Lawyer types - A bit of advice for a fellow driver
Discussion
havoc said:
Frankly, don't care. I wouldn't want to.
I am responsible for my actions, and I expect others to be responsible for their actions...it's a simple concept, but one our current lawmakers seem to be having trouble with!!!
That sounds a bit like the couples who are going to have a friendly divorce - until the lawyers get involved.
The simple fact is that he admitted to racing. We effectively have a 'joint enterprise' here, and both parties are responsible for each others actions whether the scope was previously agreed or not.
If you rob a bank together with Johnny and Johnny shots the bank clerk then you are looking at a murder charge as well. People may recall that in the 'good old days' bank robbers used to frisk each other to ensure that nobody was carrying a concealed weapon.
Further mens rea does not always need to extend to the consequences. Once again murder is a prime example, you do not need to prove an intention to kill in order to secure a conviction of unintended consequences.
As far as police chases are concerned, they are not criminal 'joint exercises'. The perpatrator is committing a criminal offence and the chasing police car is covered by 'justification', just like a hangman is protected from a murder charge even if the victim proves to have been wrongly convicted.
The only real flaws that I can see in the case (or its sketchy report) is that there would have to be evidence that the Ztec driver was a participant to racing or the 'joint enterprise'. I know of people who clearly thought they were racing 'with' me, whereas I did not allow their actions to influence my driving.
If you rob a bank together with Johnny and Johnny shots the bank clerk then you are looking at a murder charge as well. People may recall that in the 'good old days' bank robbers used to frisk each other to ensure that nobody was carrying a concealed weapon.
Further mens rea does not always need to extend to the consequences. Once again murder is a prime example, you do not need to prove an intention to kill in order to secure a conviction of unintended consequences.
As far as police chases are concerned, they are not criminal 'joint exercises'. The perpatrator is committing a criminal offence and the chasing police car is covered by 'justification', just like a hangman is protected from a murder charge even if the victim proves to have been wrongly convicted.
The only real flaws that I can see in the case (or its sketchy report) is that there would have to be evidence that the Ztec driver was a participant to racing or the 'joint enterprise'. I know of people who clearly thought they were racing 'with' me, whereas I did not allow their actions to influence my driving.
deva link said:I have a legal relationship with my fiancee...completely different.
That sounds a bit like the couples who are going to have a friendly divorce - until the lawyers get involved.
kenp has it closer...you'd need to prove that the accused party was aware that the other party was responding to his presence and his actions...even then I don't think that's enough (see post above re: responsibility for one's own actions, and not acting like a retarded twit!), but a court may see it differently.
kenp said:
I know of people who clearly thought they were racing 'with' me, whereas I did not allow their actions to influence my driving.
It doesn't really matter what you think though - how did it look to other people? If one of the other cars had crashed and its occupants said their driver (perhaps now dead) was racing with you, then you'd potentially be in some difficulty.
kenp said:Did he? I can’t find any direct reference of this; it would seem he pleaded guilty to ‘death by dangerous driving’, his only real mistake IMO.
The simple fact is that he admitted to racing.
kenp said:This is the direction this government is taking, wrongly IMO. What was the outcome of the plan to automatically put the driver at fault if involved with a collision with a pedestrian? It’s judgements like these, based upon shifting the burden of responsibility, which leaves the system open to abuse.
We effectively have a 'joint enterprise' here, and both parties are responsible for each others actions whether the scope was previously agreed or not.
kenp said:Yes but this doesn’t necessarily mean you’ll be convicted of it; the possibility must of course be investigated.
If you rob a bank together with Johnny and Johnny shots the bank clerk then you are looking at a murder charge as well.
kenp said:Maybe they simply enjoyed it
People may recall that in the 'good old days' bank robbers used to frisk each other to ensure that nobody was carrying a concealed weapon.
kenp said:As daft as it sounds, the next time someone keeps up with me, can I get them nailed for ‘attempted death by dangerous driving’, even if I don’t fall off the road?
Further mens rea does not always need to extend to the consequences. Once again murder is a prime example, you do not need to prove an intention to kill in order to secure a conviction of unintended consequences.
kenp said:Good example. I’m beginning to think I have chosen a bad analogy
As far as police chases are concerned, they are not criminal 'joint exercises'. The perpatrator is committing a criminal offence and the chasing police car is covered by 'justification', just like a hangman is protected from a murder charge even if the victim proves to have been wrongly convicted.
The man involved has pleaded guilty to causing death by dangerous driving, his solicitor, I would imagine, has advised him he "should" get x amount of years up to a maximum of ten years, he's got five years, what's his problem ?
I pleaded guilty to dangerous driving & was warned to expect two years, with four being the maximum at the time.
I received 11 months, if it had been four years, then four years it is.
Is he appealing against length of sentence or pleading insanity at time of plea.
For what it's worth, I met someone who had pleaded guilty to driving whilst disqual, maximum sentence is six months, he received six months.....so much for leniancy when pleading guilty
Always go not guilty, even if your hand's stuck in the safe
>> Edited by RUSSELLM on Tuesday 12th July 16:17
I pleaded guilty to dangerous driving & was warned to expect two years, with four being the maximum at the time.
I received 11 months, if it had been four years, then four years it is.
Is he appealing against length of sentence or pleading insanity at time of plea.
For what it's worth, I met someone who had pleaded guilty to driving whilst disqual, maximum sentence is six months, he received six months.....so much for leniancy when pleading guilty
Always go not guilty, even if your hand's stuck in the safe
>> Edited by RUSSELLM on Tuesday 12th July 16:17
RUSSELLM said:
The man involved has pleaded guilty to causing death by dangerous driving, his solicitor, I would imagine, has advised him he "should" get x amount of years up to a maximum of ten years, he's got five years, what's his problem ?
I pleaded guilty to dangerous driving & was warned to expect two years, with four being the maximum at the time.
I received 11 months, if it had been four years, then four years it is.
Is he appealing against length of sentence or pleading insanity at time of plea.
For what it's worth, I met someone who had pleaded guilty to driving whilst disqual, maximum sentence is six months, he received six months.....
Always go not guilty, even if your hand's stuck in the safe
One of the most important points here if the information is accurate is that his solicitor advised him to plead guilty: that does not mean he acted in a guilty fashion, felt that he was guilty or was legally guilty of the offence; he simply acted upon advice, advice that was totally ill founded and quite frankly disgraceful, particularly from a barrister.
This is a monstrous abuse of the law and clearly a miscarraige of justice.
I would remind everyone of the basis of my argument in the Gary Hart thread about the sufficiency and quality of evidence as it relates to reasonable doubt.
This lad was not charged with speeding or dangerous driving, he was charged with causing DEATH by dangerous driving; how on earth did they get to that??!!
I will guarantee that a jury trial would have found him not guilty.
If the judge on the day would have had any sense of decency and some hairy balls between his legs, he would have admonished him.
We should start a fund for this lad and lodge an appeal: remember it could very easily have been a number of you reading this.
IOLAIRE said:
I will guarantee that a jury trial would have found him not guilty.
James, I agree entirely. If he's anything like me & this was his first brush with the law, he would have found the court quite intimmidating.
The so called expert barrister would have advised him to plead guilty.
Tha accused, meeting a solicitor / barrister for the first time, would have "presumed" that they were being given expert advice, barrister tells him to go guilty "as it's for the best", barrister walks away with a 100% record for no cases lost, everyones happy......
Except the wall starer that is.
The cynical part of me sometimes thinks that the barrister's are trying to keep their records good to further their career or even get a job for the prosecution, but that couldn't be possible could it ?
No offence to under 25 barristers, but I'm going to guess his barrister was less than 25 years of age & he obtained his/her services via legal aid. Just a guess
errr... small point, just noticed there is no mention of "previous convictions or for that matter no mention of "unblemished character"
At this point he may have a string of pre cons, he could have received a three year penalty for this before & having not learned his lesson, he's been given a five, might have even been driving whilst disqual, for that matter he may be of perfect character
Lots of might be's, me thinks we need to know his previous convictions before jumping on the "he's been given a raw deal" bandwagon.
>> Edited by RUSSELLM on Tuesday 12th July 16:51
At this point he may have a string of pre cons, he could have received a three year penalty for this before & having not learned his lesson, he's been given a five, might have even been driving whilst disqual, for that matter he may be of perfect character
Lots of might be's, me thinks we need to know his previous convictions before jumping on the "he's been given a raw deal" bandwagon.
>> Edited by RUSSELLM on Tuesday 12th July 16:51
RUSSELLM said:
errr... small point, just noticed there is no mention of "previous convictions or for that matter no mention of "unblemished character"
Actually the press article on page one of this thread mentions a previous conviction - and one that could go some way to explain the judge's heavy hand -
article said:
...just two days after Jackson had been convicted of speeding.
edit to add
not sure I agree with the 5 years though - as IOLAIRE says, scrotes dishing out horrible beatings can expect community service, something about intent springs to mind here.
>> Edited by _dobbo_ on Tuesday 12th July 19:30
smeggy said:
kenp said:
The simple fact is that he admitted to racing.
Did he? I can’t find any direct reference of this; it would seem he pleaded guilty to ‘death by dangerous driving’, his only real mistake IMO.
Richard Gray, defending, said: "What we have here between two young and probably immature men is a moment of madness and certainly an equal degree of culpability in the race down the A500.
kenp said:
We effectively have a 'joint enterprise' here, and both parties are responsible for each others actions whether the scope was previously agreed or not.
smeggy said:
This is the direction this government is taking, wrongly IMO. What was the outcome of the plan to automatically put the driver at fault if involved with a collision with a pedestrian? It’s judgements like these, based upon shifting the burden of responsibility, which leaves the system open to abuse.
This is based on long established common law and not a recent trend embarked upon by government.
kenp said:
If you rob a bank together with Johnny and Johnny shots the bank clerk then you are looking at a murder charge as well.
smeggy said:
Yes but this doesn’t necessarily mean you’ll be convicted of it; the possibility must of course be investigated.
In joint enterprise cases a jury will be directed to convict under such circumstances. Myra Hindley never killed anybody, yet she got a bag full of murder convictions
kenp said:
Further mens rea does not always need to extend to the consequences. Once again murder is a prime example, you do not need to prove an intention to kill in order to secure a conviction of unintended consequences.
smeggy said:
As daft as it sounds, the next time someone keeps up with me, can I get them nailed for ‘attempted death by dangerous driving’, even if I don’t fall off the road?
You are showing your ignorance here since there is no such offence. If you could show that somebody tried to kill you with a car then it would be attempted murder.
You cannot attempt an offence which does not require mens rea. The mens rea in such a case is limited to the dangerous part of dangerous driving. 'Causing death' is causal not intentional.
>> Edited by kenp on Wednesday 13th July 01:11
Richard Gray, defending, said: "What we have here between two young and probably immature men is a moment of madness and certainly an equal degree of culpability in the race down the A500.
A grossly incompetent statement from a Defence Counsel, particularly in the light of the current political bent on crucifying motorists.
kenp said:
We effectively have a 'joint enterprise' here, and both parties are responsible for each others actions whether the scope was previously agreed or not.
Totally disagree: these parties had never even met and, with the exception of deliberately ramming or obstructing the paths of the others vehicle, which of course they did not, they are each seperately and completely in control of their respective vehicles.
There is clearly no way that the accused was responsible for the throttle opening, style of driving and most importantly, the under inflated tyre on the Fiesta, almost certainly the reason he lost control.
kenp said:
If you rob a bank together with Johnny and Johnny shots the bank clerk then you are looking at a murder charge as well.
Completely different: robbery is a premeditated and agreed act of criminal intent.
In joint enterprise cases a jury will be directed to convict under such circumstances. Myra Hindley never killed anybody, yet she got a bag full of murder convictions
Myra Hindley was totally complicit in the seduction, kidnapping and torture of the children involved.
You are showing your ignorance here since there is no such offence. If you could show that somebody tried to kill you with a car then it would be attempted murder.
You cannot attempt an offence which does not require mens rea. The mens rea in such a case is limited to the dangerous part of dangerous driving. 'Causing death' is causal not intentional.
Precisely: and where is the evidence that the accused caused death, it simply does not exist.
There was no collision between the vehicles, no road rage, I repeat once again the accused never even overtook the other vehicle.
>> Edited by kenp on Wednesday 13th July 01:11[/quote]
You do not need to meet somebody and reach an explicit agreement to race. In this case there is an admission by one party and conduct by the other that an implicit agreement to race existed.
The point about Myra Hindlay is that she may have committed a number of offences but not actual murder, yet the 'joint enterprise' ensured her murder conviction.
The accused admitted dangerous driving. The 'dangerous' amounts to premeditated ie wanton disregard/reckless. The consequences (mens rea irrelevant) were death. In murder cases there is no requirement to show an intention to kill (although it helps), but the consequences are decisive.
The underinflated tyre is a red herring, an old law maxim says that 'you take your victim as you find him' also known as the 'eggshell skull' maxim.
The point about Myra Hindlay is that she may have committed a number of offences but not actual murder, yet the 'joint enterprise' ensured her murder conviction.
The accused admitted dangerous driving. The 'dangerous' amounts to premeditated ie wanton disregard/reckless. The consequences (mens rea irrelevant) were death. In murder cases there is no requirement to show an intention to kill (although it helps), but the consequences are decisive.
The underinflated tyre is a red herring, an old law maxim says that 'you take your victim as you find him' also known as the 'eggshell skull' maxim.
monster1 said:
Judge Paul Glenn told him: "It was wet at the time and you knew the danger of this stretch of road, but despite this you raced against a smaller, less powerful car, encouraging Mr Hughes to drive faster when he had an under-inflated tyre.
"The plain and simple fact is that, had you not chosen to race him, he would not have driven as he did. I'm afraid that racing is a feature of high culpability in this case.
.
Blimey a physic judge, whatever next ?
kenp said:
You do not need to meet somebody and reach an explicit agreement to race. In this case there is an admission by one party and conduct by the other that an implicit agreement to race existed.
The point about Myra Hindlay is that she may have committed a number of offences but not actual murder, yet the 'joint enterprise' ensured her murder conviction.
The accused admitted dangerous driving. The 'dangerous' amounts to premeditated ie wanton disregard/reckless. The consequences (mens rea irrelevant) were death. In murder cases there is no requirement to show an intention to kill (although it helps), but the consequences are decisive.
The underinflated tyre is a red herring, an old law maxim says that 'you take your victim as you find him' also known as the 'eggshell skull' maxim.
Sorry Ken, but you are making the same mistake as the CPS and the judges in this case.
An under inflated tyre is most definitely NOT a red herring.
This is one of the largest difficulties in Road Traffic cases; transmitting technical information to the court to enable them to understand the concepts and translate them into legal principles that should or should not be taken into account when deciding guilt or innocence.
A worn or under inflated tyre will turn a brand new car into a death trap: that is a fact.
If the loss of control was even in a small degree due to this tyre, then the driver of the Fiesta is wholly responsible for his own demise; any other vehicle on the road at that time is irrelevant.
The now forgotten and largely suppressed concept of reasonable doubt should then kick in and return a not guilty verdict in the case of a trial.
In this case the CPS should have considered that and never have prosecuted in the first place.
But the lad's brief most definitely should have seen it as a fully legitimate defence and done what he gets paid enormous sums of money to do; defend him!
>> Edited by IOLAIRE on Wednesday 13th July 13:08
kenp said:Yeah, but only via his dumbass lawyer’s advice on how to plea, he never directly admitted to racing (from the news accounts I have seen).
The simple fact is that he admitted to racing.
kenp said:Things are changing against motorists, so I disagree, e.g. “naked roads”, cloning
We effectively have a 'joint enterprise' here, and both parties are responsible for each others actions whether the scope was previously agreed or not.
…….
This is based on long established common law and not a recent trend embarked upon by government.
kenp said:However, she knew that death would occur and, only through her involvement of her own free will (demonstrating malice), enabled Ian Brady to commit the ghastly offences (joint enterprise); hence the charge of murder stands. This is very different to the Nissan driver’s case as none of the above applies.
Myra Hindley never killed anybody, yet she got a bag full of murder convictions
kenp said:
Further mens rea does not always need to extend to the consequences. Once again murder is a prime example, you do not need to prove an intention to kill in order to secure a conviction of unintended consequences.
Murder – malice (intention) = manslaughter (or probably involuntary manslaughter).
kenp said:I know there is no such offence. I was extrapolating to demonstrate a point. Being as no such offence exists, how can you then attribute the cause of death when it actually occurs?
As daft as it sounds, the next time someone keeps up with me, can I get them nailed for ‘attempted death by dangerous driving’, even if I don’t fall off the road?
You cannot attempt an offence which does not require mens rea. The mens rea in such a case is limited to the dangerous part of dangerous driving. 'Causing death' is causal not intentional.
If the Nissan driver could be shown to have ‘caused dangerous driving by dangerous driving’ then the charge of ‘causing death by dangerous driving’ should stick. However, this has not been proven, even when assuming that the Nissan driver was driving dangerously. The judge assumed this link simply because of the guilty plea, but he could have been lenient (or couldn’t he? Is 5 years now the minimum for DbDD?)
We know how seldom drivers use their rear view mirrors, proven by the way they act, or don’t, when an emergency vehicle is following with their blues on. My point being: has anyone proven that the Fiesta driver had even acknowledged that the following Nissan was keeping up? The prosecution’s argument would surely have fallen apart if this wasn’t proven?
I can’t see a reference for Lee Scarlett’s testimony to justify this – I stand to be corrected
I’m an electronics engineer by trade and by nature so forgive me if I am showing my ignorance here, but the plea and sentence goes against common sense.
RUSSELLM said:
me thinks we need to know his previous convictions before jumping on the "he's been given a raw deal" bandwagon.
why should we know, if it was to be heard by jury of peers is to deliberate on the facts in the case brought not on what he has done in the past, so he had a conviction so do most of the country now thanks to the relience on policing by scamera.
timf said:
me thinks we need to know his previous convictions before jumping on the "he's been given a raw deal" bandwagon.
why should we know, if it was to be heard by jury of peers is to deliberate on the facts in the case brought not on what he has done in the past, so he had a conviction so do most of the country now thanks to the relience on policing by scamera.
He was convicted of speeding two days before this took place, and depending on the circumstances of that conviction, and any other previous driving convictions, this would establish the character of the defendant as a motorist. It would also influence the jury accordingly (whether it is supposed to or not). It would appear it may have influenced the judge as well.
GreenV8S said:
In murder cases there is no requirement to show an intention to kill (although it helps), but the consequences are decisive.
Sounds like you know a lot more about this than me, but wouldn't that be manslaughter (accidental killing) rather than murder (deliberate killing)?
To make out a charge of murder it is sufficient to show that the assailant intended to cause the victim serious harm and death resulted from the act (within a year and a day). Serious harm is harm greater than that caused by a simple assault. It is frequently referred to harm amounting to 'grievious bodily harm'.
So you can show a lesser intention but the assailant is convicted on the outcome of his act, not his intention.
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