Statements that stand
Page 7
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p in MN
N THE last two issues I looked at the history and the mechanics of the courts. But what about procedures in court — what to do or, more imporlantly, what not to do?
For a legal system to work fairly, both sides of the story need to be heard. But even then it only works if the "evidence" on both sides is put fairly comprehensibly. All courts by their nature are intimidating and for those of you who do not make a habit of appearing it can put you in a frame of mind that either makes you say what you don't mean or want to say.
The classic in my book is — PROSECUTOR: "Driver did you not see the cyclist on your inside before you turned left?" ARTIC DRIVER: "Yes, but I lost sight of him as !turned."
Sunk!
What the driver had wanted to say was: "Yes, I did see him, but I was sure he'd dropped behind me." The difference in answers is damning because the driver did not really listen to the question. The prosecutor did not ask "Did you see him?", he asked, "Did you not see him?" The driver admitted to me that he found the whole court process terrifying. It is little wonder that people convict themselves.
I once saw a driver turn up at Crown Court with his rig which he parked outside the court. He was dressed in the dirtiest pair of jeans possible, a donkey jacket two sizes too big and a baseball cap.
The driver seemed very relaxed about the whole affair until the charges were put to him. He promptly blurted to the judge: can't stay here for long, I've got a load to deliver."
The judge smiled and said: "I take it you are represented here today?" and at that the driver put his finger in his ear, thought about it quietly, looked around the court, pointed at a barrister twiddling his thumbs and said: "He'll do."
That driver was up on a charge of reckless driving. The judge adjourned, leaving our friend to deriver his load and take proper legal advice. You might ask "How could this happen?" It shouldn't be able to, but it does.
The difference between collar and tie and working gear is important to witness or defendant. Humans being what they are, they will treat you like a villain if you took like one.
Ten years ago I had the terrifying experience of being arrested on the suspicion of stealing a car. I had just spent the Sunday helping a friend to antifoul the bottom of his boat and I had borrowed my sister's new BMW and was on the way home. Later I discovered that because 1 looked like a villain I was fair game.
Bad language in court is unacceptable but what do you do with a defendant, when after you have asked him what is future looks like he says: "Well, I may walk funny but I haven't got crystal balls.' I could see by the expression on the Stipendiary's face that the defendant was already a prisoner!
You might wonder why a prosecutor can imply by his questions that you are a liar, a villain and generally out to con everybody. It stems from the rules of privilege which basically means you can say anything in court "under oath" as long as what you say is not contemptuous or can be proven to be perjury. However, two months ago I was with a well-known transport solicitor in Crown Court when in front of the judge, a police officer appeared to perjure himself and got away with it. Is there something compelling in human nature that makes a uniform more believeable?
Before a photo-copier salesman is allowed on the streets he is put through a training programme. A well-rehearsed sales pitch given with conviction is effective. So is the giving of evidence.
The Licensing Authorities and their deputies hold public inquiries — these are not courts in the "true" sense but are conducted on the same lines and are overviewed by the Council on Tribunals.
The rules of evidence and privilege do not apply. But anything said which is not true and which is found out later not to be true can lead to drastic consequences for the operator's licence.
The Licensing Authority is the judge and the jury. He makes decisions on the facts as given to him. Having conducted more than 200 public inquiries on behalf of assorted operators, I have found that every scrap of information should be laid before the L.A. Cross-examination of witnesses against you is a skilled job and should be undertaken only by those with experience. I have all too often seen divorce lawyers cross-examine a vehicle inspector about defects and been thrown by the technical evidence.
II is foolish to think that Licensing Authorities are unaware of the problems encountered by operators. They have been put in the position of devil's advocate, balancing the needs of the haulier against those of environmental objectors and representors. And they have to decide whose presented facts carry more weight.
If you are unfortunate enough to appear at a public inquiry, perhaps due to poor maintenance or overloading, remember that the Licensing Authority's primary concern is road safety, and the burden of proof is on you to show that as a responsible operator you comply.
In many summings-up by the Transport Tribunal (the body to which an appeal is made against a Licensing Authority's decision), I constantly see the words "and this evidence was not challenged" which leads me to think that the advocate's job is more technical and specialised than was originally envisaged when the regulations were first drawn up.
11 is obvious that you, as a witness, must be fully conversant with what is required by the regulations for you to convince the Licensing Authority that you are a "fit and proper person to hold a licence". The number of operators who do not understand tachographs, hours law and Construction and Use Regulations is staggering. Criticism should be levelled at the two-tier system, for example restricted or standard licence. Why should an own-account operator run a 38-tonner and not have to satisfy professional competence?
You would never make a speech without having prepared for it. The same should apply to the Courts and Pubic Inquiries. And on a lighter note. One of my clients was stopped and searched by Customs. A sniffer dog was employed and promptly cocked his leg on the load of loose grain and contaminated it. The police then had the nerve to knock the driver off for a defective tyre!