Driving without reasonable consideration to others - reopen case urgently

[dark.knight.10]

Hi, 

 

I'd like your urgent advise, my brother is in a lot of trouble, he's a little old school so I will be telling his story 

 

A while back, he was driving a hire car from a local garage where his car was being repaired. He joined a dual carriage way and changed lane twice, he thought by tapping the indicator, the car would apply a temp (3 flashes) signal, just like his car. Unfortunately, it didn't. 

 

A police office (undercover) stopped him and hit him with "Driving without reasonable consideration to others" , The officer questioned the car and showed him a video recording... 

 

while waiting for the papers to come in the office. my brother missed the paper summoning him to go to court... he was away on holiday and forgot about it. 

 

He sent a reply of "not guilty" but it was too late. the court had already taken place and he was found guilty. the court has judged that he pays £816 and 6 points. His livelihood is on the line because he drives for a living....

 

I will upload all the paperwork and I hope you can help me formulate a response to reopen the case 

 

Thanks

F 

[honeybee13]

In case it's relevant, what date was the verdict delivered please?

 

HB

[honeybee13]

The 13th June letter has your brothers name on it. I would remove that.

 

HB

[dark.knight.10]

Apologies, updated

H_Letters_Binder1.pdf

[Man in the middle]

Looking at the sentencing guidelines, the sentence, on the face of it, seems harsh – and a little confusing. From your description the offence seems at the lower end of seriousness. There are three bands of seriousness mentioned in the guidelines. From the least serious, the suggested sentences are:

 

• A fine of half a week’s net income, and 3-4 points
• A fine of a week’s net income and 5-6 points
• A fine of a week and a half’s net income and 7-9 points (or a disqualification).

 

The sentencing guidelines are here:

 

Careless Driving (drive without due care and attention) (Revised 2017) – Sentencing

WWW.SENTENCINGCOUNCIL.ORG.UK

 

 

From your description I can see no aggravating factors to push the offence up from the lowest band of seriousness.

 

The sum he has been ordered to pay is based on the highest fine – a week and a half’s income. Let me explain how I have deduced this. As well as the fine, the court will also order prosecution costs (normally £90) and a “victim surcharge” of 10% of the fine. When the court has no information about a defendant’s income a default figure of £440 per week is used. So, he will have been ordered to pay 1.5 times £440, so £660 by way of a fine, £66 Victim Surcharge and £90 costs. Total £816, as per his notice. The fine indicates that the court viewed the offence in the top band of seriousness.

 

The confusing thing is the points. If the court considered the offence at the top of the seriousness range, he should have received at least seven points, not six. He has also been sentenced on the basis of a Not Guilty plea (which is again the default when no plea has been entered). This means he did not receive credit for his guilty plea. This is normally a discount of one third off the fine (but not the points).

 

So much for an explanation of what’s happened. What’s to do? He faces some considerable difficulty here because of the length of time elapsed between his conviction and now. His only option is to ask for a court hearing to have the matter reopened.

 

He should be aware that the court is not obliged to agree to this and may not do so in view of the time elapsed. When making his request he should do so on the basis that the sentence does not seem to comply with the guidelines on two counts: (1) he should submit that the offence is at the lowest end of seriousness and (2) the sentence is inconsistent with the guidelines anyway (discrepancy between points and fine).

 

He also needs to contact the fines office as a matter of urgency. I am surprised he has not already faced one of the sanctions they mention by now but he needs to let them know he is asking for his case to be reopened. Once again, in view of the time elapsed, they may continue with their normal enforcement process anyway. 

 

If he had dealt with this promptly it is my view (provided the court sees the offence at the lowest end of seriousness) he should have face a fine of half a week’s net income, reduced by a third for his guilty plea, a 10% victim surcharge (minimum £34), £90 costs and three points. That is the ideal outcome he should be looking for but, as I said, the court may not agree to reopen the matter at all. If they do, he may find his full discount for a guilty plea is reduced due to his tardiness. Do let us know how it goes.

Edited August 8, 2022 by Man in the middle

[dark.knight.10]

@Man in the middle Thank you so much for the comprehensive information, this is super useful! 

 

I'm just as confused as you, There were some other papers that he mailed back with his plea. I  read them, the officers statement was on there ... from what I can remember, the officer stated that my brother "had changed lane twice without giving proper time or indication" the papers did not mention speeding or anything else... 

 

It doesn't help that the car he was driving (belonging to the mechanic) has a custom exhaust installed ... I'm not sure if this had anything to do with the officer being wound up... My brother said he "had it in for him" ... do you think the judge has seen the video? or is this judgment solely based on the officers statement? 

 

Furthermore, My brother is adamant against a guilty verdict ... do you think that reduced the chance of this case being reopened? 

 

As for the fine, they are already taking money from his universal credit which is effecting his life in a great way

 

[Man in the middle]

No, the judge (in fact a single magistrate sitting with a legal advisor) would not have seen the video. He or she  would only have seen the papers.

 

I don't understand what you mean by your brother "being adamant against a guilty verdict." I based my earlier post on the assumption he would plead guilty because, frankly, from your description there is little chance of him being found not guilty of the offence. Being found guilty following a trial will see him with considerably increased prosecution costs. They start at £620.

 

His attempt at a Not Guilty plea did not influence the sentence. His plea was not received in time and if it had been his case would have been listed for trial at a (much) later date.

 

My advice is to concentrate on trying to have the case reopened first. I am not at all optimistic that the court will agree to that. They will find it hard to understand why somebody who was convicted at the end of May and was told in mid June that he would need to take action if he wanted the case reopened, has left it until the second week in August (perhaps prompted by having deduction made from his benefits?) before getting round to doing something about it.

[dark.knight.10]

I agree, The focus is reopening the case.

I asked him about missing these paper and proceedings, he says the person he cares for was unwell upon his return from his break and he stayed with him... so he didn't go to his home in a while 

 

Is there a template of some sort to follow in order to get the case reopened? 

 

[honeybee13]

I don't think there will be a template because we don't see cases like this very often. MitM will know more than I do though.

 

You could start putting something together and we can help you to refine it before you send the letter. Is your brother ready to move quickly on this?

 

HB

[dark.knight.10]

Alright! sounds like a plan! I really appreciate the help! I know it's maybe a long shot but you never know 

 

He is! we will write something up and post it here asap!

 

 

[honeybee13]

In post #6, MitM also said your brother should contact the fines office as a matter of urgency to let them know he's asking to have the case reopened.

 

HB

[dark.knight.10]

He did contact them. They're aware 

[Man in the middle]

It seems the fines are already being deducted from benefits, HB.

 

The letter to the court does not need to be too involved. Simply refer to the letter of 13th June (where your brother was told he can apply to have the case reopened) and make that request. State the reason (that it appears he was not sentenced in accordance with the sentencing guidelines) and a brief outline to explain the delay would not go amiss.

 

Beware, that you may get a refusal from a non-judicial officer - a clerk of some sort. The decision to reopen or not is one solely for the court (i.e. the Magistrates). It is not one that should be made even by the Clerk to the Justices (to whom you should address the request).  They may try to tell you that the request is "out of time" but that is not correct. The power to reopen stems from s142 of the Magistrates Court Act. That simply says this:

 

142Power of magistrates’ court to re-open cases to rectify mistakes etc.

(1)A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so;] and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.

.

You will note that it is not "time bound" (unlike, say, an appeal to the Crown Court). It is entirely up to the Magistrates whether they consider the request should be granted or not and they will take all the circumstances - including the delay and the explanation for it - into account. You may have to be persistent.

 

[dark.knight.10]

@Man in the middle

 

Does this work? I'm not sure how to address the Clerk? 

Apologies if the words aren't perfect 

 

Wilsden Magistrates Court 

448 High Road

London 

NW10 2DZ

 

HM Courts Ref: xxxxx

My ref: xxxxx

 

09^th Aug 22

 

Dear Sir/Madam (Clark?)

 

I am writing in relation to (insert ref number). As per your letter on the 13^th of June 2022. I am submitting a notion to reopen my case (Ref no). I have been sentenced without my knowledge and the sentence is inconsistence with the sentencing guidelines. 

 

I’d like to note that my appeal is not time bound and that there are some exceptional circumstances in my case. I am the sole carer of a disabled person who has been very unwell for the past few months. It was my duty to stay with them and care for them. Being away for long periods meant that I had missed the letters prompting me to respond the ruling.   

 

 

Kind regards

 

XXXXX XXXX 

[honeybee13]

I expect MitM will be along to comment later, if he can.

 

Picky I know, but is the court Wilsden or Willesden, NW10?

 

HB

[Man in the middle]

A couple of adjustments (mainly for "style" but one or two corrections as well.

 

The Clerk to the Justices

Willesden Magistrates Court 

448 High Road

London 

NW10 2DZ

 

HM Courts Ref: xxxxx

 

 

My ref: xxxxx

 

09th Aug 22

 

Dear Sir/Madam 

 

I am writing in relation to (insert ref number). As per your letter of the 13th of June 2022,  I would like the court to consider a request to reopen my case (Ref no). I have been sentenced without my knowledge and I believe the sentence is inconsistent with the sentencing guidelines. 

 

I accept that some time has passed since I was sentenced and this may impact on the court's decision whether or not to reopen my case. There are some exceptional circumstances which have led to the delay: I am the sole carer of a disabled person who has been very unwell for the past few months. It was my duty to stay with them and care for them. Being away for long periods meant that I had missed the letters prompting me to respond the ruling.   

 

 

Yours faithfully,

 

XXXXX XXXX

[dark.knight.10]

@honeybee13 you're absolutely right! typo 

 

@Man in the middle Thank you. I will send it! and cross fingers! I'm ever so grateful! 

[honeybee13]

Please keep us posted on how it goes.

 

HB

[dark.knight.10]

one last question @Man in the middle

 

This is a message my brother had forwarded me, Do you think we need to include a plea in our letter?

 

"Single Justice Service: To apply for your case to be re-opened, write to the court (click the link for details of the court) https://www.find-court-tribunal.service.gov.uk/courts/willesden-magistrates-court or email [email protected] and explain why you think your case should be re-opened. Include your case reference number (xxxxxxxxxxx), name, date of birth, address and contact information. Most importantly, tell the court whether you would plead Guilty or Not Guilty.
Enforcement of any outstanding fine may continue until the court directs otherwise.
For further information on Single Justice Procedure Notice's please visit: https://www.gov.uk/single-justice-procedure-notices"

 

[Man in the middle]

Yes I think he should enter a plea if that's what they ask for. I believe he should also ask to be able to appear rather than to allow this to be dealt with in his absence, possibly by a Single Justice (they may request his attendance anyway). I still recommend a guilty plea, but that's his call.

[dark.knight.10]

They Emailed back saying thing .... I think this guy has no access to the case ... thoughts?

 

Hello

 

Thank you for your email.

 

If you were unaware of the court proceedings and did not receive the summons to attend the court hearing, you may be able to make an application for a statutory declaration.

 

This can be made at your local court house. You have 21 days from the date on which you became aware of the case to make a declaration.

 

If the court decides that it was not reasonable to expect you to make the declaration within this period, it may accept a late declaration made ‘out of time’, 

 

Please note - if you make a declaration, you know or believe to be untrue, you could be convicted of perjury, a criminal offence punished with imprisonment of up to two years.

 

If the statutory declaration is granted any sentence made in the previous hearing becomes null and void.

 

However, the original offence will be put to you on the day of the application, at which time you will be required to enter a plea and then advised of any other hearing dates to attend to provide any evidence to support your case/offer mitigation.

 

You can contact your local Magistrates’ court to request/be assessed for the booking 0300 303 0656.

 

I hope this is helpful.

 

Kind regards,

 

 

M.xxxxxxxxx

Admin Officer

Willesden Magistrates’ Court

[email protected]

 

[Man in the middle]

When I first replied I discounted the option of a Statutory Declaration (SD) on two counts:

 

1. The considerable time lapse since sentencing makes it unlikely a court will accept an SD. As the e-mail states, they should be made within 21 days of conviction. Whilst a court may accept one later, it is very unlikely they will accept one this late. I have similar reservations about an application to re-open the case, but, unlike with an SD,  it is not laid down anywhere how long a defendant has to make such an application.

 

2. Far more importantly, I discounted it because, as far as your description goes, your brother was aware of the proceedings (to the extent that he entered a plea to the charge, albeit too late). He therefore cannot make an SD under any circumstances if that is the case. The SD is a declaration that he knew nothing of the proceedings against him, so it would be a false declaration. 

 

This is probably why the first letter he has from the court (13th June) does not mention this as an option.

 

Unfortunately much of the correspondence a court deals with is handled by people who are not legally trained and are not entirely familiar with the court process. This is why I said you may have to persevere to get the application to re-open put before the court.

 

You need to get back to the court to explain that an SD is not appropriate and reiterate your request to have the case reopened.

[honeybee13]

How is this going, DK?

 

HB

[dark.knight.10]

Thank you for asking, 

 

I have gone back to them and explained but they are not replying to me emails .. 

 

i dont know what to do now 

[dark.knight.10]

still no reply,

 

any idea what we can do next?