Thursday, August 08, 2013

Own Goal

This news report illustrates a problem that arises increasingly often these days; the advice of the Justices Clerks' Society and others is that courts should disqualify in the absence of the defendant as a matter of course. I have never agreed with this, because a defendant can always claim that he has not received the notice and there is no proof either way. If he has to stand in court and have his disqualification clearly explained by the likes of me, while the clerk records the matter, there can be no doubt. In addition, the disqualification immediately invalidates any insurance, thus probably prejudicing innocent third parties. If matey won't come to court we can simply issue a warrant for his arrest. I suspect that the new system is driven by saving money, but to me it looks like a false economy.


  1. Even if the driver is disqualified and the insurance is invalidated, the insurer can't escape its Road Traffic Act liabilities. I'm not sure how innocent third parties are prejudiced?

    It does, on the other hand, seem unfair that the newly-disqualified driver could be driving at the time you make your decision, and thus technically guilty of driving while disqualified...

    1. RTA cover is no help if you are driving (say) an employer's vehicle. Injury will be compensated but not damage to the vehicle

  2. Quite - it's always been regarded as bad practice in our neck of the woods. It's one manifestation of the Law of Unintended Consequences - although in this case entirely predictable.

    The defendant appears to have denied receiving the correspondence because all letters are sent to his agent's address. So the agent didn't inform his principal of such important correspondence from the courts? Surely this arrangement cannot be used as a get out of jail free card! It seems apparent that by the use of his address for registration, the agent was acting for his principal in relation to the vehicle.

    Having said that, it's not quite clear to me from the report the extent to which his argument succeeded.

  3. I agree with BS. Disqualification in absence is not a good idea.

  4. I agree entirely. People should be in court when they are sentenced, as you say, how else can the court prove that they knew the penalty has been imposed upon them?

  5. For at least a year now it has been standard practice in our courts to disqualify non-attenders in absence, but only once every other avenue has been exhausted, and then only provided that the bench is satisfied that there is proof of delivery of the notice that the court is considering disqualification, whether for totting, excessive speed or whatever.

    This is nothing new - the JCS considered this long and hard before agreeing to this course of action, with many courts frustrated by non-attenders. If an offender can show that he/she did not receive such a final letter, they can always make a statutory delaration and get their case quashed and reheard, but most accept the penalty with its higher in-absence fine and costs.

  6. Yes, you can issue a warrant for his arrest, but in many areas the police will not regard it as a priority and in some big city areas openly say they have not got the resources to bring people to court in such circumstances.

  7. An old chestnut this one but I have to agree that disqualifying in absence is not desirable.

  8. Being such a nifty little left-winger, I suspect Mr W-P would have been much more observant had he been given a diving ban... (ho-hum)

  9. @NickW - that's a good point :) (Anon 11:11)

  10. Trial in absentia is deplorable - unconstitutional in the USA and ruled illegal by the European Court of Human Rights.

    Courts should just refuse to hear cases where the def is not present, nor represented, nor has written in to plead by post.

    And I would add that paper serving is getting rather casual. Time was papers had to be served by hand and had to touch the def. Just popping something in the post and hoping it gets there shows an unwarranted faith in the Royal Mail. Standards seem to be falling everywhere.

  11. Page 186 of Magistrates' Court Sentencing Guidelines:

    Disquali cation in the offender’s absence

    A court is able to disqualify an offender in absence provided that he or she has been given adequate
    notice of the hearing and that disquali cation is to be considered.

    It is recommended, however, that the
    court should avoid exercising this power wherever possible unless it is sure that the offender is aware of
    the hearing and the likely imposition of disquali cation. This is because an offender who is disquali ed
    in absence commits an offence by driving from the time the order is made, even if he or she has not yet
    received noti cation of it, and, as a result of the disquali cation, is likely to be uninsured in relation to any
    injury or damage caused

  12. I'm with Jaguar on this one. We dont do it often, but we do do it.

  13. Article 6 of the ECHR (European Convention on Human Rights) says that defendants have a right to attend their own trial, and the Court has ruled this means the defendant must have "unequivocally waived" his right to attend before he can be tried in absentia. The Mags Guidelines seem incompatible with this. Being "sure the defendant is aware of the trial" is not the same as the defendant waiving his right to attend. There is no implicit waiving by not turning up!


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