Road Traffic Offences Explained

Contact us if you cannot find the answer you are looking for…

  • This article was last updated: August 15th, 2015.
rtl-header-one

OFFENCES CARELESS DRIVING

Careless Driving

The offence of careless and inconsiderate driving is contained within section 3 of the Road Traffic Act 1988. It provides that: “If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.” A consequence of this is that the types of driving that may fall under the ambit of the offence are driving without due care and attention, driving without reasonable consideration for other people using the road or a combination of both.

snodgrass

"Minimum endorsement of three penalty points"

Robert Snodgrass, Hull City and Scotland international footballer

 

The Penalties for Careless Driving
The range of penalty that can be applied upon conviction is broad, which reflects the wide variety of scenarios which can be construed as careless driving. If endorsement of the driving licence by way of penalty points is deemed by the Court to be the most appropriate method of disposal, then between 3 and 9 points may be applied to the accused’s driving licence. If the carelessness displayed is deemed sufficiently serious, then instead of penalty points the presiding Judge has a power of discretionary disqualification available. It should be noted that, in Scotland, such bans tend to be measured in months rather than days or weeks.

It is important to remember that it is the degree of culpability that should determine the sentence imposed, not the consequences. This is particularly relevant when injuries are sustained or damage caused as a result of the act of driving as these should be disregarded by the Court.

Whilst it may seem somewhat obvious, what careless or inconsiderate driving actually means is now defined in statute, under section 3ZA of the Road Traffic Act 1988.

The salient points are that someone is to be is to be regarded as driving without due care and attention only if the driving displayed falls below what would be expected of a competent and careful driver (which can be contrasted with the more serious offence of dangerous driving where the first part of the legal test is driving that falls far below what would be expected of the competent and careful driver).

Allowing for an element of subjectivity in such cases, in its determination of whether the driving of an accused falls below this standard, the Court must have regard not only to the circumstances of which the driver could be expected to be aware but also to any other circumstances shown to have been within his or her knowledge at the relevant time. Moreover, it is only where someone has been inconvenienced by the driving that an accused can be regarded as having driven without reasonable consideration for other persons.

Fixed Penalties Applicable to Offences:

      • Careless Driving
      • Speeding
      • Driving without Insurance
      • Driving whilst using a Mobile Phone

Careless driving has also recently been added to the type of offence where it is competent for there to be a Conditional Offer of Fixed Penalty made. Historically, Fixed Penalties were usually offered for alleged offences such as speeding, driving without insurance or use of a mobile phone whilst driving. To reflect a desire to see more such cases prosecuted, it is now possible that either the Police or Procurator Fiscal to tender on someone alleged to have driven carelessly an offer to have their driving licence endorsed with 3 penalty points along with a fine of £100. This represents the minimum penalty prescribed by law, and so such an offer can only be made for careless driving towards the lower end of the scale.

If a Conditional Offer of Fixed Penalty is received for an allegation of careless driving, then the options open to the driver are twofold. If there is an acceptance that the driving in the circumstances was careless, then accepting the Fixed Penalty brings an end to the matter without the case proceeding to Court. This, of course, will result in the addition to the driving licence of 3 penalty points as well as the financial penalty.

There is also the option to subject the matter to challenge, either because the offence is denied or that there is simply a wish to exercise the right of an accused to put the Crown to the test. In these circumstances the procedure is very simply: the Fixed Penalty is ignored, put to one side. There is no need to inform the authorities of this and invite a prosecution; silence is all that is required to intimate the challenge. A more formal Conditional Offer may be made directly by the Crown, where the advice on options remains as aforementioned. Eventually, if there is to be a prosecution, a court citation libelling the charge and giving a date where a plea is to be tendered in court will be served. Such a prosecution must be raised by the Crown within 6 months of the date of the alleged offence.

Please note that, should there be 9 penalty points or more on a driving licence, then the holder is not in a position to accept a Fixed Penalty, even where it is offered by either the Police or Procurator Fiscal. These matters must always proceed to court, even if the accused for whatever reason wishes to accept the 6 month disqualification under the “totting-up” provisions.

Where a Fixed Penalty is deemed not to be appropriate, then any prosecution would commence at the citation stage.

The provisions of the Highway Code are often used to determine whether a particular course of driving can properly be recognised as careless. Clearly, a failure to observe its provisions is a relevant consideration for the Court, but the fact that the Code has in some way been violated does not in itself necessarily mean that a driver should be prosecuted, or convicted. This became apparent in an appeal case dealt with by Michael Lyon Solicitors Limited;

where a police officer was convicted of careless driving having been involved in an accident whilst responding to an emergency call. The Appeal Court was at pains to highlight that the law does not expect a standard of perfection in drivers, and in granting the appeal and quashing our client’s conviction made it clear that in consideration of the particular circumstances of a case there should not be too high a test applied.

Where an allegation of careless driving has been made, at every stage in the proceedings it is important to seek out and receive the best legal advice possible. A solicitor who properly specialises in the defence of criminal road traffic cases will be in a position to give honest, accurate advice as to the most appropriate way forward for each individual. At Michael Lyon Solicitors Limited we defend nothing but this type of prosecution, and having the experience of dealing with every type of careless driving prosecution in most jurisdictions in Scotland puts us in the position of being able to impart our knowledge and expertise to your particular case.

Whether you have just been charged, received a Fixed Penalty or court citation, discussing the matter with us will bring a focus on how to progress in your best interests, and Michael Lyon Solicitors Limited will do what is necessary to protect your driving entitlement.


Construction And Use

Road Traffic Act 1988, Section 41: Construction & Use Regulations

There are a vast number of provisions in relation to Construction and Use offences in Scotland. For ease of reference, we have attempted to detail the most common and will be adding to these in the coming months. Mobile phone offences are also bracketed under this section although merit a separate section. It is important to note that the Crown may base a prosecution for dangerous driving under s.2 of the Road Traffic Act 1988 solely upon the condition of a vehicle.

Where a person is convicted of an offence under ss40A or 41A of the Road Traffic Act 1988, it is possible to escape endorsement or disqualification if it can be proved to the Court, on the balance of probabilities, that the person driving had no reasonable cause to suspect such a defect had arisen.

Wheels and Tyres
These requirements range from what the manufacturer must be responsible for – relevant sidewall markings etc. – and what the motorist should be responsible for – correct fitment and condition of tyres, tread depths etc.

If found to have illegal tyres the fine is currently up to £2500 and 3 penalty points awarded per tyre

  • Illegal tyres include tyre mixing (the next section below deals with cross ply and radial tyres)
  • Tyre pressure – underinflation
  • Tyre cuts in excess of 25mm or exposes the cord
  • Any lumps, tears or bulges caused by separation or partial fail of structure
  • Depth Tread under 1.6mm
  • Re-grooved tyres are illegal on any passenger car or utility vehicle below 3500kg

It is recommended that tyres are checked on a weekly basis for tread depth, tread condition, inflation pressure, tread/sidewall damage, any signs of irregular wear. If in doubt seek the advice of a trained tyre expert who will be able to determine the suitability of the tyre for further use. The Police may offer you the chance to participate in the Vehicle Defect Rectification Scheme which will allow a fixed period of time for the defect to be fixed and proof to be exhibited thereafter. Proper compliance with such a notice will lead to the desertion of the case and a personal bar will apply to the Crown in relation to raising proceedings in Court in relation to the specific offence(s).

It is with a degree of disappointment that we must observe that the Vehicle Defect Rectification Scheme is presently underused by Police Scotland. This situation is broadly analogous to the reluctance of the Police to offer educational course for minor road traffic offences, such as careless driving. It is perhaps no wonder that the public perception of Police Scotland and their enforcement of road traffic offences in Scotland is so negative.

The penalties for having illegal tyres are currently up to a £2500 fine and 3 penalty points per tyre. If you are stopped with four illegal tyres, however, the Court will not typically add the pointage attached to each of the four offences and should restrict the total level of endorsement to merely three penalty points. It is only in exceptional circumstances will the Court proceed to add the penalties together for each offence.

The practical operation of this sentencing principle can cause difficulties when the prosecution of two offences committed at the same time become separated. It can be common for one offence to be processed under the fixed penalty procedure and the other to proceed to Court by the service of a complaint. It is important that the Court is made aware that that the offence under consideration is connected and should deduct the number of penalty points already applied by virtue of the fixed penalty from the matter which is before the Court.

The following gives an overview of the relevant points:

Tyre Mixing
The vehicle must NOT have radial tyres on the front wheels and cross ply tyres on the rear wheels. It is also illegal to have a cross ply tyre on one side with a radial on the other.

All steerable axles must be fitted with tyres of the same construction, as must all driven axles that are not steerable. An axle includes two stub axles that form a pair, and an articulated vehicle is treated as two separate vehicles

Tyre Pressures
Regulation 27 section B states

the tyre is not so inflated as to make it fit for the use to which the motor vehicle or trailer is put

However this statement is fairly ambiguous, as there is no indication of at what point an under or over inflated tyre becomes unfit for the use it is being put to.

Tyre Cuts
A cut in excess of 25mm or 10% of the section width of the tyre , whichever is the greater, measured in any direction on the outside of the tyre and deep enough to reach the ply or cord would deem the tyre illegal.

Ply or Cord Exposure
If there is any cut in the tyre no matter how small which exposes cords, then the tyre is illegal.

Lumps, Tears and Bulges
Regulation 27 section D states “if the tyre has any lump, bulge or tear caused by separation or partial failure of its structure”. It is good practice wherever possible when assessing damage that the tyre is removed from the rim and systematically inspected both internally and externally.

Tread Depth
The legal minimum tread depth for cars and light trailers (including caravans) up to 3500kg gross vehicle weight and/or 8 seated passenger vehicles including driver is: A minimum of 1.6mm in a continuous band throughout the central three-quarters of the tread width, throughout the whole of the circumference. Other Points to Remember

Damage to road, person or vehicle

If the tyre causes either damage to the road, or to persons, or to any vehicle using the road

This would cover such instances as if a vehicle with damaged or very oversized tyres which either caught against a person or other vehicle resulting in either damage or injury. Studded tyres also are included in this clause and if used in inappropriate conditions (i.e. where there is no ice or snow) and they damage the road surface then they would be clearly illegal.

Temporary Use Tyres
All tyres marked “Temporary Use Only” are restricted to 50mph.

Re-grooved tyres are illegal on any passenger car or utility vehicle below 3500kg Gross Vehicle Weight (GVW).

Vision and Glass
The regulations provide that each motor vehicle is to be designed and constructed so that the driver has, at all times, a full view of the road.

Tinted Windows
The trend for tinted windows always seems to generate enquiries and for motor vehicles first used on or after 1 April 1985 the windscreens require a visibility percentage of 75% and 70% for all other windows.

If a suspected breach has occurred, the transmission of light will be tested by a Tint Man device. This is currently being used by Police forces throughout Scotland and expert legal advice should be sought in order to ensure procedures have been followed correctly.


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.

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: Speed Based Prosecutions
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.

Serious Injury by Dangerous Driving
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. Whilst this clarification in the law has affected our advice in relation to some cases, it is our considered view that dangerous driving read more on Causing Serious Injury by Dangerous Drivingcharges in Scotland will continue to be fully defended as experience dictates that our clients primary concern is avoiding a period of disqualification.

FAQs
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.


Dangerous Driving: The Penalties

A conviction for dangerous driving in Scotland will ordinarily result in the imposition of a disqualification from driving for a minimum period of twelve months. This is the statutory minimum and it is, of course, perfectly competent for a Court to impose a ban in excess of this period. Indeed, the Court may impose a life ban should the particular circumstances of the case merit such a serious disposal.

Once the period of disqualification has been served, any person convicted of dangerous driving in Scotland will have to sit and pass the extended driving test before obtaining a full driving licence again. It is important to note that a driver will remain to be disqualified from driving until such time as the extended driving test has been passed. These are the most common penalties for dangerous driving convictions however alternative sentencing options may be open to the Court.

Dangerous Driving: Penalty Points as an Alternative to Disqualification
Schedule 2 of the Road Traffic Offenders Act 1988
orders the endorsement of a driving licence with 3-11 penalty points in cases where a period of disqualification has not been imposed following a conviction for dangerous driving.

It may appear confusing to suggest on the one hand that the penalty for dangerous driving is a mandatory disqualification from driving of at least twelve months but yet it is possible for the Court to simply endorse a licence with penalty points. This is where the legal concept of special reasons comes into play. Special reasons are, put simply, mitigating circumstances which fall short of an absolute defence in law. They must relate to the offence and not the offender.

The distinction is a crucial one: it is not a special reason to argue that a conviction for dangerous driving will lead to unemployment, homelessness, etc. It is only the circumstances of the offence which will be considered by the Court within the realms of a special reason submission. This can be a tricky balancing act as the Court will have to weigh the serious nature of the dangerous driving offence and public safety concerns against the special reason advanced by the driver. Perhaps the most common special reason argument relied upon, certainly in our experience, is medical emergency.

Dangerous Driving: Plea to Reduced Careless Driving Charge
Your Court citation for dangerous driving in Scotland will normally detail a brief narrative of the circumstances upon which the Crown will seek to rely in support of their prosecution under Section 2 of the Road Traffic Act 1988. Whilst the citation may only contain one charge, there is always a further charge of careless driving which invisibly sits behind the dangerous driving charge. It is known as the implied alternative and essentially it is open to the Crown to accept a plea of guilty to this lesser charge of careless driving. It is similarly always open to a Sheriff to convict an accused of careless driving rather than the principal charge of dangerous driving.

The reduction of a charge from dangerous driving to careless driving, whether pre-trial or post-trial, represents a significant downgrading of the offence. The Court can still impose a period of disqualification however the case may be concluded simply by the imposition of 3-9 penalty points.

It is important to ensure legal advice is obtained from a proficient legal practitioner. Whilst there may be circumstances where we will counsel an approach to the Crown to offer a plea of guilty to a reduced careless driving charge, equally there may be instances where we will specifically advise that no approach is made to the Crown. If we consider the Crown are not in a position to offer a sufficiency of evidence for both careless and dangerous driving charges, clearly we would not seek to enter into any plea negotiations with the Crown.

Dangerous Driving: Imprisonment
A conviction for dangerous driving in Scotland can result in a period of imprisonment. If you are prosecuted at solemn level, i.e. before a jury, you could be sentenced to a period of imprisonment of up to five years. Dangerous driving prosecutions in Scotland however tend to be prosecuted summarily, i.e. before either a Sheriff or Stipendiary Magistrate, and the maximum period of imprisonment for dangerous driving is reduced to twelve months.

Whether a period of imprisonment is within the Court’s contemplation will depend upon a number of factors, including the seriousness of the dangerous driving offence itself and whether an accused has previous convictions for similarly serious driving offences. It is important to note that s.196 of the Criminal Procedure (Scotland) Act 1995 obliges a Court to have regard to the stage at which a plea of guilty is entered and consider whether a discount in sentence is appropriate. The sentencing process should involve the selection of a starting point sentence which is thereafter discounted, if appropriate, to take into account the stage at which the plea of guilty was intimated. The discount in sentence is discretionary.


Death By Dangerous Driving

Road Traffic Act 1988, Section 1: Causing death by dangerous driving

A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place is guilty of an offence

The offence carries a maximum prison sentence of fourteen years and a minimum period of two years disqualification.
The driver must re-sit and pass the extended test of competency to drive before he can regain his licence.
The constituent elements of the offence are that the Crown must prove that the manner of driving was dangerous and that a causal link exists between the manner of driving and the resultant death. The driving also requires to take place in a mechanically propelled vehicle and be on a road or other public place.

These are evidential matters which the Crown require to prove beyond reasonable doubt.

These cases attract a high degree of publicity and are, generally speaking, emotionally charged affairs. It is important that if you have been charged with death by either careless or dangerous driving in Scotland that you ensure your representation is of the highest standard available.

These offences are still rooted in road traffic law and their key ingredients are within the Road Traffic Act 1988.

Our expertise can make the difference and we are available 24/7 to deal with urgent enquiries of this nature.


Drink Driving Charges in Scotland

Drink Driving Facts: New Limits in Scotland The Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014 came into force on 05 December 2014.

The prescribed limits were reduced to 50mg in 100ml of blood (from 80mg/100ml), 22ug in 100ml of breath (from 35ug/100ml) and 67mg in 100ml of urine (from 107mg/100ml).
The prescribed limit at which an alternative sample of blood or urine may be selected as a replacement for a sample of breath was also reduced to 31ug in 100ml of breath (from 50ug/100ml).

The new limits apply to Scotland only.

These changes represent a significant alteration of the road traffic legislation and it is anticipated there will be an increased number of drivers falling foul of these new reduced limits. Our blog contains more detailed information on this highly significant amendment of the law.

Road Traffic Act 1988, Section 5(1)(a): Drink Driving
Prosecutions for drink driving are complicated and it would be impossible to detail all the possible angles and defences that may require to be investigated. We have attempted to highlight some of the more common issues that should be addressed if you are facing a charge of drink driving in Scotland.

The Process for Prosecuting Drink Driving Charges
These cases tend to start by an accused person being released from Police custody on an undertaking to appear at a particular Court on a particular date and time. In the event the case involves a high alcohol reading or perhaps a lack of cooperation by failing to provide specimens, it is perfectly competent for the Police to keep an accused in custody to appear on the next lawful Court day. It is rare for cases to commence by way of postal citation due to the serious nature of the charge however cases involving the analysis of blood specimens often start this way due the time it takes for the Crown to obtain the results from their Forensic Department.

It is a separate offence to fail to appear at Court without reasonable excuse and it is important to understand that cases of this nature do not just disappear with a bit of wishful thinking.

Drink Driving Limits

Under Section 5(1)(a) of the Road Traffic Act 1988 it is an offence if a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit.

In Scotland the “prescribed limits” were reduced on 05 December 2014 by the implementation of ‘The Road Traffic Act 1988 (Prescribed Limit) (Scotland) Regulations 2014′ .The new limits which apply to Scotland only are:

22ug of alcohol in 100ml of breath

50mg of alcohol in 100ml of blood

67mg of alcohol in 100ml of urine

If you are charged with drink driving in Scotland with a blood-alcohol reading of 51mg, then you should seek professional advice from a recognised road traffic expert because the Crown, in all probability, will initiate proceedings.

We have been instructed in a number of cases involving blood-alcohol readings of 1mg over the limit, all of which have been successfully defended.

Drink Driving Statistics
Since the drink driving limits were lowered on 05 December 2014, the Scottish Government have revealed that there has been a significant reduction in the number of drivers caught over the limit.

The 2014 festive period saw 351 drivers accused of being ‘under the influence’, compared to 434 in the same period in 2013; a whopping 19% reduction. The statistics refer to a 28 day period from the commencement of the festive drink drive campaign.

Interestingly, 20 drivers were detected between the old and new limit; of those, 6 drivers were detected between 0600-1000 as falling between the old and new limit. The import of this is that the new reduced drink drive limit has only criminalised an additional 20 individuals throughout the month of December 2014 who otherwise would have not have faced prosecution under the previous alcohol limit.

Useful information on this can be found on the Scottish Government’s website

Old Limit80mg of alcohol per 100ml of blood(pre-05 December 2014) New Limit50mg of alcohol per 100ml of blood(post-05 December 2014)
Total number of drivers tested 20,646 17,504
Average number of drivers stopped each day 737 625
Total number of positive tests for excess alcohol 434 351

 

In Scots Law
The Intoximeter EC/IR is the main device used in Scots law for the analysis of breath samples. It has full type approval under Section 7(1)(a) of the Road Traffic Act 1988. The Intoximeter will produce a till receipt which will detail four readings, namely two calibration tests and the breath test results pertaining to the subject. The Intoximeter rarely produces identical readings and it will always be the lower reading that is relied on by the Crown in any subsequent prosecution, in fairness to an accused.

Type approval dictates that if the variation between the two samples of breath vary in excess of 15% then the readings are inadmissible and some other procedure will presumably be invoked. Furthermore if an accused’s reading is less than 31ug/100ml then under s.8(2) of the Road Traffic Act 1988, the Police will require to explain that the person may claim that specimen should be replaced by either blood or urine. This provision takes into account the variations that can be produced by the Intoximeter EC/IR and again is offered entirely to benefit an accused.

Drink Driving Penalties

Offence Range of Sentences
Being in charge of a vehicle while above the legal limit or unfit through drink or drugs 3 months’ imprisonment up to £2,500 fine10 penalty pointsdiscretionary disqualification
Driving or attempting to drive while above the legal limit or unfit through drink or drugs  6 months’ imprisonment up to £5,000 finea ban from driving for at least one year (three years if convicted twice in ten years)
Refusing to provide a specimen of breath, blood or urine for analysis 6 months’ imprisonment up to £5,000 finea ban from driving for at least one year

 

Legal Advice

We would advise that, if offered, an alternative sample should always be provided. There are a number of technical reasons for this although, put very simply, an accused person has nothing to lose at this stage by doing so.

Interestingly, we often receive instruction from clients who maintain that the police have tried to dissuade them from the alternative sample route.

Please be aware that where improper pressure is exerted on an accused not to exercise his option to provide a specimen for laboratory analysis then this will result in an acquittal.

Again the services of an expert motoring lawyer are essential in these circumstances. An abundance of case law has developed in this field and our experience of these cases is that the Police may appear to be more aware of their obligations when they are giving evidence under oath at trial than they appeared to be at the time of dealing with an accused in Police custody.

We would also advise that the independent analysis of samples is undertaken. There are strict time limits that apply due to the degradation principle and, again, advice should be sought at the earliest opportunity. Clearly a degree of expense will be incurred by instructing an independent analysis although it could be the best money you have ever spent. Contact should be made with the University of Glasgow, Department of Forensic Medicine and Science, University Place, Glasgow (0141-330-4574) as recognised analysts under the Road Traffic Acts in Scotland.

The Consequence of a Drink Driving Conviction
A conviction for drink driving can be extremely damaging. Aside from the obvious stigma, the law prescribes  a 12 month period of disqualification as the starting point for this type of offence.

Generally speaking the length of disqualification will correlate to level of the breath, alcohol or urine reading. Sentencing is, however, always a matter of discretion for the Sheriff or Stipendiary Magistrate who deals with your case. The absence of previous convictions will always be a major factor however it is important to ensure all relevant mitigatory information is placed before the Court to ensure the lowest possible starting point sentence.

The Court may consider imposing a custodial sentence in cases involving high alcohol readings or, more usually, where an offender has analogous previous convictions.

It is important to note that the minimum period of disqualification is increased to three years where an offender has been previously convicted of a qualifying, or similar offence, within a ten year period.

Other Consequences of a Drink Driving Conviction
We would also seek to point out that the stark Government adverts publicising the crushing of cars belonging to persons convicted of drink driving offences in Scotland do not contain an empty threat. Forfeiture is now frequently sought by the Crown and will fall to be considered by the presiding Sheriff at the conclusion of the case in the event of a finding of guilt.

It is important that robust representations are made to prevent the destruction of a valuable asset.

We will never forget the heart-stopping moment we were tasked with opposing a forfeiture motion for a rather beautiful Aston Martin. Thankfully the car still belongs to its rightful owner.

Once the Sheriff has selected the appropriate starting point sentence, consideration will be given to whether a discount is appropriate with reference to the stage at which the case is concluded. It may sound overly simplistic to suggest that the system now incentivises early pleas of guilty however that it exactly what it does. The discount can be significant when dealing with drink drive cases with higher readings as the percentage reduction, up to one-third, can really start to make a difference.

It is also open to the Court to reduce the length of disqualification by granting a referral to what is commonly known as the Drink Driver Rehabilitation Course. This has to be raised at the point of sentence and the associated reduction in sentence, between three months and one quarter of the total period, only applies to disqualifications of 12 months or more. It is for the accused to ensure the fee is paid and the course completed within the requisite timeframe before the discount is applied. Such referrals tend to be a matter of personal preference for the presiding Sheriff and, from our experience, it is sometime better not to ask as this can serve to infuriate a Sheriff who has previously judicially commented that such referrals will not be entertained.

The Drink Drive Rehabilitation Scheme

The Drink Drive Rehabilitation Scheme (DDRS) can be offered in Court at the point of sentencing. If you are afforded the opportunity it is in your best interests to have identified a suitable course in advance in order to assist the Court.

The responsibility for the DDRS in Scotland rests with the Department for Transport (DfT)

Who May Apply?
The DDRS can be offered by a Sheriff or Justice of the Peace if you have been found guilty of a relevant offence and you have been disqualified from holding or obtaining a driving licence for a period of at least 12 months.

The relevant offences under the Road Traffic Act 1988 are:

  • causing death by careless driving under the influence of drink (section 3A)
  • driving or being in charge of a vehicle when under the influence of drink (section 4)
  • driving or being in charge of a motor vehicle with excess alcohol (section 5)
  • failing to provide a specimen for analysis (section 3A or 7) or to allow a specimen to be tested (section 7A)

Under section 34A(4) Road Traffic Offenders Act 1988 (RTOA), before the court makes an order, it is required to ensure that:

  • a place is available on an approved course
  • the offender appears to be of, or over, 17 years of age (referral can be by adult or youth courts)
  • the court has informed the offender (orally, or in writing, and in ordinary language) of the effect of the order, and of the amount of fees the offender is required to pay for the course, and when they must be paid
  • the offender has agreed that the order should be made

If you have meet the above criteria, the Court may order that the period of disqualification be reduced if, by the “relevant date”, you successfully complete an approved DDRS course.

Relevant Date
The “relevant date” must be at least 2 months before the last day of the period of disqualification as reduced by the order. The provision of the 2 month period is required in order that the Court can be notified of the successful completion and can inform the Driver and Vehicle Licensing Agency (DVLA). The period of disqualification will then be amended by the DVLA.

Example

Take the following example:

  • A 24-month period of disqualification, with a 6-month reduction for completion of a DDRS course.
  • This would enable a reduced period of disqualification to 18 months.
  • The additional 2 months will be subtracted from the reduced period (18 – 2 months) giving a “relevant date” for completion.
  • In this example, the “relevant date” for completion would be 16 months after the date of conviction.

How Long Will My Disqualification Be?
As a rule of thumb, successful completion of the DDRS will normally allow your period of disqualification to be reduced by a quarter.

For example:

  • If you have been disqualified from holding or obtaining a driving licence for a period of 18 months – your period of disqualification could be reduced by 4 and 1/2 months. This means that your period of disqualification would be 13 and 1/2 months.

DDRS Cost
If you have been offered and have accepted a place on the DDRS you should expect to pay between £150-£250. Please see our helpful link to find your nearest DDRS Centre and the price pricing and location Each centre should be able to offer a variety of payment options such as credit and debit cards; BACS transfer; cheques; direct debits; and some will also allow the payment to be made by instalments.

The DDRS Process
Although there are no standardised national models and all courses may vary, the DDRS requires sixteen hours of tuition in total , spread over a minimum of three sessions.

The sessions must be split across a period of at least 14 days. Class sizes range from a minimum of 4 participants to a maximum of 20. During the course, the participants are required to undertake and complete a syllabus comprising of two units:

  • Unit 1: Understanding the impact of alcohol use in relation to driving
  • Unit 2: Change alcohol use in relation to driving

There are no formal exams or tests on the scheme. Similarly there is no expectation to memorise facts or figures. The format of the DDRS usually takes the form of:

  • short talks to convey essential information
  • group discussion and participation
  • self-observation forms/records of behaviour, e.g. ‘drinks diaries’
  • exercises for individual and group discussion, including role play
  • audio/visual presentations
  • guest speakers, for example subject specialists, magistrates, police, other emergency services, victims of drink-drivers
  • information hand-outs
  • behaviour analysis, assessing performance and setting objectives

The aim of unit 1 of the course is to help participants come to an understanding about why their behaviour is problematic and to help them move forward in preparation for change. Trainers will then talk to participants, to see if they have gained a real insight into their previous behaviour. There is also tuition aimed at helping participants understand the legal repurcussions of repeat drink driving.

The first unit is not about browbeating or telling off participants; rather It is about fostering a genuine realisation of the dangers – not just to yourself, but to all – of the dangers of drink driving.

Unit 2 focuses on helping participants prepare for the changes they will have to make in their relationships with alcohol and driving.

This means helping you recognise your personal triggers which lead to drinking and developing strategies for overcoming these triggers without resorting to alcohol.

This second unit also focuses on working on the reasons for drinking and driving, rather than the impact it has. This means developing a detailed strategy to avoid falling into the same traps as before.

The aim of the course is to get the participant through the six stages that lead to personal change, ending with ‘maintenance’ – where the behaviour change has become permanent and automatic. In this case – the recognition of the dangers of drink driving, its wider impacts and ultimately its elimination as a behaviour.

Passing the DDRS and Applying for a Full Driving Licence
At the end of a successful course you will be issued with a certificate of completion.

This is issued by the course provider will be given to you no later than 14 days after the latest date for completion of the course.

Thereafter it is your responsibility to contact the DVLA to apply for a new driving licence. This should be done before the end of the reduced period of disqualification using forms D1 and D750 which are available from the DVLA website.

Once you have obtained your provisional driving licence you can apply to sit your driving theory test. Once you have successfully completed your theory test, you will sit your practical driving test. Once both parts of the test have been successfully completed you can apply for your full driving licence.

Our Track Record
Our wealth of experience throughout all Scottish Courts can ensure that, in the event of an early plea of guilty, you will be given the best chance of receiving the lowest period of disqualification. Michael Lyon Solicitors Limited has an excellent reputation for successfully defending these cases. There are a number of possible lines of defence to this type of charge. We are happy to raise some of the more recognised avenues which may be explored however do not propose to reveal more technical lines which may be pursued in the defence of drink driving prosecutions in Scotland.

It will be noted from our testimonial section that we have  secured an abundance of acquittals for Section 5(1)(a) RTA contraventions involving breath, blood and urine cases. We are experts in cases where the Crown have sought to invoke the back counting process and indeed have never been convicted of a case involving back counting.

The Firm have appeared in the national press in a landmark case at Edinburgh High Court in which the prosecution was described by the presiding Judge as “shambolic”. Our expertise is there for our clients to benefit from and we are always delighted to offer free advice to discuss the options available.

There is also the defence of  “post-incident” drinking. This is loosely referred to as the “hip-flask” defence and means that the alcohol that has lead the prescribed limit to be exceeded was consumed after the act of driving. This is a statutory defence and will require to be properly stated in Court with a toxicology report detailing an expert’s view on the expected alcohol reading at the time of driving. These cases can be complicated and detailed instruction from the client is essential.

We have successfully defended drink driving cases in Glasgow, Aberdeen, Perth, Livingston, Inverness, Paisley, Duns, Selkirk, Edinburgh, Hamilton and Airdrie Sheriff Courts, to name but a few. If your case has little prospect of success, we will advise you of this from the outset and will always present options in a fair and open manner. Our thorough case preparation and detailed knowledge of the road traffic law may however expose flaws with the Crown case or ensure a viable line of defence is given the best chance of succeeding in Court.


Driving Uninsured

Section 143 of the Road Traffic Act 1988 requires every person who uses, or causes and permits another person to use, a motor vehicle on a road or other public place to have a policy of insurance in respect of third party risks.

You’re at risk of:

  • 6 – 8 Penalty points
  • A financial penalty up to £5,000
  • Disqualification on a discretionary basis

These offences carry an endorsement range of 6-8 penalty points and it should be noted that the Court has the power to disqualify, on a discretionary basis. Increasingly, these cases are proceeding by way of fixed penalty notice with the offer of 6 penalty points and a £300 fine. As this is the very minimum penalty prescribed by law, a driver guilty of an offence under Section 143 of the Road Traffic Act 1988 should be aware that by not accepting the fixed penalty notice, there is a possibility that an increased penalty or disqualification may be imposed by the Courts.

The offence is one of strict liability and although it would appear to be a relatively uncomplicated matter as to whether a breach of the provisions has occurred, experience suggests to the contrary.

Close examination of the terms of the policy is required together with proper consideration of the statutory defence for persons using vehicles in the course of their employment and all other relevant circumstances.

Insurance Policy Clauses
A common form of policy allows driving, with the permission of the insured person, by any person “who holds or has held a driving licence”. This clause can be crucial as it may permit insurance cover even if the person does not, at the time of driving or using the vehicle, hold a valid driving licence.

All too often, the assumption is made that simply because a driving licence is not valid that any associated insurance cover must be negated. This is not the case and proper enquiry should be undertaken to clarify the driving licence condition clause.

There is also a statutory defence for persons using vehicles in the course of their employment. There are three conditions that require to be established for a successful defence under Section 143(3) of the Road Traffic Act 1988:

(a) That the vehicle did not belong to him and was not in his possession under a contract of loan or hiring

(b) That he was using the vehicle in the course of his employment;

(c) That he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance or security.

It is for an accused person to satisfy the Court of all three conditions on the balance of probabilities.

Special Reasons
It is possible for the Court to decide that special reasons exist for not endorsing in respect of an offence under Section 143 of the Road Traffic Act 1988. It should be noted that the concept of special reasons essentially links up to the circumstances of an offence and allows the Court to excuse the offender having regard to a mitigating or extenuating circumstance. This must not, in law, amount to a defence to the charge and must be directly connected to the commission of the offence and be a circumstance that the Court ought properly to take into consideration when imposing sentence.

An honest, but groundless, belief that the policy covered a particular use cannot amount to a special reason. The existence of special reasons is determined on the balance of probabilities. Typically the submissions need to be significantly persuasive in order to persuade the Court to refrain from imposing the usual number of penalty points or disqualifying.


Failure to Identify Driver

If you have been charged with an offence of failing to furnish information or are under pressure from the Safety Camera Partnership and don’t know what to do, we are in a position to help. There are numerous websites out there offering armchair legal advice regarding how to wrangle out of a notice of intended prosecution and we cannot emphasise enough the need for informed legal guidance on this topic.

We exclusively defend motoring prosecutions in Scotland and have built up a considerable reputation and wealth of experience that you can use to your advantage.

Your Obligations Concerning Identifying the Driver
The offence of failing to identify the driver of a vehicle is contained within Section 172(2) of the Road Traffic Act 1988. These provisions state that the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police. The law similarly applies to any other person if required to give information which it is in his power to give and may lead to the identification of the driver.

  • You may receive correspondence demanding information
  • Information requested within a strict time frame
  • You could receive a visit at work or to your home

These are complex legal provisions and the waters can sometimes be further muddied by the conduct of the Safety Camera Partnership and their colleagues in the Police Force. You may receive correspondence demanding information, within a strict time frame, stating that a Police report will be submitted to the Procurator Fiscal for consideration of proceedings under Section 172 of the Road Traffic Act 1988.

You may receive a late night visit from the Police whilst at your home address or indeed the knock may come whilst you are in your place of work. This can be an unpleasant and intimidating experience. Our specialist legal advice will ensure you are properly advised of your legal rights and fully understand what is required of you in the eyes of the law.

A matter that is very rarely raised by the Safety Camera Partnership is the statutory defence contained within the law that states:

a person shall not be deemed to be guilty of an offence under this section if he shows that he did not know and could not with reasonable diligence have ascertained who was the driver of the vehicle.

The correspondence trail will be lodged by the Crown and therefore it is imperative that your reasonable diligence defence is not compromised in any way. We can assist with representations at any stage of the case.

Whether you have just been issued with a Notice of Intended Prosecution or have received your Court citation, you should take specialist advice from a recognised expert in road traffic law.


Failure to Provide Specimen

Road Traffic Act 1988, ss.6(6) and 7(6) – Failure to Provide a Specimen

There are two broad scenarios where a driver, suspected of driving whilst over the prescribed drink drive limit, will be required by a police officer to provide a specimen for analysis.The procedure is valid if the officer reasonably suspects or believes that a person is driving, attempting to drive or in charge of a vehicle whilst under the influence of alcohol or a drug, when the driver has committed a moving traffic offence or when an accident has occurred owing to the presence on the road of the vehicle in question.

Failure of the roadside test, or a failure (which includes a refusal) to provide the test, will result in arrest and a further requirement to provide a specimen at a police station.

The preliminary, more commonly known as the roadside, test is one of breath. This is governed by Section 6 of the Road Traffic Act 1988, and failure to provide attracts a discretionary disqualification and fine, although there is scope for the imposition of 4 penalty points if the circumstances are deemed by the court to be sufficiently mitigated.

Failure to Provide a Specimen Defence
Failure to provide a specimen for analysis (the test administered at a police station) is dealt with by Section 7(6) of the Road Traffic Act 1988, and constitutes the more serious of the two offences.

Obligatory disqualification of a minimum of 12 months applies in cases where the accused was driving or attempting to drive, whilst disqualification is discretionary with an alternative of 10 penalty points where it is established that the accused was simply in charge of the vehicle. The latter scenario is one example of where a specialist solicitor can make the difference as the variation in penalties available when one is deemed to be in charge as opposed to driving the vehicle is significant.

The defence to either of these charges is one of “reasonable excuse”, and it is vital that such a defence be fully investigated and properly presented in court. It may be that the accused was physically or mentally unable to provide the specimen, and this is particularly relevant where a medical issue prevents provision of breath or where fear of needles precludes an ability to provide a blood specimen.

Often the reasons for the refusal are not immediately apparent to the police officers, resulting in a prosecution. The Court will look to take a narrow view of what constitutes a reasonable excuse which makes the fullest defence case essential. A specialist motoring lawyer will be in a position to work with the accused in preparing and presenting such a case.

What you do next
Where a person is charged with contravention of either or both of the offences, advice should be sought from the most authoritative source.

There is a great deal of complex procedure and case law surrounding all aspects of these charges and the representation of an expert road traffic solicitor could be the difference between loss or retention of your driving licence, or between a disqualification and persuading the Court to instead endorse the licence with penalty points.


Failure to Stop/Report

The road traffic legislation in Scotland imposes certain duties on the driver of a motor vehicle when an accident occurs. The basic duties are contained within Section 170 of the Road Traffic Act 1988 and are as follows:

(a) The driver must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner of the vehicle and its registration mark;

(b) If for any reason the driver of the vehicle does not give his name and address, he must report the accident;

(c) To comply with the duty to report an accident under this section, the driver must do so at a police station or to a constable and must do so as soon as is reasonably practicable and, in any case, within twenty-four hours of the occurrence of the accident.

The Courts have always taken a dim view of offences committed under this section of the Road Traffic Act, presumably on the basis that there can be an inference that a driver is trying to get away with something or has something to hide.

Typically, when assessing the seriousness of the offence, Courts will take into consideration whether there was any evidence of drinking, the seriousness of the accident, etc. Corollary to this, the Court should also be advised of any mitigating factors. For example, it is common for a driver to leave the scene of an accident due to fear of retaliation or simply because the accident was so minor that it would be deemed to be a waste of police time to report the matter.


HVG Drivers

Your Licence – Your Livelihood

We are fully aware of the burdens that are placed on HGV drivers and can provide a comprehensive service for drivers on an individual basis or as the chosen representative for your company.

We understand that the avoidance of penalty points can be crucial and have built a formidable reputation defending road traffic cases throughout Scotland. We also believe a preventative strategy can assist drivers and are happy to provide in-house publications on road traffic law in Scotland. We are available to provide educational conferences, upon request, and regularly hold such events as part of our requirement to undertake continuing professional development.

What We can Do for HGV Drivers and HGV Companies
We offer a range of flexible plans, depending upon the size of your Company and number of employees.

We provide 24/7 assistance for all road traffic law enquiries and guarantee a response within 24 hours.

Please do not hesitate to contact us should you wish an informal chat or have a specific query about a road traffic offence.

Michael Lyon Solicitors Limited exclusively represents individuals and Companies charged with motoring offences in Scotland.


In Charge Offences: Drink or Drugs

Road traffic offences in Scotland do not always involve a vehicle in motion. The law recognises the dangers of merely being in charge of a motor vehicle whilst under the influence of drink or drugs by criminalising such conduct. The engine may be off, you may even be fast asleep however the Police will typically charge an individual found in these circumstances with one of the following offences.

Section 5(1)(b) of the Road Traffic Act 1988 creates an offence if a person is in charge of a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. Section 4(2) of the Road Traffic Act 1988 is a linked provision which details a similar offence of being in charge of a vehicle whilst unfit through drink or drugs.

  • Firstly, proper consideration has to be given as to whether the Crown have sufficient evidence to prove that an accused person is in charge of the vehicle in the legal sense. There are a number of relevant factors and ultimately the Court will reach a decision as a matter of fact and degree.
  • Bearing in mind this type of charge arises when a vehicle is not in motion, the prosecution will seek to lead evidence showing an accused is in some measure in de facto control of the vehicle. Evidentially speaking, the task of proving an accused is legally in charge is a relatively easy task for the Crown however if it can be sufficiently demonstrated that control of the vehicle has been surrendered then the case will not make it past the first hurdle.

In a case under Section 5(1)(b) of the Road Traffic Act 1988, namely being in charge of a vehicle whilst in excess of the prescribed alcohol limit, the Police will follow procedures similar to a routine drink drive charge. A roadside breath test will be administered and then, subject to the results, the suspect will be placed under arrest and conveyed to the nearest Police station for testing on the Intoximeter EC/IR.

Technical issues can often arise in these cases when the charge involves a purported lack of fitness to drive.

  • The question for the Court to consider is whether the driver’s ability to properly drive is impaired through either drink or drugs.
  • Prescription drugs are included in this definition and therefore it will not be a defence to the charge to argue that the drugs were of of legal classification.

We are dealing with an increasing number of cases involving so-called legal highs which are used as stimulants and it is important to ensure that expert legal advice is sought in this area.

No Likelihood of Driving Defence
The Crown will normally lead evidence of medical tests in support of this type of charge. There are complicated procedures which require to be followed and, in certain circumstances, we may be in a position to exclude the evidence of an incriminating medical examination in the event the Police fail to properly process an accused.

It is a defence for a person to prove that at the time of the offence,

  • the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

A similar provision exists under Section 4(3) of the Road Traffic Act which creates a statutory defence,

  • in circumstances where an accused can prove there was no likelihood of driving as long as he remained unfit to drive through drink or drugs.

Under normal circumstances, a toxicology report will be required in order to establish the statutory defence. The purpose of the report is to satisfy the Court, on a scientific basis, the time at which an accused’s alcohol levels would have reduced below the prescribed limit. In practice, detailed instruction is required and we would always recommend a contemporaneous record of events is kept in order to assist matters.

The success of the “no likelihood of driving” defence rests, to a large degree, upon credibility.

Careful consideration requires to be given to all the surrounding circumstances in order to exclude any likelihood that the vehicle would have been driven whilst the accused exceeded the prescribed limit. The standard of proof is on the balance of probabilities and, as always, it is essential that this type of case is prepared and stated to the very highest standard.

The statutory defence calls upon an accused to prove a negative, namely that there was no likelihood of driving whilst still unfit or in excess of the prescribed alcohol limit. It may seem harsh that the onus is placed on an accused however the law has developed in such a way as to recognise the dangers and temptations of mixing motor vehicles and alcohol or drugs.

The legal authorities which have tried to bring meaning to the concept of “no likelihood of driving” have, to some extent, struggled with providing a proper definition of this rather nebulous concept. Our considered view on the matter is that the term should not be construed on an absolute basis but rather whether any real risk of driving is present having regard to all the circumstances of the case.

The Court, upon conviction, can either endorse an offender’s licence with ten penalty points or impose a period of disqualification. It is perhaps worth noting that if the Court does not uphold the statutory defence of no likelihood of driving whilst over the prescribed limit or whilst unfit through drink or drugs then, by implication, it is accepting there is a likelihood that an offence under Sections 5(1)(a) or Section 4(2) of the Road Traffic Act 1988 would have been committed had it not been for the intervention of the Police. Accordingly, periods of disqualification are routinely imposed and therefore specialist representation is essential if you value your driving licence.

The Road Traffic Lawyer’s Free Evalution of your Case
We always offer a free case evaluation to assess the prospects of a successful defence. A case can be doomed to fail if, for example, admissions are made which are eloquent of a clear intention to drive. In those circumstances an early plea of guilty may appropriate to secure a reduced penalty in light of the discount the Court can now apply to cases which resolve at an early stage.

Our extensive experience in all matters of road traffic law will ensure that you receive the highest standard of representation with a view to securing the best possible outcome for your case.


New/Young Drivers – The Road Traffic New Drivers Act 1995

The Road Traffic (New Drivers) Act 1995 established a two-year probationary period for newly qualified drivers.

The accumulation of six or more penalty points by a new driver before the end of a period of two years commencing from the date upon which a driver first passed a driving test will result in the revocation of the licence.

The driver effectively reverts back to being a provisional licence holder and will require to pass another driving test in order to restore entitlement to drive.

  • It should be noted that the provisions apply to all drivers who have obtained their first UK driving licence.
  • The fact that a driver has been the holder of a licence in another country, perhaps for decades, is not a relevant consideration.

Do not underestimate the complexity of these provisions. The obvious scenario is when a driver accrues six penalty points relating to offence(s) committed within the two year probationary period. It does not matter that they may fall to be disposed out-with the two years as road traffic legislation tends to operate from date of offence to date of offence. It is clear that these points will lead to the revocation of our new driver’s licence.

Holders of a Provisional Licence
Matters become more complicated when offences have been committed before the grant of a full licence.

  • If an offender receives six penalty points as a provisional licence holder, he is free to sit and hopefully pass his driving test.
  • There is no revocation as the six points were imposed in relation to an offence committed prior to the grant of his full entitlement to drive.

Put simply, there is no licence to revoke at this stage. However, should there be any further indiscretion during the probationary period, then this will trigger the New Driver provisions as the number of penalty points to be taken into consideration exceeds the magic six.

Similarly if a driver receives three points for a minor speeding charge as a provisional licence holder, he has no latitude for any further offences once a full licence is obtained as three more points, within the two year probationary period, will invoke the New Driver provisions.

Disqualification
In the event a disqualification is imposed in relation to a separate offence during the first two years, live penalty points can still lead to revocation notwithstanding the ban as the points stand alone and are counted independently.

The consequences for a new driver facing a revocation can be quite severe. Aside from the obvious difficulty of passing another test, there will be significant insurance implications.

It is already well known that insuring a new driver can be a costly process however these expensive premiums will be significantly enhanced once a driver tries to get back on the road following a revocation.

Michael Lyon Solicitors Limited will always be in a position to provide fixed fee quotations and, in our experience, the cost of employing the Firm will be significantly less that the enhanced insurance premiums which will require to be paid upon revocation. It should also be borne in mind that these costs are often charged over a five year period by insurance companies.

The revocation under the new driver regulations is absolute.

There is no right of appeal and the personal circumstances of a driver are of no consequence.

The only way to avoid a revocation is to challenge the case that risks bringing the new driver regulations into play. Most road traffic cases are dealt with through the fixed penalty procedure.

There is no obligation to accept a fixed penalty. Once the 28 day period expires, then either a further fixed penalty will be issued or the matter will proceed to a formal Court citation. In general terms, proceedings for minor road traffic offences in Scotland require to be commenced within six months from the date of offence. It is important to seek legal advice if you suspect your case has been raised outwith the appropriate timebar as any associated plea to the competency has to be submitted prior to formally entering a plea in connection with the charge.

It is worth noting that errors within the fixed penalty notice itself will not prevent the matter from proceeding to Court. Wrong registration numbers, incorrectly spelt names and addresses, etc., do not matter. The fixed penalty is an alternative to prosecution which, if accepted, will result in the disposal of the case outwith the criminal courts.

The Process
It is a Scottish Court of law that will determine your guilt or innocence. These cases typically involve two Police officers who will give evidence under oath. We are always keen to point out that the evidence of Police officers does not have any special status of credibility. It is always for the Crown to prove their case beyond reasonable doubt and the standard of proof is always weighted in favour of an accused.

Statistically around 200 new drivers every week are subject to revocation under the regulations. The additional financial burden of securing insurance can often shift the balance in favour of electing to go to Court to have the matter judicially determined. Michael Lyon Solicitors Limited regularly represent new drivers in Scotland seeking to avoid revocation and will always seek to represent all our clients to the highest standard.

The future for new drivers looks like involving more regulation and monitoring. The Government is considering extending the probationary period to three years however plan to keep the six point rule. We would therefore suggest that the number of new drivers affected by the regulations will only increase in coming years. With increased monitoring on the roads and Police Scotland’s key performance indicators, new drivers may increasingly find themselves in the spotlight and we suspect our specialist services will be called upon even more in the coming years.

It should be noted that the probationary period comes to an end upon successfully passing the retest and therefore you can only be a new driver once. Unlike the totting-up provisions, the slate is not wiped clean following a revocation and the penalty points which invoked the new driver provisions will, in the normal manner, continue to be live for three years following the date of offence.


Notice Of Intended Prosecution

What is a Notice of Intended Prosecution?
The dreaded Notice of Intended Prosecution (NIP) is often the first indication that you are about to face proceedings for a road traffic offence. The rules are complicated and often misunderstood in terms of their application. The correct legal position is that Section 1 of the Road Traffic Offenders Act 1988 requires that for certain offences either a warning must have been issued at the time of the alleged offence of the possibility of prosecution or that a notice, in these terms, is sent to the driver or registered keeper within 14 days. A Court summons will satisfy the Section 1 requirement although in practice it is very rare for the matter to be so expeditiously raised.

The requirement for a Notice of Intended Prosecution in Scotland extends to a variety of offences including:

  • speeding offences generally (including temporary minimum speed limits) – speeding offences on motorways, temporary speeding restrictions in association with road works
  • dangerous driving
  • careless driving and aiding and abetting the commission of any of these offences.

It should be noted that Section 2(1) of the Road Traffic Offenders Act 1988 specifically exempts the Crown from complying with the NIP requirements if, owing to the presence on a road of the vehicle in respect of which the offence was committed, an accident occurred at the time of the offence or immediately thereafter.

The issue of whether an accident has taken place thereby relieving the Crown of their obligation of notice is a legal point that has found itself in the Appeal Court in Edinburgh on a number of occasions. The facts and circumstances of each case require to be considered individually however it is clear that the definition of what constitutes an accident for the purposes of these provisions is rather widely construed by the Scottish Courts.

  • It is common practice to simply issue the warning verbally at the time of the alleged offence.
  • The service of a Court summons within 14 days will equally satisfy the warning requirements under these provisions.
  • Alternatively a Notice of Intended Prosecution can be sent by post. The legislation details with the various acceptable methods of service.

These are matters which should be meticulously checked as a failure to properly serve the NIP or issue the requisite warning can vitiate the whole proceedings. It should also be noted that the caution and charge, if administered by the Police at the time, is treated as equivalent to a sufficient warning of future proceedings.

Appropriate Warning Example

An inexperienced Police Officer who fails to issue an appropriate warning at the time of an alleged road traffic offence can prevent the Crown from seeking a conviction later in the proceedings if the case is formally prosecuted by the Crown. For example if you are caught speeding on the M74 at 120mph and the Police warn you that you are liable to be prosecuted for a mere speeding offence, the Crown are barred from seeking a conviction in relation to what would arguably be the more appropriate charge of dangerous driving under Section 2 of the Road Traffic Act 1988.

These are technical arguments which are often overlooked or misunderstood by those less experienced in the field of road traffic law.

The Notice of Intended Prosecution, although issued in terms of Section 1 of the Road Traffic Offenders Act 1988, is often accompanied by a request to confirm the identity of the driver at the time it is alleged a road traffic offence has been committed. We are regularly presented with the scenario when there is a degree of dubiety attached to who was driving the vehicle at the time the alleged offence was detected. This can be common on long journeys when parties are sharing the driving or alternatively when there has been a chain of NIPs and a great deal of time has passed since the incident. This is exactly when you will need the help of a specialist road traffic lawyer in order to ensure you are kept on the right side of the law.

Section 172 of the Road Traffic Act 1988 provides for a specific defence in these circumstances, namely that a person shall not be guilty of such an offence, i.e. failing to furnish, if he does not know and could not with reasonable diligence have ascertained who the driver of the vehicle was at the relevant time. It is imperative that you seek sound advice from a reputable specialist motoring offence lawyer as the communications that take place with the Safety Camera Partnership will be logged and may be used in evidence in support of a prosecution under Section 172 of the Road Traffic Act 1988.

Legal Advice from a Specialist in Road Traffic Defence in Scotland
We have developed significant expertise in this area and regularly guide our clients through the NIP procedure to ensure that they stay within the parameters of the road traffic legislation in Scotland. The statutory defence exists for a reason and at times it can feel that a great deal of pressure is being exerted by the authorities in order to get that simple admission regarding who was driving the vehicle. We always take the view that if there is a doubt attached to the identity of driver, further enquiry should be undertaken. In certain circumstances, the photographic evidence held by the Camera Partnership may assist with the identification process. It is worth bearing in mind that knowingly making a false admission in response to a request made under Section 172 of the Road Traffic Act 1988 is an altogether more serious matter. The recent case involving Chris Huhne and Vicky Pryce should serve as a sufficient reminder that the Courts will not tolerate the deliberate circumvention of the provisions under s.172 of the Road Traffic Act 1988.

If you have received a notice of intended prosecution or received a warning that you are liable to be prosecuted for a road traffic offence in Scotland, then you should not hesitate to contact Michael Lyon Solicitors Limited. Written notices of intended prosecution tend to allow for a fourteen day period of grace and it is imperative that proper legal advice is sought at this early juncture.


Penalty Points

It is important to consider the ramifications of previous penalty point endorsements on a driving licence, particularly where there is the danger of disqualification under the totting-up procedure. Section 29 of the Road Traffic Offenders Act 1988 provides for the penalty points that can be taken into account by the court.

Subsection 2 states that offences that have resulted in endorsement of penalty points (such as speeding and careless driving) committed more than 3 years before a new offence are discounted.

The crucial aspect, therefore, is that the date of the offence is relevant for computing the “live” penalty points, not the date of conviction/date of endorsement which is also noted on a driving licence counterpart.

Example
So if a driver has 9 points (by way of three Fixed Penalty matters or, for example, a careless driving or no insurance conviction that has resulted in merely points being imposed) and a new alleged offence is committed 2 years and 51 weeks after the first points were endorsed, then the driver is subject to disqualification under totting-up regardless of when the case is concluded.

Simply delaying the case in court will have no effect. It is resultantly vital that the charge is properly challenged and exceptional hardship argued if necessary. This is where the representation of an expert road traffic solicitor can make the vital difference in avoiding a driving ban.

  • If unfortunate enough to be disqualified under the totting-up provisions, at the end of the ban (usually 6 months) the licence is returned with the penalty points having been removed.
  • After 4 years, penalty points can be completely removed from a driving licence counterpart by returning same to DVLA.
  • So whilst points are counted on the licence for 3 years, the actual endorsement must remain for a further 12 months.

One must also be wary of the rules surrounding offences committed on the same occasion. This is covered by s.28(4) of the 1988 Road Traffic Offenders Act.

The basic principle here is that the court should consider the appropriate number of points to be imposed in relation to each offence, but only order that the highest of these is the number of points endorsed on the licence.

So in a situation where sentence is to be passed on offences of speeding (3-6 points) and driving whilst uninsured (6-8 points) committed at the same time, it is the points attributable to the insurance charge that will be added to the licence. This, of course, is dependent on the court being persuaded to refrain from exercising its discretion to disqualify for either of these offences.

It should be noted that the court does have the power, under s.28(5) of the same provision, not to bind itself by s.28(4) and instead to aggregate the points on all charges. This should only be utilised in exceptional circumstances.

We would always suggest that advice should be sought from a reputable specialist motoring lawyer should you have any query regarding your driving licence or a pending endorsement.


Removal of Disqualification

Road Traffic Offenders Act 1988, Section 42

If you are already subject to a disqualification from holding or obtaining a driving licence, it may be possible to apply to the Court to seek to have the ban lifted early.

The key time limits for such an application are as follows:

(a) After two years, if the disqualification is for less than four years;
(b) One half of the period of the disqualification, if it is for less than ten years but not less than four years;
(c) Five years in any other case;

It should be noted that there is no power to remove a disqualification under Section 36 of the Road Traffic Offenders Act 1988, i.e. a disqualification until a driving test is passed.

The application takes the form of a petition to the original Court where the case was initially heard. Where possible, the petition should be considered by the particular judge who imposed the initial disqualification. If the Sheriff who imposed the ban has since retired or is no longer sitting, then it is perfectly competent for a different Sheriff to hear the petition.

The Process
On the assumption the application satisfies the time-limit criteria, the starting point for the petition is a detailed consideration of the reasons why an applicant should have the disqualification removed. We are always keen to stress that the length of disqualification originally imposed by the Court represents the period of time that the Sheriff intended to put an accused off the road. The basis of the application is not an appeal against sentence. Discounts for early pleas and referrals to rehabilitation courses will have all previously been considered at the original point of sentence. It cannot and should not be argued that the original disqualification was excessive.

In certain circumstances an applicant may be serving an enhanced minimum disqualification for repeat offences. The most common example is where an accused is convicted of a second drink driving offence within a ten year period. It is worth noting that, whilst the minimum period prescribed by law in these circumstances is indeed three years, an application to remove the disqualification early by virtue of the provisions of Section 42 of the Road Traffic Offenders Act 1988 remains to be perfectly competent, i.e. after two years of the original disqualification have elapsed.

Probably the most relevant consideration, in our view, is whether the petitioner has been of good behaviour during the currency of the disqualification. It is unlikely a Sheriff will favourably consider an application where the accused has been involved in further offending. The application becomes very easy to refuse in these circumstances and we would counsel against pursuing a case unless the offence involved is extremely minor or where there are extenuating circumstances surrounding the matter.

Refusal to Remove a Disqualification
Where an application to remove a disqualification is refused, a further application under will not be entertained if made within three months after the date of the refusal. The reality is that if your initial application is unsuccessful, then it is rather unlikely that the decision will be reversed three months later. We prefer to get it right first time around and, for tactical reasons, we do sometimes advise clients to defer their application until more of the disqualification has been served or to a time when the grounds of the application have become more forceful.

Michael Lyon Solicitors Limited only accepts instruction on a private fee paying basis and therefore it is imperative to ensure that the timing of your application is correct to ensure the money you have invested gives you the best return: i.e. the early return of your driving licence.

We would however advise that you contact us around six weeks prior to the application becoming competent. This should allow for sufficient time for your application to be prepared and lodged as close as possible to the expiry of the requisite time limit.

The petition is a legal document which will set out the basis of the application. Similar to exceptional hardship submissions, vouching is crucial for this type of case. If, for example, the petition states that the early removal of disqualification would mean the accused could secure a new job, then letters should be lodged alongside the petition confirming the position in this regard.

The Crown will undertake appropriate enquiry by ordering a Police Report. This report is not just restricted to checking whether an applicant has been of good behaviour and not come to the attention of the authorities following the imposition of the ban. Enquiry is often conducted in relation to the grounds contained within the petition in order to ensure that the basis of the application is truthful and not overstated in any way. A positive Police Report can be a deciding factor for the early removal of disqualification and we always advise clients to fully cooperate with any such enquiry.

Once the petition to remove the disqualification is drafted, approved and lodged with the Court, a hearing will be assigned at which time representations are made to the Court that the application should be granted as craved. We have dealt with a number of restoration of licence cases where the Sheriff has simply granted the application without even wishing to be addressed upon the merits. Never underestimate the importance of a properly drafted petition.

Restoration Hearing
The restoration hearing normally involves legal submissions made by the Crown and Defence. The involvement of the Crown is often limited to simply drawing the Sheriff’s attention to the terms of the Police Report. Thereafter the Sheriff can invite submissions from the petitioner or his legal representative. The final presentation to the Court is crucial to securing a favourable outcome. We have extensive experience with removal of disqualification cases in Courts throughout Scotland and would be delighted to offer our expertise to assist with your case.

Michael Lyon Solicitors Limited will ensure your application is given the best possible chance of succeeding so feel free to contact our office or send an email with the particulars of your proposed restoration of driving licence application. We will always provide free and, more importantly, honest advice about the prospects of securing the early return of your driving licence.


Causing Serious Injury by Dangerous Driving

Road Traffic Act 1988, Section 1A

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.

Serious Injury by Dangerous Driving
This new category of dangerous driving offence was arguably unnecessary however the provision provides for an enhanced range of minimum penalty and the early signs are that the Crown will pursue cases of this nature under solemn procedure.

Unsurprisingly, the dangerous driving penalty as set out in Section 1A of the Road Traffic Act 1988, stipulates that dangerous driving convictions carry an obligatory disqualification, with a minimum period of two years.

If tried on indictment, the maximum term of imprisonment is up to five years.

It seems clear, therefore, that the intention of Parliament is to ensure the Scottish Courts have robust sentencing powers when dealing with cases of bad or objectionable driving which result in serious injury.

It is open to the Court to find a person accused of causing serious injury by dangerous driving guilty of the lesser charges of either dangerous driving or careless driving, contrary to Sections 2 and 3 of the Road Traffic Act 1988 respectively.

There is no requirement for the Crown to issue a warning in terms of s.1 of the Road Traffic Act 1988, commonly referred to as a Notice of Intended Prosecution (NIP). Quite literally, these cases can proceed without warning and it can come as a major shock to receive a letter from the Crown advising that there is a petition warrant outstanding for a charge of this nature.

The charge has two key elements: dangerous driving and serious injury. The legal authorities and the twin test under Section 2A of the Road Traffic Act 1988 are equally applicable to the new provisions. It is also worth noting that if it is considered obvious to a competent and careful driver that driving a vehicle in its current state would be dangerous, then this would also satisfy the legal test. Thereafter the Court will consider the causal link and whether the injuries sustained as a direct result of the driving can be categorised as serious. Whether a driver intended to cause the resultant injuries is not a relevant consideration.

It remains to be seen how the Courts deal with this new provision.

Michael Lyon Solicitors Limited are already instructed in a number of these cases and understand the importance of ensuring clients receive the highest standard of legal representation for prosecutions under Section 1A of the Road Traffic Act 1988 in Scotland.


Special Reasons

Section 34(1) Road Traffic Offenders Act 1988

The Road Traffic Offenders Act 1988 makes provision, in certain circumstances, for the Court to refrain from disqualifying in respect of an offence carrying obligatory disqualification or to refrain from endorsing a licence in respect of an endorsable offence. The provisions also permit the reduction of a statutory minimum period of disqualification in circumstances where special reasons have been upheld.

Special reasons should relate to the offence itself rather than the personal circumstances of an accused.

The consequences of a period of disqualification, for example loss of employment, etc., are not relevant to special reasons submissions and this type of argument should be presented under the exceptional hardship provisions.

The best way to understand the definition of special reasons in Scotland is to view the concept as a mitigating or extenuating circumstance which falls short of an absolute defence. An accused is not precluded from arguing that the circumstances of the alleged offence constitutes a full defence to the charge and then, in the event the Court makes a finding of guilt, presenting the circumstances as a special reason with a view to securing a reduced disposal. Often there is a degree of overlap between special reasons and defences presented to the Court in connection with road traffic matters.

The onus is on the accused to establish special reasons on the balance of probabilities.

Common examples which Michael Lyon Solicitors Limited have successfully argued in Scottish Courts relate to cases involving medical emergency, laced drinks and, perhaps the most common, when a driver seeks to rely upon an assurance from the owner of a vehicle that an appropriate policy of insurance is in force. The imminent threat of violence or injury can also allow serve to exculpate a driver when a vehicle has been driven in illegal circumstances. It is important to note that the driving involved cannot continue beyond the time at which the danger ceased to exist. This type of argument can be presented under the defence of necessity and, if unsuccessful, then under the special reasons provisions.

The current readiness of Police Scotland to issue fixed penalty tickets without giving full consideration to all the surrounding circumstances can create some remarkable instances of special reasons.

We recently represented an accused who was charged with speeding whilst transporting his heavily pregnant wife to the maternity unit. Notwithstanding the clear urgency of the situation, the Police found the time to issue a fixed penalty notice whilst the poor passenger was suffering extreme labour pains. We are happy to report that the case was eventually deserted when the matter was cited for Court.

Whether the Court is persuaded to uphold a special reasons submission will depend upon a number of factors. The most obvious is that the reason to be adduced must not, in law, amount to a defence to the charge and must be directly linked to the commission of the offence. A distinction requires to be drawn between circumstances that relate to the offender and those that relate to the offence. It is this latter category that is relevant to a special reasons submission.

Special reasons have always been narrowly construed by the Courts in Scotland as they effectively excuse the commission of a road traffic offence by way of removing the associated penalty of endorsement or disqualification. These cases proceed in a similar manner to a criminal trial and evidence should be lead in support of the special reasons submission. The Court needs to be satisfied on the balance of probabilities and the exercise of discretion in favour of an accused should only be exercised in clear and compelling circumstances.

The Outcome of a Successful “Special Reasons” Submission

Concerning Points
If a special reasons submission is to be argued in respect of an offence that involves obligatory endorsement, then, if successfully argued, the Court will refrain from endorsing the driving licence with any penalty points. It cannot impose a lesser number of points and it is therefore an “all or nothing” situation.

Concerning Disqualification
It should be noted that where the offence involves obligatory disqualification the position is somewhat different on the basis it is open to the Court to either refrain from imposing a period of disqualification or reduce the length of the appropriate driving ban. The Court’s decision will be influenced by the substantive offence and the associated merit of the special reasons submission.

There is a difficult balance to be struck between various competing interests when a Court comes to consider a special reasons submission. Public safety concerns are key. The Court may be reluctant to excuse a drink driver from punishment unless the special reason connected to the commission of the offence is particularly pressing. The Court will always look to alternative options open to an accused. The majority of road traffic offences in Scotland involve the physical act of driving and, if there was an alternative open to an accused, for example the emergency services, or the situation lacked the requisite degree of urgency, the Court will not be easily persuaded to uphold a special reasons submission.

Contact a Specialist Road Traffic Offence Solicitor
There is an abundance of case law surrounding the treatment of special reasons by the Scottish Courts and our knowledge and expertise in this area can make the difference between a successful special reasons submission and a lengthy period of disqualification. It is also of note that English cases can be relied upon on a persuasive basis and we have access to comprehensive legal databases which will ensure that any supporting case law from throughout the UK will be sourced and relied upon in support of your proposed special reasons submission.

These are defence orientated laws and our specialism in defending motoring prosecutions in Scotland could be the key to unlocking these provisions to your advantage. Michael Lyon Solicitors Limited always provide free initial advice and would be delighted to assess your prospects of successfully arguing special reasons within the Scottish Courts.


Speeding Offences in Scotland

This is our particular area of expertise. We have successfully defended speeding cases nationwide and have provided advice and representation in relation to thousands of alleged speeding offences throughout Scotland. Whether you have read about our cases in the press or been recommended by a friend, Michael Lyon Solicitors Limited are recognised throughout Scotland and beyond as being true experts in this field.

Our Track Record
We are proud to boast that we have successfully defended speeding cases in Scotland that have involved every single type of speed measurement device that Police Scotland currently deploy.

From VASCAR to the Unipar SL700, the Lti 20-20 to the Prolaser III, we continue to secure acquittals in speeding prosecutions throughout Scotland.

Any piece of technology can fail all by itself or with some help from an inept operator.

The Firm has successfully defended hundreds of speeding prosecutions based on evidence obtained from a Unipar SL700.

Some common examples have included:

  • Failure to properly perform the necessary accuracy checks;
  • Lack of training and qualifications to operate device;
  • Out of date calibration certificates;
  • Improper usage of the Unipar at the time of detection.

We always seek to reserve the nature of our defences as short-term publicity will endanger our current and future client base. Such discretion however has been sadly lacking throughout the rest of the legal profession and a speeding trial in Scotland is now an entirely different prospect than it was ten years ago.

There was a time, in certain jurisdictions in Scotland, where Michael Lyon Solicitors Limited could virtually guarantee an acquittal for speeding prosecutions. Of course, we never would offer such a guarantee however it is important to note that the standard of prosecution for speeding offences in Scotland has dramatically improved over the last decade. A number of factors have contributed to this however the only important point to note is that the Crown are generally much better informed and capable when conducting speeding trials.

We continue to secure acquittals for clients charged with speeding on a weekly basis. These cases can still be successfully challenged and the Crown continue to make mistakes and fail to state their case to the required standard.

It is our reputation that ensures we continue to represent clients charged with speeding in every imaginable jurisdiction in Scotland and that we secure results in a professional and discreet manner.

Our selection of testimonials provides a brief snapshot of our recent successes and should give a flavour of the level of expertise you should expect from Michael Lyon Solicitors Limited.

We opened our Dumfries branch office in 2012 to deal with the increasing number of speeding and other road traffic related cases dealt with by Dumfries and Lanark Justice of the Peace Courts.

The M74 has long been a hotspot for generating speeding prosecutions and Michael Lyon Solicitors Limited are very well placed to provide advice and representation for any speeding offence originating from Dumfries and Galloway. Our Dumfries office is situated directly across from Dumfries Sheriff Court and we are always happy to offer free advice over the telephone or arrange a consultation to discuss matters directly. Our local knowledge of Dumfries and Lanark Justice of the Peace Court will ensure the advice you receive is accurate and specific to the jurisdiction within which your speeding case or other road traffic charge is being prosecuted.

Speeding Charges Totting Up
We are increasingly receiving formal instruction to defend speeding cases from individuals who, whilst not at risk of disqualification, consider the possible avoidance of a further three penalty points on a driving licence as a worthwhile expense. This is typically true of the high mileage driver with six live penalty points who does not relish the prospect of driving whilst subject to nine points. Please see our section on totting-up and exceptional hardship if you are already in this precarious position.

We have even represented an individual who had been flashed by four separate cameras in the space of six minutes.

Unfortunately this is not as unusual as one would hope. In the event you have received a number of road traffic offence citations within a short period of time, do not despair: seek our expert road traffic advice at the earliest juncture to maximise the prospects of retaining your driving licence.

What can the Court Do?
A conviction for speeding in Scotland can lead to:

  • the imposition of three to six penalty points.
  • The Court also retains the power to disqualify, on a discretionary basis, in circumstances where the alleged speed is deemed to be so grossly excessive.

Historically, District Courts within Scotland did not have the power to disqualify although a shake up of the system means that this has all changed. Unless the alleged speed is so excessive that it is within the realms of dangerous driving, it is most likely that your speeding prosecution will take place in one of the various Justice of the Peace Courts within Scotland.

The vast majority of speeding cases that we defend involve individuals at risk of disqualification, either by virtue of the totting-up provisions or as a result of grossly excessive speed. As a very general rule of thumb, if you have received a citation for speeding in Scotland detailing speeds of 30mph in excess of the relevant limit then a period of disqualification will be within the Court’s contemplation. Please be aware that the percentage over the speed limit is also a consideration for the Court. We have successfully defended cases involving alleged speeds over 120mph. We have also secured acquittals where the alleged speed is in excess of the applicable speed limit by over 100%.

Whether you opt to defend your speeding charge or tender a plea of guilty will largely be guided by your prior endorsement history and the level of speed libelled within the complaint. Sentencing policy in Scotland now dictates that the level of endorsement or length of disqualification can be discounted in cases where an early plea of guilty has been entered. This discount in sentence can often be crucial and our specialist knowledge of how each different jurisdiction treats speeding offences can ensure your case is directed in a manner that ensures the best possible outcome is achieved.

If you have received a notice of intended prosecution or a formal Court citation for speeding in Scotland, it is imperative that expert representation is sought at the earliest possible juncture.

We are the chosen representatives for legal Firms all over the United Kingdom. We are regularly contacted to contribute opinions on television, press and radio in relation to matters of current interest in the field of Scottish road traffic law. We are online consultants for specialist websites, such as pepipoo.com which are dedicated to the finer points of speeding trials, and an invited member of the Association of Motoring Offence Lawyers.

The initial legal advice provided by Michael Lyon Solicitors Limited is always free.


Tachograph Offences

These offences typically involve the legal requirements for drivers’ hours and records and are, without exception, always complicated cases. Whilst the law in the UK is governed primarily by Part VI of the Transport Act 1968, the application of EC Law means that the rules relating to tachograph offences are detailed and voluminous.

It is essential to obtain specialist legal advice if you have been charged with a tachograph offence.

These cases demand significant research and consideration due to the complexity of the associated rules and derogations. It is also, like any criminal offence, for the Crown to prove beyond reasonable doubt and this is obviously where our specialism can make the difference.

A breach of the drivers’ hours and records provisions do not involve penalty points or disqualification although can have far reaching effects on an operator and therefore if your business is on the line then we can help ensure that the matter is fully investigated and that all possible lines of defence are explored. Financial penalties can often run into the thousands due to the fact that tachograph offences, when investigated by VOSA, tend to result in the service of a complaint which libels multiple tachograph offences.

In our experience, our fixed fee service offers excellent value for money when weighed up against the potential financial penalties which are regularly imposed by the Courts in Scotland for tachograph offences.


Taxi and Private Hire Licence Service

Applications and Renewals
As a taxi and private hire driver you require to be licensed by your local authority.

Each local authority has different criteria and different procedures in the granting and renewal of licences.

Our expert solicitors will be able to guide you through what can often be a complex area of law.

The process is formal and licence holders or those applying for a licence or renewal appear before the Licensing Board.

The Licensing Board sit as a Court and they follow the same protocols as in a criminal court. The Licensing Board sit as Judges (there are up to 12 Judges in each case) to determine the merits or otherwise of your application. There is a Clerk who calls each applicant forward for their application to be heard. If there have been objections or representations made to the Board then these will be read out in Court.

In our experience, the majority of the objections or representations are made on behalf of Sir Stephen House, Chief Constable of Police Scotland. The Police would then read out the nature of their objections – e.g. based on previous criminal convictions; driving offences; and pending future cases.

Often, the information that is supplied by Police Scotland is legally incorrect and requires expert legal expertise to properly disseminate legal fact from legal fiction.

There are several procedural rules which must be followed. Adherence to these rules and an understanding of their importance can have a significant bearing upon the final outcome of your application for licence or renewal.

To be successful in persuading the Board to grant or renew your licence, you must demonstrate that you are a fit and proper person to hold a taxi licence. This is a multi-layered process and normally requires that you address the Board in public demonstrating why any observations and/or objections from Police Scotland can be overcome. You must be thoroughly prepared, provide documentary evidence in advance of the hearing and have the legal knowledge to anticipate areas of challenge and how these areas can be overcome.

As road traffic specialists with an in-depth knowledge of these matters, we can guide you through the entire process and ensure that you have the best possible chances of success.

Complaints Against You By Passengers or Other Drivers
Complaints made about taxi drivers and private hire drivers are investigated by the Taxi and Private Hire Enforcement Unit.

The Taxi and Private Hire Enforcement Unit is a civilian law enforcement unit, empowered by virtue of the Civic Government (Scotland) Act 1982. The Unit is both pro-active and re-active. This means that they act on their own initiative and also investigate complaints from passengers and other drivers.

Typically, the types of matters that the Taxi and Private Hire Enforcement Unit deal with are:

  • Complaints
  • Inspections (Roadside)
  • Joint and Multi-Agency Exercises
  • Licence Application Audits
  • Licence Holder Responsibilities
  • Licensing and Regulatory Committee
  • Taxi Fare Tariffs
  • Taxi Meter Evaluation
  • Topographical Tests

The most common cases that we come across are:

  • Situations where a private hire driver has been observed giving a friend a lift home
  • Drunken passengers complaining of over-charging
  • Drunken passengers complaining of not being taken to their destination
  • Drunken passengers not paying their fare and being taken to the local police station

All of these situations can be reported to the Licensing Board and viewed negatively and ultimately lead to the suspension or revocation of your licence.

In such situations, a meeting is convened by most of the same members of the Board. This often takes place in a conference room and you have to make representations to the Board in front of the police and other drivers awaiting their cases. It is akin to a criminal trial where the Board makes a decision based upon their view of the evidence before them on a balance of probabilities.

In these situations, it is crucial that you are fully aware of your rights and the process involved.

Ultimately, you want to keep your licence as it is your livelihood.

As road traffic specialists with an in-depth knowledge of these matters, we can guide you through the entire process and ensure that you have the best possible chances of success.

Appeals Process
In order to appeal a decision of the Licensing Board you must obtain a Statement of Reasons. Thereafter, you must submit the Statement of Reasons along with your appeal to the Sheriff Court in the jurisdiction of which the Licensing Board is based. The appeals process can be complicated and it is advisable to use a solicitor in these circumstances to ensure that your appeal is in the correct form and has the best possible chance of success.

Fees
In relation to each of the above we offer a fixed-fee service.


Taxi Drivers

The combination of time spent on the road and what feels like ever-increasing surveillance puts the taxi driver into a high risk category.

We are here to help and can provide 24/7 assistance on any matter of road traffic law in Scotland. Our initial advice is always free and can make the difference.

Join the Growing Ranks of Taxi Firms throughout Scotland that Use our Services
We are already the chosen representative for a number of taxi companies in Scotland and are looking to spread the word. We are approached too often by individuals who are unaware that there are lawyers out there who specialise in motoring law. The market place is growing as more Solicitors gravitate towards road traffic law and we are delighted that such interest has been generated in this particular field. We are hopeful this will increase awareness of the benefits of a specialist service.

Whether you wish to avoid a further three penalty point endorsement or are at risk of disqualification, we are in a position to help. We can provide clear fixed fee quotations for representation or alternatively you may wish to check the terms of your insurance policy as legal expenses cover may be available, subject to terms and conditions.

Spread the word within the taxi driving community, we will have successfully defended some of you before. You may have heard us on the radio. You may have read about us in the paper. Now you know where to find us.

Feel free to call us at any time as we are confident that after one simple conversation you will realise the extent of our specialism.


Totting Up / Exceptional Hardship

One of the most common forms of disqualification imposed by the Courts in Scotland relates to the accumulation of penalty points for repeat offences. Section 35 of the Road Traffic Offenders Act 1988 requires where a person is convicted of an offence involving endorsement and the number of penalty points to be taken into account number twelve or more, the Court must order him to be disqualified for the minimum period, namely six months if there is no previous disqualification to be taken into account.

This minimum period is increased according to the number of applicable previous disqualifications to be taken into account, one year if one, and two years if more than one.

Exceptional Hardship
The Court can refrain from imposing a totting up disqualification or reduce the minimum period if, having regard to all the circumstances, that there are grounds for mitigating the normal consequences of the conviction and thinks fit to order him to be disqualified for a shorter period or to not order him to be disqualified.

This is typically referred to as exceptional hardship or mitigating circumstances. It should be noted that the Road Traffic Offenders Act 1988 specifically excludes submissions based on circumstances that are alleged to make the offence not a serious one, hardship, other than exceptional hardship, and similar arguments that may have been presented to the Courts in the preceding three years.

Before embarking upon an exceptional hardship submission, careful consideration should be given to the terms of Section 37(1A) of the Road Traffic Offenders Act 1988 which permits the Court to impose a short term ban in appropriate circumstances. Such a disqualification is for a fixed period shorter than 56 days which will circumvent the totting-up provisions. The attitude to short term bans varies widely throughout Scotland and our expertise and judgment will ensure the right submission is chosen to ensure the best possible result is obtained.

Positive Outcomes
There has however in recent times been a greater acceptance that short term disqualifications can offer an alternative to a six month disqualification where the circumstances relating to the accused fall short of being truly exceptional. In a totting-up scenario, we always advise clients that any disqualification less that six months can be considered as positive.

It should be noted that in the event the Court is persuaded to impose a short term period of disqualification, your driving licence will not be wiped clean by virtue of this type of ban on the basis that the disqualification is imposed with reference to that individual offence rather than on a cumulative basis for repeat offending.

A successful exceptional hardship submission can in Scotland result in a driver retaining his licence whilst subject to 12 or more points. We have dealt with cases where our clients have continued to driving whilst subject to 20 penalty points.

The key to these cases is preparation and presentation. If you are facing a totting-up scenario, proper consideration needs to be given to the probable consequences and thereafter we can advise whether there is an arguable exceptional hardship case or whether it would be more pragmatic to request a short period of disqualification.

Exceptional hardship must be found in order to entitle the Court to disqualify for less than the minimum period prescribed by law. Clearly, the more persuasive the submission, the greater the reduction in the period of disqualification. For the Court to refrain from imposing a disqualification, a strong and cogent argument needs to be presented to the satisfaction of the Court.

Get Legal Advice from a Specialist Road Traffic Defence Solicitor
A vast amount of legal authority has developed over the years and our specialist knowledge of road traffic law in Scotland will maximise your prospects of successfully persuading the Court to refrain from imposing a totting up disqualification.

In order to be persuasive, all submissions should have sufficient vouching and witnesses should be called to give evidence in support of the defence argument. In our experience it normally takes around two months to properly prepare a case for proof and the Court will always permit reasonable continuations to ensure sufficient preparatory time is afforded.

Scotland has always adopted a strict approach to interpreting the provisions relating to exceptional hardship and our counterparts the other side of Hadrian’s Wall do appear to have adopted a rather more liberal approach. Whilst the hardship that would ensue following a disqualification from driving may feel exceptional, for example redundancy and loss of family home, Courts in Scotland have always been more interested in third party hardship. That said, we are aware that the current economic climate is a relevant consideration and the High Court in Scotland have specifically ruled that the credit crunch and associated difficulties are matters which can properly be considered within the realms of exceptional hardship.

The Court will also give consideration to submissions based on compassionate grounds where the driving licence allows an accused to properly care for a dependant family member.

Whilst we are always keen to point out that the term “exceptional” is interpreted by the Courts as something out of the ordinary, the standard is by no means unattainable and it is very much for the Court at first instance, typically a Justice of the Peace Court, to consider the evidence and make an appropriate ruling.

The legal authorities are clear that no hard and fast rules exist in this area and the success of any submission will always depend upon how the hearing plays out in Court.

Our skilled advocacy and experience in this field can make the difference between success and failure.

Another interesting line of submission relates to cases where the hardship extends beyond the term of the disqualification. Good examples include:

  • Professional drivers who may struggle to obtain future employment, perhaps due to age or insurance implications.
  • It can also be argued that the loss of employment of a highly skilled employee can result in exceptional hardship on the premise that the Company or employer would suffer commercial consequences. This is often referred to as loss of employment of an irreplaceable employee.

It is important to note that the Court should not use too high a test when considering this type of submission and the appropriate standard of proof is on the balance of probabilities.

Our testimonial section details a small selection of the hundreds of exceptional hardship proofs we have conducted over the years. Michael Lyon Solicitors Limited will ensure that your case is presented with direction and vigour and our specialist knowledge of road traffic law in Scotland will give the best possible chance of persuading the Court to decide in your favour.


Applicable Penalties

The penalty upon conviction, unless special reasons against endorsement exist, is endorsement of the driving licence with 3 penalty points, and associated financial penalty. A Court also has the power of discretionary disqualification available.

By dint of the applicable penalty prescribed by law, the majority of allegations of contravening s.36 will commence by way of Conditional Offer of Fixed Penalty of 3 penalty points and £100 fine. This represents the minimum penalty prescribed by law with the Fixed Penalty either offered by the police when the driver is spoken to or in a more formal manner by the Crown Office and Procurator Fiscal Service, or a combination of both. If the conduct described is denied, then the Fixed Penalty should be put to one side.

Non-acceptance of such an offer is the means by which indication is given that the charge is to be subject to challenge; the Crown will thereafter, in the likely event that a decision is made to prosecute, raise and forward to the accused the relevant court citation intimating a court diet at which the he or she will require to submit a plea of either guilty or not guilty.

This procedure may be truncated in a situation where the Crown is aware that the driver in question already has 9 or more live penalty points on the driving licence. Here, no Fixed Penalty can ever be accepted owing to the driver being subject to potential disqualification under the “totting-up” provisions, with the likelihood being that the matter would proceed straight to court citation.

A prosecution under this legislation is one of the select few types of offence in Scotland that formally dispense with the need for corroboration of the essential facts and allows that an accused may be convicted on the evidence of only one witness. Section 21 of the Road Traffic Offenders Act 1988 refers.

A number of technical measures require to be followed before a traffic sign complies with the Road Traffic Act and thus becomes the type where contravention renders a driver subject to prosecution. The sign requires to be:

  • of the prescribed size,
  • colour and type,
  • and lawfully placed on or near a road

“Lawfully placed” effectively means that it gives an indication of a statutory prohibition, restriction or requirement, and also one that is properly established by the legislation. Moreover, a reverse onus of proof exists in these cases as a traffic sign will be deemed to be compliant unless the contrary is proved. This means that it is for the Defence to show that a traffic sign is illegal, not for the Crown to prove that it is.

Crucially, a traffic sign must conform exactly to the description given to it in the regulations that govern such matters. Principally, these are contained within the Traffic Signs and General Directions 2002. The signs that apply are myriad, and include the usual directions such as “Stop” and “Give Way” to solid white, directional arrows and zig-zag lines painted on the carriageway. Temporary signage conferring restriction owing to the presence of, for example, road works, is also likely to be covered by the provisions.

A trivial departure from what is required under the 2002 Regulations is not something that will be entertained by a Court as the basis of acquittal for a prosecution under section 36. However, if any defect is more material, if it results in a driver being misled or misinformed as to the intention or purpose of the traffic sign, then if properly investigated, prepared and presented the error may amount to a defence.

At Michael Lyon Solicitors, as the years have passed we have successfully defended innumerable such cases in this particularly complex area of road traffic law. It is instructive to note the often fundamental errors that are made by the authorities in erecting and maintaining proper signage which only comes to light after our expertise has been applied to the situation. Who this doesn’t assist, of course, are the many motorists who may have previously been wrongly convicted, accepted needless endorsement of their driving licence or even served a period of disqualification as they have not first sought out the input of a true specialist.

We have uncovered instances where:

  • whole lengths of lowered speed limits on motorways and dual carriageways have been invalid (and therefore effectively reverting to the statutory 70mph) owing to incorrectly sized signage that is only present on one side of the carriageway,
  • improper lighting or use of reflective material on terminal or repeater signage.
  • A sign indicating “No Right Turn” that was completely obscured by scaffolding on an adjacent building
  • Illegible road markings. In the former instance, the obvious defect did not stop the police from stationing a patrol car on the one-way street to catch and prosecute any unsuspecting, innocent, motorist.

In defending all manner of road traffic prosecutions the length and breadth of Scotland, and ensuring that we remain to truly specialise in this area by virtue of the fact that we deal with no other type of case, we have the knowledge and experience to ensure that proper, honest advice is given to allow anyone facing the prospect of prosecution for failing to obey the instruction of a road traffic sign make the right choice in how to deal with their case.


Traffic Signs

Applicable Penalties
The penalty upon conviction, unless special reasons against endorsement exist, is endorsement of the driving licence with 3 penalty points, and associated financial penalty. A Court also has the power of discretionary disqualification available.

By dint of the applicable penalty prescribed by law, the majority of allegations of contravening s.36 will commence by way of Conditional Offer of Fixed Penalty of 3 penalty points and £100 fine. This represents the minimum penalty prescribed by law with the Fixed Penalty either offered by the police when the driver is spoken to or in a more formal manner by the Crown Office and Procurator Fiscal Service, or a combination of both. If the conduct described is denied, then the Fixed Penalty should be put to one side.

Non-acceptance of such an offer is the means by which indication is given that the charge is to be subject to challenge; the Crown will thereafter, in the likely event that a decision is made to prosecute, raise and forward to the accused the relevant court citation intimating a court diet at which the he or she will require to submit a plea of either guilty or not guilty.

This procedure may be truncated in a situation where the Crown is aware that the driver in question already has 9 or more live penalty points on the driving licence. Here, no Fixed Penalty can ever be accepted owing to the driver being subject to potential disqualification under the “totting-up” provisions, with the likelihood being that the matter would proceed straight to court citation.

A prosecution under this legislation is one of the select few types of offence in Scotland that formally dispense with the need for corroboration of the essential facts and allows that an accused may be convicted on the evidence of only one witness. Section 21 of the Road Traffic Offenders Act 1988 refers.

A number of technical measures require to be followed before a traffic sign complies with the Road Traffic Act and thus becomes the type where contravention renders a driver subject to prosecution. The sign requires to be:

  • of the prescribed size,
  • colour and type,
  • and lawfully placed on or near a road

“Lawfully placed” effectively means that it gives an indication of a statutory prohibition, restriction or requirement, and also one that is properly established by the legislation. Moreover, a reverse onus of proof exists in these cases as a traffic sign will be deemed to be compliant unless the contrary is proved. This means that it is for the Defence to show that a traffic sign is illegal, not for the Crown to prove that it is.

Crucially, a traffic sign must conform exactly to the description given to it in the regulations that govern such matters. Principally, these are contained within the Traffic Signs and General Directions 2002. The signs that apply are myriad, and include the usual directions such as “Stop” and “Give Way” to solid white, directional arrows and zig-zag lines painted on the carriageway. Temporary signage conferring restriction owing to the presence of, for example, road works, is also likely to be covered by the provisions.

A trivial departure from what is required under the 2002 Regulations is not something that will be entertained by a Court as the basis of acquittal for a prosecution under section 36. However, if any defect is more material, if it results in a driver being misled or misinformed as to the intention or purpose of the traffic sign, then if properly investigated, prepared and presented the error may amount to a defence.

At Michael Lyon Solicitors, as the years have passed we have successfully defended innumerable such cases in this particularly complex area of road traffic law. It is instructive to note the often fundamental errors that are made by the authorities in erecting and maintaining proper signage which only comes to light after our expertise has been applied to the situation. Who this doesn’t assist, of course, are the many motorists who may have previously been wrongly convicted, accepted needless endorsement of their driving licence or even served a period of disqualification as they have not first sought out the input of a true specialist.

We have uncovered instances where:

  • whole lengths of lowered speed limits on motorways and dual carriageways have been invalid (and therefore effectively reverting to the statutory 70mph) owing to incorrectly sized signage that is only present on one side of the carriageway,
  • improper lighting or use of reflective material on terminal or repeater signage.
  • A sign indicating “No Right Turn” that was completely obscured by scaffolding on an adjacent building
  • Illegible road markings. In the former instance, the obvious defect did not stop the police from stationing a patrol car on the one-way street to catch and prosecute any unsuspecting, innocent, motorist.

In defending all manner of road traffic prosecutions the length and breadth of Scotland, and ensuring that we remain to truly specialise in this area by virtue of the fact that we deal with no other type of case, we have the knowledge and experience to ensure that proper, honest advice is given to allow anyone facing the prospect of prosecution for failing to obey the instruction of a road traffic sign make the right choice in how to deal with their case.


Mobile Phones

Section 41D of the Road Traffic Act 1988

Michael Lyon Solicitors Limited conduct criminal trials involving prosecutions for drivers accused of using mobile telephones on a weekly basis. It will be noted from our testimonial section of our website that we have a formidable track record for securing acquittals in mobile phone prosecutions in Scotland. We have been instructed in a number of high profile cases and pride ourselves on our detailed and forensic approach to the defence of mobile telephone prosecutions in Scotland.

The legislation covering the use of mobile phones is another example of how the law can struggle to cope with technology. Historically, the use of a mobile phone would have come within the terms of the Road Traffic Act, Section 3, namely careless driving, although the creation of a specific statutory offence was considered appropriate and has been in force since 2003.

The provisions most commonly relied upon by the Crown provisions are detailed as follows:

Mobile telephones

110. (1) No person shall drive a motor vehicle on a road if he is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4).

(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4).

(3) No person shall supervise a holder of a provisional licence if the person supervising is using

(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4), at a time when the provisional licence holder is driving a motor vehicle on a road.

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.

(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention

(a) he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;

(b) he is acting in response to a genuine emergency; and

(c) it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).

(6) For the purposes of this regulation

(a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;

(b) a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);

(c) “interactive communication function” includes the following:

(i) sending or receiving oral or written messages;

(ii) sending or receiving facsimile documents;

(iii) sending or receiving still or moving images; and

(iv) providing access to the internet;

(d) “two-way radio” means any wireless telegraphy apparatus which is designed or adapted

(i) for the purpose of transmitting and receiving spoken messages; and

(ii) to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and

(e) “wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(3).”

A device is deemed to be hand-held if it is actually held or must be held at some point during the course of performing an interactive function. This concept includes making or receiving a call, sending or receiving a text, surfing the internet etc.

In cases where the Crown are not in a position to prove usage of a mobile phone whilst driving, then Section 41D(a) of the Road Traffic Act 1988 creates a linked offence as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or causing and permitting such an offence. This charge would be appropriate in cases where a driver is distracted by something, such as a mobile telephone or even the car stereo, thereby affecting his ability to control the vehicle.

We often receive calls from clients involving scenarios where the proposed line of defence relates to the vehicle being stationary at a set of traffic lights. It should be noted that, from a legal perspective, you are still deemed to be driving even though your vehicle may not even be in motion.

Often the most damning evidence in a mobile telephone prosecution relates to replies made to charge and caution. There is often very little we can do in the event in the event usage is admitted at the time. The classic case of answering a call to say that you will call back because you are driving will not dissuade the Police from issuing a fixed penalty for a mobile phone offence and indeed will make your case very difficult to defend once the matter is cited to Court.

The penalties upon conviction for using a mobile telephone or similar device whilst driving in Scotland involve an obligatory endorsement of three penalty points and the Court retains the power of discretionary disqualification.

The presumption of innocence is not a myth. The Crown in Scotland require to prove that you you were using a mobile telephone or similar device whilst driving beyond reasonable doubt. Should there be any doubt, then the Court is obliged to make a finding of not guilty or not proven. If you have received a fixed penalty notice or Court citation for an offence relating to the use of a mobile telephone or other device whilst driving, call Michael Lyon Solicitors Limited for expert advice and assistance.