Lawyer types - A bit of advice for a fellow driver
Discussion
IOLAIRE 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
The position of the law is quite simple, if you enter into a criminal joint enterprise (in this case racing) then you suffer the consequences of either party's action regardless how unforseeable, negligent or unexpected. There are rare exceptions to this were the act is so remote from the joint enterprise, that it is excluded. That the other racer had an unroadworthy care is not remote. If he shot his complaining passenger during the race, then you have remoteness.
Barristers know what they are talking about, always do as they say. If you dont you are for the chop.
With that in mind, the circumstances probably would mean that a not guilty plea would have been a bad idea.
He will get out in under 2 years, its not the end of the world, it could be worse, the other guys are dead.
With that in mind, the circumstances probably would mean that a not guilty plea would have been a bad idea.
He will get out in under 2 years, its not the end of the world, it could be worse, the other guys are dead.
timf said:
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.
What jury of peers ?
He pleaded guilty direct to the Judge.
If he'd gone not gulity & come up before a jury then for obvious reasons you cant mention his pre cons.
The reason we need to know them is they are saying he's been severely dealt with by receiving the 5 yr sentence. But for example, if this is his tenth death by dangerous driving, he's got off quite light.
Equally if he's of previous good charater (apart from the poxy speeding offence), I think he's been poorly advised.
The sentence you can't moan about, bit like murdering someone, having a good excuse & expecting to get a fine
>> Edited by RUSSELLM on Thursday 14th July 08:17
the pirate said:
Barristers know what they are talking about, always do as they say. If you dont you are for the chop.
With that in mind, the circumstances probably would mean that a not guilty plea would have been a bad idea.
He will get out in under 2 years, its not the end of the world, it could be worse, the other guys are dead.
Completely, totally and absolutely inaccurate!
I have folders full of collosal errors made by barristers in criminal trials: why the hell do you think the Appeal Court is so busy?
The swaggering arrogance of some of these people is the downfall of their clients.
The other guys are dead because of their own mischief and stupidity, not because the accused killed them.
kenp said:
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
The position of the law is quite simple, if you enter into a criminal joint enterprise (in this case racing) then you suffer the consequences of either party's action regardless how unforseeable, negligent or unexpected. There are rare exceptions to this were the act is so remote from the joint enterprise, that it is excluded. That the other racer had an unroadworthy care is not remote. If he shot his complaining passenger during the race, then you have remoteness.
You are going down the wrong route here Ken and you have to be very careful about this.
The sections in the Act about road racing are primarily to prevent just that.
Individuals deliberately setting up a road race with the intention of competing and winning without the consent of the authorities: clearly, under those circumstances, there is absolutely no doubt that this is a race, these individuals are racing.
There are of course exceptions like the TT in the Isle of Man, the Monaco Grand Prix, etc, where the public highway is closed off with the full consent of the law and is therefore no longer deemed to be a public road.
Both of the above is totally unambiguous; what happened on this occasion however, is an entirely different matter.
From what we can draw the accused was NOT racing, where is the evidence to support racing?
He did not overtake at any time, or even appear to make an attempt at overtaking.
The detail in the letter from the House of Commons makes the mistake of comparing the power output of both cars. This is completely irrelevant in law as the difference in output would not prevent a race, a lot of young drivers will still have a go; and this is the real crux of the matter: prejudicial assumption, by the CPS, the judge, and worst of all, the accused's own counsel!
What is to me a vitally important point about the power output issue is that the accused quite clearly would have had no problem overtaking the Fiesta or at least giving him a hard time of it, but he didn't.
What we know for a fact is that he was travelling at a safe enough distance behind the Fiesta that he could observe the accident, pull safely into the side of the road and give assistance to the injured parties.
Does that sound like a road racer to you?
Are you trying to tell me that any lawyer worth his salt, even a novice, couldn't form a substantial defence out of that lot?
Because he admitted under advice to racing, he was sentenced to causing death. Had he pled not guilty the onus of proof would have been on the Crown to PROVE racing, it could not have been assumed.
That would have been an entirely different matter.
Can't really comment too much about this, insufficient info. Do wonder about the advice to plead guilty based on what posted here though.
Anyway I digress.
Thought about this thread yesterday behind someone progressing in a spirited but reasonable fashion, until he made a criminal undertake and other dodgy manoeuvres.
Up until that point we had been travelling on the same road in the same direction at the same time. Neither any idea who the other one was or where we were heading. No intent to overtake or compete. Just that we were both going quicker than the average 40 mph bimbler which is the norm for this road. Until above mentioned undertake by other party neither had done anything illegal, I stayed legal he chose not to, his problem.
Had one of us come a cropper, lets say his undertake had gone toes up being the first stupid mistake he made, would the other one now be facing a custodial?
Having read this thread does this change one's behaviour? In that you come across another spirited driver, should you immediately disengage rather than engage in a dice? Think I might immediately disengage.
Dicing bit of a strong word for it but you know what I mean.
What do you reckon Iolaire?
Anyway I digress.
Thought about this thread yesterday behind someone progressing in a spirited but reasonable fashion, until he made a criminal undertake and other dodgy manoeuvres.
Up until that point we had been travelling on the same road in the same direction at the same time. Neither any idea who the other one was or where we were heading. No intent to overtake or compete. Just that we were both going quicker than the average 40 mph bimbler which is the norm for this road. Until above mentioned undertake by other party neither had done anything illegal, I stayed legal he chose not to, his problem.
Had one of us come a cropper, lets say his undertake had gone toes up being the first stupid mistake he made, would the other one now be facing a custodial?
Having read this thread does this change one's behaviour? In that you come across another spirited driver, should you immediately disengage rather than engage in a dice? Think I might immediately disengage.
Dicing bit of a strong word for it but you know what I mean.
What do you reckon Iolaire?
We had better all keep off the motorways or dual carriageways now eh? All those cars going in the same direction at roughly the same speed, overtaking too, are all now considered to be racing?
As far as I am concerned, if I am pressing on, and coincidentally, another vehicle happens to be pressing on too, it is just that, coincidental, not racing. If I just follow on, that is not racing, if I overtake, and then leave it way behind, that is not racing either. It is just out driving and passing another car. Its normal and has been going on for decades.
As far as I am concerned, if I am pressing on, and coincidentally, another vehicle happens to be pressing on too, it is just that, coincidental, not racing. If I just follow on, that is not racing, if I overtake, and then leave it way behind, that is not racing either. It is just out driving and passing another car. Its normal and has been going on for decades.
Flat in Fifth said:
Can't really comment too much about this, insufficient info. Do wonder about the advice to plead guilty based on what posted here though.
Anyway I digress.
Thought about this thread yesterday behind someone progressing in a spirited but reasonable fashion, until he made a criminal undertake and other dodgy manoeuvres.
Up until that point we had been travelling on the same road in the same direction at the same time. Neither any idea who the other one was or where we were heading. No intent to overtake or compete. Just that we were both going quicker than the average 40 mph bimbler which is the norm for this road. Until above mentioned undertake by other party neither had done anything illegal, I stayed legal he chose not to, his problem.
Had one of us come a cropper, lets say his undertake had gone toes up being the first stupid mistake he made, would the other one now be facing a custodial?
Having read this thread does this change one's behaviour? In that you come across another spirited driver, should you immediately disengage rather than engage in a dice? Think I might immediately disengage.
Dicing bit of a strong word for it but you know what I mean.
What do you reckon Iolaire?
Good point FiF, and of course very true. Every one of us has had a wee, let's say, vigorous auto banter with other good drivers; but I most definitely do not get involved with Euro boxes full of teenagers.
I am defending two PHrs right now and you have brought up a point here that frequently comes to light in this sort of case.
There is no such thing as undertaking in terms of road behaviour. The term undertaking has only two meanings; either an individual who arranges the disposal of dead bodies, or the act of committal to a specified task.
If you mean overtaking another driver on the inside, then I have to tell you that it is 100% legal, and is of course carried out perfectly safely in many countries throughout the world.
It is not recommended in the Highway Code, probably due to the gross lack of use of inside mirrors by the majority of motoring dummies, and it will probably get you a pull if spotted, but there is no law against it.
There is however in practice a significant difference between cruising past an ignoramous on the motorway on the inside who flatly refuses to move in, and weaving in and out of traffic forcing others to brake.
Balmoral Green said:
We had better all keep off the motorways or dual carriageways now eh? All those cars going in the same direction at roughly the same speed, overtaking too, are all now considered to be racing?
As far as I am concerned, if I am pressing on, and coincidentally, another vehicle happens to be pressing on too, it is just that, coincidental, not racing. If I just follow on, that is not racing, if I overtake, and then leave it way behind, that is not racing either. It is just out driving and passing another car. Its normal and has been going on for decades.
Quite right Warren. I occasionally encounter another driver in similar press on mode and we might travel together quite quickly for a few miles. It happened very recently on the SC A59 between the Preston area and Harrogate. I was in front for a while, then I eased off a little while I pressed a couple of buttons on the Navman, so the other guy passed me. Having done that I picked up the pace again and we travelled another ten miles or so, with him leading, before going our separate ways. We each made some good overtakes (of other cars) and it was most enjoyable and perfectly safe. It was most certainly not a race.
Best wishes all,
Dave.
I think it should be remembered that we have seen very little details of this offence, & the reason behind the sentence could be in the 95% of the case that we havn't seen.
The offenders pre con's are very important.
The taxi driver said "I saw two cars going approx 100mph"
I would be very suprised if under interview that the above was the sum total of all he said. I'm "guessing" looking at the sentence, that his statement along with that of the other witnesses, (Stephens passenger, the survivor from the other car etc) must of been quite incriminating.
Stephens barrister might have struck a deal with the prosecution to plead guilty under circumstances (can't remember the proper name for the plea), the circumstance being that certain evidence & statements would not be produced by the prosecution.
There is a lot of information missing, for any of us to comment on what he should or shouldn't have done / received.
Russell
The offenders pre con's are very important.
The taxi driver said "I saw two cars going approx 100mph"
I would be very suprised if under interview that the above was the sum total of all he said. I'm "guessing" looking at the sentence, that his statement along with that of the other witnesses, (Stephens passenger, the survivor from the other car etc) must of been quite incriminating.
Stephens barrister might have struck a deal with the prosecution to plead guilty under circumstances (can't remember the proper name for the plea), the circumstance being that certain evidence & statements would not be produced by the prosecution.
There is a lot of information missing, for any of us to comment on what he should or shouldn't have done / received.
Russell
IOLAIRE said:
The position of the law is quite simple, if you enter into a criminal joint enterprise (in this case racing) then you suffer the consequences of either party's action regardless how unforseeable, negligent or unexpected. There are rare exceptions to this were the act is so remote from the joint enterprise, that it is excluded. That the other racer had an unroadworthy care is not remote. If he shot his complaining passenger during the race, then you have remoteness.
You are going down the wrong route here Ken and you have to be very careful about this.
The sections in the Act about road racing are primarily to prevent just that.
From what we can draw the accused was NOT racing, where is the evidence to support racing?
He did not overtake at any time, or even appear to make an attempt at overtaking.
.....What is to me a vitally important point about the power output issue is that the accused quite clearly would have had no problem overtaking the Fiesta or at least giving him a hard time of it, but he didn't.
What we know for a fact is that he was travelling at a safe enough distance behind the Fiesta that he could observe the accident, pull safely into the side of the road and give assistance to the injured parties.
Does that sound like a road racer to you?
Are you trying to tell me that any lawyer worth his salt, even a novice, couldn't form a substantial defence out of that lot?
Because he admitted under advice to racing, he was sentenced to causing death. Had he pled not guilty the onus of proof would have been on the Crown to PROVE racing, it could not have been assumed.
That would have been an entirely different matter.[/quote]
I am sorry, but you are wrong. After taking legal advice, the accused admitted to racing. What further proof could a court require. Both counsel and the defendant would have facts which we are not necessarily aware of. Apart from legal nicities most people understand the simple term 'to race' ie 'to compete against each other'. Maybe the defendant decided to give the victim a bit of a head start in order to make it more interesting. I don't know, nor do you. What we both know is that he admitted racing and pled guilty, therefore a conviction was inevitable.
RUSSELLM said:
I think it should be remembered that we have seen very little details of this offence, & the reason behind the sentence could be in the 95% of the case that we havn't seen.
The offenders pre con's are very important.
The taxi driver said "I saw two cars going approx 100mph"
I would be very suprised if under interview that the above was the sum total of all he said. I'm "guessing" looking at the sentence, that his statement along with that of the other witnesses, (Stephens passenger, the survivor from the other car etc) must of been quite incriminating.
Stephens barrister might have struck a deal with the prosecution to plead guilty under circumstances (can't remember the proper name for the plea), the circumstance being that certain evidence & statements would not be produced by the prosecution.
There is a lot of information missing, for any of us to comment on what he should or shouldn't have done / received.
Russell
Some good points Russell, but there are facts in here that are beyond question, and these are the ones we should examine and most importantly learn from.
To all of you who find yourself in a similar position.
NEVER, and I mean NEVER trust a solicitor or a barrister to do a "deal" with the CPS.
What you have to understand is the politics of the legal system.
The barrister that represents you and receives his huge cheque from the legal aid system or from you if you are wealthy enough, will most likely, the very next day in the same court, be representing the Crown in a prosecution.
In other words, the individual in the CPS who is hell bent on prosecuting you cannot be truly viewed as an opponent of your Counsel; he is in reality a colleague or even a friend of the person who is supposedly defending you.
But worse than that, and this case here is wholly representative of just how wrong it can get, there is absolutely no guarantee that their little deals in the corridor will be recognised by the court that is sentencing you: i.e. you are screwed if the judge decides it!
The judge and the prosecutor go home to their nice houses and cuddly wives knowing their pay cheque will once again drop into their bank accounts at the end of the month, and the barrister looks forward with relish to his monster cheque from the Legal Aid Fund: you sit in a jail cell, staring at the walls, utterly distraught in the knowledge that he promised you a light sentence if you pled guilty, you weren't even involved in a collision, you are a good driver for God's sake! You've lost your job, your house, probably your partner too; and you will carry a criminal record for the rest of your life.
Mens rea?
I think not.
I'm not entirely sure which side of the argument to come down on. On the one hand the guy admitted racing. Therefore he either thought he was racing/arranged to race or he was told by his barrister that the court would interpret his actions as racing and he should plead guilty to reduce the inevitable sentence.
If it's the former then fine, he has taken it on the chin, good luck to him. If it's the latter then it's very concerning. A couple of weeks ago I drove down the A1 for about an hour with a Fiat Ulysse in tow. It just so happened that we were travelling at the same time, at the same speed. We were never more than 200 yards apart, yet his driving had no impact on ine whatsoever. In fact it made me more relaxed having an impromptu mate. When I turned off, he came past and gave me a friendly wave, it made my day.
If he had crashed somehow, would I be advised that I was racing? Say for example that we were travelling at 100mph and several witnesses saw us and reported this fact after the crash, would I be shafted despite not actually racing?
I think this is the issue that this thread has thrown up and it's more than a bit disturbing (and somewhat similar to the emergency-vehicle-red-light scenario).
If it's the former then fine, he has taken it on the chin, good luck to him. If it's the latter then it's very concerning. A couple of weeks ago I drove down the A1 for about an hour with a Fiat Ulysse in tow. It just so happened that we were travelling at the same time, at the same speed. We were never more than 200 yards apart, yet his driving had no impact on ine whatsoever. In fact it made me more relaxed having an impromptu mate. When I turned off, he came past and gave me a friendly wave, it made my day.
If he had crashed somehow, would I be advised that I was racing? Say for example that we were travelling at 100mph and several witnesses saw us and reported this fact after the crash, would I be shafted despite not actually racing?
I think this is the issue that this thread has thrown up and it's more than a bit disturbing (and somewhat similar to the emergency-vehicle-red-light scenario).
IOLAIRE said:
NEVER, and I mean NEVER trust a solicitor or a barrister to do a "deal" with the CPS.
What you have to understand is the politics of the legal system.
The barrister that represents you and receives his huge cheque from the legal aid system or from you if you are wealthy enough, will most likely, the very next day in the same court, be representing the Crown in a prosecution.
In other words, the individual in the CPS who is hell bent on prosecuting you cannot be truly viewed as an opponent of your Counsel; he is in reality a colleague or even a friend of the person who is supposedly defending you.
So who do we trust when our back is against the wall IOLAIRE?
You by any chance?
IOLAIRE said:
But worse than that, and this case here is wholly representative of just how wrong it can get, there is absolutely no guarantee that their little deals in the corridor will be recognised by the court that is sentencing you: i.e. you are screwed if the judge decides it!
The judge and the prosecutor go home to their nice houses and cuddly wives knowing their pay cheque will once again drop into their bank accounts at the end of the month, and the barrister looks forward with relish to his monster cheque from the Legal Aid Fund: you sit in a jail cell, staring at the walls, utterly distraught in the knowledge that he promised you a light sentence if you pled guilty, you weren't even involved in a collision, you are a good driver for God's sake! You've lost your job, your house, probably your partner too; and you will carry a criminal record for the rest of your life.
Mens rea?
I think not.
I think you are delving into the realms of fantasy and scaring the readers with posts like that!
Bit like thee IOLAIRE. If doing a mechanical examination on behalf of a client you do, I am sure, do it to the best of your ability, irrespective of the outcome for you deal with facts in front of you. As does the legal profession.
A lazy, incompetent Barrister, yes there are some like Mech Engs, will soon find that there is little work in his chambers. Successful ones are highly sort after by both sides. Hence Nick Freeman more likely to get called as opposed as you??????
DVD
A lazy, incompetent Barrister, yes there are some like Mech Engs, will soon find that there is little work in his chambers. Successful ones are highly sort after by both sides. Hence Nick Freeman more likely to get called as opposed as you??????
DVD
If you were to say to me, that every barrister in the country was doing his best for his client & not for himself, I'd have to side with IOLAIRE.
There are good defence barristers out there that you pay a premium for.
There are good & bad barristers, come to think of it in this country we've had the odd dodgy police officer & even the odd judge.
To many generalisations start arguments
There are good defence barristers out there that you pay a premium for.
There are good & bad barristers, come to think of it in this country we've had the odd dodgy police officer & even the odd judge.
To many generalisations start arguments
IOLAIRE said:
some stuff about overtaking / undertaking
then
IOLAIRE said:
There is however in practice a significant difference between cruising past an ignoramous on the motorway on the inside who flatly refuses to move in, and weaving in and out of traffic forcing others to brake.
For the record the road had been a mixture of NSL SC and DC. Until the point described below we had both been legal in terms of speed and all else, but had been making much better progress than the various Ethels and Arthurs chuntering along. I hope you'll accept my word regarding the truth of the legality issue.
If for a moment you will pardon the misuse of the word undertaking.
The set of manoeuvres I objected to took place on a 2 lane dual.
Imagine coming up behind a mobile slalom course.
All nicely spaced out alternately in lanes 1 and 2. Chummy undertakes vehicle A, no pause to see if A wakes up and moves left. He blasts past with about 30 mph differential speed.
Quickly approaches B who is in lane 1, so chummy moves sharply out into lane 2 no signal and a bit close in front of A, who dabs his/her brakes, somewhat unecessarily but nevertheless he/she braked.
Matey now repeats exercise of swapping lanes to undertake C and then overtake D.
By now he is a fair way away, red mist firmly in place and I'm hanging well back in case it all goes pear shaped. Therefore perspective, distances and angles a bit difficult by now.
What appeared to me is that he was coming rapidly up on the outside of D when he spotted he was in danger of missing his turn slot left. So appeared to boot it past D swap lanes again sharply no signal, brake lights flared on THEN left signal and off he went.
Driver D was a shade cross shall we say.
Now imagine the scenario where it has all gone toes up somewhere in that little lot. All the stuff behind me has now negotiated the roundabout, come over the brow of the hill to total carnage. "Well these two were racing like madmen past me your honour." Totally untrue, but third party perspective and fifteen assumptions none of which relevant to the situation make life difficult.
I do take Balmoral Green's point and he is quite correct in what he says. Potential stupidity looms if it gets any worse though and this thread has given me a little pause for thought.
FiF
>> Edited by Flat in Fifth on Friday 15th July 20:25
Is this STILL going on?!?
Guys, we don't have enough evidence. On the face of it, I'd say he received very bad advice, from a barrister who was either lazy or perhaps a little too self-interested. Such people clearly exist...they do in every other job and profession I've encountered, why not this one.
BUT...if there was substantial eye-witness evidence we know nothing about...then that may change things, and he may have tried plea-bargaining and got stung anyway.
I feel for him...it's a silly sentence given the types of violence some scrotes are getting away with community service for...what we may want to see is whether he appeals...can he change his plea if he does?!?
Guys, we don't have enough evidence. On the face of it, I'd say he received very bad advice, from a barrister who was either lazy or perhaps a little too self-interested. Such people clearly exist...they do in every other job and profession I've encountered, why not this one.
BUT...if there was substantial eye-witness evidence we know nothing about...then that may change things, and he may have tried plea-bargaining and got stung anyway.
I feel for him...it's a silly sentence given the types of violence some scrotes are getting away with community service for...what we may want to see is whether he appeals...can he change his plea if he does?!?
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