguable that a court appearance should be seen as an opportunity to educate both the court and the public. The fact is that the cost of representation is nearly always a justifiable expense

Leave a Reply

Your email address will not be published. Required fields are marked *