Kang & Co Solicitors Limited
In this article we will attempt to clarify the concept of legal loopholes in relation to driving offences and what can or can’t be done whilst in The Magistrates’ Court or Crown Court for a Driving Offence Prosecution.
Definition of ‘Legal Loopholes’
When a person uses the word ‘loophole’ a person generally thinks of an ambiguity or inadequacy in the legal system, which can be exploited to evade or otherwise avoid the core purpose of the driving offence prosecution.
The reality in fact is far different, it is important to appreciate that when Parliament creates criminal legislation, say the offence of Speeding for example, there will be requirements that the prosecution must satisfy to secure a conviction otherwise, the entire Criminal Justice System would be unfair and the prosecution would be able to prosecute whoever, whenever and however.
If the prosecution is unable to comply with their requirements as per the appropriate legislation, the prosecution should be discontinued. We often inform clients that there is no such thing as ‘legal loopholes’ and what they may be referring to is in fact a failing within the prosecution case.
If the concept of a ‘legal loophole’ existed, Parliament could simply amend the appropriate legislation relatively quickly to avoid further failed prosecutions.
The Burden of Proof in a Criminal Trial For the prosecution to secure a motoring offence conviction against a defendant, the prosecution must firstly satisfy their requirements under the appropriate legislation and secondly prove to the court, beyond reasonable doubt (with the use of evidence) that the defendant committed the offence in question.
If the prosecution is unable to do this, the prosecution case will either fail due to non-compliance with prosecution requirements (this is usually a point raised by the defence solicitor) or because the prosecution is unable to provide to the court, beyond reasonable doubt that the defendant committed the said driving offence.
The defendant or defence solicitor does not have to prove anything in relation to the prosecution, a good defence lawyer will need to present reasonable doubt in relation to the prosecution case to secure an acquittal at Trial.
This again is not a loophole, it is simply the prosecution failing to comply with their requirements or the prosecution being unable to prove the elements of the offence at trial.
The Criminal Justice System must operate in a fair and unbiased manner.
The Role of The Prosecutor
A prosecutor will need to ensure that they have complied with procedural requirements such as issuing the prosecution within the time limit, for example issuing a Notice of Intended Prosecution (NIP) to the registered keeper of the vehicle within 14 days of a Speeding Offence being committed, if this has not been complied with, then a good motoring defence lawyer should identify this and raise the issue with the prosecutor or court.
The prosecutor will also need to prove the factual elements of the offence, for example proving that the person being prosecuted was in fact the driver of the vehicle at the relevant time.
The Role of the Defence Solicitor
A good driving offence solicitor will assess the evidence in the case to identify weaknesses within the prosecution case, will identify and advance a defence (if applicable) and work to the best of his ability to obtain a favourable result for the client (dependent upon the circumstances).
If a defence lawyer is successful following a trial, it is either because the lawyer was able to cast doubt onto the prosecution case, which prevented the prosecution from proving beyond reasonable doubt that the defendant is guilty, or because a defence was raised and accepted by the court.
Once again, this is not using a legal loophole, it’s down to the solicitor or barrister being good at his / her job or the prosecution having inadequate evidence to secure a successful prosecution.
This is simply the system in place to secure a prosecution and nothing to do with being a ‘loophole lawyer’.
Putting the Prosecution to Proof
Within the Criminal Justice System, a defendant is innocent until proven guilty and is entitled to ‘put the prosecution to proof’ this essentially require the prosecutor to prove the elements of the offence and any other key issues to secure a motoring offence conviction against the defendant.
In such circumstances the defendant may choose not to advance a defence (because there may not be an applicable defence available) and the defendant may also choose not to give evidence during trial, the prosecution would then have to rely entirely upon their own evidence to prove that the defendant was in fact the driver at the relevant time and satisfy all of the elements of the offence.
The police and prosecutors tend to have a very high caseload and are often over-worked due to budget cutbacks, which inevitably stretch prosecution and police resources, which increases the chance of mistakes or inadequacies within the prosecution case.
Inadequacies within the prosecution case will inevitably make it increasingly difficult for the prosecution to secure a conviction.
Securing an acquittal (not guilty verdict) due to inadequacies within the prosecution case again is not a ‘loophole’ it’s simply how the Criminal Justice System works.
However, if a case is discontinued or unsuccessful due to inadequacies in the prosecution case, the prosecutor is likely to learn from this mistake and is more likely to pay close attention to the same point in future cases the prosecutor deals with to avoid making the same mistake again, which will inevitably increase the skill and success rate of the prosecutor.
Relying on inadequacies within the prosecution cases allows the Criminal Justice System to be tested and ultimately results in the system improving over time due to inadequacies or failings being identified and then rectified over time.
Criminal legislation enforced by Parliament must be fair and allow some scope for a defence or mechanisms to avoid a Driving Ban by arguing Special Reasons or Exceptional Hardship Arguments, legislation or a system which didn’t allow for this would be unfair and unjust.
Successfully arguing Exceptional Hardship or Special Reasons, once again isn’t a loophole, it’s a deliberate mechanism included within the Criminal Justice System to allow the court the discretion to avoid imposing a driving ban in certain limited circumstances.
Motoring Law Defence
Most criminal law offences also deliberately include some scope for a defence, once again not including a defence would be unfair and unjust.
As an example, a motorist driving a work vehicle, which is supplied by his / her employer and insured by the employer found to be driving the work vehicle without insurance can rely upon a defence under Section 143(3) Road Traffic Act 1988 and successfully arguing this defence is not a loophole, it is simply a competent lawyer identifying and advancing a defence to the court on behalf of his client.
The role of the media is to attract the attention of readers and sell stories, for this reason, journalists tend to over sensationalise a not guilty verdict or a procedural error which may result in a driving offence case being discontinued under headlines such as ‘loophole driving offence lawyer’ to attract a sense of mystery and amazement regarding celebrity clients, when in fact it simply amounts to a skilled driving offence solicitor doing their job properly.
Throughout England and Wales there are numerous driving offence prosecutions daily which are discontinued and numerous trials which deliver a not guilty verdict however, such cases do not tend to attract headline media attention because the person being prosecuted isn’t a celebrity or public figure.
When a public figure, footballer, actor or television personality is facing a driving offence prosecution such as Speeding, Drink Driving or Failing To Provide Driver Details, such cases attract significant media attention and a successful result for a high-profile client can send a distorted message of how the Criminal Justice System operates, which gives birth to the idea of ‘legal loopholes’ and ‘loophole lawyers’.
Understandably, celebrity clients can afford to instruct highly skilled and experienced driving offence solicitors with significant experience because they are able to pay premium legal fees.
The reality is that if you are facing a driving offence prosecution and if you wish to stand the best possible change of an acquittal or the lowest sentence possible you will need to appoint a specialist driving offence solicitor early on in your case.
A specialist motoring offence solicitor that is good at what they do will understandably charge somewhat more than other lawyers because the lawyer is aware that the service and skill they are providing is superior and therefore comes at a premium price.
In short, very good driving offence solicitors will be expensive than general high street lawyers offering representation for the same driving offence.
A premium driving offence solicitor will have dealt with a significant number of driving offence cases and would have refined his / her technique over many years which makes the lawyer far more effective at obtaining a favourable result for the client, due to experience.
A premium driving offence lawyer is also likely to spend more time on preparing your case and looking at the evidence in detail because they have been paid properly and do not need to rush through the evidence or meetings with clients.
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