We had a man in today for Drive Disqualified. He asked for an adjournment to run a Special Reasons argument because he was disqualified in his absence, and claims that he missed any letters from court because he moved house twice.
Despite the firm advice we have had from the Justices' Clerks' Society and others I am solidly against disqualifying in absence for two reasons: firstly because the defendant can claim not to have known about the ban (and could even be right) and secondly because the moment that you are disqualified your insurance becomes void, and that can have an adverse impact on innocent third parties such as you and me.
Why do courts do it (and I won't) ?
Because it's cheap of course,
Musings and Snippets from a recently retired JP. I served for 31 years, mostly in west London. I was Chairman of my Bench for some years, and a member of the National Bench Chairmen's Forum All cases are based on real ones, but anonymised and composited. All opinions are those of one or more individuals. JPs swear to enforce the law of the land, whether or not they approve of it. Nothing on here constitutes legal advice.
Thursday, September 11, 2014
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I agree but only up to a point.ReplyDelete
My experience of moving house is that it is a lengthy process which might typically span a period of several months. It follows then that moving house twice would indeed involve a significant period of time.
So our driver friend forgot about his outstanding case? Did he think that maybe it would just go away? Why was he not at all curious as to the status of his licence given the period of time elapsed? Why did he not contact the court, especially since he moved and surely would realise the possibility that any communication could have been sent to an old address? Why did he not keep the court informed as to the location of his current abode?
Arguments of special reason or exceptional hardship should be difficult to establish and always rigorously probed. They are inquisitorial hearings. I would love to hear the special reason(s) given in the case you refer to and have the opportunity to do a bit of probing:)
Disqualification in absence does of course void insurance and there is a possibility that the driver is unaware (but not as often as is claimed) but insurers pay into a central fund, the purpose of which is to pay out to innocent third parties who have suffered injury or loss caused by uninsured drivers.
I made the point that he has a duty to tell DVLA of an change of address, but we adjourned to allow him to put his case before another bench. If we don't disqualify in absence this cannot happen.ReplyDelete
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Trial in absentia violates article 6 of the European Convention on Human Rights and the European Court has ruled that a person so convicted has the right to a retrial. It is explicitly illegal in the USA and many European countries. It seems to have crept into UK law by the back door - a hundred years ago it wouldn't have happened - so you are right to refuse to proceed without the defendant.ReplyDelete
It is worth noting the USA devotes considerable resources to "process" - ie, hand-delivering court documents to ensure that a defendant knows about the case. Different states have different rules on what constitutes a "served" document but none would just drop it in the mail and hope for the best. There is usually a proximity rule, the document must touch the person, or be dropped within so many feet of the person.
Given that about every penalty for serious crime has been watered down, it is about time the same happened to RTA offences.ReplyDelete
Given that penalty points are active for 3 years and stay on the licence 4, it would appear to me that the penalty is not a proportionate as it should be in the prevailing climate.
If we must have points they should be active for a year or maybe two at most for run of the mill offences.
The counterpoint to your argument against Disqualifying in Absence is where the defendant sticks his head in the sand and refuses to come to court.ReplyDelete
As long as he/she/it sticks his/her/it fingers in their ears and shouts "la la la I can't hear you!", you are suggesting that they can get away with it.
Oh no. We can just issue a no-bail warrant for his arrest and have him brought to court. That used to happen all the time.Delete