The Scottish Court course of action From a Road Traffic Law Perspective
Road Traffic Solicitors in Scotland often observe that most clients charged with a serious road traffic offence proportion the same apprehensions about court, including the time of action involved and what is to be expected of them when in court. This is because most clients contesting a road traffic case such as drink driving offences, speeding offences, illegal mobile phone use, and careless or dangerous driving offences have not been to court before and is consequently unfamiliar with the preparation required and the time of action involved.
This article consequently has two objectives:
First it aims to provide a greater understanding of the basic elements required in the preparation, procedure and processes involved to defend a road traffic case.
Secondly, it should also provide the reader with enough information to be able to select a solicitor who truly specialises in road traffic situations. The importance of this course of action cannot be over stated. You only get one shot at defending your case. While there are many solicitors who might not take certain road traffic situations on because of the intricacies involved, others sadly may simply be happy to muddle there way by a case. This article provides enough information to be able to probe the experience and qualifications of any solicitor, and in particular to form your own view to verify the road traffic solicitor is really a specialist.
The article is set up in a question and answer format to help answer actual questions received from both prospective and new clients.
Q1. What is the difference between a solicitor, a lawyer and a solicitor advocate?
The Law Society of Scotland is the regulatory body for solicitors who must have a practicing certificate to represent clients in court. The term lawyer is general and more universal description of one who practices in the legal profession. The two terms are really interchangeable. A solicitor advocate however is a special class of solicitor who has been authorised by the Law Society to appear for clients in the high court of justiciary. They have been granted rights of audience after passing extensive advocacy exams. This allows them to appear in court in very serious and complicate situations.
Q2. Which court am I appearing in and will there be a jury?
Most road traffic situations are dealt with either in the Sheriff court or in the Justice of the Peace Court either with a sheriff or a magistrate sitting without a jury. The more serious charges such as dangerous driving, driving whilst disqualified or drink driving will call in the sheriff court and speeding situations insurance offences, careless driving and Tachograph situations are usually raised in the justice of the peace court. In fact over the years the number of road traffic prosecutions in justice of the peace courts is forever increasing and now form the majority of situations calling in such courts throughout Scotland. Generally these situations start off by way of a summons or a citation posted or served at your home address with a date for you to appear in court. It will contain a description of the charge e.g. speeding and a summary of evidence from the police. In a speeding case it will describe the date, place, time of offence and the kind of device used to measure your speed. It will also contain details of the weather conditions and any comments made by the driver at the time. Usually it contains a comment that the driver was warned under S.1 of the Road Traffic Offenders Act 1995 which is a Notice of Intention to Prosecute (NIP).
If you had been arrested and released from the police stop for example on a drink driving charge you may have been given an undertaking to appear at court on a certain date. Sometimes you will first have been offered a fixed penalty from the police or from the procurator fiscal which you have decided to contest in which case you will then receive a citation to go to court.
Q3. Who does all the talking?
Generally speaking when you have instructed a Solicitor he or she will do all the talking by making representations or legal submissions on your behalf both of a factual and legal character. The solicitor will have formulated a strategy to capitalise on all the information he has gathered from you and from the investigation of the case and will know how best to say it and when to say it.
If the matter proceeds to trial you may require to give evidence of basic matters in argument. The likelihood of this depends on the offence and the strength of the Crown case. For example most speeding offences are won on technicalities and the accused very rarely requires to give evidence. however if you’ve been charged with dangerous driving and you argument the manner of driving, in addition as the solicitor mounting an attack on the police evidence you may need to give evidence to give your account of what happened.
Q4. What preparations and investigations are carried out on my behalf?
The preparation for a road traffic offence starts from the Notice of Intention to Prosecute ( NIP) all the way by to the not guilty verdict. It is important to contact a road traffic lawyer closest an offence is alleged to have been committed as certain vital advice needs to be given from the outset which could make all the difference to the outcome. In certain circumstances individuals can be required by the police to provide details of the identity of the driver of a motor means already if it method that a speculate is being forced to incriminate themselves. In fact a failure to do so can in itself be an offence. This requirement applies to the most shared road traffic offences such as speeding careless driving dangerous driving drink driving mobile phone offences, red light offences and associated offences. except that a speculate is entitled to make no further comment. Advice about that should be taken from a road traffic specialist as soon as possible.
Once an accused person has plead not guilty the crown have a duty to disclose all applicable information which they seek to rely upon, to the lawyer representing the accused prior to the trial in order to give the lawyer improvement notice of the evidence which they will seek to found upon in court. They also have a duty to disclose any information which is advantageous to the defence and to answer and cooperate with any reasonable queries made of them by the defence. The defence solicitor is of course at liberty to carry out their own investigations of the crown evidence and to probe anything else that may undermine the crown case or that may add sustain the defence case. For example, it can be highly useful to attend at the place where the offence is alleged to have been committed particularly for speeding situations and careless and dangerous driving situations. In fact video footage or photographs can make all the difference in court.
Q5. What happens at the Trial?
The procedure in a trial broadly has the same format in every court. Its procedure is regulated by the Criminal procedure (Scotland) Act 1995: The persuasive burden of proof is always on the crown to prove the crime has been committed, and that is why they have to go first in any trial. The Crown have to rule each of their witnesses in evidence one after the other. This method the prosecutor has to call all their witnesses before the defence has to consider any evidence of their own such as the accused himself giving evidence. The format is that after each observe for the crown has been questioned by the prosecutor the solicitor has a chance to cross examine that observe to test their reliability and credibility. Cross examination by a solicitor is an art and requires very exacting skills to capitalise on the crown evidence by engaging in both a constructive (to sustain the defence case) and destructive attack (to undermine the crown case). You need a road traffic lawyer who knows the complicate road traffic laws inside out and who also has the complicate rules of evidence at the spotlight of their mind. The lawyer should be respected for this in court and have the ear of the bench and at the same time be able to confront up to and influence the sternest of judges.
Very often at the end of the crown case what’s called a ‘no case to answer’ submission can be made. This is where the lawyer invites the court to dismiss the proceedings on the basis of a without of sufficient evidence, very often down to a fatal technicality in the proof of the case or evidence which has been held to be inadmissible. This is often the reason many situations are won by an expert road traffic lawyer.
No matter how strong the crown case is, it is always possible to attack it, and if a reasonable doubt can be achieved the job is done. Different witnesses and different situations require different approaches and strategies. Police officers for example are meant to be specialized witnesses but can often make fatal mistakes when cross examined effectively. Expert witnesses such as toxicologists and forensic scientists require a different approach as often their opinions are unprotected to a number of assumptions which are not in fact apposite to the case on trial. Sometimes the defence need to rule evidence from experts of their own to counter the crown experts. Civilian witnesses may give evidence that is tainted by fear or favour, or may just be unreliable for a number of reasons, already though that observe may be doing their best to remember.
When it comes down to it, the difference between a good advocate and a average one can win or lose a case. An accused should definitely ask a possible Solicitor about the extent of their experience in road traffic law and what the strategy he has in mind for the trial. Sometimes though the final strategy can only be determined just before the court date and already then this can change on the day of the trial for a number of reasons. An experienced road traffic advocate however should be able to clarify certain weaknesses in the prosecution case before the trial and also be able to seize opportunities that arise on the day of the trial. There are a number of ways that a good road traffic lawyer can manipulate the crown observe’s evidence and by skillful cross examination create fatal technicalities that will win the case for their client no matter what the character of the offence is.
On some occasions advice must be given to resolve the case with the fiscal by way of damage limitation. For example someone charged with dangerous driving may well be advised to offer a plea of guilty to careless driving or to a speeding offence. You need to be confident that you have instructed a solicitor who knows every conceivable way to defend a road traffic case so that when he advises you to resolve the case you know it’s definitely in your own interest.