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27th June 1991, Page 26
27th June 1991
Page 26
Page 26, 27th June 1991 — PLAY ING BY RULES TH
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Which of the following most accurately describes the problem?

In the second of CM's On the Defensive series, Jim Duckworth reminds us that prosecuting authorities have to abide by the law too.

• Prosecuting authorities have to comply with the law just as much as the operators and drivers they prosecute.

The rules they have to comply with are mainly procedural ones, where the sanction for not observing them is a failed prosecution and costs for the defence. But they frequently overlook legal restrictions on when charges can be brought, who can bring them and where an offence can be dealt with.

Unfortunately, most defendants are unaware of these restrictions. All too often they plead guilty and pay fines when, if they had taken advice, the charges might have been thrown out.

Don't think that because a summons is issued by the justices clerk's office it must be correct, The staff there simply copy information — including any blunders — supplied by the prosecuting body. For example, one haulier recently received a batch of summonses addressed to his trading name. They were invalid.

The law states that a summons can be issued only against a "person" — an individual or a company. A trading name is neither. While making sure that the name on a summons is right, check that the proceedings have been started in time".

For purely summary offences — such as overloading, speeding or driving excess hours — this means the information on which the summons is based must have been laid within six months of the commission of an alleged offence. There are some exceptions to this rule, mainly for the more serious offences.

Firstly, if an offence can be dealt with on indictment (at Crown Court) the six-months' restriction would not prevent magistrates hearing the case.

Secondly, two Acts in everyday use — the Road Traffic Offenders Act and the Vehicles (Excise) Act — provide for summary proceedings to be brought for specified offences up to three years after their commission, as long as they are started within six months of evidence of the offence arising.

They include using an untaxed or uninsured vehicle; misuse of trade plates; paying unsufficient tax; forgery and fraudulent use of excise licences.

Though extending the time limit for proceedings, the Vehicles (Excise) Act also places restrictions on who can prosecute for using an untaxed vehicle, misuse of trade plates and paying insufficient tax.

Proceedings may only be brought by an authorised prosecutor: the police cannot bring such proceedings without the approval of the Secretary of State. A defence request for sight of that approval can put a police prosecutor on the spot and lead to charges being dismissed.

Another mistake enforcement bodies make is to take out summonses for hours and tachograph offences committed on the Continent, because magistrates' courts do not have jurisdiction to deal with traffic offences committed abroad — that also applies to Northern Ireland. What's more, Section 96(11A) of the Transport Act 1968, which makes the EC hours' law enforceable in our courts, refers only to contraventions in Great Britain.

But offences can arise in GB due to driving on the Continent. For example, if a driver had already driven seven hours in France when he arrived back at Dover, he would commit an offence in Britain if he drove for, say, another four hours before taking a daily rest period.

Similarly, driving outside Britain counts towards the fortnightly total when a driver is back in GB, and days spent overseas have to be included in the six days which trigger a weekly rest period.

Another curb on prosecutions is that there are a number of traffic offences a driver cannot be convicted of unless a "notice of intended prosecution" procedure has been issued. These offences are reckless, careless or inconsiderate driving; failing to comply with listed traffic signs or the directions of a policeman controlling traffic; or leaving a vehicle in a dangerous position, Speeding used to be included but was accidently left out when the Road Traffic Act was consolidated in 1988.

The procedure is: fl The driver must be warned at the time of the offence that a prosecution will be considered; 0 Within 14 days of the offence a written notice specifying the offence, its time and place and indicating that a prosecution is being considered must be served on the driver;

Or within 14 days of the offence a summons for the offence must be served on him.

The only time this procedure does riot have to be followed is where an accident is caused by the presence of the offending vehicle. If in doubt, take advice. It can be cheaper in the long run.

Tags

Organisations: Crown Court
People: Jim Duckworth

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