All posts by Andrew Wesley/h3>
Chesterfield crime and motoring law solicitor Denney Lau
As poor weather promises to cause chaos on our roads, more care is needed by those driving in the snow to carry out essential journeys that were routine only the previous week. If your journey remains necessary, and you choose to drive, then there are some things to bear in mind.
Your duty actually starts before you start driving.
The Highway code stipulates that if driving in adverse weather conditions, you must be able to see out of every glass panel in your vehicle. This common sense approach is supported by by section 41D of the Road Traffic Act 1988. It states that you must have a full view of the road ahead. This clearly precludes driving through a small hole you have scraped in the snow on your windscreen.
Failure to comply with this could result in a fine but perhaps more importantly penalty points.
However, leaving your vehicle unattended with the engine running and the heaters on to clear your windscreen may not only see you having your car stolen and left with no claim under your insurance. This will amount to the offence of ‘quitting’ your vehicle, whether or not the doors are locked, and could lead to a fine.
Finally, make sure your lights and number plates are also clear, or risk another fine.
Inconsiderate driving?
There is not a law stating it is illegal to drive with snow on the roof. If, however, you choose to do so and snow falls off into the path of another car then you could be penalised. For example, it may amount to inconsiderate driving – Section 3 of the Road Traffic Act 1988.
This can result in a fine with the court endorsing between 3 and 9 penalty points.maximum penalty being level 5 fine and the Court must endorse between 3 and 9 penalty points or consider disqualification. Alternatively, you could be charged for using a motor vehicle in a dangerous condition – 40A of the Road Traffic Act 1988.
Where weather conditions make it more difficult to drive safely
There are two catch all offences that will be more easily committed in conditions where driving is difficult. It is easy to imagine losing control of a vehicle, or failing to notice another motorist, while driving in the snow.
If there is an accident, or poor driving is witnessed, then consideration will be given to whether one of the following offences has been committed.
The first is the offence of driving without due care and attention, or careless driving. This is Section 3 of the Road Traffic Act 1988. To convict a motorist a court must be sure that the manner of driving falls below the standard expected of a competent driver. Again, a fine will be expected, but between 3 and 9 points can be placed on the driving licence. A discretionary disqualification could be imposed, or the points could count towards a totting ban.
Dangerous driving in the snow
Section 2 of the Road Traffic Act 1988 sets out the offence of dangerous driving. This offence is committed when a person’s standard of driving falls far below what would be expected of a competent and careful driver. This will be in circumstances where it would be obvious to a competent and careful driver that driving in that way would be dangerous.
This offence can be dealt with at the Crown Court as well as the Magistrates’ Court, and can lead to imprisonment and a compulsory driving disqualification and extended re-test.
Instruct an expert in road traffic law
We would ask that, when considering driving in the snow, you think about whether your journey is really necessary. If so, you take all of the precautions explained above.
There has to be a course of conduct. This can, however, involving as few as two incidents directed towards another person or persons.
The dictionary definition of harassment is to “torment by subjecting to constant interference or intimidation”.
The law, though, does not provide a comprehensive definition. As a result there are many actions that could be foreseen to alarm or cause a person distress that would not constitute harassment.
Alternatively, the cumulative effect of a number if incidents that on their own might not be unlawful could con
The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.
What do the prosecution have to prove for harassment?
That there is a course of conduct
which amounts to harassment of another, and
which the defendant knows, or ought to know amounts to harassment of another.
Additionally, for the more serious offence the prosecution has to prove:
that the course of conduct causes another to fear that violence will be used against him; and
that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him
How would I know it is harassment?
The test of whether you ought to know that the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment.
The same test applies in respect of fear of violence.
Are there any time limits for bringing a prosecution?
At least one of the incidents has to have occurred within six months of the charge for the basic offence without violence. There is no such time limit for the aggravated offence.
What about defences?
There are three available defences for the basic offence:
that the course of conduct was for the purpose of preventing or detecting crime
that it was conducted under a rule of law
that it was reasonable in the circumstances.
Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their or another’s property.
What sentence could I get for harassment?
For the offence without violence, the basic offence of harassment, up to six months imprisonment can be imposed. This increased to 2 years if the offence is racially aggravated.
For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017. Again, this is increased where the offence is racially aggravated to 7 or 14 years, again dependent on the date of the offence.
Restraining Orders
A restraining order can also be imposed. The aim of such an order is to protect the victim of the offence from further incidents, contact or risk of violence.
Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.
How we can assist
The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.
As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to our free and independent legal advice.
In a dramatic climax the jury returned guilty verdicts in the case of R v Sally Metcalfe, the hapless Coronation Street Councillor caught up in fraud, money laundering and bribery.
As viewers will know, poor Sally appears to be a victim of Duncan’s cunning plan to divert blame elsewhere.
Her fate now lies in the hands of the trial judge, but a custodial sentence appears to be a real possibility.
But, what options does Sally Metcalfe have in relation to appeal?
Sally and her legal team must move quickly as an appeal against conviction must be lodged within 28 days of the verdict. An application to appeal can be made ‘out of time’ but there must be a good reason for any delay.
Since we can be rightly critical of her legal team, one of the first decisions may well be whether to instruct new solicitors and counsel to advise.
But whatever the decision made in respect to legal representation, it is important to note that appeals are not to be viewed as an automatic ‘second bite of the cherry’.
The Court of Appeal will only overturn a conviction if it is ‘unsafe’, so Sally’s legal team will need to identify something that went wrong in the trial process; if nothing did go wrong then an attempt at appeal would simply be futile, raising false hopes.
Sally’s best bet will be to continue the battle to clear her name in the hope of finding evidence that points towards Duncan and his framing of Sally.
This is referred to as ‘fresh evidence’ and must be genuinely new evidence that was not available to Sally and her lawyers at the time of trial.
Of course, the case of Sally Metcalfe isn’t real, and we can expect the scriptwriter to exercise some editorial licence when it comes to explaining the intricacies of the law, so don’t take too much notice of the legal wrangling as it inevitably unfolds in future episodes.
In the real world, a wrongful conviction is a most dreadful experience for both defendants and their families, exacting the cruellest toll.
How can we help in your case?
If you require advice in relation to any appeal matter it is imperative that you act quickly. Our team of experienced lawyers are here, ready to take you through the process.
Restorative Justice, or ‘RJ’ as it is sometimes known, is a way of holding offenders to account and can be used as an alternative to a caution or conviction, or alongside a sentence.
What happens with Restorative Justice?
Restorative Justice gives a victim the opportunity to meet or communicate with an offender to help the offender understand the impact of the crime. It can also provide the offender with the chance to make amends.
This may be done in a face to face meeting or by way of a written apology. Alternatively the offender could make amends to the community rather than to the victim directly.
Communication takes place in a controlled environment, if the meeting is face to face. A facilitator will also be present. The meeting would centre on the harm caused and ways to repair that harm.
When can Restorative Justice be used?
For any kind of communication to take place the victim must be happy to participate. The offender will also have to have admitted the offence and be willing to take part.
Mrs Walmsley read a victim impact statement out in court to set out how the offence had affected her. She also said that she would like to sit down with the offender to discuss what he did because she believes that this may give her “closure”.
It may also assist the offender, and it is hoped in these circumstances that it would reduce the likelihood of any future offending.
Does it work?
Research undertaken by the government in a seven-year period found that there was an 85% victim satisfaction rate with the process following the use of restorative justice. There was a also a reduction in the frequency of re-offending of 14%.
How can we help?
Many decisions relating to whether Restorative Justice is an appropriate alternative to a police caution or prosecution will be made at the point of police interview under caution or shortly afterwards.
We offer free and independent legal advice at the police station or anywhere else where you may be interviewed by the police.
A number of benefits to seeking advice can be found here, but an important benefit is that we will be able to advise you as to whether restorative justice could be available in your case and make representations or negotiate with the police on your behalf.
In legal shorthand we often refer to section 18 or 20 offences. These refer to specific offences under the Offences Against the Person Act 1861. They are offences that involve allegations of serious violence causing either Grievous Bodily Harm or Wounding.
What is the difference between section 18 and section 20?
The most serious form of assault, short of attempt murder, is an offence under Section 18 Offences Against the Person Act 1861. This involves the causing of either Grievous Bodily Harm (GBH) or Wounding intending to cause such a serious injury.
An offence involving intent under section 18 carries a maximum sentence of life imprisonment. The same offence committed without intent under section 20 has a maximum sentence of only five years.
As a result, the offence can be committed in different ways:
wounding with intent
causing GBH with intent
wounding without intent
causing GBH without intent
‘Unlawfully and Maliciously’
For an offence to be committed unlawfully and maliciously it means that there is no defence such as self-defence, force used for preventing crime or the defence of property or another.
There are also some other technical differences between the two offences.
What is Grievous Bodily Harm?
GBH or grievous bodily harm is really serious bodily harm. It will include include broken limbs for example but can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken, either internally or externally.
Section 18 – the intent offence
For the more serious offence intent to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm. They will do so by considering all of the relevant circumstances, including what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious. Weapons include knives and bottles, or throwing acid. Where feet are used to kick somebody they are treated as a weapon. Biting will also be an aggravating feature in any case.
Section 20, the offence without intent
In such a case it is accepted that there was no intention to cause the injury. For example this might be the case involving a single punch that causes a person to fall backwards leading to a serious injury or wound.
A jury will be helped to decided on this issue by looking at evidence of the manner in which the assault was carried out or your behaviour at the time and afterwards.
What sentence will I get?
For an offence committed with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are:
nine years when a bottle was used to strike the face requiring thirty stitches
nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
Instruct an expert criminal law solicitor to represent you
The difference in sentencing for the absence of intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences of a prosecution severe.
As a result, if you are arrested or know that the police wish to speak to you about an offence relating to grievous bodily harm or wounding then make sure you insist on your right to free and independent legal advice.
We would ask that, when considering driving in the snow, you think about whether your journey is really necessary. If so, you take all of the precautions explained above.
