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Fixed penalties

31st August 1995, Page 35
31st August 1995
Page 35
Page 35, 31st August 1995 — Fixed penalties
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Which of the following most accurately describes the problem?

One of our drivers was recently stopped by police and given a fixed penalty notice for a cut tyre. The tyre was nearly new and had been examined by a tyre-fitting firm the previous night. We are sure it happened on the journey when he was stopped. He already has two endorsements on his licence and it seems unfair that he should get some more points for a defect he knew nothing about.

Is there anything he can do to avoid penalty points?

AYes. The law provides for an endorsement—and even disqualification—to be dispensed with in specified circumstances but the driver would have to attend court to show that these circumstances existed. The reasons he would put forward are also reasons he should ask the court for an absolute discharge instead of paying a fine.

Having been given the fixed penalty notice he should ask for a court hearing within 21 days of the date on the fixed penalty notice. At court he should explain the situation to the magistrates, pointing out that he did not know anything about the cut tyre and had no reason to suspect the cut existed.

He should draw their attention to Section 48 of the Road Traffic Offenders Act 1988. It states that disqualification and/or endorsement must not be ordered if a person "proves that he did not know, and had no reasonable muse to suspect, that the facts of the case were such that the offence would be committed".

This is not a matter which can be dealt with by letter because that would not amount to proof. The magistrates would want to hear from the driver and might wish to question him.

On the question of the fine, the driver should tell the court that in the case of Hart vs Bex [1957] Crim LR] 622 the High Court said (in a case dealing with defective brakes) that the driver had

been technically guilty, but as it was not his duty to inspect the brakes, it regretted that he had been prosecuted and the justices should be told that it was a case for an absolute discharge. This particular case is often raised in courts to reduce or avoid fines on the basis that the defendant was morally blameless.

And in the later case of Travel-Gas (Midlands) Ltd vs Reynolds [1989] RTR 75 (an overloading case) the High Court said that if there was no special culpability on the part of the driver it would be wholly unnecessary to proceed against him as well as the owner of the vehicle.

If a driver finds that he has unwittingly committed an offence for which he is not to blame it is always advisable for him to refuse to accept a fixed penalty ticket (which he does by not surrendering his driving licence). It is then up to the police to decide whether to take the matter to court and, having regard to the above High Court ' decisions, the Crown Prosecution Service might not pursue the matter. If they do take the matter to court he can use Section 48 to ask for no licence endorsement and can seek an absolute discharge on a no-moral blame submission. t.)

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