Kitsons Solicitors

FAQs - Crime & motoring offences

• Q.

  Is it worth using a solicitor for a motoring offence?

  A.

  Road traffic law is complicated. Your driving licence is valuable to you. Kitsons have been acting for motoring clients for over a hundred years and have built up an unrivalled reputation in the field. We can assist you from the outset of a police investigation – including attendance with you at the police station for interview in serious cases – to representation at the Magistrates Court or the Crown Court. We will do all we can protect your interests – and your licence. A full consultation can be arranged for as little as £100 which includes VAT, but excludes representation in court.

  Legal aid may also be available for more serious matters and for police station attendances.

• Q.

  What are the rules about Disqualification from Driving?

  A.

  In practice there are three main ways in which a driver convicted of a motoring offence may lose their licence.

  1: Certain offences are considered so serious that they carry automatic disqualification, in addition to any other penalty the court may impose. Drink driving is the best example, where the minimum ban will be 12 months, or more if the reading is a high one (or three years where there is a similar previous conviction within the last 10 years).

  2: The court may also disqualify for any endorsable offence if they consider the circumstances make the offence too serious to be dealt with by just a fine + penalty points. The most common example is that of excessive speeding: any driver convicted of doing over 100mph in a 70 limit is likely to be banned.

  3: Under the totting-up rules a driver can be disqualified if they accumulate 12 penalty points within a three year period. It is the date of the offences and NOT the date of the hearings which is relevant. The court must disqualify for at least 6 months. To avoid being banned for totting up you will have to convince the court that a disqualification would cause exceptional hardship.

  4: Newly qualified drivers will also lose their licence if they accumulate 6 or more points within two years of qualifying. The licence will be revoked not by the court but by the DVLA. It is not a disqualification – a new licence may be applied for immediately. But it will be a provisional licence and the test must be retaken.

• Q.

  I have fitted a device in my car which warns me when I am approaching a speed camera. Is it illegal?

  A.

  At the moment such devices are not illegal in this country although they are banned in many European countries, including Ireland, France and Belgium. The Government is now proposing to introduce legislation to ban devices which either prevent the speed camera working or detect its presence.

• Q.

  Are wheel clamps illegal?

  A.

  The owner of private property who wants to prevent cars from being parked on it is entitled to clamp their wheels (and demand payment before they are released) in certain circumstances. Clamping would be lawful if warning has been given by a suitable notice, that a vehicle parked there without proper authority would be wheel clamped and released on payment of a fee. The amount of the fee would have to be 'reasonable' and the vehicle must be released without delay once payment has been made.

• Q.

  What right do the police have to search someone’s house?

  A.

  The police have wide powers to enter property for the purposes of making an arrest, to deal with or prevent a breach of the peace, or to seek evidence in connection with a wide range of offences. These powers also apply in cases where there is a need to save life or limb, or to prevent serious damage to property.

  If seeking to make an arrest the police are entitled to enter if they have reasonable grounds to suspect that the person whom they seek is on the premises. In those circumstances the police officer must be in uniform. The officer is also entitled to use reasonable force if access has been requested and denied.

  The police may also enter premises where they are investigating allegations of drug trafficking or where a person has been arrested and it is suspected that there may be evidence on premises occupied or controlled by them, which relate either to the offence which they have been arrested or to another arrestable offence, which may be connected with, or similar to it.

• Q.

  How can I afford a lawyer to act for me if I am accused of a crime?

  A.

  Although Governments of all political complexions have been trying to cut back on the legal aid bill for many years, there is still a comprehensive legal aid system in place in England and Wales for anyone suspected of, or charged with, a criminal offence.

  Anyone arrested and taken to a police station for questioning may well have the right to free legal representation at any time of day or night, regardless of their level of income.

  If charged with an offence carrying imprisonment or any other serious offence, they will probably be entitled to a representation order (previously called legal aid) but the court must also assess their income and outgoings and may order a contribution to be paid. Higher earners may not qualify at all.

  Not all firms deal with criminal work but those that do (such as Kitsons) are subject to monitoring and approval by the Legal Services Commission. We can advise whether legal aid may be available.

• Q.

  I have been charged with theft of a milk bottle. I want to elect trial before the Judge and jury at the Crown Court but I have been told that this is not possible. Is this correct?

  A.

  Although Governments have often discussed the possibility of taking away the right to jury trial for allegations of theft involving small amounts, this has never been put in to effect. Theft is what is known as an either-way offence which means that any defendant has the right to 'elect trial' at the Crown Court. It is often said that the chances of acquittal are greater in the Crown Court and this is why many people elect trial even though there may be disadvantages. A Crown Court case can go on for longer and may be more stressful and attract more publicity. A Crown Court Judge also has greater powers of sentencing. A decision as to whether or not to elect trial is always a difficult one and should be discussed carefully with the benefit of legal advice.

• Q.

  Can I be prosecuted for a motoring offence if I was not warned at the time that I was likely to be prosecuted?

  A.

  In law there are a large number of motoring offences which cannot be prosecuted unless the police have complied with certain requirements. The offences include dangerous driving, careless driving, speeding, failing to comply with traffic signs and a number of other offences. In all such cases the defendant must either have been warned at the time of the possibility of prosecution, must be served with the summons within 14 days of the offence or must be notified in writing of the possibility of the prosecution. The notice has to be sent to you at your last known address or served personally. The obligation to give such notice will not normally apply where an accident has occurred. Failure by the police to comply with these requirements will mean that the prosecution will fail.

• Q.

  I have received a letter from the police asking me to tell them whether I was driving my car in a specified place at a certain date and time. I have been told that I have a right under the Human Rights Act to refuse

  A.

  No, the courts have held that even though you may be incriminating yourself, you are still obliged to respond. Although your answer may well result in you being prosecuted, the courts have taken the view that you are not incriminating yourself simply by stating that you were driving a car at a particular time and place, since driving a car is not, in itself, an offence. There are in fact three documents which you may receive from the police at this stage. These are called:

  (1) Notice of Intended Prosecution (s.1 of the Road Traffic Offenders Act 1988), warning that a prosecution may follow.

  (2) Notice Requiring Information about the Driver (s.172 of the Road Traffic Act 1988), asking the registered keeper to fill in, sign and return the notice answering questions as to who was driving the vehicle at the specified time and place when the offence was alleged to have been committed and, in some cases,

  (3) Notice of Conditional Offer of a Fixed Penalty (s.54 Road Traffic Offenders Act 1988) so that the driver can avoid going to court and facing greater punishment.

• Q.

  I have heard that the police are not allowed to carry out random breath tests. Is this correct?

  A.

  It is an offence to drive, attempt to drive, or be in charge of a motor vehicle on a road or public place, with more than the prescribed level of alcohol in the body. (35 micrograms of alcohol per 100 millilitres of breath or 80 milligrams per 100 millilitres of blood). The police are not allowed to stop vehicles and breathalyse drivers at random, but they do have a general power to stop vehicles on the road. If, having stopped the vehicle, the police officer suspects that the driver has been drinking, he is entitled to ask the driver to provide a specimen of breath. The police can also request supply of a specimen if they suspect the driver may have committed a moving traffic offence or been involved in an accident.