This surcharge will be added whether or not any other form of punishment is imposed. The reasoning for introducing this surcharge is for the money raised to be used for the purpose of adding to funds made available for victim and witness support services.  At present the surcharge will only be used in circumstances where a fine can be ordered as part of the punishment for the offence.

There is no great legal or conceptual reason for only imposing this surcharge on offences where a fine is an available punishment; rather, until a new computer/accounting system can be developed it all needs to run through the fines system already in place.

Once new accounting/computer systems are in place, it appears likely that this surcharge will be introduced for all offences.  Best predictions suggest this will be in 2008/9.

There may be scope for arguing that this surcharge should not apply to road traffic offences and the lawyers in Motor Defence Team are best placed to advise you on those arguments. The surcharge can range from nil to the £15 and is subject to the defendant’s means.

How will this affect me?

That on making the Statutory Declaration your record is cleared of any punishment etc and the fine is also removed.

What does that mean?

That means that the prosecution authority (CPS/DVLA etc) would have a further six months, from the date of the Statutory Declaration, to investigate and re-issue the summons. Therefore, the authorities have another go at prosecuting you; an important note is that part of making the Statutory Declaration is that you have to give your correct name and address to the Court.

How does this affect me?

Even if you do all that is required of you but the case against you is still adjourned, your costs will still continue to rise. This is important to note especially if you are in the majority of the population and would have to pay for your legal assistance privately. However if the case against you is discontinued (dropped) or you win the case, then you can apply for your reasonable costs to be refunded.

What does that mean?

Having your reasonable costs refunded means that you are likely to recover most, but not always all, of your outlay.  The level of recovery, as it is termed, is set by the Court. Our Cost Recovery Team could be able to assist you in this matter.

Clive Wolman v The Mayor and Burgesses of the London Borough of Islington And The Mayor, Commonalty and Citizens of the City of London

Judgment of the 31st July 07

That question was recently put before the Court when a barrister filed an action against the Council after he was punished for parking his vehicle on a pavement.

Facts of the Case

Mr. Wolman lived in Islington and worked in Chancery Lane in Central London. He transports himself to work on a motorcycle and parks it at both locations on a stand that rests on a pavement in such a way that he claimed the wheels did not come in direct contact with the pavement.

On numerous instances Mr. Wolman was issued with parking tickets by parking wardens and on two occasions his motorcycle was moved to the vehicle pound. The specific law under which he was prosecuted (section 15(2) of the London Local Authorities Act 2000) states that

“…Any person who causes or permits any vehicle to be parked in Greater London with one or more wheels on any part of an urban road other than a carriageway shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale”

Mr. Wolman asked the Court to consider whether his vehicle parked with one or more wheels suspended over but not touching the pavement contravened the law as stated above.

Judgment

His Honour Lord Justice Moore-Bick concluded that where a vehicle was parked as stated by Mr Wolman then it was parked on the pavement (which forms part of the highway). He also pointed out that if he were wrong then you could, for example, lay your motorcycle on a pavement on its side with the wheels suspended in the air and claim that the vehicle was not parked on the pavement.

So, where a motorcycle is parked on a stand on a pavement an offence is committed. Mr. Wolman therefore lost his case.

•A single disqualification for driving or being in charge when the level of alcohol exceeded 87.5 micrograms (Mg) in breath, 200 Mg in blood or 267.5 Mg in urine
•A second disqualification for drink driving/in charge within a 10 years period.
•A single disqualification for refusing/failing to supply a specimen

Will be required to undergo a medical examination and the Government have put this under the cover of the High Risk Offender Scheme.

How will this affect me?

If you are convicted of one the offences above, you will, before the license can be re-instated, be required to undergo an independent medical examination which will also include blood tests. This test will cost you £90.00 under the current rates; these are set by the Government. DVLA are instructed not to re-issue the driving license until they are in receipt of this report.

What does that mean?

The basis for the examination is to ensure that any person who is disqualified and has a current history of alcohol misuse and/or dependency and/or an unexplained abnormal blood test analysis will be refused a licence, thus in theory at least it should assist in keeping the numbers of repeat offenders off the roads.

However should you be in that position that you are facing a conviction of any of the above offences, then in addition to any fine (including the Victim Surcharge (currently £15.00)) or a Community Order you shall be required to pay a charge of £90.00 for the medical.

At present the normal charge of £65.00 for a re-issue of a licence after a disqualification is included in the £90.00, but as the saying goes – watch this space!

Can those driver details be used as evidence against you in Court? When challenging their speeding matters, O’Halloran and Francis both relied on Article 6 of the European Convention on Human Rights (ECHR), specifically:

the right to a fair trial; and
the right not to incriminate yourself

They both argued that those rights were absolute and cannot be subject to a form of punishment should you chose to invoke your right to remain silent or not to incriminate yourself.  In other words Francis argued that he should not be punished for not providing the driver information as he had the right to remain silent and not incriminate himself.

O’Halloran also argued that any information he supplied as to the identity of the driver should not be relied on as evidence against him in Court as to do so would contravene his Convention rights.

The Court effectively took a balancing approach as to whether a compulsion to supply information (name of the driver here) infringed any ECHR rights.  The ECtHR looked at the nature and degree of the compulsion used to obtain the evidence, any safeguards in place and the use to which the material would be put.

It appears that the Court took, perhaps unsurprisingly, a policy based approach when looking at this matter. They decided that even though the compulsion to provide the information requested was a direct one, it is something that vehicle owners were aware of when they bought vehicles.  The reasoning for this is that when purchasing a vehicle you are aware that you will be subject to certain rules and regulations governing the driving and ownership of that vehicle.  The Court said that regulatory schemes such as this are in place as it is realised that the possession and use of vehicles is recognised to give rise to the potential for injury and damage.

In short, the ECtHR has said that if you own a car, you realise that there are rules and laws which govern the driving and ownership of that car and that, in the UK, the obligations you have include naming a driver in the event of an alleged road traffic offence.

The ECtHR also viewed the fact that there is a defence to the failure to provide the driver information as a ‘safety net’, therefore not making it a strict liability offence if you do not provide the driver information.  Their reasoning being that you are not automatically convicted of failing to give information as there is a potential defence that can be put to the Court.  The Court went further stating that a prosecution could not proceed on the basis of the admission that a person was a driver alone and that there are many elements of the case that the Prosecution must prove beyond all reasonable doubt.  It seems they thought that this acted as another ‘safety net’ in the proceedings.

The Court seems to have singularly failed to take note that the identity of the driver is often the only piece missing from the Prosecution’s case.  Therefore, once the identity of the driver is resolved, the offence is made out.  In spite of this, the ECtHR decided that any information you give on the Notice of Intended Prosecution (NIP) or Driver Identification Questionnaire (DIQ) can be used as evidence in Court against you.

In effect the ECtHR has said that the way the Police and Camera Authorities obtain the driver information by using a NIP and DIQ is a proportionate way of dealing with road traffic police enforcement and does not contravene a person’s right to a fair trial or right not to self-incriminate.

This approach is probably best summed up by the dissenting judgment of Judge Myjer who observed that the majority judgment shows ‘what may happen if “the weight of public interest” is allowed to play a role in deciding whether or not the right to remain silent should be upheld’.

Further changes to this area of law are being introduced incrementally and we shall keep you up to date on this as the changes arise.

Please do not be misled by reports in the media that suggest that there is no longer a defence available if you do not know who was driving. There is still a valid defence that you do not know and could not reasonably find out. The rationale behind increasing this punishment appears to be to try and force people to accept punishment irrespective of whether they know who was driving, which flies in the fact of the penalty points system being designed to improve road safety.

If you find yourself in a position where you are faced with an alleged offence and do not know who was driving at the time then we recommend you contact us immediately on 0800 2800 912 for advice on your legal rights and the best way forward.

Brief Facts of the Case:

PC Milton was at the time of the alleged offences a Police Officer serving with the West Mercia Constabulary.  He is a Grade 1 advanced police driver.

On the night of the 4th/5th December 2003 PC Milton drove an unmarked Vauxhall Vectra police vehicle during the early hours of the morning on the M54 at speeds of 148mph; on the A5 trunk road at an average speed of 114mph; and in a built up area at speeds of in excess of 60mph.  His reason for driving at these speeds were to familiarise himself with the vehicle, in accordance with his training as an advanced police driver.

All speeds were so far above the speed limits that both the speeding offences and dangerous driving charges were proceeded with.

Brief History of the Case:

The speeding offences were successfully defended on the basis that the police vehicle was being driven for police purposes.  That then left the charge of dangerous driving to be considered.  Originally, PC Milton was acquitted of dangerous driving, but the Director of Public Prosecutions appealed the Court’s decision.

The DPP’s Appeal was successful and the case was re-heard in the Magistrates’ Court.  Following that hearing, PC Milton was convicted of dangerous driving.

Following the re-hearing, PC Milton appealed to the High Court for a decision to be made on whether his driving ability could be taken into account when the Court decided whether or not his driving was dangerous.

The High Court’s Decision:

The key part of the Law that the Court considered is:

‘regard shall be had not only to the circumstances of which [the driver] could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.’

The question that was posed was:  Is someone’s superior driving skills a circumstance within their knowledge which should be taken into account?  The position of the Law previously was a definite ‘No’.  All the Court would look at is what the normal careful and prudent driver would think of the standard of driving.

The Court decided in this case that the fact that PC Milton was a Grade 1 advanced police driver was a circumstance that could be taken into account.  Effectively, the Court is saying is that some driving manoeuvres/conduct may be considered dangerous for a driver of ‘normal’ skill, but that it may not be the case for a driver of extreme ‘special skill’.  The Court did make a point of stating that this decision is not limited to police officers.  A civilian with equivalent high levels of driver training would be entitled to bring to the Court’s attention evidence of their superior driving skills if charged with dangerous driving.  It is then for the Court to decide whether that has any bearing on the individual facts of the case.

In future just holding a driving license will not be sufficient for anyone wishing to drive any of the above vehicles.
How will this affect me?

Those who hold either a bus or coach driving license would have to have the qualification as this became effective from 1 September 2008 however those with a LGV license must be qualified from 1 September 2009 to continue to drive.

In order to maintain your Driver CPC, all category C and D licence holders (this includes license categories C, C1, C1E and D, D1, DE, D1E) will be required to undertake 35 hours Periodic Training every 5 years.  However there are some exemptions to the requirement:

• Vehicles with a maximum authorised speed not exceeding 45km/h (27 mph).
• Vehicles undergoing road tests for technical development, repair or maintenance purposes, or of new or rebuilt vehicles which have not yet been put into service;
• Vehicles used in the course of driving lessons for any person wishing to obtain a driving licence or a CPC, as provided for in Article 6 and Article 8 (1);
• Vehicles used for non-commercial carriage of passengers or goods, for personal use;
• A vehicle carrying material or equipment to be used by the driver in the course of his or her work, provided that driving the vehicle is not the driver’s principal activity.

However these are not a complete list, but just some that would cover most situation for the non-professional driver, the complete list can be found at www.transportoffice.gov.uk/cpc.

What vehicles are covered?

Any lorry of 3.5 tons and upwards and minibuses with 9 seats or more are covered by Driver CPC.

Driver CPC will enable young people to enter these sectors in a safe and professional manner, from 18 years of age, subject to any licence restrictions for category D drivers.

The existing ‘Transport Manager’s CPC’ also known as the ‘Operator’s CPC’ is a separate qualification and anyone holding one, who still drives professionally as part of their job, will also need to hold a Driver CPC.