Disqualification

Man City’s Yaya Toure handed ‘biggest ever’ drink driving fine of £54k

Posted on by ndiable

Because people on Twitter know I’m obsessed with drink driving law quite a few of them pointed me to the case of Yaya Toure earlier this week. My daughter has been ill so I’ve not had a proper chance to look at it until now but when I did I thought it was worth a write up to explain some of the confusion that seemed to abound on social media about this case.

The accusation is that he drove after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit – that’s drink driving to you. To his credit, he immediately accepted that he had committed the offence and entered a guilty plea at court, but a hearing was scheduled for him to argue that his drink had been spiked.

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Yaya Toure

If somebody spikes your drink with alcohol and that causes you to be over the drink driving limit when you drive, you can avoid a driving ban arguing that the spiking is a special reason not to disqualify you.

Mr Toure’s case is interesting because his reading was high yet he is teetotal for religious reasons (and presumably because being a highly-fit athlete doesn’t mix well with binge drinking). That didn’t stop District Judge Lucie saying, “the reading is a high one and it is inconceivable that you were unaware of having consumed alcohol.” Anybody who has experience of DJ Lucie in drink driving cases will not find that surprising in the slightest.

In his evidence, Mr Toure told the court that he had been to a party where he was the designated driver for himself and his friends. He told the court that he poured himself Diet Coke from a jug. He said that the Coke tasted odd and that he felt tired. He denied recognising the signs of intoxication, which is perhaps not surprising if he does not drink.

I am surprised by Mr Toure’s decision to go down the special reasons route if those were his instructions from the beginning and even more surprised by the District Judge’s reason for conviction, assuming the press reports are accurate (which they often are not).

While I do not think it inconceivable that a teetotaller would fail to recognise that he was intoxicated I do find it inconceivable that none of the lawyers in the room that day were aware of the case of Robson v DPP in which a Rastafarian who was also teetotal for religious reasons was refused special reasons on the basis that he failed to make sufficient enquiries as to the make-up of the fruit punch he was drinking. The similarity with Mr Toure’s decision to pour himself some Diet Coke from a communal jug without enquiring as to its contents is striking. The problem only escalates once you remember that Mr Toure gave evidence that the Coke tasted odd – a warning sign to any driver that they should check what they are drinking. In those circumstances, it is difficult to see how the special reasons application could ever succeed.

For the special reasons application to succeed Mr Toure’s account would have to be that he did not know the Coke contained alcohol, had no reason to suspect and that he had made reasonable enquiries about what he was drinking. Reasonable in this case would probably include asking the host, “what’s in that jug? Is it just coke?”

Turning to the sentence imposed. The case made headlines because of the size of the fine, £54,000. This was reduced from £81,000 following Mr Toure’s guilty plea. It is the largest fine ever imposed on a drink driver, although that may not be surprising since the fine was capped at £5,000 until relatively recently.

One area in which Mr Toure may wish to consider an appeal is in the length of the disqualification imposed upon him. The news reports tell us that Mr Toure blew 75 microgrammes of alcohol in 100 millilitres of breath, which is slightly more than double the legal drink driving limit. The sentencing guidelines tell us that this should attract a ban of around 18 months. The District Judge imposed 18 months but also accepted that Mr Toure had unknowingly consumed alcohol. If we look at the sentencing guidelines we see that under the heading “factors indicating lower culpability”, number 2 is “spiked drinks… even where not amounting to special reasons”.

I happen to know that this judge will not reduce the disqualification to reflect the guilty plea but there is no reason why the ban should not be reduced to reflect the fact that Mr Toure did not intend to drink and drive and did not realise he was doing so until shown the breath test result by the police. I have acted in similar cases and have successfully argued that the driving ban should be reduced to the 12-month minimum plus a reduction for the drink driving rehabilitation course.

I accept that the DJ reached the view that Mr Toure should have known he was intoxicated, but I do not see how such an argument can stand up to even the mildest scrutiny. By way of analogy, carbon monoxide is a gas that affects your perception of the world around you as it kills you, so you would be highly motivated to do something if you realised you were being poisoned by it, yet neither I nor you would recognise it happening if we were being killed by it because we’ve never experienced it – indeed that is why the stuff is so dangerous and kills people every year! To argue that somebody who does not consume alcohol would recognise the effect of alcohol upon them is simply not sustainable. For that reason, I think there is scope for an appeal based on the facts reported in the press.

Will my driving ban be reduced if I plead guilty?

Posted on by ndiable

If you choose to plead guilty to a criminal offence you can normally expect to receive a reduction in the length of your disqualification thanks to section 144 of the Criminal Justice Act 2003 which requires the sentencing court to take into account when the guilty plea was entered and the circumstances of the plea.

While it’s widely accepted that pleading guilty reduces your sentence, confusingly though most lawyers also believe that a driving disqualification is not part of the sentence and so cannot be reduced following a guilty plea. This is something we at Oxford Drink Driving Solicitor come across regularly; it is wrong in law and the unwillingness of solicitors and judges in the magistrates courts to objectively consider the status of the driving ban leads to injustice every day. This is also one of the reasons Lord Sumption is wrong to say specialist legal advice is not worth the effort.

What is a sentence?

Before we can decide whether the driving ban is part of the sentence or not we need to know what, in law, a sentence actually is.

The European Court of Human Rights considered just this question in Welch v The United Kingdom. That case was about a drug dealer and the state, successfully, trying to take the assets he acquired through drug dealing away from him. The important points to take away from Welch is that the concept of a sentence or penalty for a crime exists outside of national law and so the ECtHR’s definition trumps anything from a national court. They then go on to tell us that we should consider“… the measure in question is imposed following conviction for a ‘criminal offence’”.  If it is then you consider other factors, such as:

  • Nature and purpose of the order;
  • It’s characterisation under national law;
  • Procedures involved in marking and implementing the order; and
  • It’s severity

There is no doubt that drink driving and the associated offences are criminal convictions and that the driving ban is imposed only after conviction for drink driving. So we must go on and address each of the four points raised by the court in Welch.

Is a driving ban a sentence?

What is the nature and purpose of the order

We must look to the Scottish case of Gemmell v HM’s Advocate, in which a five judge panel headed by Lord Justice Clerk considered whether a driving ban was a sentence under Scottish law – it’s worth saying that while there are differences between Scottish and English law there are no differences between the legislation in this particular area.The court held in Gemmell that a driving ban serves two purposes, first to protect the public but second to punish the offender. Lord Justice Clerk described a driving ban as a “deprivation of liberty” in his judgment.

In Malige v France the European Court of Human rights considered whether the deduction of points (apparently in France a driving conviction loses you points rather than gaining them) amounted to a penalty.  The Court echoed the thoughts of our own Court of Appeal in Geale when they said that, “… although the deduction of points has a preventive character, it also has a punitive and deterrent character and is accordingly similar to a secondary penalty.  The fact that Parliament intended to dissociate the sanction of deducting points from the other penalties imposed by the criminal courts cannot change the nature of the measure.”

No senior English court has ever considered whether a driving disqualification is part of the sentence; however, the Court of Appeal in R v Geale came close when they said in passing that “there is or maybe an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification”

 

Characterisation under national law

Again, we can see Gemmell telling us that a disqualification is a sentence. But, while Gemmell is persuasive authority in England the courts here are not obliged to follow it.

We can also look at the Road Traffic Offenders Act 1988, which gives courts the power to disqualify a defendant following a drink driving conviction. The part of the Act that conveys this power is entitled “SENTENCE”, so we can be in little doubt about how Parliament characterised the power to disqualify when it enacted it.

Procedures involved in marking and implementing the order

The procedure for making and implementing the order is indivisible from the procedure involved in making and implementing the rest of the sentence.

The court hears about the case, hears mitigation, considered the sentencing guidelines and then proceeds to impose the disqualification along with the rest of the sentence. If the defendant is acquitted there is no power to disqualifying him from driving. This is not always the case in criminal law, for example, a man accused of assaulting his wife can be made subject to a restraining order following acquittal by the court.

It’s severity

The severity of the punishment will vary from person to person, although for some it can mean the end of a person’s livelihood, the loss of their income and the loss of their home. The consequences of this order can be very severe. This was noted in Gemmell by Lord Eassie who said, “[b]eing disqualified from driving is a restriction on the liberty which the offender would otherwise enjoy to drive a motor vehicle; commonly presents substantial inconvenience; and may have financial consequences including the loss of employment.”

Conclusion

It is clear that the European Court of Human Rights takes the view that both driving disqualifications and penalty points are penalties and thus part of the sentence imposed upon an individual.

The Scottish court of appeal has stated very clearly that not only is a disqualification a sentence but that it also falls to be reduced if the offender pleads guilty.

English courts have not explicitly said that driving disqualifications are part of the sentence or that they should be reduced after a guilty plea but given the authorities from Scotland and Europe it seems inevitable that they will eventually have to accept that driving disqualifications can indeed be reduced.

 

The importance of specialist legal advice

Posted on by ndiable

Lord Sumption: drink driving specialist

Lord Sumption: legal specialisms are “bogus”

Lord Sumption is one of the most senior judges in the country. He is the only person ever to be appointed direct to the Supreme Court from the Bar and is generally considered a very clever lawyer. As a barrister, he prided himself on switching areas of law throughout his career – in a recent speech he described specialisation in law as “bogus” and that solicitors would do well to dip their toes in other areas of law. His point is that over specialisation causes solicitors to become insular and fail to relate case law in their specialisation to law from outside.

To an extent, Lord Sumption is correct that an appreciation for the law in general is important to all of us who choose to specialise in a particular area, but he is quite wrong to describe specialisation as “bogus”.

We were recently approached by a potential client, John, who was accused of being drunk in charge of a motor vehicle. He explained that he had no intention of driving and was simply waiting for his partner to collect him – this is a complete defence in law to the allegation. Getting everything right was very important because John already had 6 penalty points on his driving licence and so faced disqualification if convicted. This meant that not only did John’s driving licence, job and home rely on his winning the case but so did his application for British citizenship.

Unfortunately, at the last minute John decided to go with a non-specialist solicitor to save a relatively small amount of money. At court, the prosecution was willing to accept that John’s partner was going to collect him – that’s half the defence done right there. But, the non-specialist solicitor advised a guilty plea and said she would tell the court that disqualifying John would cause exceptional hardship. If successful, this would mean that John would be allowed to keep his driving licence.

The court imposed 10 points, giving John a total of 16 and disqualified him from driving under the totting up provisions.

Following the hearing, John got back in touch saying he was unhappy with the advice he received from the non-specialist solicitor and the outcome of the case. He wanted advice on appealing his conviction since he clearly had a strong defence to the allegation.

Unfortunately, we had to advise him that by pleading guilty he had all but given up his right to appeal conviction. We explained that while it is possible to argue that poor legal advice should allow his guilty plea to be overturned the advice would have to be so bad that the guilty plea was no longer a true admission of guilty. In a case such as this, an appeal court would be very unlikely to find that to be the case.

Had he gone to trial with a specialist solicitor, there is a very good chance that he would have been acquitted. This would have meant that he would have kept his driving licence, kept his job and neither his home nor application for British citizenship would now be in jeopardy.

So, while it is well and good for Lord Sumption to call legal specialisms “bogus”, the reality for many is that choosing a non-specialist solicitor leads to poor outcomes that could easily be avoided by choosing the right solicitor first time.