hi question about undue care and attention

[sabina1986]

My brother has been summoned to court today via the way of letter. The alleged offence is for driving without due care and attention. Reading through the statement of facts the poiceman has advised that he passed my brother who was driving in a notherly direction as he was driving in a southerly direction down a dual carrige way. As my brother was in front of another vehicle the poiceman makes reference in his statement that he belived them to be street racing at the time.
He then says he turned round (which knowing the road the nearest turning point is about 1/4 mile away) and followed my brother over a distance of 0.2 miles at a speed of between 50-60 mph?
He says in his statement that his police car was later calibrated and was working ok.
On the stretch of road in question there is 2 roundabouts, 1 speed camera, 2 sets of lights, 2 sets of lights for pedestrian crossings. so there is no way he could have done this speed.
He then proceeded to stop my brother and asked him if he though he was speeding to which he replied no.
He did not give him a speeding a ticket but proceeded to issue him with a verbal summons and producer.

This was the last we heard of it until today, we are aplying for legal aid but solicitor has told us he doubts he'll get it.
as you can imagine he's really worried about this as he really didnt think his driving did exceed 30 mph and hes only had his licence 1 year.
Anyone got any advice or past experiences do you think with no evidence this charge will stand up in court or is there a way out of this one? Any help is much appreciated.

Edited by sabina1986 on Thursday 13th September 17:01

[havoc]

Not a lawyer, but I'd start by measuring out and taking photos/video (both?) of the area from where the copper claims he spotted your brother:-
(a) backwards to the nearest turning point;
(b) forwards to the point where he was pulled...incorporating the 0.2 miles he was followed;
(c) across the carriageway from where the copper was to where the car was, to establish if there was any visibility issues.

This will give you a good idea of whether the copper's story will hold water, and also of whether the copper MAY have lost visual sight of the original car and pulled your brother over by mistake.

Someone else will probably be along soon with some further advice...


Of course, if your brother WAS racing or speeding in a 30, then he's a fool. But for the moment we must assume you/he are telling the truth about this.

[JustinP1]

sabina1986 said:

...as you can imagine he's really worried about this as he really didnt think his driving did exceed 30 mph and hes only had his licence 1 year.
Anyone got any advice or past experiences do you think with no evidence this charge will stand up in court or is there a way out of this one? Any help is much appreciated.

Edited by sabina1986 on Thursday 13th September 17:01

My advice would be to think very carefully.

Is he/you worried because he REALLY doesnt think he was speeding?

Or is he/you worried because of the second reason... as he has only had his licence for one year and with the evidence against him, would lose his licence?


I have personally defended myself and won against three police officers. I did this because I knew, and was 100% positive I was innocent.

In effect we have a situation where the police officer will give evidence which will possibly prove racing, driving without due care and attention and speeding.

From what you say, your brother's argument will be 'No, your honour, he has it wrong on all charges, I was just pootling along at 30... I have no idea why he did a U-turn, chase me down and stop me...'

Now, despite my experience of being falsely accused, my first impressions are that your bro HAS done something which alerted the officer... Rightly or wrongly, the magistrates first impressions will be the same.

That means he is 4 - 0 down before he has started. In my experience you only have 3 ways of getting a positive outcome:

1) You have a very experienced solicitor and he looks to discredit the evidence of the officer without your brother taking the stand. This will cost £2000 - £5000 and if you lose you will have to pay this.

2) Your brother takes the stand as HE KNOWS HE IS INNOCENT and would therefore be quite happy to be grilled. My guess is that he is youngish, and maybe not have the confidence and experience to defend himself so he will still need a solicitor, which will still cost, as there is still the 50/50 chance of winning.

3) Your brother takes the stand as HE KNOWS HE IS INNOCENT and defends himself on this principle. Myself and others can help look at the case and ways he can defend himself.

As you can see, the reoccuring factor is whether he KNOWS he is innocent, or whether he really wants to 'get off' what he in his heart of heart knows he has done.

If it is the latter my advice would be to plead guilty, grovel and accept the punishment which should be reduced for the guilty plea. After the ban and retest, he will have no doubt learnt his lesson.

If he knows he is innocent and is willing to defend himself in this principle, then come back to me. If he knows he is really guilty, your local solicitor will probably fleece you for a few hundred quid with the full knowledge he will lose. Don't bother - plead guilty and learn his lesson the hard way without adding the cost of a solicitor too.

[sabina1986]

hiya thanks so much for all your help and advice I am so grateful the answer to your question is i cant psssibkly know if he was speeding but he isnt a liar and has no previous convivtions. He didnt even know the vehicle behind him on the dual carrige way which as he has rightly said if it wanted to race him it could have done by pulling in to the right lane to have been alongside him.
I do admit my brother is only 18 and has a short hair cut, his car is also modified which dosent help as it has a noisy exhaust and spoiler.
I geunily belive him as he needs the car for his education and to help my father who is disabled.
I have explored the cost of a local solicitor and they have quoted £500-£1000 and have given the same advice as yourself I really dont want him to bite the bullet for something hasnt done becuase theres nothing to say they wont ban him anyway.
any more help would be greatly appreciated.
Thankyou

[JustinP1]

sabina1986 said:

hiya thanks so much for all your help and advice I am so grateful the answer to your question is i cant psssibkly know if he was speeding but he isnt a liar and has no previous convivtions. He didnt even know the vehicle behind him on the dual carrige way which as he has rightly said if it wanted to race him it could have done by pulling in to the right lane to have been alongside him.
I do admit my brother is only 18 and has a short hair cut, his car is also modified which dosent help as it has a noisy exhaust and spoiler.
I geunily belive him as he needs the car for his education and to help my father who is disabled.
I have explored the cost of a local solicitor and they have quoted £500-£1000 and have given the same advice as yourself I really dont want him to bite the bullet for something hasnt done becuase theres nothing to say they wont ban him anyway.
any more help would be greatly appreciated.
Thankyou

I can only suggest that you have a chat to him about what I have said above. He need to think VERY carefully about what has happened, and whether he is in fact guilty of speeding or anything else - not just because he doesnt like the punishment!

If he is to contest this in any meaningful way he will have to take the stand in the witness box and be bombarded with questions attacking his story and basically making out he is a liar. Not telling the truth 'on the stand' can get a conviction for perverting the course of justice - and you can go to jail for that... it really is that serious.

From what I can see, this case IS defendable. Indeed if I knew I was innocent in this case I would certainly defend myself.

What this case will depend on however is whether the magistrates see a 'boy racer' who is 18, short hair and a modified car - or a trustworthy and honest young lad who is completely believed. To have a chance of winning the case, it will HAVE to be the latter, and this to be the start of the magistrates seeing if the police officer really has made some mistakes and/or exaggerated his evidence - which he will have to prove is not correct or satisfactory.

To be honest, it does seem to me that the police officer has seen *something* which has attracted his attention. If he decided to do the U-turn and the pull he would need evidence - and whether this is real or exaggerated in order to push a conviction for at least one of the charges, is anyones guess.

Edited by JustinP1 on Thursday 13th September 17:53

[sabina1986]

I understand what you are saying and I most certainly would not offer, help, advice or funding for a solicitor if I did not belive him.
In general I think his driving is good as he does value his licence and is proud of his car.
I have been told that I can apply for a mckenzie friend for him in court but tbh I dont know where to go from here. A solicior who has looked at the case today for (through a legal aid clinic) laughed when he saw the pc's name and said "he must have tried to convict every motorist in this town" .
I dont know if this means we stand a lesser chance of a fair trial.
Thanks again

[Observer2]

JustinP1 said:

Not telling the truth 'on the stand' can get a conviction for perverting the course of justice - and you can go to jail for that... it really is that serious.

Whoah - hold on. Lying in the witness box is perjury, not PTCOJ. Yes it is a serious matter but don't overdo it. If a defendant swears on oath "I didn't do it" and a witness swears on oath "I saw him do it", the court has to decide who to belive and who to disbelieve. If the defendant is disbelived, he's found guilty and sentenced accordingly. He's not then charged and convicted with perjury and sentenced for that as well.

[sabina1986]

This is the p.c's statement minus brothers name and reg hope this helps.

At 23rL5pm on the 20th March 2007 . L was on duty on traffic patrol on St
" travelling in a southerly direction towards Fuiwood Avenue , when 1 saw a Silver Peugeot 106 Saloon Reg No ":" - **" travelling along st walburgas in a northerly direction on the other carriageway towards Bispham .
This vehicle was travelling at high Speed towards the roundabout junction with Plymouth road . and at the time was travelling with another vehicle and both appeared to be racing each other .The Peugeot vehicle at the time was being driven by a male whom i later learnt to be called "- .
I turned my police vehicle around and began to follow this vehicle onto Garstang road and
onto Blackpool Old Road where I followed the vehicle at a constant speed over a distance of 0.2 miles, I found the defendants speed at between 50 and 60 mph , and then caused the vehicle to stop on the nearside of the road and spoke to the driver _-______
I asked him why he thought he had been stopped, and he replied " IVE NO IDEA
OFFICER li .1 then cautioned him and asked him what the speed limit was on the road . he
replied " 30 " . I informed him of the reason for stopping his vehicle in relation to his speed
, he replied Ll I THOUGHT I WAS DOING 30 OFFICER " , \ told jf the speed that
he had seen him doing of between 50 to 60 mph , and he replied " I WASN'T AWARE OFFICER , I THOUGHT I WAS DOING 30 MPH " .
I then reported for the offences and gave him a verbal NIP after caution he replied
" CAN YOU TELL ME WHAT IS GOING TO HAPPEN OFFICER " .
At the time the road conditions were dry it was a dark night with good visibility,
T later checked the-speedometer on his police vehicle and found that it was working
correctly.

[havoc]

Sounds like a typical young lad rather than a gobby boy racer on the face of it. But it's not us he needs to convince.

It's a difficult decision for him.
- If he decides to plead guilty, he would probably be best served to turn up in person at the court, act very contrite, and ask for his personal circumstances (i.e. disabled father reliant on him) to be taken into account. I personally would also be tempted in those circumstances to deny the 'racing' charge but admit that I could have been speeding. Not sure if the CPS would wash that or not though...

- If he decides to fight it (if he is 100% (or at least 99%) certain he's innocent), then there's some good advice above, and it'd be worth e-mailing Justin - he's not a lawyer but he's been there and worn the t-shirt before, and is very knowledgable.

[Richard C]

Interesting

Looking at the map of the area covered by the PC's statement, from the lower junction of Fulwood Ave with St Walburgas is 355 yds, and the total distance from the roundabout to the turn left onto Blackpool Old Road is 1150 yds. The PC says that he followed the 206 for 0.2 miles on Blackpool Old Road before stopping him.

Assuming that the PC spotted the 206 about 100 yards from the Fulwood Ave while the 206 was about level with him, then taken a snap decision to brake, look in the mirror signal, move out and turn right on the part of Fulwood Ave that crosses the DC. Any less than 100 yards would have been unlikely to be enough. Assuming there was no traffic obstructing him on the N-bound carriageway he'd have had to accelerate hard to 60 brake for the roundabout. Then, assuming there was again no wait for traffic already on the roundabout he'd have to accelerate hard round the roundabout and up to 60 again before braking and catching the 206 up 150 yards down Garstang Rd West. Had he turned across at Kingscote drive he would not have caught the 206 until 130 yards before the Blackpool Old Road turnoff.

I have assumed the 206 here travelld at 30 and no faster throughout, slowing for the roundabout.

I have assumed no police driver would exceed the speed limit in built up Blackpool by more than double.

Lot of questions here for cross examination if the 206 driver really, really, believes he was not speeding

1 where exactly on St Walburgas was the PC when he decided to pursue the 106 ?
2 did he turn round at Fulwoood Ave or Kingscote drive ( 230 yards further to travel )
3 was he unobstructed when he joined the Northbound carriageway ?
4 Did he have to wait at or was he able to push onto the roundabout ?
5 What max speed did he achieve during the pursuit, 60 or faster ?
6 What car was the PC driving ? I have assumed a reasonably fast Astra saloon.

and did the 206 have to wait at or was he able to push onto the roundabout too ?

There are totally credible scenarios which support the 206 doing faster by 10 or 15 more than the limit. But had the 206 been out and out racing or doing speeds of 50-60 throughout, the police car would simply not have caught the 206 within the 1400 yards or so this statement supports.
And I do have a problem with police and other people who are too dim to realise that if you have to catch someone then you have to drive faster than them. And consequently if they see 50 or 60 on their speedo it does not follow at all that the car being pursued did that speed at any time.

[sabina1986]

well thankyou so much for your reply I can see that youve studied this very hard and am most appreciative any other advice would be helpful i will apply for mckenzie friend and will hopefully be able to ask the magistrates these questions
thankyou thankyou and thankyou again

[$lowpoke]

Richard C said:

And I do have a problem with police and other people who are too dim to realise that if you have to catch someone then you have to drive faster than them. And consequently if they see 50 or 60 on their speedo it does not follow at all that the car being pursued did that speed at any time.

Yeah, but as a devil's advocate, the polisman's statement does say:

"I followed the vehicle at a constant speed "

[JustinP1]

Observer2 said:

JustinP1 said:

Not telling the truth 'on the stand' can get a conviction for perverting the course of justice - and you can go to jail for that... it really is that serious.

Whoah - hold on. Lying in the witness box is perjury, not PTCOJ. Yes it is a serious matter but don't overdo it. If a defendant swears on oath "I didn't do it" and a witness swears on oath "I saw him do it", the court has to decide who to belive and who to disbelieve. If the defendant is disbelived, he's found guilty and sentenced accordingly. He's not then charged and convicted with perjury and sentenced for that as well.

Yes, you are correct, I wasn't trying to overdo things, just impart the importance in making the decision now about the facts and using that way as a way forward, as most likely a bluff will be found out in the end and will not sound pretty in the dock.

[JustinP1]

sabina1986 said:

well thankyou so much for your reply I can see that youve studied this very hard and am most appreciative any other advice would be helpful i will apply for mckenzie friend and will hopefully be able to ask the magistrates these questions
thankyou thankyou and thankyou again

The 'Mckenzie Friend' is a useful way forward. However, the concept of it is not always accepted by magistrates from what I have heard with numerous dates where discussion of whether a 'friend' is allowed or not.

Indeed, *I think* another important point is that you cannot speak to the court. All you are allowed to do is offer private advice to your brother about what he can say and do.

Richard's advice is brilliant, and this way forward is the only way to win the case. It is also useful that you have included the officer's statement. According to that he has not included any evidence which points toward driving without due care and attention whatsoever, and the 'appearance' of him racing is not actually supported by any additional facts bought forward.

As far as I can see the officer has done a U-turn, enjoyed the thrill of the chase and pulled your brother over, and in discovering his car was legal tried to do him for speeding. It is also interesting that the officer indicates that he followed your brother for 0.2 of a mile - interestingly this is the minimum recommended distance for evidence to stand usually.*

It also strikes me that in the same sentance he states that he followed your brother at 'constant speed' yet he puts your brother's speed at between 50 and 60... I think what he *meant* to say was that he followed your brother at constant distance. This is important, as your brother can question this in a clever way to add doubt to the speed.

It would also suggest that if your brother was doing 50-60 that the police officer would have had to have driven considerably faster than this to catch up... So how fast was the officer driving in the 30mph zone... 70, 80, 90? he will probably try to play down his own speed, which will put the noose around his neck metaphorically when you can show that if that was the case, in the distances between the roundabouts he could not possibly have caught up.

A lot of these give good lines of questioning - if you can also prepare a map with the distances on, you will be able to throw doubt over the officer's testimony. The officer's testimony sounds slightly shaky as it is, but maybe be believed. However, if you can prove with the map that what he is saying cannot be true then this throws up enough reasonable doubt for his evidence to be discarded.

• Until Vonhosen tells me that sometimes it can be different...

Edited by JustinP1 on Thursday 13th September 20:14

[sabina1986]

I wil try to print a map and do all of these things I just hope he can ask all of the questions without them thinking hes a cocky so and so and then been reprimanded more for his actions.

[havoc]

JustinP1 said:

A lot of these give good lines of questioning...

Most definitely.

However (and I learnt this from watching my brief when I attended mags court to determine fault in my RTA...fault was 100% to the other party, btw), the best way to catch someone out in a lie is NOT the direct way.

Lead them through their story, ask them the questions that seem innocuous and scene-setting, but later permit you to drive a bus through their testimony, and only at the end ask the question that pulls it all together. Not as easy as it sounds! I know, I know, it's all very Perry Mason...but if it's done carefully it works!!!


I consider myself a very intelligent individual (indeed I spotted the 3P's cock-up (he said I was travelling faster than him) straight away during our hearing...indeed I wrote it down and passed the note to my brief, who was questioning the 3P), but my brief didn't bite then (which I would have done, possibly prematurely), he held off, asked a couple of other scene-setting questions which gave the 3P another opportunity to portray me as a boy-racer in my sports car. Only then did he ask the final question:
"So according to your testimony Mr Willis was travelling faster than you down the slip road, he pulled across both lanes straight into your path, you braked - TWICE (I still don't understand that) - and you still hit him from behind?!?"
How the hell I kept a straight face at that point I don't know...the 3P had fabricated an entire story to avoid fault, and it fell apart because he couldn't help but try too hard...sounds like your copper MAY have done the same...you just need a good method to reel him in...


Laws of physics don't lie, and if you can spoon-feed it to the magistrates very straightforwardly, you have a pretty good chance of them biting.

[JustinP1]

sabina1986 said:

I wil try to print a map and do all of these things I just hope he can ask all of the questions without them thinking hes a cocky so and so and then been reprimanded more for his actions.

First impressions are everything. When I was accused by the three officers, I was a 'young lad' in a t-shirt driving a black BMW M3, and they took the p***.

In court, I was a polite young man in a suit and was asking reasonable questions to a police officer in the dock who was 'umming and ahhing', getting frustrated and angry that I had questions he couldnt answer!

With a bit of luck, he wont have to ask many questions to prove the point. As long as he is in a suit, and is speaks politely but firmly, then he wont have a problem. You will be surprise how much of a 'leveller' getting to ask the questions to the police officer is! Especially when you can ask provocative questions which make you look like the calm and polite one!

[Dwight VanDriver]

Noted he is only being summoned for S.3 Careless driving and no summons for exceeding the speed limit which the evidence of the officer supports. Strange that CPS are not taking the easy option and going for speed offence or is this a new twist by CPS.

Due care - £2,500 Discretionary disqualification, 3 - 9 points
Speeding - £1,000, Discretionary disqualification, 3 -6 points

Last week CPS announced that it is to look more closely at offences i.e. manslaughter instead of death by dangerous and dangerous driving instead of using a mobile phone where there is evidence of danger, but have not heard due care instead of speeding for the greater penalty.

To me that was naughty saying in the statement appeared to be racing - where is the evidence to support an agreement between two drivers to do so. May just as well have said I thought he was under the influence - and that is not allowed.

One that I would defend like Justin says but we have the nous to do so. There are some good points above re the speed between points that could well be utilised to disprove. Why does he say between 50 -60 mph - speedo up and down? instead of min speed 54 max 58 mph. At those speeds indicates to me a rush to get up behind. How was the speedo checked - stop watch over measured mile - speeds times to prove correct?. Traffic conditions? Weather? vehicles overtaken?

Wonder also if a Not Guilty plea was entered whether CPS would
review the case, see they are on a sticky wicket and withdraw.
One always has the the option to change plea at the last minute and put various points in mitigation - not that this is advocated.

dvd

Edited by Dwight VanDriver on Thursday 13th September 20:46

[sabina1986]

hi thanks for all your advice feeling a litlle bit more positive about this now just wondering does it make any diffrence hes been summoned to the magistrates court not the crown court.

[JustinP1]

havoc said:

JustinP1 said:

A lot of these give good lines of questioning...

Most definitely.

However (and I learnt this from watching my brief when I attended mags court to determine fault in my RTA...fault was 100% to the other party, btw), the best way to catch someone out in a lie is NOT the direct way.

Lead them through their story, ask them the questions that seem innocuous and scene-setting, but later permit you to drive a bus through their testimony, and only at the end ask the question that pulls it all together. Not as easy as it sounds! I know, I know, it's all very Perry Mason...but if it's done carefully it works!!!


I consider myself a very intelligent individual (indeed I spotted the 3P's cock-up (he said I was travelling faster than him) straight away during our hearing...indeed I wrote it down and passed the note to my brief, who was questioning the 3P), but my brief didn't bite then (which I would have done, possibly prematurely), he held off, asked a couple of other scene-setting questions which gave the 3P another opportunity to portray me as a boy-racer in my sports car. Only then did he ask the final question:
"So according to your testimony Mr Willis was travelling faster than you down the slip road, he pulled across both lanes straight into your path, you braked - TWICE (I still don't understand that) - and you still hit him from behind?!?"
How the hell I kept a straight face at that point I don't know...the 3P had fabricated an entire story to avoid fault, and it fell apart because he couldn't help but try too hard...sounds like your copper MAY have done the same...you just need a good method to reel him in...


Laws of physics don't lie, and if you can spoon-feed it to the magistrates very straightforwardly, you have a pretty good chance of them biting.

Havoc has it exactly right.

The witness will already have some idea of the direct questions he will get.

The idea is to get a list of questions where he cannot guess what your line of questioning is yet... or even better think it is a question where he can 'exaggerate' his evidence to his favour.

At the end of the 3, 4 or 5 leading questions, all the answers can add up to something which is physically impossible - and you need to stake this in the form of a question to the witness... for example:

"So according to the distances measured on this map, either the information you have given the court with regard to your own speed is false, or your 'guestimate' of my speed is wrong... which is it?"