OFFENCES: DANGEROUS DRIVING
Road Traffic Act 1988, Section 2: Dangerous Driving
Dangerous driving in Scotland is a serious offence and is normally prosecuted at Sheriff Court level. Justices of the Peace are not permitted to preside over cases of this nature, perhaps thankfully, due to insufficient sentencing powers. If your dangerous driving case is to be prosecuted in Glasgow, you will probably find yourself within the Justice of the Peace Court however your case will be considered by a Stipendiary Magistrate. Otherwise the case will be prosecuted in one of the other 45 Sheriff Courts in Scotland.
Michael Lyon Solicitors Limited provide expert legal representation throughout Scotland with offices situated in Glasgow and Dumfries. Distance is never an impediment to requesting our expert assistance.
We are proud to assert that we have successfully defended hundreds of dangerous driving prosecutions and our formidable reputation is amply vouched for by what previous clients have to say about the Firm.
Dangerous Driving Penalties: The minimum penalty, if convicted, of an offence under Section 2 of the Road Traffic Act 1988 is an obligatory twelve month disqualification from holding or obtaining a driving licence. There is also an associated order to sit the extended test of competency to drive. It is worth noting that this represents the sentencing starting point and more serious cases can result in the imposition of a custodial sentence, including up to two years on indictment. Your vehicle may also be forfeited in connection with the proceedings, subject to successful application by the Crown.
Dangerous Driving: The Legal Test
Whilst there may be a common perception of what constitutes dangerous driving, there is a strict two stage test applied by the Courts in Scotland.
Firstly the Crown require to prove that the standard of driving falls far below what would be expected of a reasonable and competent driver.
Thereafter it needs to be demonstrated that it would be obvious to such a driver that the manner of driving is dangerous.
It should also be noted that a person is 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. Assuming the appropriate notice of intended prosecution has been issued by the Crown or Police Scotland, a simple construction and use charge could therefore result in a Court citation for the altogether more serious contravention of Section 2 of the Road Traffic Act 1988.
This definition may seem to be unnecessarily complicated, however it is essentially for the Sheriff or Stipendiary Magistrate to consider the evidence as a whole and assess whether the offence has been proved by the Crown beyond reasonable doubt. A particularly skilled driver faces the same legal test as the newly qualified driver. The legal test for dangerous driving is therefore an objective one. Most people will have a general grasp of the types of bad or objectionable driving which may be criminalised by these provisions.
At the time of writing, there are three verdicts in Scots Law: guilty, not guilty and not proven.
The effect of the latter two verdicts is identical, namely you would be acquitted of dangerous driving. It is also open to the Court to make a finding of guilt in relation to the lesser charge of careless driving under Section 3 of the Road Traffic Act 1988. This is referred to as the implied alternative. The range of penalty applicable for a conviction for the implied alternative of careless driving is 3-9 penalty points however it remains open to the Court to impose a period of disqualification on a discretionary basis.
Care should be taken when negotiating these cases with the Crown. Whilst the reduction of a charge from dangerous to careless may appear to be a wonderful downgrade, it is still open to the Court to impose a period of disqualification and it is perfectly competent for the Sheriff or Stipendiary Magistrate to dispose of such cases by imposing bans in excess of 12 months. Indeed, there is no statutory limit on the period of disqualification. It is however possible to exert a degree of control over the facts and circumstances of a case which can significantly impact upon sentence.
Pleading Guilty – what you need to know
It is important to agree a narrative in the case which is agreeable to both Crown and Defence. Whenever a plea of guilty is tendered to a charge, the Procurator Fiscal or Procurator Fiscal Depute will provide the Court with a narration of the events that have resulted in the case being brought to Court. This should be agreed with the Crown in advance of tendering a plea of guilty. If a suitable narration cannot be agreed, then the case should proceed to trial or proof in mitigation. It is imperative that you know and understand the charge to which you are pleading guilty as it will only be in exceptional circumstances that the Court will permit the withdrawal of such a plea.
Dangerous Driving Charges Explained
Dangerous driving charges can involve various factors. Cases involving grossly excessive speeds can be prosecuted as dangerous driving however it is important to note that speed in itself can only be relied upon in exceptional cases in the absence of any other actual or potential dangers. Unlike speeding prosecutions, the Crown do not have to adduce corroborated evidence of the accuracy of the speed measurement device in order to secure a conviction under Section 2 of the Road Traffic Act 1988.
We have successfully defended cases involving speeds in excess of 120mph, the highest being 140mph. Our definition of success in these examples is an outright acquittal. No plea negotiation to a reduced speed, no plea to a reduced charge of careless driving but a not guilty after trial. Our extensive experience conducting speed based prosecutions is there to be used to the advantage of our clients.
Another common form of dangerous driving charge are those which involve impatient driving often culminating in an overtaking manoeuvre that goes wrong. In cases where serious injury is caused by the bad or objectionable driving, it is now open to the Crown to pursue a charge under Section 1A of the Road Traffic Act 1988. This charge specifically encapsulates the injuries caused as a result of the driving and provides for an enhanced range of penalty. It is clear the intention of Parliament is to ensure that dangerous drivers who cause serious injury are held accountable for the emotional and physical damage that can result from their irresponsible actions. The provisional indication is that these charges will be prosecuted by the Crown under solemn procedure which will allow the Court to take full advantage of the maximum available custodial sentence of five years.
The law is keen to recognise that it will often be insufficient for the Crown to rely upon a momentary lapse of judgment in order to achieve a conviction. Furthermore the prosecution of dangerous driving in Scotland is not a mathematical equation. Put in simple terms, three examples of driving without due care and attention as part of the same course of conduct does not justify the Crown to seek and obtain a conviction for dangerous driving.
There are various technical issues which will always be considered as a matter of routine. It is important, in certain circumstances, that an appropriate warning is issued within 14 days following the commission of the offence. There is a statutory presumption of compliance which operates in favour of the Crown and therefore it is imperative that any legal submission on the basis of deficient warning is both identified and properly argued.
Where appropriate, we can instruct a drive-through at the locus as this can often prove to be crucial in establishing lines of sight and assist the Court greatly when considering whether the driving complained of is caught by either of the provisions of Sections 2 or 3 of the Road Traffic Act 1988. A good defence lawyer should always remember the standard of proof in criminal proceedings. The Crown have a duty to release all incriminatory and exculpatory evidence. If this disclosure omits crucial information in relation to the locus, it can often be tactically inept to instruct an expert report as this may serve to fill in the blanks for the prosecution.
The stage at which a plea of guilty is entered is now a relevant consideration in road traffic cases. Historically no discount would be applied to either the level of endorsement or length of disqualification for early pleas of guilty however an accused is now eligible for a discount if the plea is tendered at an early stage in the proceedings. A Court is never permitted to discount a period of disqualification or reduce the level of endorsement below the minimum penalty prescribed by law.
Whilst this clarification in the law has affected our advice in relation to some cases, it is our considered view that dangerous driving charges in Scotland will continue to be fully defended as experience dictates that our clients primary concern is avoiding a period of disqualification.
We are often asked about success rates and it is always a question that can cause some discomfort amongst the Solicitors of the Firm.
Whilst we could easily brag and boast of our outstanding track record, it would not be relevant to your case for the very simple reason that each case is different. We also consider it inappropriate and misleading to quote success rates for the defence of criminal road traffic prosecutions. Please take the time to browse our testimonial section which should demonstrate the level of representation you can expect from Michael Lyon Solicitors Limited.
There may be similarities between dangerous driving prosecutions however no two cases are the same. Experience and our high standard of professionalism dictate that any potential client has to be properly and openly advised at all times. It is also important to consider the regional differences in relation to the prosecution and treatment of road traffic offences in Scotland. An accused charged with driving at 110mph on the A74(M) will probably be probably be prosecuted in either Lanark or Dumfries Justice of the Peace Court for speeding. Such speeds, however, on the M8 in Glasgow or on the A9 in Perth could result in the issue of a Court citation for dangerous driving. Michael Lyon has been dealing with these cases throughout Scotland for the last decade and his experience and specialism in this field could make the difference between walking or driving away from Court at the conclusion of proceedings.
If you are looking for a guaranteed outcome or attracted by the glitter of target success rates, then we may not be the best Firm to deal with your case. You may however also find that on the day of your trial your alternative choice of road traffic Solicitor may not be so optimistic about your prospects.
We have provided advice in relation to tens of thousands of motoring prosecutions in Scotland. A quick browse of our testimonial section will reveal the level of expertise you can expect to be applied to your case.
These are not self-promoting case synopses but the actual letters of commendation written by our clients, all of whom have given kind permission for their kind words to be published.
Michael Lyon is in the unique position of only having dealt with the defence of road traffic cases since 2007. The Firm is in a similarly unique in that it is not connected to any general criminal practice.
Michael Lyon Solicitors Limited already has the proven track record.
We are proud to be free of the constraints of legal aid and have no interest in any other type of work. We have worked with a large number of legal service insurance providers and, subject to agreement, we may be able to represent your interest under legal expenses insurance however typically we will offer a fixed fee quotation for your case.
The recent proliferation of law Firms in Scotland professing a similar degree of specialism in road traffic cases can only be taken as a compliment. We are keen however to ensure that potential clients who demand the highest level of representation are not misled by inappropriate claims of success rates and hollow guarantees.