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Legal terms can be confusing, but from this page you will be able to find many of these terms explained in plain English with full explanations.

Our free resources can help you find information on most of the common driving offences, including “being in charge of a vehicle with excess alcohol” ( drink driving ); “speeding”, “driving whilst disqualified”, “seat belt use” and “failing to report an accident”.

Driving law accesses the legal expertise of experienced barristers, all of whom are regulated by the Bar Standards Board and have lots of experience in helping drivers with motoring led legal services. We have a range of cost effective services if you require more detailed legal advice or representation.

Being in charge of a vehicle with excess alcohol

Being in charge of a vehicle whilst unfit by reason of excess alcohol is defined as driving or attempting to drive a motor vehicle on the public highway or a public place whilst under the influence of alcohol exceeding the prescribed limit. Even if you are not driving the vehicle, but are in the vehicle on the public highway/public place, you can be deemed to be “in charge” of the vehicle.

The maximum penalties are:

  • 10 penalty points; and
  • discretionary disqualification; and
  • a fine of up to £2,500; and/or
  • 3 months imprisonment.

The limit

The current limit is 35 micrograms of alcohol per litre of breath or 80 millilitres of alcohol per 100 millilitres of blood. However, if the lowest reading is 39 micrograms or below, you should be released with a warning.

Careless driving / driving without due care

This offence is committed when the accused’s driving falls below the standard expected of a reasonable, prudent and competent driver in all the circumstances of the case.

The maximum penalties are:

  • a £2,500; and
  • mandatory 3 to 9 penalty points; and
  • discretionary disqualification.

Court process and procedure

You will be given three options:

  1. pleading guilty by post;
  2. pleading guilty in person; or
  3. pleading not guilty.

If you plead guilty by post, your case will be dealt with in your absence and you will be notified of the outcome. It is important to consider whether you want to plead guilty. The prosecution must prove its case to the Court establishing beyond reasonable doubt that you have for example, been speeding. If there are any evidential difficulties with the prosecution case, Driving Law will spot them and advise you accordingly.

If you do wish to plead guilty, you should also remember that presenting mitigation is your right. Even if you do not appear in Court you should write a letter of mitigation outlining your particular circumstances. Mitigation is information provided to the Court after a guilty plea which seeks to persuade the Court that because of the circumstances you should be given a lesser penalty or sentence. It is not a denial of guilt.

If a mitigation letter is skillfully drafted it can often result in a substantially reduced punishment. Appearing in person may be a more persuasive way of establishing good mitigation with Court.

In some circumstances, particularly where there is a risk of a “totting up” disqualification or a discretionary disqualification, the Court requires drivers to attend personally. The Court cannot disqualify a driver who pleads guilty by post and if the postal option does not appear on your Summons, you should assume that the Court is considering imposing a driving ban.

Crown Prosecution Service

The Crown Prosecution Service reviews and, where appropriate, prosecutes criminal cases, following investigation by others. It also advises the police on matters relating to criminal offences.

In each case which it reviews and considers whether there is sufficient evidence and, if so, whether the public interest requires a prosecution. The CPS will be represented by a Barrister or solicitor in Court for criminal offences such as drink driving, no insurance etc.

However, for road traffic offences such as speeding, traffic light offences etc where the Defendant has pleaded guilty by post the CPS may not be represented in Court. Instead the Magistrates’ Legal Adviser (formerly known as the Court clerk) will read out the facts of the offence relied upon by the Police.

Codes used on licence endorsement

The Crown Prosecution Service reviews and, where appropriate, prosecutes criminal cases, following investigation by others. It also advises the police on matters relating to criminal offences. In each case which it reviews and considers whether there is sufficient evidence and, if so, whether the public interest requires a prosecution. The CPS will be represented by a Barrister or solicitor in Court for criminal offences such as drink driving, no insurance etc. However, for road traffic offences such as speeding, traffic light offences etc where the Defendant has pleaded guilty by post the CPS may not be represented in Court. Instead the Magistrates’ Legal Adviser (formerly known as the Court clerk) will read out the facts of the offence relied upon by the Police.

Disqualification from driving

As a general rule, the Courts will punish high excess speeding offences with instant disqualifications. Also, any driver reaching 12 penalty points within 3 years would face a 6 month disqualification under the “totting up” procedure. The mandatory guideline is that under the “totting up” procedure, a 6 month disqualification should be imposed but when the licence is returned, the slate is wiped clean and the points removed.

Other offences, such as drink driving also carry mandatory disqualification periods. When a disqualification is imposed for a specific offence, such as drink driving, the period of disqualification will depend on the nature of the offence itself and the licence can be returned at the end of the disqualification period with any previous penalty points still valid. Alternatively, if the offence is particular severe, the Court can disqualify you and order that you take an extended test before your new licence is issued.

Drink driving

Drink driving is defined as driving or attempting to drive a motor vehicle on the public highway or a public place whilst under the influence of alcohol exceeding the prescribed limit.

The maximum penalties are:

  • a 12 month mandatory disqualification for first offence or 3 years for second offence within 10 years;
  • a fine of up to £5,000.00; and/or
  • 6 months imprisonment.

If you are convicted of drink driving it is obligatory that you are disqualified from driving unless the Court finds that a “special reason” exists for not doing so (see below).

The Court does have the opportunity to consider sending a convicted motorist on a rehabilitation course. This entitles a reduction of 25% of the disqualification period. A mandatory 12 month ban would therefore be reduced to 9 months.

Failing to provide a specimen of breath

Failure to provide a specimen of breath can result in:

  • a discretionary disqualification; and
  • 4 penalty points; and
  • a fine of up to £1,000.

Failing to stop / report an accident

After an accident you have been involved in you must stop your vehicle and, if required to do so by any person having reasonable grounds for so requiring, give your name and address, the name and address of the owner of the vehicle and the identification marks of the vehicle (Section 170(2) of the Road Traffic act 1988).

The duty to stop means to stop sufficiently long enough to exchange the particulars above: (Lee -v- Knapp 1966 3 All ER 961).

Section 170(3) places an obligation on the driver, if he does not give his name and address under subsection (2) above, to report the accident to a police constable or police station as soon as reasonably practicable and in any case within 24 hours. The duty to report means “as soon as reasonably practicable”: (Bulman -v-Bennett 1974 RTR).

It does not mean the driver has 24 hours within which to report the collision.

Fixed Penalty Notice

The Fixed Penalty Notice scheme causes confusion for many people who wish to accept the Fixed Penalty Notice but also wish to plead mitigation (i.e. wanting to present their particular circumstances to the Court to have a lesser penalty) at the same time.

A Fixed Penalty Notice is actually a “conditional offer” from the prosecution. In the majority of cases the proposal is 3 penalty points and £60 fine. There is no flexibility on this and thus a plea of mitigation is not relevant. You either take the proposal or if you wish to argue about the level of fine/penalty points, you reject the offer and appear in Court instead. A summons will be issued to allow you to do this.

You are offered the minimum number of penalty points and a “nominal” fine. This type of fine does not include means testing. If you know you have committed the offence 3 points and a fine of £60 is most likely the best result that you are going to get. To take the matter further can often result in higher punishment and substantially more expense – particularly if the Court imposes its right to means test you before deciding on a fine. Of course if your licence is at risk from totting up too many points or you did not commit the offence you must appear in Court to contest the matter.

To contest Notices issued by the Police the usual method is for the Fixed Penalty option to be withdrawn whereupon you will be summoned to the Magistrates’ Court where the case will be heard.

Magistrates’ Court

A Magistrates’ Court tries summary offences (i.e. offences where there is no jury to decide upon the verdict). A Magistrates’ Court will most often consist of three magistrates who will decide upon a verdict should you plead not guilty or simply move to deciding an appropriate penalty should you plead guilty. Magistrates are lay members of the public who are not legally qualified. Further, they are purely voluntary. Sometimes Magistrates’ Courts have District Judges sitting to hear cases instead. District Judges are qualified solicitors or Barristers. Both lay benches of Magistrates and District Judges are assisted by a legal adviser (formerly known as a Court clerk) sitting in Court. The legal adviser may very well be the person asking you all the questions, but does not take the final decision.

Magistrates and District Judges have the power to endorse your licence with points, impose a fine, disqualify you from driving and imprison you.

Mitigation

Mitigation is information provided to the Court after a guilty plea or a guilty verdict which seeks to persuade the Court that because of the circumstances you should be given a lesser penalty or sentence. It is not a denial of guilt.

If a plea of mitigation is presented with skill, charm and aplomb, it can often result in a substantially reduced punishment so it is advisable to seek advise before attempting to prepare a plea in mitigation.

Driving Law – Mobile Phone Use

It is an offence to use a hand-held phone, or similar device, when driving.

If the use of your mobile phone results in the standard of your driving to fall below the required standard you may be charged with careless or even dangerous driving. Drivers (to include somebody supervising a provisional driver) also risk prosecution for failure to have proper control if they use hands-free phones when driving.

A hand-held device is something that is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function.

A device is “similar” to a mobile phone if it performs an interactive communication function by transmitting and receiving data. Examples of interactive communication functions are sending and receiving spoken or written messages, sending or receiving still or moving images and providing access to the internet.

Pushing buttons on a mobile while it is in a cradle for example is not an offence so long as you do not hold the phone. Texting whilst driving therefore is an offence if the phone (or other device) has to be held in order to operate it.

Use of devices other than mobile phones such as GPS’s whilst driving is only an offence if the device performs an interactive communication function by sending and receiving data.

There is an exemption for calls to 999 (or 112) in genuine emergencies where it is unsafe or impractical to stop.

Notice of Intended Prosecution

Speeding offences and traffic light offences which are proved by way of photographic evidence do not require the driver to be stopped at the time of the offence. In such circumstances, the normal method is to serve a “Notice of Intended Prosecution” on the registered keeper of the vehicle. This document has to be issued within 14 days of the offence. It gives the keeper 28 days in which to identify the driver who would then normally receive a Fixed Penalty Notice.

You cannot be convicted of certain road traffic offences unless you have been warned that the question of prosecution would be taken into consideration by way of a notice of intended prosecution (Section 1 Road Traffic Offenders Act 1988).

A notice of intended prosecution can be given:

  • either orally or in writing at the time the offence was committed. Such a warning need not be specific but may refer to some one or other of the offences to which section 1 applies. Whether such a warning was given `at the time’ is a question of degree and the High Court will not interfere in a Magistrates’ Court finding on the point if there is evidence to support that finding.
  • By serving the defendant with a summons within 14 days of the offence; or
  • By sending a notice within 14 days of the possibility of prosecution and specifying the nature of the alleged offence and the time and place where it is alleged to have been committed to the driver, registered keeper of the vehicle or rider of the cycle.
  • The offences to which section 1 RTOA applies are listed in schedule 1 of that Act. They are, under the RTA:
    • Section 2 (dangerous driving)
    • Section 3 (careless driving/driving without reasonable consideration)
    • Section 22 (leaving the vehicle in a dangerous position)
    • Section 28 (dangerous cycling)
    • Section 29 (careless cycling)
    • Sections 35 and 36 (disobeying certain traffic signs and police signals)
  • And under the Road Traffic Regulation Act:
    • Sections 16, 17(4), 88(7) and 89(1) (speeding offences)
  • or aiding and abetting any of the above.

Section 2 RTOA 1988 states that the prosecution does not have to comply with section 1 if, owing to the presence on a road of a vehicle in respect of which the offence was committed, an accident occurred at the time of the offence or immediately afterwards. However, a notice is still required if the defendant was unaware that there had been an accident: see Bentley -v- Dickenson [1983] RTR 356.

Under section 1(3) RTOA 1988 the requirements of that section are deemed to have been met unless and until the contrary is proved. The prosecution will not have to call evidence that section 1 has been complied with unless the defendant proves, on a balance of probabilities, that no effective notice was given. The issue can be raised at any relevant stage of the proceedings or decided as a preliminary point.

By virtue of section 2(3) RTOA a failure to meet the requirements shall not prevent conviction where the Court is satisfied that:

  • It arose because the name and address of the accused or the registered keeper could not with reasonable diligence be ascertained within the statutory time; or
  • The defendant contributed to that failure by his or her own conduct.

A claim that the requirements of the section have not been complied with is a popular technical defence. There are many decided cases on various aspects of the provisions.

Penalty Points

As a general rule, the Courts will punish high excess speeding offences with instant disqualifications. Also, any driver reaching 12 penalty points within 3 years would face a 6 month disqualification under the “totting up” procedure. The mandatory guideline is that under the “totting up” procedure, a 6 month disqualification should be imposed but when the licence is returned, the slate is wiped clean and the points removed.

Other offences, such as drink driving, dangerous driving etc also carry mandatory disqualification periods.

Driving Law are experienced at arguing that special circumstances exist in the particular case of the motorist so that the Court’s discretion, where it applies, should be exercised to allow even totters with 12 points or more to keep their licence. The Court is required to disqualify totters unless “exceptional hardship” circumstances apply. The exclusion of “hardship, other than exceptional hardship” as an argument against disqualification is contained in section 35(4)(b) of the 1988 Road Traffic Offenders Act. Almost every order of disqualification entails hardship for the person disqualified and it is for the Courts to interpret this phrase. Exceptional hardship is a matter of fact and degree in each particular case and has been held by the Courts to be something “out of the ordinary”. The Court is allowed to take into consideration exceptional hardship to the driver and also other people affected by the disqualification such as children and spouses. Other factors include loss of employment (but this often not enough without further evidence of exceptional hardship), finances, prospects, family circumstances. The list is exhausted only by the facts of a particular case. Because the discretion of the Court is so wide and inevitably a little unpredictable, it is important that your arguments are presented properly to persuade the Court of its merits. Case preparation to ensure that you are demonstrating that you have met the legal criteria for exceptional hardship is all important in these types of cases.

Road or other public place

The term “road” is defined at section 142 of the Road Traffic Regulation Act 1984 as any length of highway or other road to which the public has access and includes bridges over which a road passes. The Concise Oxford Dictionary defines `road’ as a line of communication for use of foot passengers and vehicles; while in Oxford -v- Austin [1981] RTR 416 it was said to be a definable right of way between two points.

The expression “on a road or other public place” is employed frequently in Road Traffic legislation, for example, in the drafting of moving traffic offences at sections 1-6 RTA. A public place is a place to which the public, or part thereof, have access.

The onus is on the prosecution to establish that a particular location was a “road” or “other public place”.

Speeding

If you are caught far in excess of the speed limit there is a high risk of an immediate disqualification from driving based on the recorded speed. Frustratingly, different Courts around the country have different local practices.

A good rule of thumb however is if you are more than 40% over the speed limit, you are at risk of an immediate disqualification.

The length of the ban is again at the Court’s discretion, but will range from 7 to 90 days depending on the exact circumstances of your case, your personal situation and the quality of the mitigation raised by you or your Barrister.

Summons

A Summons (summoning you to attend Court at a particular time or otherwise face a possible warrant for your arrest) is issued by the Magistrates’ Court and for the majority of offences must be issued within 6 months of the incident occurring.

You will be given three options:

  • pleading guilty by post;
  • pleading guilty in person; or
  • pleading not guilty.

If you plead guilty by post, your case will be dealt with in your absence and you will be notified of the outcome. It is important to consider whether you want to plead guilty. The prosecution must prove its case to the Court establishing beyond reasonable doubt that you have for example, been speeding. If there are any evidential difficulties with the prosecution case, Driving Law will spot them and advise you accordingly.

If you do wish to plead guilty, you should also remember that presenting mitigation is your right. Even if you do not appear in Court you should write a letter of mitigation outlining your particular circumstances. Mitigation is information provided to the Court after a guilty plea which seeks to persuade the Court that because of the circumstances you should be given a lesser penalty or sentence. It is not a denial of guilt.

If a mitigation letter is skillfully drafted it can often result in a substantially reduced punishment. Appearing in person may be a more persuasive way of establishing good mitigation with Court.

In some circumstances, particularly where there is a risk of a “totting up” disqualification or a discretionary disqualification, the Court requires drivers to attend personally. The Court cannot disqualify a driver who pleads guilty by post and if the postal option does not appear on your Summons, you should assume that the Court is considering imposing a driving ban.

Time limits the Police must comply with to prosecute you

Many road traffic offences are purely summary offences and in most cases proceedings are taken by way of the laying of an information and the issue of a summons. Hence time limits are of particular significance since for various reasons substantial delay may occur before it is decided to institute proceedings. The point must also be borne in mind if it is intended at a later date to add further charges.

Laying of the information

Section 127 Magistrates’ Court Act 1980 states that for all summary offences the information must be laid within six calendar months of the commission of the offence, except where any other Act expressly provides otherwise.

The following points need to be borne in mind

  • It is not necessary for the information to be personally received by a justice or by the clerk. It is enough that it is received by a member of his staff impliedly authorised to receive it. In R-v- Pontypridd Juvenile Court ex p B [1988] CLR 842 it was held that an information could be laid by being input into a terminal at a police station of a computer system which was linked to the Court, even though it was not printed out at the Court end until later.
  • In computing the limitation period the day on which the offence was committed is not included.
  • So long as the information is laid within six months, the issue and service of the summons and the subsequent determination may all occur outside that period.
  • Laying an information within the six months’ time limit before deciding whether or not to prosecute may result in the proceedings being stayed as an abuse of process; see R-v-Brentford Magistrates’ Court ex parte Wong [1981] 1 All ER 884.

The six months’ time limit applies to most summary road traffic offences, but statutory exceptions do occur. In particular:

  • Section 6 RTOA 1988; and
  • Section 24 RTOA 1988.

Exceptions to the six month time limit

Section 6 provides a special time limit for offences listed in Column 3, Schedule 1 RTOA 1988, and for aiding and abetting those offences. When it applies, proceedings must be brought within six months from the date on which sufficient evidence came to the knowledge of the prosecutor to warrant proceedings; but must not be brought more than three years after the commission of the offence in any event.

Section 6 applies to the following offences under the RTA:

  • driving after making a false declaration as to physical fitness [section 92(10)]
  • failing to notify Secretary of State of onset or deterioration of disability [section 94(3)]
  • driving after such a failure
  • driving after refusal of licence under section 92 or 93 (section 94A)
  • failure to surrender licence following revocation (section 99)
  • obtaining driving licence, or driving, whilst disqualified [section 103(1)]
  • using an uninsured motor vehicle (section 143)
  • making a false statement to obtain a driving licence or certificate of insurance (section 174)
  • issuing false documents (section 175).

Under section 6(3) a certificate signed by or on behalf of the prosecutor, stating the date on which the necessary evidence cane to his knowledge, is conclusive evidence of that fact. Such a certificate is deemed under sub-section (4) to have been so signed unless the contrary is proved. The certificate should be signed by the appropriate police officer.

Traffic lights

It is an offence to fail to comply with traffic signs.

The maximum penalties are:

  • maximum fine of £1000.00; and
  • 3 points; and
  • discretionary disqualification.

Totting Up

As a general rule, the Courts will punish high excess speeding offences with instant disqualifications. Also, any driver reaching 12 penalty points within 3 years would face a 6 month disqualification under the “totting up” procedure. The mandatory guideline is that under the “totting up” procedure, a 6 month disqualification should be imposed but when the licence is returned, the slate is wiped clean and the points removed.

Other offences, such as drink driving, dangerous driving etc also carry mandatory disqualification periods.

Driving Law are experienced at arguing that special circumstances exist in the particular case of the motorist so that the Court’s discretion, where it applies, should be exercised to allow even totters with 12 points or more to keep their licence. The Court is required to disqualify totters unless “exceptional hardship” circumstances apply.

The exclusion of “hardship, other than exceptional hardship” as an argument against disqualification is contained in section 35(4)(b) of the 1988 Road Traffic Offenders Act. Almost every order of disqualification entails hardship for the person disqualified and it is for the Courts to interpret this phrase. Exceptional hardship is a matter of fact and degree in each particular case and has been held by the Courts to be something “out of the ordinary”. The Court is allowed to take into consideration exceptional hardship to the driver and also other people affected by the disqualification such as children and spouses. Other factors include loss of employment (but this often not enough without further evidence of exceptional hardship), finances, prospects, family circumstances. The list is exhausted only by the facts of a particular case. Because the discretion of the Court is so wide and inevitably a little unpredictable, it is important that your arguments are presented properly to persuade the Court of its merits.

Case preparation to ensure that you are demonstrating that you have met the legal criteria for exceptional hardship is all important in these types of cases.