About me

My name is Julie Robertson and I am the author of this WordPress blog.

I am a specialist road traffic offence Solicitor and I only represent motorists.

I hold a dual qualification as a solicitor and non-practicing barrister, having been called to the Bar in 2002.

From 2003 until 2007 I worked as a Magistrates’ Court Legal Advisor to the Magistrates of Thames Valley, initially, and later Cheshire. This gave me invaluable insight as to the arguments that are likely to find favour at trial or on sentence with the Magistrates, which helps me get the right result for you!

I have a solid background as a motor offence specialist solicitor and have exclusively represented drivers at Court and at police station interviews since 2007.

I am recognised as an expert and leader in my field and have proven expertise in defending drivers and companies accused of committing road traffic and transport offences.

I have broad experience of both factual and technical defences and am adept at handling sensitive cases such as those involving fatalities and those attracting press interest.

I boast excellent success rates at trial and in cases whereby a client wishes to avoid a driving disqualification.

I have a comprehensive understanding of how valuable a driving licence is and how the loss a driving licence can catastrophically impact on someone’s livelihood and family. My approach and preparation in road traffic cases means that clients rarely fail to achieve their objective.

If your driving licence matters to you call me on 07508 517987 for objective and sensible advice. FREE legal advice offered during an initial consultation either over the telephone or at our office in Manchester.

Motoring law

Urgency and Medical Emergency – Crohn’s Disease, IBD and speeding offences

I chose to focus my blog this month on an issue that is very close to my heart – Crohn’s disease and how I am able to sometimes help people suffering from Inflammatory Bowel Disease (IBD) as a road traffic lawyer in the context of speeding offences specifically. Whilst I have focused this blog on speeding offences my comments can easily apply to red light offences and those who are prosecuted for improper use of the hard shoulder.

What is Crohn’s disease

Crohn’s disease is a chronic medical condition without cure that causes inflammation, swelling and ulceration in the intestines.

Crohn’s Disease was reported and named in 1932 and is one of the two main forms of Inflammatory Bowel Disease (IBD) – the other being Ulcerative Colitis.

However, despite the illness being recognised over 80 years ago the general public largely remain ignorant of Crohn’s disease and IBD – often confusing IBD with Irritable Bowel Syndrome (IBS). The word “disease” often causes people to think the illness is contagious and this can leave an IBD sufferer feeling ashamed, isolated and alienated.

Because Crohn’s and Colitis are digestive diseases with often “embarrassing” symptoms, which people would understandably rather not broadcast and disclose to others, those with IBD are often uncomfortable and embarrassed talking about the illness, its symptoms and the fact that they are afflicted by IBD.

The symptoms of IBD range from mild to severe and because IBD is a very “individual disease” it affects sufferers differently. Symptoms include, but are not limited to, abdominal pain; diarrhoea and or an urgent or frequent need to use the toilet; extreme tiredness; fatigue; malaise; mouth ulcers; loss of appetite; nausea and vomiting; weight loss; painful joints; mouth ulcers; eye problems; skin rashes and anaemia.

Fortunately, thanks to several famous and well known IBD sufferers such as Anastacia, Dynamo, Shannon Doherty, Carrie Grant, Sir Steve Redgrave CBE and most recently Sam Faiers public awareness of the illness is increasing and statistics suggest that at least 1 in 250 people in the UK population are affected by IBD.

Driving and the urge to “go”

Crohn’s and Colitis UK state in their literature that “travel is a key issue for many people with IBD”.

This is understandable as IBD sufferers are increasingly reliant on the use of their vehicles, the flexibility that a car provides to them and ultimately their driving licence and ability to continue to drive.

Due to the frequency and urgency of needing to access and use toilet facilities people with IBD often struggle, or are anxious, about using public transport. Indeed, I have represented many clients who suffer from IBD and have presented persuasive legal argument, supported by compelling medical evidence, to Courts in England and Wales to help those clients preserve their ability to drive and thus avoid disqualification so that they do not have to rely on public transport.

As someone who has lived with Crohn’s for the last 16 years I understand extremely well how valuable an ability to drive can be to a sufferer of IBD. Indeed during a flare up, if one is sufficiently well and brave enough to venture out of their home, a driving licence can prevent isolation and can mean the difference between being stranded at home or attempting to get on with your daily personal and professional life. Whilst I am fortunately currently in remission there have been many times when I have experienced flare ups and would not have left my home if I had not been able to drive.

IBD and medical emergencies

IBD has an unpredictability to it and therefore the need to find and use a toilet can be urgent, sudden and unexpected. Indeed one of the main fears for many sufferers with IBD is the fear of having an accident.

As a road traffic lawyer I have advised people with IBD who have had sudden medical emergencies whilst driving, requiring them to find their nearest toilet facilities. This can be very distressing and frustrating to an IBD sufferer – even more so if it happens whilst driving. Often the panic that ensues can cause a driver to speed to toilet facilities at the nearest service station or fast food outlet or to use the hard shoulder in order to exit a motorway or dual carriageway to avoid waiting in queuing traffic in order to save time and hopefully spare their blushes.

Many of those who I have advised in these scenarios have been prosecuted for speeding offences over and above other road traffic offences. The majority of clients state that the police fail to be sympathetic and do not understand the illness, how it impacts on suffers and the fact that a delay caused by being stopped and questioned can inevitably result in humiliating and embarrassing consequences to the driver. Unfortunately Prosecutors and Courts, like the police, frequently fail to understand the illness and why a symptom of IBD, namely the urgency to access and use toilet facilities, can cause someone to exceed the permitted speed limit.

My role, as a Solicitor and advocate, is to inform the Prosecution and Court about the illness, the symptoms and to present cogent and persuasive arguments that there is a good reason why the speed limit was exceeded – namely a medical emergency. My experience and the feedback from those I have represented shows that my own knowledge and “experience” of IBD undoubtedly benefits those that I represent – not only because I understand the illness, and am therefore able to empathise with clients, but because I am able to effectively communicate with those providing the necessary medical evidence as both a sufferer of the disease and as a lawyer.

Police officers and Prosecutors will often argue that a driver needing to use toilet facilities should have done so prior to commencing their journey or that, on a longer journey, the driver should have stopped at the last service station. However, whilst this is a nice idea in theory this would most likely require considerable foresight from an IBD sufferer and unless the disease is understood it is difficult to overcome such arguments and prejudice amongst non sufferers.

By its very nature IBD is such that the urge to use a toilet can be severe and sudden and thus a driver often cannot predict when this may arise. The problem with urgency means that there is a very real need to reach a toilet without delay and this can cause considerable stress and anxiety to a sufferer who will understandably worry about the consequences of not accessing toilet facilities in time.

Of course, I am not advocating that IBD gives drivers a licence to speed or that drivers should speed in order to reach toilet facilities. Rather the aim of this blog is to inform those affected by medical emergencies of their options if they commit a speeding offence due to a need to use the toilet.

It will be truly difficult to empathise with those experiencing a medical emergency unless you yourself have truly been there. For this reason many people write off a medical emergency as “just one of those things” or as an “excuse” to speed. It saddens me that many drivers who have experienced a medical emergency do not seek legal advice regarding whether they could challenge a prosecution and put forward their case in efforts to obtain a lesser sentence on conviction. Even worse, it concerns me when I advise sufferers of IBD who have not been told by other solicitors that their IBD is a relevant factor for the Court to consider in the context of a special reason if it has led to the offence being committed.

The law

The law is relatively straightforward in cases where an urgency to use toilet facilities has led to the commission of a speeding offence. In essence if a driver has exceeded the speed limit due to the need to use a toilet this can give rise to what is known in law to be a special reason.

What is a special reason?

It is important to note that a special reason is not a defence and can therefore only be advanced, if appropriate, following a guilty plea. It should be thought of as effectively a trial on sentence and the burden of proving that a special reason exists is on the driver on a more likely than not basis – e.g. if a Court believes that it is more likely than not (51% or more) that a special reason exists in the present matter then it can find a special reasons argument proven.

Specifically, a special reason is defined in law as a mitigating or extenuating circumstance, which must not amount to a defence and which must be directly connected with the commission of the offence in question. It must also be a matter which the Court ought properly to take into consideration when imposing punishment. Because the above definition is deliberately broad it is possible for skilled lawyers to argue persuasively that a Court can properly find that special reasons exist in circumstances where, for example, a driver with IBD was speeding due to a medical emergency.

How to go about arguing that special reasons exist

If a driver is caught speeding in circumstances where a genuine medical emergency exists they should make this known immediately.

If a driver is stopped by the police they should tell the police at the roadside that they are an IBD sufferer and that the symptoms of their illness mean that they need to find toilet facilities as a matter of urgency hence the reason why they may have exceeded the permitted speed limit or used the hard shoulder. The driver should make the police aware that they would wish this to be recorded on the fixed penalty notice or in the police officer’s pocket notebook in the case of speeds which are outside the fixed penalty threshold. If necessary show the police an NACC “can’t wait” card if you carry one on your person to confirm that you are an IBD sufferer.

In circumstances where there is no roadside stop, such as in the case of camera offences, the registered keeper of the vehicle in question will be sent a Notice of Intended Prosecution (NIP) within 14 days of the camera offence. This document will request that the driver of the vehicle at the material time be identified by the addressee of the NIP. If the driver is not the registered keeper their details will most likely be provided by the individual endorsed on the vehicle log book and they will, in due course, receive an NIP requiring them to confirm whether you were the driver. At the same time that the driver responds to the NIP they should, at the very least, communicate their reason for exceeding the speed limit to the Central Ticket Office or Constabulary and explain that they would wish to present a special reasons argument to the Court based on medical emergency.

I would urge anyone wishing to argue special reasons at Court to instruct a road traffic solicitor as soon as the decision is made to fight a case on this basis. Instructing a solicitor later on in the Court process can mean that crucial steps are overlooked and that medical evidence could be compromised as a result.

Whilst the law in relation to special reasons is relatively straightforward having the confidence to argue your case before the Magistrates, and the ability to deal with challenge by the Prosecution, is another matter entirely. Solicitors train for many years to be able to persuade Court’s to find in their favour and road traffic law evolves so quickly that seeking advice from a road traffic law expert is something I would thoroughly recommend. I am sure that many IBD sufferers will recall the difference in opinion and advice received from a GP to that received from a Consultant in Gastroenterology. In my opinion receiving advice from a general practitioner over a motor offence specialist presents a similar parallel.

What are the Court’s options if a special reason is found to be proven?

If a special reasons argument is accepted by the Court this gives the Magistrates discretion to either impose no penalty points or, in the case of obligatory disqualifiable offences, to impose penalty points or a shorter term ban as an alternative to the usual sentence.

In every case that I have been involved in, where special reasons have been argued on the basis of IBD and medical emergency, I have persuaded Courts that it would not be fair and proper to impose penalty points. Whilst those clients have pleaded guilty and have therefore been convicted of the speeding offence in question they have left Court with no penalty points endorsed on their driving licence and record at the DVLA. Their ability to drive has therefore continued without disruption and their insurance premiums have remained unaffected despite the conviction.

I am always happy to offer free legal advice to those making an initial enquiry and can offer fixed fee representation in medical emergency special reasons cases. If you, or anyone you know, is prosecuted and want to argue that special reasons exist do not hesitate to contact me, at Bootes, for a no obligation discussion.

About the author

Julie Robertson heads the motor offence department at Bootes Solicitors and holds a dual qualification as a solicitor and non-practicing barrister, having been called to the Bar in 2002.

From 2003 until 2007 Julie worked as a Magistrates’ Court Legal Advisor to the Magistrates of Thames Valley, initially, and later Cheshire. This gave Julie invaluable insight as to the arguments that are likely to find favour at trial or on sentence with the Magistrates.

Julie has a solid background as a motor offence specialist solicitor and has exclusively represented drivers at Court and at police station interviews since 2007. She is recognised as an expert and leader in her field and has proven expertise and defending drivers and companies accused of committing road traffic and transport offences. Julie has broad experience of both factual and technical defences and is adept at handling sensitive cases such as those involving fatalities and those attracting press interest. Julie boasts excellent success rates at trial and in cases whereby a client wishes to avoid a driving disqualification.

Julie has comprehensive understanding of how valuable a driving licence is and how the loss a driving licence can catastrophically impact on someone’s livelihood and family. Julie’s approach and preparation in road traffic cases means that clients rarely fail to achieve their objective.

For specialist legal advice in this regard and for legal advice regarding all motoring offences contact Julie Robertson on 0161 819 7221 or julie.robertson@bootes.co.uk Twitter @DriverSolicitor. The initial call is always free!

 

The potential costs of accepting a fixed penalty or speed awareness course referral

With the escalating number of speed detection devices on Britain’s roads these days the chance of a motorist being captured on camera committing a speeding offence is relatively high.

Speeding is the most committed road traffic offence

According to recent surveys speeding is the most often committed road traffic offence by motorists. Indeed  Confused.com published information online that stated that between 10 December 2013 and 10 January 2014 one of the most common convictions declared by motorists was an SP30 driving endorsement.

It is certainly easy to understand why speeding offences have become the most often committed road traffic offence – particularly given how we inhabit a world where time is scarce and where demands on our time are ever increasing.

Accepting a fixed penalty

On most occasions, a motorist who has exceeded the permitted speed limit will be inclined to simply accept a fixed penalty if it is offered as it is more time and cost effective to taking the matter to Court and having their case heard before the Magistrates. Indeed this is often the case irrespective of whether or not the speeding offence that brought about the fixed penalty has actually been committed.

As a fixed penalty offer is restricted to 3 penalty points it is often safer to accept a fixed penalty notice where the speed recorded is on the cusp of, or is housed within, a higher sentencing bracket. Motorists, who are risk averse, in circumstances like this more often than not choose to accept the fixed penalty rather than risk incurring 4, 5 or 6 penalty points by taking the matter to Court. Indeed I have been asked to advise motorists in many cases where they have been offered fixed penalties at the roadside in cases where the speed has exceeded the usual fixed penalty speed threshold. In most of these cases when questioning the individual seeking advice they have told me that either they were not speeding or that, whilst they were speeding, it was not at the speed recorded. In either scenario the reading of speed is more often than not disputed by the client. This has always led me to wonder whether the police know that they have used their detection device incorrectly and that the reading of speed obtained is therefore questionable and whether they are rather hoping that if they wave the tempting fixed penalty offer in front of the motorist they will accept it and not challenge their case thereby exposing an officer’s mistake.

I understand why motorists would wish to accept a fixed penalty. However, this is something that should be carefully considered because 4 or fewer speeding incursions or fixed penalties could result in the loss of your driving licence for which there are serious consequences to most people. Unfortunately disqualification can curtail someone’s employment, affect their family relationships, cause marital disharmony, affect others reliant on their ability to drive and inhibit someone’s independence leading to isolation. It is therefore important to carefully consider your options before deciding whether or not to accept a fixed penalty notice.

The speed awareness course

As an alternative to a fixed penalty a motorist may be offered a driver education course – the speed awareness course in speeding cases – by the Safety Camera Partnership. This enables the police to offer low-end speeding motorists the chance of attending a driver re-education course as an alternative to both a fixed penalty notice and Court summons.

This is a far more attractive option than the fixed penalty notice as no penalty points are incurred and the cost is often cheaper than the £100 fixed penalty. The course fee varies from geographical region and is payable prior to attending.

The take up rate of such courses rather unsurprisingly was high with 953,428 motorists accepting and attending a speed awareness course last year. This was almost double the 2010 figure of 500,000 motorists taking up such a course.

The National Speed Awareness Scheme is run throughout England, Wales and Northern Ireland by a selection of training providers. From 2013 those wishing to attend the speed awareness course have been able to select any provider (excluding Dorset and Wiltshire) within the national scheme in England, Wales and Northern Ireland. This means that someone is not unfairly hampered or prejudiced by geographical boundaries in the event that an offence is committed whilst a someone is visiting Manchester, for example, from London. An individual is therefore able to attend a speed awareness course in their locality if offered a referral to such a course.

The course is interactive in style and is delivered via a combination of group discussion/participation and listening to  information. It is akin to a Highway-Code refresher and participants are encouraged to share their views and experiences. Clients or people I know who have attended such courses have generally reported back positive feedback to me about the course, the topics covered and its focus. Most have reported that it was a worthwhile investment not just from the penalty point free benefit but also from a driver education point of view.

The aim of the course is to improve the knowledge, attitudes and behaviour of those attending a course thereby reducing the likelihood of a motorist being involved in a future speeding offence. In doing so the course addresses what caused an attendee to exceed the permitted speed limit, what their reasons were for doing so and the impact and consequences of their speeding. This focus is specific to the person attending the course and general further topics which can also be covered by the course, include the following:

• The benefits of complying with speed limits
• Attitudes toward speed

• Attitudes surrounding misuse of speed
• The consequences of speeding
• Knowledge and skills
• How to identify the speed limit for any road in England and Wales
• Stopping distances and a simple technique to ensure that drivers leave sufficient gap between their vehicle and a vehicle in front
• The consequences of a collision and why small increases in speed can make significant differences in the event of an emergency situation
• Hazard perception and how road markings provide advance warning of hazards
• Awareness of dangers and safety issues faced by all road users
• Personal responsibility

• What difference does your driving speed make?
• Impact of your behaviour on other road users

  The speed awareness course usually takes 4 hours to complete. Whilst there is no exam or test attendees need to pay attention in order to pass the course and therefore derive its point free benefits.

  After attending and successfully completing the course no further action will be taken by police in relation to the speed incursion. Details of the course completion are recorded and held on a national database, which can be checked in the event of someone committing a further speeding incursion to avoid another speed awareness course referral. This is because a second course will not be offered in lieu of a fixed penalty or Court summons to a speeding motorist, falling under the same criteria, within 3 years of the original speeding offence taking place.

  If a motorist agrees to attend a speed awareness course but does not attend, does not complete it within 4 months from the date of offence, attends the course late or does not complete the course successfully the offence is referred to the Crown Prosecution Service and a summons would follow, which would have to be issued within 6 months and 1 day of the offence having taken place. In this scenario the matter would fall to be dealt with by the Magistrates Court local to where the offence took place.

  Potential financial consequences of attending a speed awareness course

  Whilst the speed awareness course is an attractive option with the added benefit of re-educating motorists in driver safety, which can only be a good thing, accepting a referral to the course can have unexpected financial implications to a motorist over and above the course fee.

  For example, attending a speed awareness course can result in your insurer increasing your premium as a result. This may seem unfair as accepting a speed awareness course referral does not amount to a conviction and is something that the DVLA would not ask you if you were to contact them in order to discuss your driving licence. However, I have heard from clients of insurance policies increasing by as much as £200 as a result of a motorist attending such a course. This meets with shock and frustration in most instances as the majority do not foresee that attending a course will bring about a premium increase.

  So what are the options of those affected by such a scenario?

  Failing to inform your insurer if specifically asked is clearly not an option as, were one to do so, one could risk indemnity difficulties in the event of an accident occurring. This is because the insurer could argue that the motorist had either failed to notify of material changes or, worse, that the motorist had misrepresented, or lied to, their insurer for example. My advice to clients is therefore that, as infuriating a policy increase is it is, it is necessary to notify your insurer about any courses you have attended if asked directly about having attended a retraining course offered by the police. In light of The Consumer Insurance (Disclosure and Representations) Act 2012, which came into force on 6 April 2013 motorists are now not obliged to disclose information which might be relevant, if it has not been requested. Therefore, in accordance with this Act, the obligation to disclose such information only comes about once asked.

  The cost of penalty points

  In relation to penalty points being incurred or a fixed penalty notice being accepted a motorist is required to notify their insurer immediately of this if it is an express term in their policy of insurance. Failure to do so could result in an insurance company refusing to indemnify or honour a policy of insurance in the event of an accident or incident. The pervious duty of utmost good faith, which gave motorists an ongoing duty to notify their insurer of any material changes during the currency of their period of cover, has been removed by The Consumer Insurance (Disclosure and Representations) Act 2012 as mentioned before. However, as an insurer relies on an insured person to keep them appraised of any changes during the course of the policy many insurers will include a change of circumstances clause within their terms and conditions. Such a clause would require an insured individual to notify of any fixed penalty notices or penalty point endorsements during the currency of a policy whether or not asked directly.

  Unfortunately, incurring penalty points can have a financial impact on someone’s insurance premium and will, more often than not, result in an increase. The rate of increase will depend on the offence and the number of penalty points imposed for the offence in question. It is also worth bearing in mind that, whilst penalty points remain on your driving licence for 4 years from the date of offence (and count for 3 years), an insurance company will take them into account for 5 years.

  Typically a 3 penalty point speeding endorsement can result in an increase in a motor insurance premium following conviction of 34% whilst a 3 penalty point traffic light contravention conviction, for example, could increase a policy premium by 24%.

  The cost of a motoring conviction will, of course, vary from insurer to insurer and will take into account specific variables dependant on each individual driver such as the vehicle insured, where the insured lives, their age, their driving history and their annual mileage etc.

  The decision to increase a premium is bound to be greeted unfavourably by an insured motorist and is, of course, a matter for someone’s insurance company to determine. However, an individual aggrieved by the level of increase, or the decision to increase, can lodge a formal complaint with the insurer asking that this increase or decision to increase is revisited. Furthermore, in the event that the matter is not resolved to an insured’s satisfaction, it is always open for them to take that complaint to the Financial Ombudsman Service for an independent determination, which an insurer will be keen to avoid as far as is possible due to the inevitable time and cost implications that referring a matter would incur.

  For specialist legal advice in this regard and for legal advice regarding all motoring offences please contact Julie Robertson on 0161 819 7221 or julie.robertson@bootes.co.uk Twitter @DriverSolicitor. The initial call is always free!

Some problems with Notices of Intended Prosecution

If you have been caught on camera and are not the registered keeper of your vehicle it could be some time before you receive notification (in the form of a notice of intended prosecution/NIP) from the police asking for information as to who the driver was on the date, and at the time, in question.

Typically a driver will receive an NIP within 14 days of the driving incident in question. Indeed the law is that the registered keeper of the vehicle in question MUST receive an NIP within 14 days and that failure by the police to comply with this time limit will be a bar to prosecution. However, there is a common misconception amongst the public that if a notice of intended prosecution is received more than 14 days following the incident that triggered the request for driver identity information it does not require a response. This is WRONG and if someone ignores a notice of intended prosecution, whether it is sent within 14 days or outside the 14 day time limit, a prosecution will follow for failing to identify the driver which carries 6 penalty points and a maximum £1,000 fine on conviction.
What should you therefore do if you receive a notice of intended prosecution out of time?

The first thing to check is whether you have recently changed your address, vehicle or other details with the DVLA as the police systems will check registered keeper contact information against the DVLA database prior to sending out an NIP. Recent changes in address or recent vehicle acquisitions have been accepted by Courts in England and Wales to excuse breaches by the police of the otherwise strict 14 day limit.

Many people drive vehicles that are either leased to them or provided to them by their employers. This can mean that the person driving the vehicle is sometimes the third recipient of the NIP (or “link in the NIP chain”) as it will first be sent to the company owning the vehicle or being its registered keeper. The law affords each recipient of an NIP 28 days to respond. This will inevitably mean that by the time each link in the NIP chain has responded and nominated the next link some months could have passed. There is nothing improper about this and this will not invalidate the NIP or offence provided that the first NIP was sent to the registered keeper within 14 days.

If you believe that there is no justification for receiving a late NIP you should respond to the NIP giving full information as to driver identity. In your response you should confirm when you received your NIP and state that you believe that it is out of time. The resulting summons for speeding, contravening a traffic signal or other camera captured offence can then be defended on the basis that the late NIP precludes a bar to conviction.

What should you do if you cannot recall who the driver was?
Receiving an NIP some time after the original camera offence can cause problems where the vehicle has many users and the person receiving the NIP cannot recall who was driving the car at the material time.

If you cannot recall who was driving you must exercise “reasonable diligence”. This essentially means that you must use your best endeavours in order to ascertain who the driver was and that if you cannot establish who the driver was at the material time you should be found not guilty of the ensuing failing to identify driver prosecution. What constitutes reasonable diligence is a matter of fact and degree for a Court to determine at trial. However, from experience of representing many clients in such cases I know that what is accepted as reasonable diligence by Courts can vary dramatically from geographical region. I would therefore recommend that anyone facing a situation where they cannot recall who the driver was contacts us to get specialist advice as soon as they receive the NIP. This is because for any reasonable diligence defence to succeed it is essential that the recipient of the NIP acts promptly and makes their enquires with all potential drivers when their memory is freshest and at its best. What you do on receipt of the NIP cements your chance of success at trial!

Our motoring offence Solicitors have represented many people in this situation and won cases where people have been unable to confirm who the driver was in shared vehicles even where the NIP was received within the usual 14 days.

We have defended, and won, cases where the NIP was received out of time due to postal strikes and the weather. We would advise anyone to obtain legal advice from a motoring offence solicitor on how best to deal with situations where an NIP has been received out of time to ensure that you act appropriately and, most importantly, in accordance with what the law expects of you.

For specialist legal advice in this regard and for legal advice regarding all motoring offences please contact Julie Robertson on 0161 819 7221 or julie.robertson@bootes.co.uk Twitter @DriverSolicitor. The initial call is always free!

How a vehicle safety recall could affect you

Whilst driving brings about a great degree of independence and flexibility owning a car can be the source of much frustration. Cars are not perfect and vehicle recalls seem to be a fairly common occurrence these days. Certainly, of the 4 cars that I have owned in the past decade 3 have been the subject of a safety recall.

You will, no doubt, be aware of the current General Motors safety recall, which, according to media reporting, has been connected to at least 13 deaths. Repairs on affected vehicles are intended to start today in the US and customers are being advised to make appointments at their dealerships in order to have the faulty ignition switch replaced. Faulty ignition switches have been held responsible for switching vehicles off and disabling steering, power braking and airbags whilst the vehicle is in motion. Last month Toyota announced that it was recalling 870 of its Verso vehicles in the UK over fears that the steering wheel could become detached whilst the vehicle was being driven due to a nut securing the wheel not being correctly tightened during the manufacturing process. More recently, in the US, Mazda has announced that it is recalling 42,000 Mazda6 cars because spiders can weave a web in a vent hose and cause the fuel tank to crack thus increasing the risk of fuel leaks and fire.

Clearly these are examples of very serious and potentially lethal defects, which can cause the loss of control whilst driving. However, some vehicle recalls can be more trivial and fairly minor in nature. Whilst such defects would not usually affect the way in which a vehicle was driven motorists should still exercise caution and ensure that an affected vehicle receives appropriate attention from their local dealer in a timely manner.

In the UK VOSA (Vehicle & Operator Services Agency) are responsible for approving and monitoring safety recalls in the UK. A code of conduct exists between VOSA and vehicle manufacturers to encourage transparency and consistency, which is supplemented by the General Product Safety Regulations 2005.

Once the need for a vehicle safety recall has been identified the manufacturer will identify affected vehicles and official safety recall notices are, at that stage, sent by mail to affected customers using a combination of manufacturer and DVLA data to identify the owners of all relevant vehicles. However, this can cause problems and go wrong because the DVLA database is inaccurate or not kept up-to-date due to drivers omitting to advise the DVLA of changes to registered keeper information. Furthermore, manufacturers can encounter difficulties where people become untraceable because they have moved house, sold the vehicle in question, or where the vehicle is leased and the lease company is shown as the owner instead of the driver. For these reasons, the recall process can sometimes take up to 24 months to be fully effective with the vehicle still being driven in its unrepaired state during this period.

In view of these problems I would advise all motorists who believe that their vehicle may be affected by a recall, no matter how trivial, to contact either the dealership they purchased their vehicle from or the vehicle manufacturer in order to confirm whether or not a recall applies in their case. Alternatively it is possible to confirm recall information with VOSA via their website at http://www.dft.gov.uk/vosa/apps/recalls.

Data available online suggests that 40% of customers whose vehicles are affected by a recall do not respond to official safety recall notices within the first 6 months of a recall taking place. If you are aware that your vehicle has been recalled arrange for it to be repaired as a matter of urgency. It is understandable that such things can become overlooked or put off to a future date due to the multiple demands on someone’s time and the fact that people lead such busy lives nowadays. However, if you are aware of a defect affecting your vehicle that could potentially affect its performance or the way in which it is driven (such as in the General Motor, Toyota and Mazda recall examples) and you continue to drive your vehicle this could cause problems and land you in hot water should you be involved in an accident. This is because a prosecution for dangerous driving could result if the accident is attributed to the vehicle fault of which you were aware.

The law in relation to dangerous driving is governed by sections 2 and 2A of the Road Traffic Act 1988. In order to secure a conviction under section 2 the Crown Prosecution Service (CPS) must prove beyond reasonable doubt that the way in which a person drove has fallen far below what would be expected of a competent and careful driver and that it would be obvious to a competent and careful driver that driving in that way would be dangerous. A person is also to be regarded as driving dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. It is this part that could be relevant in a safety recall case as the Court is entitled to consider not only circumstances of which the motorist in question could be expected to be aware but also circumstances shown to have been within their knowledge. It would therefore be very difficult for a motorist to argue that they did not know that their vehicle was affected by a safety recall in cases where there has been media coverage of the fault in question.

Dangerous driving is a criminal offence, which carries a custodial sentence of up to 2 years in the most serious cases together with a mandatory 12 month disqualification and extended retest on conviction.

No matter how busy you might be you should inform yourself regarding vehicle defects if you suspect that your vehicle may be affected. Contact your dealership, the manufacturer or VOSA and satisfy yourself that your vehicle is not affected keeping a record of who you have spoken to and what advice has been provided to you. Don’t sit back and do nothing!

For specialist legal advice in this regard and for legal advice regarding all motoring offences please contact Julie Robertson on 0161 819 7221 or julie.robertson@bootes.co.uk Twitter @DriverSolicitor. The initial call is always free!

Drivers beware

The recent incident where a motorist took a sip of her Slush Puppy whilst stationery at traffic lights, or “#icecrime” as it is currently trending as on twitter, has attracted much press coverage and public interest alike.

The motorist in question, Sophie Vaughan, was issued with a 3 penalty point and £100 fixed penalty notice for driving without due care and attention (also known as careless driving), which I am pleased to read she is intending to challenge assuming press reports are correct and accurate.

The internet is littered with comments from members of the public, other drivers and various road safety charities who are critical of drivers who become “distracted” or eat and drink whilst at the wheel. I am not seeking to promote or condone such activities rather my aim is to give advice to drivers on what the law states in such cases.

Driving without due care and attention carries a broad range of sentences on conviction ranging from 3 – 9 penalty points to a discretionary disqualification – should the Court feel that the circumstances of an offence are sufficiently serious to require a driver to be banned from driving. In addition to sentencing a driver to a penalty point or disqualification sentence a fine of up to £5,000 will be imposed by the Court.

Recent years have seen a rise in fixed penalty notices being issued in cases like Sophie’s and many more cases are making their way to Courts because motorists rightly want to have their day in Court. The fixed penalty regime does not allow a driver to contest the notice with the police and it is only possible to challenge fixed penalties by electing to go to Court and plead not guilty thus allowing the Magistrates to make a determination of whether they believe that the prosecuted offence has been committed.

The law in relation to “due care” cases is that the Crown Prosecution Service MUST prove beyond reasonable doubt that the manner of someone’s driving has fallen below the standard expected of the competent and careful driver. Courts are entitled to take into account circumstances which the driver could be expected to be aware and any circumstances shown to have been within the driver’s knowledge. Furthermore, the Magistrates are entitled to consider whether a driver has failed to observe a provision of the Highway Code as a serious failure can constitute evidence of careless driving.

It is my view that the Prosecution will struggle to gain a conviction in a case where someone prosecuted for driving without due care and attention has, in stationery traffic, taken a sip of their drink – especially where they have not caused an accident or inconvenienced any other road users. From what I have read thus far in the media Sophie is right to consider taking this case to Court.

Other offences that the police can and do issue fixed penalty notices for in similar cases are driving without reasonable consideration to other road users (also known as inconsiderate driving) and driving in a manner which does not give proper control or a full view of the road or traffic ahead. In the former case the Prosecution MUST prove beyond reasonable doubt that other road users have been inconvenienced by the person’s driving. In cases where someone is alleged to have not had proper control of their vehicle or a full view of the road or traffic ahead it is necessary for the Prosecution to prove, beyond reasonable doubt, exactly that – namely that a person has driven, caused or permitted a vehicle to have been driven, in a position which did not give proper control or a full view of the road or traffic ahead.

The decision regarding whether or not to challenge a fixed penalty should always be taken with the benefit of legal advice so that an informed decision can be made once an assessment of the likely success at trial has been provided by a motor offence specialist solicitor. We give free initial advice to people who are thinking of fighting a fixed penalty ticket and we have won cases like Sophie’s together with those where someone has been accused by the police of poor driving because they have, for example, eaten at the wheel, tuned a car radio or changed a CD.

Sophie, if you are reading this, stick to your guns and challenge that fixed penalty. I certainly think you have a case to argue! If you need any advice give me a call and I’ll be happy to help.

For specialist legal advice in this regard and for legal advice regarding all motoring offences please contact Julie Robertson on 0161 819 7221 or Julie.robertson@bootes.co.uk Twitter @DriverSolicitor. The initial call is always free!