is speedy justice always good justice?
Police in Kent have begun using a
'virtual court' in an attempt to have cases dealt with more
swiftly. So far two people have been dealt with under the scheme
since its launch at the beginning of the month. Under the
plan, anyone arrested on suspicion of drink driving has their
case heard at North Kent police station, which is connected to
Medway Magistrates' Court by video link. This means that motorists
who plead guilty can be disqualified on the same day as
arrest. It is usually the case that the first court appearance
is within 15 days of the date of arrest. Individuals charged with
drink driving related offences are then bailed to attend the
Magistrates Court on the given date and are still permitted to
drive during that period. Virtual courts were first used in a
pilot scheme in south London last year, which linked Charing Cross
Police Station with Camberwell Green Magistrates' Court.
These courts have
been heavily criticised however, and there are several difficulties that need to be
considered.
There is an obvious problem for
solicitors in that they face potentially having to decide whether
to be in court to address the court or with their client in the
police station. However there
are many potential difficulties for motorists as well.
The first is that whilst the police
may have very good evidence that the motorist had been driving, ie
if the officer had followed the motorist, that is not the only
thing the police have to show in order to prove their
case. Things are not as open and shut as they might first
appear. We cannot allow an attitude to take hold that all
motorists are 'banged to rights' the moment they are pulled over by
the police. They are not. The police still need to get other
things right first.
The prosecution actually has to
adduce admissible evidence in court that the proportion of alcohol
in the motorist's breath (or blood or urine) was in excess of the
prescribed limit. If they cannot do that then the motorist
cannot be guilty of any offence. Clearly, a person can only be
guilty of drink driving if there is evidence of the motorist
driving (on a road) and that they were doing so whilst over the
prescribed drink drive limit. In order to obtain evidence that a
motorist is over the limit the police require the motorist to
provide two specimens of breath for analysis using a type approved
machine at the police station. The police have to be thoroughly
trained before being able to operate these devices. The devices
themselves are only as reliable as the person operating them and
can malfunction like any other electrical device.
what is the significance of this?
Suppose it is you in the police
station and the police say that you were driving whilst over the
legal limit. What if you do not believe this to be the case?
What if you are sure that you had not had as much to drink as
the police said you had? What if you believe the breath testing
device must have malfunctioned or was operated incorrectly?
You would want to talk to a solicitor
wouldn't you? You would want to ask if your concerns are
justified. Is there going to be a dramatic increase in the
number of solicitors available to advise at the police station? We
doubt it. You might wish to instruct an expert toxicologist to
consider the breath alcohol reading in more detail. We would wish
anyone seeking to find a toxicologist at a moments notice the best
of luck.
The difficulty is that the motorist
is going to be told that their case will be dealt with that day and
they will have to make a decision about what to do. If you plead
not guilty originally and then change your plea to guilty further
down the line then the court will not reduce any sentence by as
much as they would have done had you pleaded guilty at the first
court hearing. But if you plead guilty then that is it…game over.
The court is going to be extremely reluctant to set aside any such
plea of guilty in cases such as these.Furthermore there are usually a range of
sentences available. A
person at a police station will have no time to properly prepare
his or her mitigationand obtain
character references in support of their contentions. In our
experience appropriate character references can
make all the
difference when it comes
to sentence.Properly
advanced mitigation and character references could be the
difference between a community penalty (unpaid work etc) and a fine
or even between a community penalty and prison. The individual may
also want their family in court with them to support them, and
demonstrate to the court that they enjoy the support of friends and
family in facing any difficulties they may have. So
even if a person intends to plead guilty, they should be
entitled to the time
to properly prepare for their mitigation and what they should
do.
The system is designed to
save time and cost,
but does not promote justice.
so what is the solution?
Time. The police will always need to
remember that drink driving cases are not as straightforward or as
open and shut as they might at first appear. There are
obligations on them to obtain evidence about all of the elements of
the offence and to do this they must carry out specific procedures
using highly technical instruments. It is simply not the case
that every motorist is 'banged to rights' from the start. If
these cases are dealt with in this way - if they are seen as open
and shut cases that the motorist can do nothing about - then there
is a real risk the police will not focus on obtaining all of the
evidence necessary and carry out the procedures correctly.
It is only right that motorists have
the opportunity to speak with a solicitor and discuss any concerns
they may have about the evidence before being asked to enter their
plea. This too will take time. There is an old saying that justice
delayed is justice denied. But in these types of cases, where
nothing is ever as straightforward as it seems, a delay, to
consider the evidence and see if indeed the police have obtained
all the evidence and complied with the procedures, may actually
have the opposite result.
View further information on drink
driving offences.
View our recent article: 'are we ignoring
the dangers of driving drunk?' (December 2010)
