Lack of judgement about your speed, coupled with a lack of judgement about your ability to communicate, could cost you your licence.

My working environment, the courtroom, is an artificial place. The rules and customs there are known only to the initiated. To an outsider, it is a mysterious place loaded with associations of fear, and judgement, where people come to be ‘punished’ for their misdeeds. Why then, I ask myself, would a person whose business depends on their driving licence, not seek professional legal counsel when so much is at stake, and instead choose to represent themselves? Unfortunately, most come before the court without even realising that their licence is in jeopardy, and compound this with over-confidence — by possessing an inflated opinion of their ability to communicate in this unforgiving environment.

On a bright spring morning, I sat at the back of the Magistrates’ court and watched apprehensively as men of some standing in business came before the court, like lambs to the slaughter. Having exceeded the speed limit by margins which would have been impressive in a business context, these men pleaded to keep their driving licences. Out of their depth and their comfort zone, they stumbled over their words, and advanced unnecessary and irrelevant facts to the court. The only defendant who was professionally represented that morning was my client; her speed was the highest recorded, and she received the lowest penalty!

Sentencing Guideline Council

The Magistrates’ Court Sentencing Guideline is a document to which the Magistrates’ defer when deciding on appropriate sentences. All speeders should be aware of this document. The guide can be found at http://sentencingcouncil.judiciary.gov.uk/docs/MCSG_complete_version.pdf. Page 131 relates to speeding. I have reproduced the schedule below.  Find the speed limit on the left hand column, then look across to your recorded speed, then to the bottom of that column where you will find the range of penalties. See how many speeding offences attract disqualification!

Communication

Communication is an art; most people, and this includes many lawyers, think it a skill they actually possess by virtue of the ability to talk! But believe me, it is an art form — almost as subtle as Harry Potter’s Defence Against the Dark Arts class!  Many lawyers are brought up on a healthy dose of ‘Moots’ where they are required to stand in front of their peers and a judge, and argue a legal point. This exercise is an attempt at grasping the basic principles of this subtle art form. Unfortunately, talking ‘at’ at audience is not communicating; it is one side of a two-way exchange.

The two-way exchange means you must make a connection with your audience. You must analyse and calculate what information to present and the most effective way to do it.

The manner of presentation is all-important. Young lawyers, mainly barristers, may attempt to bludgeon the Magistrates with forceful argument instead of advancing mitigation. This only has the effect of causing annoyance and irritation. If you are asking people to make a decision, make sure to provide the facts in a palatable manner which will encourage them to make the decision in your favour.

The Magistrates themselves will normally share characteristics with a speeding businessperson that they will not share with another defendant who appears before them for theft or fighting. This means there is an opportunity to build empathy. Driving disqualification causes business to suffer; most Magistrates are involved in or connected to business in some way. They understand the need, in the present climate, to help business and consequently the public good.

An example

If you think this is all hype to create more work for a lawyer, think on the facts of a case I inherited recently. The client appeared by himself at the Magistrates’ Court and received a period of disqualification for 15 months. Shocked, he came to me. I took the case to appeal and had his disqualification reduced to 9 months. With the proper representation at the beginning, the client could have avoided the expense and stress of going to appeal.

Discretion

Magistrates have a wide discretion in sentencing. Such a wide discretion can be, and often is, exercised subjectively. Magistrates are people, after all, and most don’t have any formal legal qualifications. They will make many assumptions unless offered an alternative. In other words, they will look at the defendant and build a mental picture from what they see; that mental picture will remain unless facts are advanced to replace it.

The Law

I cannot conclude without saying something about the law (I am a lawyer after all!). There are errors and loopholes that give the advantage to the defence. A good lawyer is always on the alert for circumstances that will strengthen his client’s case.

Andrew Henley

Barrister at Law

surreymotoringlaw.com

Extract from the Magistrates Court Sentencing Guideline

Offence seriousness (culpability and harm)

A. Identify the appropriate starting point

Starting points based on first time offender pleading not guilty