KNOW YOUR RIGHTS A
Failing to provide a specimen of breath (after driving) is an offence that carries a minimum disqualification period of 12 months and can carry a community orders and a possible cus-
todial sentence for the more serious offences.
Section 7(6) of the Road Traffic Act states that it is an offence to fail “without reasonable excuse” to provide a specimen for analysis, and so if you have a reason- able excuse as to why you could not provide you may have a defence.
The Court will often consider a well-known case of R v Lennard [1973] which defines a reasonable excuse as either a physical or mental incapability. Therefore in order to defend the matter you will need to show that you were not capable of providing breath. You have stated that you suffer with anxiety and panic attacks, and so this may be sufficient to amount to a physical incapability.
The burden will be on you to provide evidence of the incapability, and you would also need to establish the causative link between the condition and the failure to provide a specimen. In your case, we would need to show how you suffering from a panic attack could have caused you to be unable to give enough breath.
You have raised that you have a history of panic at- tacks. This in itself may not be enough to amount to a reasonable excuse. There is a case known as Atkinson v DPP [2011] that makes clear that the med- ical reason must be shown to exist at the time that the procedure is being carried out, and so having a panic attack before or after the request for breath is made may not amount to a reasonable excuse. These pro- cedures are generally captured on CCTV and so it is likely you can rely on the video evidence to support your defence if you did have a panic attack during the procedure.
Once you have provided evidence of the condition and the causative link has been proved, the burden will then switch to the prosecution to negative this.
If the defence were to be unsuccessful, you would need to present mitigation in order to try to persuade the court to keep the ban to a minimum and try to persuade them not to impose community orders. In order to do this, you would need to persuade the Court that there was not a deliberate refusal or failure to give the specimen and that you were not heavily impaired.
OCTOBER 2019
Q A
I have been stopped by police for driving without insurance. I was driving a company vehicle and I was completely unaware that the vehicle I had been given was uninsured. Do I have a defence?
Driving without insurance is a strict liability of- fence. This means that in order to be guilty of the offence, all that has to be proved is that you were driving without insurance. It does not
matter whether or not you intended to drive without insurance, or even if you were aware – the important factor is whether or not you were insured.
Clearly there are instances where this would be unfair. There will be instances where a driver is reliant on somebody else to ensure that they are insured, such as a partner, parent, or employer. In the case of a part- ner or parent, the defendant may have a special rea- sons argument – a genuine and honest belief that they are insured based upon reasonable grounds. If the court finds on the balance of probabilities that the de- fendant did have a genuine and honest belief based upon reasonable grounds that they were insured, the court has the discretion to impose no sentence on the defendant.
Where a defendant is reliant on an employer, they may have a defence available to them. This comes under Section 143 (3) Road Traffic Act 1988. There are three criteria as to which the defendant must prove on the balance of probabilities. These are that the vehicle did not belong to him and was not in his possession and a contract of hiring or loan, that he was using the vehicle in the course of employment, and he neither knew, nor had reason to suspect that there was not a policy of in- surance in place. If he can prove these three criteria on the balance of probabilities, he has a defence to the al- legation.
Clearly, when writing the legislation, Parliament were in agreement that it would have been unfair to punish employees where they were not responsible or had control over the policy of insurance for that vehicle. Remember, the burden is on the defence to prove each of these elements on the balance of probabilities. Ev- idence such as proof of employment, and proof that the vehicle did not belong to them will be critical in succeeding with any such defence.
This impartial advice has been provided by Patterson Law Solicitors Patterson Law - 0800 021 7753
www.pattersonlaw.co.uk
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