| Non-motoring > Magistrates Court Procedure | Miscellaneous |
| Thread Author: Pat | Replies: 40 |
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New Tue 18 May 10 06:56
Magistrates Court Procedure - Pat
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I've been asked to represent/speak for a lorry driver in the Magistrates Court. I'm happy to do this for him as he is shy, not very eloquent but did what he did with certainly no bad intentions and a lack of understanding of the rules. I know nothing of the way things work. He intends to plead guilty to 5 charges, he doesn't want legal representation, but someone he trusts to speak on his behalf. Will I be allowed to do this? If so, can someone run me through the way it works and the etiquette that goes with it please? The case is on 26th May so I have to decide today whether to do this or not, and I also want to give the driver the best advice possible as he trusts me. Thanks in anticipation. Pat |
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New Tue 18 May 10 09:33
Magistrates Court Procedure - SteelSpark
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Pat, I am no expert, but I would think that you might be able to speak at the hearing, but I the magistrates will likely still want to speak directly with the lorry driver (in that sense you cannot speak for him, but it may be that you could make a statement). Obviously, if he is pleading guilty there will not be any kind of trial, just mitigation and sentencing. It may be that the lorry driver (who would be representing himself) could ask for you to be called to provide evidence for the mitigation (like a character reference) but, for any facts, they will want to hear those first hand from him. I really think that the driver should seriously consider getting some legal advice (if he has not already done so), even if he does eventually decide not to be represented in court. Even if he still decides to plead guilty, legal advice could be helpful with any mitigation. Last edited by: SteelSpark on Tue 18 May 10 at 09:34
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New Tue 18 May 10 09:47
Magistrates Court Procedure - Zero
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Having been up before the magistrate, I can answer this. Arrive at court and report to the clerk of the court. There will be a bench, usually three, and their legal person on the side. (magistrates know nothing of the law) You will wait outside* and your case will be called, and asked to stand before the bench. Unless its something juicy or its cold outside, the court will be empty. The charge will be read out and your plea taken. The bench will ask the legal bod what the range of penalties is. At any point after the charge and plea, you can ask to say some words. (I handed over a dosier of plans and photographs) He will have to ask for you to speak on his behalf. The bench will retire to deliberate punishment, and come back with the result. If its a fine, they will ask you if you can pay it. If paying by cheque you need to ask for time to pay as it takes time for cheque to clear, credit card is cleared on the spot. You pay the clerk of the court. Driver will need his license to hand if required for endorsements. Hand over license and fine to clerk of court. *you can sit in the couirt, and watch previous cases, gives you a feel for the procedure. Dont try and make excuses, if you are pleading guilty you have admitted it. Do the: :30 years of exemplary driving, no previous bit :I realise I have done wrong, I know now the why and grateful for the reminder. :This will make me a better and safer driver Blah blah lots of contrite and learned lesson stuff. What court is it? I was at oakham. |
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New Tue 18 May 10 09:49
Magistrates Court Procedure - Zero
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| Oh and very important this, research the offences, and what the penalties are. It could be more serious than you think. 5 sounds a lot, no danger of a ban is there? If so he needs legal help. |
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New Tue 18 May 10 10:50
Magistrates Court Procedure - Iffy
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...he has asked me to speak for him... Pat, Tricky, strictly speaking you do not have rights of audience. I know you woudn't, but there's nothing to stop you standing up and telling a load of untruths. A solicitor is bound by his profession not to do that, which is why the magistrates will take what he says at face value. It would he helpful to know a bit more about the case, but the best advice is to get a solicitor local to the court, who is trusted by the bench, to advise on pleas and do the mitigation. For example, it may be that a solicitor, from his experience and legal knowledge, will know the prosecution will accept pleas to lesser charges, or not guilty pleas to some of them. The driver may want to make an honest clean breast of things, but there's no point in anyone dropping themselves in it any deeper than they have to. There's nothing to stop the driver representing himself, but a solicitor will almost certainly do a better job. |
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New Tue 18 May 10 10:55
Magistrates Court Procedure - Pat
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Lovely old courtroom at Oakham:) Nice pub just down the alleyway too ( The Roebuck IIRC). It's Lincoln Magistrates Court. The offences are all the same and are related to Drivers Hours Law. It was just one single point he didn't understand and repeatedly didn't realise he was doing wrong. He has been checked out and no other infringements have been found on exceeding driving or working time. In a nutshell, he is a tramper and lives in his lorry all week. When he was delayed and ran out of timeover Dec & Jan with all the bad weather, he used his lorry during to evening to go to a chippy or to get a meal ( he is also diabetic) He gained nothing financially from doing this and assumed he could use it for 'private use'. He'll get confused and flustered and he will incriminate himself even more if not careful, but he's a lovely old chap and I've worked alongside him for 15 years and know without a doubt, why he did this. I suspect he will be called before the traffic commissioners after the court case and may get a ban then on just his HGV licence. Pat |
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New Tue 18 May 10 11:03
Magistrates Court Procedure - Iffy
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...related to Driver Hours Law... I see a court shambles on the horizon. The magistrates probably won't have a clue about this legislation - they can't do very many. The clerk won't have a clue either, but the difference is he or she will pretend they know about it. All the more reason to get a solicitor. A final point, Are your sure the court hearing is not a Traffic Commissioners one? They are held in magistrates' courts buildings. |
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New Tue 18 May 10 11:35
Magistrates Court Procedure - R.P.
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| I'm with iffy - tell him to get a brief. |
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New Tue 18 May 10 13:57
Magistrates Court Procedure - Pat
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Absolutely sure, it states 'to be heard before Grimsby and Cleethorpes Magistrates'. But that is normal procedure for lorry drivers. First the case is heard and you are fined by the court and then you have to face the Traffic Commisioner to explain why you didn't act in a professional manner and take their punishment as well. He won't get a brief, he knows he's guilty and will just admit to the charges. IIH, I thought that may be the case, that I wouldn't be allowed to speak for him that was why I needed to ask thie question. I really do fail to see why though since I presume I would be under oath anyway. Pat |
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New Tue 18 May 10 14:13
Magistrates Court Procedure - R.P.
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| Pat - a brief will mitigate for him as well as express the things he'll get tongue tied about, they may even adjourn sentence to allow him to consult and he may end up with the "duty" which may work ok but at least if he instructs his own it may be someone who knows something about driver's hours ! |
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New Tue 18 May 10 16:03
Magistrates Court Procedure - SteelSpark
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>> He won't get a brief, he knows he's guilty and will just admit to the >> charges. Don't want to push too much on this Pat, but do you know why he won't get legal representation? My fear is that it is because he thinks you only need legal representation if you are trying to get off the charges, and not realising the value they add to the mitigation process. If he feels that there is something that he wants the magistrates to take into account, and is looking at you to do that, it would really probably be better served by a legal representative. Perhaps he is also concerned that by going in "lawyered up" he might incur the wrath of the magistrates. If that is the case, he shouldn't worry, because there is an expectation that everyone will be represented whether they accept the charges or not. Last edited by: SteelSpark on Tue 18 May 10 at 16:03
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New Tue 18 May 10 16:36
Magistrates Court Procedure - Iffy
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...IIH, I thought that may be the case, that I wouldn't be allowed to speak for him that was why I needed to ask thie question. I really do fail to see why though since I presume I would be under oath anyway... Pat, He could call you as a character witness, in which case you would be addressing the court on oath. But all you could say is that you know this man to be a fine, upstanding citizen. You could not 'speak for him' in the way he and you mean. I'm still slightly puzzled by the listing of this case, I've never known a criminal bench deal with stuff like drivers over hours. But hey, I don't know everything(!), and one of the things about courts is 'we always do it this way....until such time as we decide to do it another way'. Assuming I'm wrong, the driver wants to make sure he's not done twice for the same offence - once before the magistrates, and again before the Traffic Commissioners. This is another of the points a good solicitor can make/look into on his behalf. |
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New Tue 18 May 10 17:11
Magistrates Court Procedure - Pat
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IIH, I do appreciate all of your help, and the advice from the others as well. But let me explain the way things work with an HGV Licence. It is normal to go before a Magistrate for any drivers hours offence. In some ways that is the easy bit because it will be a fine and it will end there. The problem is going before the Traffic Commisionair afterwards when you are cross questions as to why you put yourself and your licence into disrepute and risked your 'Professional' status. They have the powers to suspend your HGV licence usually for 4 weeks plus, and this comes on top of the fine and means no wages for a month or more. This is why we're a little prickly about not being considered as professionals but the people who grant our licence certainly do consider us to be that. The sole reason that he doesn't want to have a soliciter is that he can't afford to. It's not been a good year, we've all taken a pay cut to help the firm keep going and he's getting close to retirement. But still, what he did wasn't for gain, where a great many lorry drivers are doing just that. I feel passionately that this needs saying in Court and explaining that despite his tachographs being inspected in depth, over the busiest time of the year, in atrocious weather, no other offences were found. Would a letter to the Court from me, explaining this be read? Would it help? Could I make the point that I'm in court and available for questions? Had this been 3 cases or less it would have been dealt with by a GFP, but I suspect they fully expected to find far more on futher investigation than they have done. I have to help him somehow, and I'll find a way. Pat |
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New Tue 18 May 10 17:16
Magistrates Court Procedure - Focusless
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Pat - any chance he's got general legal cover with any of his insurance policies? EDIT: although I guess it doesn't cover stuff like this, sorry daft suggestion Last edited by: Focus on Tue 18 May 10 at 17:17
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New Tue 18 May 10 18:33
Magistrates Court Procedure - Iffy
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...the sole reason that he doesn't want to have a soliciter is that he can't afford to... This case has a direct impact on his livelihood and he's hard up, so he ought to qualify for legal aid. ....But still, what he did wasn't for gain... Pure conjecture on your part, so of next-to-no value to the proceedings. He can say that on his own behalf, in which case it becomes of value to the proceedings, but he risks being cross-examined about it. The solicitor, using his rights of audience, can say in mitigation: "Mr Driver instructs me that he made no gain from this transgression, which in itself was inadvertent." The bench will either accept what they or told, or ask the solicitor to expand upon it. I can see what Pat is trying to do, but like it or not, the court doesn't really have a mechanism which allows her to do it. Last edited by: ifithelps on Tue 18 May 10 at 18:33
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New Wed 19 May 10 00:19
Magistrates Court Procedure - Dave_
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>> I have to help him somehow, and I'll find a way Pat, I strongly advise you to talk him into engaging a solicitor - it sounds as though he'll get legal help and believe me a solicitor WILL ensure the best possible outcome. I needed one for most of the last year (family law, not criminal) and any reasonable brief will have the skills to present the case in a far more favourable light than you can imagine. When a charge is brought, the first thing to do should be to take legal advice. Your driver seems resigned to the fact that he'll be punished harshly but that may not necessarily be the case with an astute explanation from a lawyer. The bench won't automatically assume guilt from the simple presence of a legal representative, in fact (as has been mentioned above) they will place more weight on the solicitor's words than on the driver's. A solicitor will also be able to sit down with the driver a few days before the hearing, pick apart the details of the alleged offences and spell out the likely outcome and any implications of more than one different approach. From my perspective, having worked under tacho regs for years myself, I can see both sides to the argument - the driver should have known the overnight break cannot be split midway through, otherwise we'd all do it; but his diabetic condition could well have constituted a reasonable medical emergency necessitating the actions he took on only a handful of occasions. We've all been there, stuck in an endless traffic jam watching the seconds tick down to zero with no chance of finding a shop/pub/cafe in time. hth, Dave TD Last edited by: Dave_TD {P} on Wed 19 May 10 at 00:21
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New Wed 19 May 10 00:53
Magistrates Court Procedure - Fullchat
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.....it states 'to be heard before Grimsby and Cleethorpes Magistrates'. Now I've spent some serious professional time there!. Look on the bright side - Cleethorpes for fish and chips afterwards , yum yum. Seriously, the only time I have seen anyone speaking on behalf of a defendant is when they are up for disqualification or potential disqualification and they bring along an employer/manager to plead their case as to how it may jeopardise their job and cause severe hardship. I've never seen anyone other than a solicitor try and mitigate on behalf of someone. |
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New Wed 19 May 10 04:54
Magistrates Court Procedure - Pat
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Thanks again IIH ( and Dave). I'm having a meeting with him on Friday when he gets back home and I'll really try and persuade him to take legal advice. I'm sure he won't though as the case is next Wednesday and he just wants to get this over and done with. He feels so guilty that his actions could have had some impact upon the firm he works for ( my old firm ) regarding their operators licence. Thankfully, despite investigations, everyone else was found to be legal and a good system of checking tachographs in place. What I don't like is that the charges are all for making 'a false entry on a tachograph'. This is the same charge used for someone who has deliberately falsified a tacho to work or drive for long periods and to make a financial gain from it. In this case he had written SDR ( Start Daily Rest ) on it, as we are instructed to do, when he'd finished work. Because he'd moved the vehicle to go and get something to eat, the presumption is that he was working as we have to have 9 or 11 hours of uninterrupted rest. The rules state that if the vehicle is moved he should start his daily rest period again, and lose the time already taken. I'm concerned that the Magistrate will see 'making a false entry' and with a limited knowledge, will think the worst. I shall go to court with him anyway for moral support, and he's buying me lunch:) Pat Last edited by: pda on Wed 19 May 10 at 04:56
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New Wed 19 May 10 08:08
Magistrates Court Procedure - -
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Pat i'm no help to you in this other than like your colleague i'm an old school driver who used to use his truck as a taxi sometimes when caught out. I assume he's parked somewhere after being delayed for an unforseen time at a delivery point for example, and then driven a couple of miles to get something to eat and returned (possibly to his dropped trailer) to sleep the night. Yes it's technically illegal but it's a practice many have done in years gone by, i've even been pulled by plod in such circs who warned me to be careful but also being older school themselves where people still have to live saw there was no real harm and far better all round for a driver to get some decent grub etc and a good nights sleep before starting the following day. Just a thought here...as he was doing this for recreation (ie food and welfare purposes) does the truck insurance cover SDP as well as business...if so could the taxi reason be a possible defence? |
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New Wed 19 May 10 08:11
Magistrates Court Procedure - IJWS14
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I have done mitigation on behalf of my employer on street works offences . . . He needs to consider the solicitor as an investment, it is the beswt way to ensure the magistrates understand the offence, and his reasons for acting that way. It is likely that this will reduce the fine. You could also consider the duty solicitor as one of our ex employees was advised to do (by the magistrate) when he turned up in Yate intending to plead not guilty to driving a dangerous vehicle without legal advice. |
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New Wed 19 May 10 08:48
Magistrates Court Procedure - Pat
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That's exactly the situation GB, you will understand my concerns. You know only too well that when VOSA go through your charts, it's unusual to find no offences of driving a few minutes over somewhere, but they were spot on. He just believed that it was OK to do this. IJWS........how would we go about seeing the duty solicitor? Sorry to be so ignorant on this one:) Pat |
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New Wed 19 May 10 09:41
Magistrates Court Procedure - Iffy
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...how would we go about seeing the duty solicitor?... Just ask at the front desk of the court. But it's not the best way to go about things because this is a slightly specialised area of the law. With the best will in the world, the duty solicitor will probably not have the time to research this as much as he would like. Duty solicitors are OK for a private motorist who is going to plead to moderate drink driving or speeding - they can do stuff like that standing on their heads. If the magistrates view the case seriously, they may not be happy to deal with driver unrepresented. It wouldn't be the first time a bench has adjourned a case and told a defendant to come back when he has spoken to a solicitor. |
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New Wed 19 May 10 09:59
Magistrates Court Procedure - Pat
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There is a Notice to Attend Court document stating that it's an 'Either Way' offence. Pat |
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New Wed 19 May 10 10:09
Magistrates Court Procedure - Iffy
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...that it's an 'Either Way' offence... This puts us in slightly serious territory, it means the case can be tried in either magistrates' or crown court. The driver intends to plead guilty, so the decision for the magistrates will be if they can accept jurisdiction for sentencing, that is, they think their sentencing powers are sufficient to meet the justice of the case. On most offences they can impose a fine of up to £5,000, or six months jail, so I think it is almost certain they will accept jurisdiction and the case will stay in the magistrates' court. |
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New Wed 19 May 10 10:00
Magistrates Court Procedure - R.P.
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| Spot on Iffy - someone in your trade must know of a specialist. |
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New Sat 22 May 10 07:25
Magistrates Court Procedure - Pat
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Thanks to all the advice above I had what I hope, is a succesful meeting with the driver in question yesterday. He has agreed to try and get some legal advice over the weekend, although that could be hard. I have rang Grimsby Magistrates Court and ascertained that there will be a duty soliciter there on Wednesday, and if all else fails I shall ask to see her, with Mr lorry driver and strongly suggest that as he's away from home all week, the case should be adjourned to allow him to get advice and ask for the full particulars of the charges from VOSA. In the meantime, he's tickled pink because he's worked with me for 15 years and has never seen my legs yet! I presume I have to wear a skirt?:( Pat |
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New Sat 22 May 10 07:36
Magistrates Court Procedure - Iffy
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...I presume I have to wear a skirt?:(... Pat, You jest, but stuff like that is taken notice of in the court. I just know you would be nothing other than appropriately dressed, skirt or not, but it's certainly worth briefing the driver. Clean shoes, slacks and a plain open neck shirt is fine. Here's another one of my court stories to help illustrate the point: I walked past a lady barrister in a corridor of a crown court one day while she was talking to a particularly scruffy client. She told him: "You need to put a proper shirt on," Then pointing to me: "Like that man's wearing." "I don't like them sort of shirts," said the surly young man. Quick as flash, the barrister replied: "You'll like going to prison even less." |
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New Sat 22 May 10 08:38
Magistrates Court Procedure - Pat
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I shall have a word with him over the weekend Iffy, but I think he's aware of that. Much as I hate it, I do appreciate it makes a world of difference and the fact that I dropped out in conversation that I'd have to wear a skirt, was a broad, tactful hint to him:) Sometimes I wish I hadn't always been Mum or Aunty Pat to those other 95 drivers! Pat Last edited by: Webmaster on Fri 28 May 10 at 11:53
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New Sat 22 May 10 09:11
Magistrates Court Procedure - Iffy
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Pat, Just treat the court as a game, which it is. If you want to win, you do all you can within the rules. It's also a comedy of manners. So if I want some information from a barrister, I will say something like: "I'm sorry to trouble you Mr Barrister, and I won't keep you long, but could you please tell me..." I'm actually not the least bit sorry to trouble him, and I will keep him as long as I like. He knows that, too, but it's all part of the game. The more you say 'please' and 'thank you', the more you will get. It's the same with getting a solicitor - it improves your chances in the game and it's in the rules, so you do it. Looks like Mr Lorry Driver is finally prepared to be steered in the right direction. Seems to have taken a bit of effort, hope he appreciates it. |
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New Sat 22 May 10 10:37
Magistrates Court Procedure - MD
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Steered in the right direction. That's good iffy. Let's hope Pat persuades him to wear the right gear too! M |
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New Thu 27 May 10 06:29
Magistrates Court Procedure - Pat
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Once again, very grateful thanks from me, and Mr lorry driver too for all the advice we had on this forum. Yesterday was a long and stressful day but it ended so very well. We saw a solicitor in Grimsby ( pre-arranged) at the court before the case and I had a chance to put it to him in the way I would have liked to have put it to the court. He made notes and listened, and asked a few questions and then said he would represent in court for £150. We agreed, and it was money well spent. He explained that the fines could total £3000 plus Vosa's costs. The court was surprisingly informal and not intimidating, although Mr Lorry driver was shaking and very nervous. I had written a letter to the Magistrates as a character witness and the solicitor pointed out that I was in court, and happy to answer any questions. They retired to consider the facts and when they came back they said they were impressed with the guilty plea and the support in court, his clean 30 year record of driving and as a result it was a condiyional discarge for 6 months on all 5 charges. They also reduced VOSA's costs of £463 by half to £232. That was a verdict none of us had even considered and we couldn't have hoped for better. It was deserved and I wouldn't have been prepared to speak for him if it had been any other way. It could have been so different had I not have listened to your advice, but it does restore faith in british justice to see Magistrates prepared to listen and try and understand a case such as this. Thanks from us both. Pat Last edited by: pda on Thu 27 May 10 at 06:33
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New Thu 27 May 10 07:33
Magistrates Court Procedure - smokie
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Good result, in the circumstances. I once had a brush with the (motoring) law and engaged a solicitor. I felt it was worthwhile too, despite the cost, for the same kind of reasons - saved me getting too tongue tied and resulted in a lesser penalty than I could have hoped for. The other advantage was that he "knew his way around" so managed to get us on early (when I was expecting to have to hang about half the day). I came away with the impression that it's some kind of club and that as I was with a member things were a bit easier for me. That isn't meant to be critical, just my observation. |
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New Thu 27 May 10 09:09
Magistrates Court Procedure - Iffy
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...I came away with the impression that it's some kind of club and that as I was with a member things were a bit easier for me... That's one of the reasons why I always suggest people get a solicitor local to the court in which they are appearing. The bench know 'their' solicitors and might just accept something from someone they know which they would not from a stranger. The penalty may ultimately be the same, but it does smooth the way. |
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New Thu 27 May 10 07:35
Magistrates Court Procedure - Manatee
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| Very pleased to hear this - well done the magistrates, and you of course - might have ben very different had he not had the help he needed to put his story across. |
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New Thu 27 May 10 21:07
Magistrates Court Procedure - -
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| Thanks for that update Pat, a good result without undue penalising of a good egg who made a mistake. Justice has been done....and well done you. |
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New Fri 28 May 10 01:16
Magistrates Court Procedure - Fullchat
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Not a bad result there PDA. Can you name the brief? Or e-mail same via a Mod. Did you get to Cleethorpes for fish and chips ? :-) Last edited by: Fullchat on Fri 28 May 10 at 01:16
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New Fri 28 May 10 07:49
Magistrates Court Procedure - Pat
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The brief was Nick Furman from E C Lidster & Co and very good he was too. We managed a quick snack in Tesco's of all places because it was next door to the court and there was a van with Grimsby Fish parked in the car park, so I thought of your advice:) We don't know about the Traffic Commisioner yet Dave. It's a bit like going to the hospital for a scan, they say they will be in touch if there's a problem with it! Consequently you spend the next few weeks wondering if it's been dealt with or not yet before you can breathe easily. I'll keep you posted though. Pat |
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New Sun 30 May 10 12:35
Magistrates Court Procedure - Fullchat
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| I've professionally sparred with Nick a few times. Ernie Lidster was a Police prosecuting solicitor prior to the creation of the CPS and a bit of a character! |
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New Fri 28 May 10 01:48
Magistrates Court Procedure - Dave_
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| Does he still have to go up before the Traffic Commissioner? |
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New Fri 28 May 10 07:51
Magistrates Court Procedure - Fenlander
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Good result Pat. I always hope, as one of the *good guys*, I would be dealt with in the same way if I was ever up in front of the bench for a minor issue. My 15yr old daughter is very keen on law/crime/intelligence and in a few weeks her work experience is with just such a solictor as you used. |
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New Fri 28 May 10 09:36
Magistrates Court Procedure - Iffy
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I have sat through hundreds of court cases over the years and I can't remember one where I've thought: "They got that badly wrong." If anything, the system is weighed too heavily in favour of the defendant. Most benches - and judges - are prepared to be merciful in the right circumstances. It seems to me the driver was dealt with entirely appropriately. |
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