SPEEDING IN SCOTLAND

An ominous van parked on an over-bridge or the flash of the camera  are often the first indication that criminal proceedings are to be contemplated. That is probably when the worry sets in.  There is, however, no need to worry if no formal notice, termed a Notice of Intended Prosecution is received within 14 days. (Exceptions being where it is a company car or a hire car)

If you receive a copy complaint (Charge Sheet) then a legal objection should be taken at the first calling of the case. A lawyer would be able to advice you on how to take a proper objection but you must explain to the lawyer when the incident occurred and that you did not receive the NIP. If you didn’t spot the flash, or the dreaded "Talivan" then you will be none the wiser.

The NIP can be issued verbally by Police Officers if you have the misfortune of being pulled over by the Police at the time.  In cases were injury or damage to property has occurred then the NIP requirement does not apply.  We would often advise accused persons to make no comment when questioned by police, beyond formal details, for example name and address.  In road traffic cases, the accused person, if required under Section 172 of the Road Traffic Act 1988, is obliged to give information within his knowledge about the identity of a driver of the vehicle involved in any such incidents.  Failure to provide such information constitutes a separate offence. This was widely publicised when two British men took a case to the European Court of Human Rights in Strasbourg just to be told that drivers do not have a right of silence and ARE required to answer the identity question in terms of Section 172 procedure.

After your case has been reported to the Procurator Fiscal then proceedings are likely to be started by way of Summary Complaint.  The validity of a complaint depends upon a number of  factors.  Typographical errors can generally be disregarded, however more fundamental errors can bring the case to an end before it has even got off the ground.  A fundamental nullity can not be amended and will vitiate proceedings.  Complex issues such as jurisdiction, time bar and competency all require to be investigated. We have had several cases over the years where we have successfully argued that the case requires to be dropped at this stage.

The dramatic rise in the speeding prosecutions and the increasing number of cameras and traps peppered around the country are blatantly apparent to every motorist.  It is however, important to realise that these prosecutions are open to challenge from a number of angles. Mistakes can be made at the most basic level: In one of our recent cases, it became apparent the distance allegedly travelled had been underestimated by approximately one third. Our trainee solicitor had been dispatched with road measuring device and when he returned with the news that the measurement was indeed wrong we immediately knew we would win the case!

Avoiding disqualification

If you have 6-9 points on your licence at present and they are within three years of the present offence (going from offence to offence dates) then you are due to be disqualified under ‘Totting up procedures’. This is where a driver accumulates 12 or more points in 3 years, will be liable for a mandatory disqualification period. A six month disqualification is the likely outcome however certain Sheriffdoms in Scotland are quick to use their right to disqualify for longer!

However, all is not lost. You may be able to argue that ‘Exceptional Hardship’ would occur if you lost your licence. But the hardship must really be "exceptional". If you can persuade the court that others would suffer badly – for example, that they would lose their job or their business, or be unable to pay their mortgage – then you might be able to persuade the court to impose the points but refrain from disqualification. It is very difficult to persuade the court not to impose the disqualification. The law is that they SHOULD impose disqualification. So you need experienced help to win the argument.

 If all seems to be  lost, then other factors can come into place.  The legislation permits further opportunities for a motorist, after conviction, to retain his licence. If what the court terms as "Special Reasons" apply to the circumstances of the offence, the Court can refrain from disqualification or endorsement. An example might be where you are driving your wife to hospital because she is in labour!

It must be stressed that these are complex areas of the law and legal advice should be sought at the earliest juncture. Legal advice is invariably expensive, especially where you are seeking out the skills of a specialist however a great way to provide for the possibility of a high legal bill is to join the trafficlawplan scheme.

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