Wigipedia - The motoring law blog
Speeding is a criminal offence. However, it is not a recordable offence. A convicted offender would not have a criminal record, but the outcome is recorded by DVLA. The conviction is not recorded on the Police National Computer as a criminal conviction.
Imprisonable offences are recordable offences but speeding is not an imprisonable offence. Some non-imprisonable offences are recordable and appear on a Home Office list of recordable offences.
The Sentencing Council is consulting on Expanded Explanations in the Sentencing Guidelines. Part of the consultation refers to mitigating factors.
As with the aggravating factors the numbering of these factors is purely for ease of reference and is not an indicator of relative importance. The numbering will not appear in guidelines.
We are proposing to provide expanded explanations for the following mitigating factors
First time offenders usually represent a lower risk of re-offending. Re-offending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it.
Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.
This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence.
However, this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction at step four). Lack of remorse should never be treated as an aggravating factor.
Where an offender has self-reported to the authorities, particularly in circumstances where the offence may otherwise have gone undetected, this should reduce the sentence (separate from any guilty plea reduction at step four).
Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction at step four).
Where an offender has committed the offence with little or no prior thought, this is likely to indicate a lower level of culpability and therefore justify a reduction in sentence.
However, impulsive acts of unprovoked violence or other types of offending may indicate a propensity to behave in a manner that would not normally justify a reduction in sentence.
Whereas acting as part of a group may make an offence more serious, if the offender’s role was minor this may indicate lower culpability and justify a reduction in sentence.
Where this applies it will reduce the culpability of the offender.
This factor may be of particular relevance where the offender has been the victim of domestic abuse, trafficking or modern slavery, but may also apply in other contexts.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
This factor may indicate that the offender is vulnerable and would find it more difficult to cope with custody or to complete a community order.
The factor may apply to reduce the culpability of an offender
acting alone who has not appreciated the seriousness of the offence or
where an offender is acting with others and does not appreciate the extent of the
overall offending.
If the offender had genuinely failed to understand or appreciate the seriousness of the offence, the sentence may be reduced from that which would have applied if the offender had understood the full extent of the offence and the likely harm that would be caused.
Where an offender lacks capacity to understand the full extent of the offending see the guidance under ‘Mental disorder or learning disability’ below.
Where an offence (which is not one which by its nature is an acquisitive offence) is committed in a context where financial gain could arise, the culpability of the offender may be reduced where it can be shown that the offender did not seek to gain financially from the conduct and did not in fact do so.
Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, and which has had a detrimental effect on the offender, the court may take this into account by reducing the sentence.
Note: No fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.
Where the offending arose from an activity which was originally legitimate, but became unlawful (for example because of a change in the offender’s circumstances or a change in regulations), this may indicate lower culpability and thereby a reduction in sentence.
This factor will not apply where the offender has used a legitimate activity to mask a criminal activity.
Age and/or lack of maturity can affect:
the offender’s responsibility for the offence and
the effect of the sentence on the offender.
Either or both of these considerations may justify a reduction in the sentence.
The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).
In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:
evaluate the consequences of their actions
limit impulsivity
limit risk taking
Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.
Environment plays a role in neurological development and factors such as childhood adversity including deprivation and/or abuse will affect development.
An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.
An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.
There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.
Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).
Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but taking into account the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).
When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR.
This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.
In addition when sentencing an offender who is pregnant relevant considerations may include:
any effect of the sentence on the health of the offender and
any effect of the sentence on the unborn child
In such situations the court should ask the Probation Service to address these issues in a PSR.
The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending;
A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing Judge when determining the sentence that it would be just to impose.
Mental disorders and learning disabilities are different things, although an individual may suffer from both. A learning disability is a permanent condition developing in childhood, whereas mental illness (or a mental health problem) can develop at any time, and is not necessarily permanent; people can get better and resolve mental health problems with help and treatment.
In the context of sentencing a broad interpretation of the terms ‘mental disorder’ and learning disabilities’ should be adopted to include:
Offenders with an intellectual impairment (low IQ);
Offenders with a cognitive impairment such as (but not limited to) dyslexia, attention
deficit hyperactivity disorder (ADHD);
Offenders with an autistic spectrum disorder (ASD) including Asperger’s syndrome;
Offenders with a personality disorder;
Offenders with a mental illness.
Offenders may have a combination of the above conditions.
Sentencers should be alert to the fact that not all mental disorders or learning disabilities are visible or obvious.
A mental disorder or learning disability can affect both:
the offender’s responsibility for the offence and
the impact of the sentence on the offender.
The court will be assisted by a PSR and, where appropriate, medical reports (including from court mental health teams) in assessing:
the degree to which a mental disorder or learning disability has reduced the offender’s responsibility for the offence. This may be because the condition had an impact on the offender’s ability to understand the consequences of their actions, to limit impulsivity and/or to exercise self-control.
a relevant factor will be the degree to which a mental disorder or learning disability has been exacerbated by the actions of the offender (for example by the voluntary abuse of drugs or alcohol or by voluntarily failing to follow medical advice);
in considering the extent to which the offender’s actions were voluntary, the extent to which a mental disorder or learning disability has an impact on the offender’s ability to exercise self-control or to engage with medical services will be a relevant consideration.
any effect of the mental disorder or learning disability on the impact of the sentence on
the offender; a mental disorder or learning disability may make it more difficult for the offender to cope with custody or comply with a community order.
Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue may justify a reduction in sentence. This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.
Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour may justify the imposition of a sentence that focusses on rehabilitation.
The court will be assisted by a PSR in making this assessment.
If an offender pleads guilty to a speeding offence he may escape endorsement if he can establish that there are Special Reasons not to endorse his licence.
The onus of proof to establish special reasons is on the defendant and the standard of proof is on the balance of probabilities. Special reasons must be supported by evidence. If the court finds special reasons then it is not bound to not endorse penalty points; it merely means that a discretion to not endorse then arises. To amount to special reasons a matter must:
be a mitigating or extenuating circumstance
not amount in law to a defence to the charge
be directly connected wiht the commission of the offence
be one which the court ought properly to take into consideration
Emergency; Whittal v Kirkby [1946] 2 All ER 552
Emergency (hypoglycaemic attack); Warring Davies v DPP [2009] EWHC 1172
Illness (incontinence); Marks v West Midland Police [1981] RTR 471
Absence of signage; Burgess v West [1982] RTR 269
Solicitors’ clerk late for court; Police Prosecutor v Humphreys [1970] Crim LR 234
A defendant who commits a crime under duress may in certain circumstances be excused liability. The defence can arise where the duress results from threats or the circumstances in which you find yourself.
The four elements of duress are as follows:
That you reasonably believed that threats of death or serious injury had been made against you.
That you reasonably believed that the threats would be carried out immediately and the threat was effective in the sense that there was no reasonable avenue of escape open to you to avoid the perceived threat
That the threat of death or serious injury was the direct cause of you committing the offence.
A sober person of reasonable firmness of your age, sex and character would have done what you did.
The prosecution must prove your guilt. It is for them to prove that the defence of duress does not apply. It is not for you to prove that it does apply.
There are several authorities regarding drink driving and duress. Some of which are outlined in brief below:
DPP v Jones [1990] RTR 33
The defendant had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away. He continued to his home, a distance of one-and-a-half to two miles. The court held that the defence of necessity was available for a part of the journey to his house. The defendant did not even bother to check whether he was being pursued, whether on foot, or in a vehicle or in any other way. The defence of necessity did not avail the defendant other than for the initial part of the journey. It was unnecessary for him to have continued all the way home in his car. He could easily, especially as it appears that he was not being pursued, have pulled into a side road or into some other convenient place and proceeded for the rest of his journey home on foot. The defence of duress was not available to the defendant because he drove for a longer period than was necessary.
DPP v Bell [1992] Crim. L.R. 176
The defendant had been out drinking with some friends. Some trouble broke out which caused him to run back to his car pursued by others who were less than well disposed towards him. Fearing serious physical injury, he drove off for some distance in a state of terror. The fact that he drove only for some distance down the road and not all the way home was of significance. The defence of duress applied and had not been disproved by the prosecution.
DPP v Pittaway [1994] Crim. L.R. 600
The defendant ran 200yds home from a party outside which she had been the subject of angry words and unspecified threats from a man with whom she had formed a relationship, hid in her car for five minutes and then drove 200yds before being stopped. The man she was seeking to avoid was not in the vicinity at the time. In the court’s view, the justices had neglected to apply the objective limb of the test, since there was no evidence in either case of a threat of death or serious bodily injury.
DPP v Tomkinson [2001] R.T.R. 38
Following a New Year’s Eve party, the defendant was violently assaulted by her husband, who also injured himself and then departed in a taxi for hospital having left her without a phone, but saying that police were on their way and that she had better leave before he returned home. The police having failed to arrive, she left her house at about 6am to drive to her former home (where her children were) some 72 miles away. She was stopped by police about 9.30am and when breathalysed was found to be over the prescribed limit. The defence of duress did not avail her; she was no longer subjected to any effective threat of violence when she left the immediate area of her home in her car to commence the long journey from Harrogate to Sale, and there was no basis for the justices’ conclusion that a sober woman of reasonable firmness would or might have responded to the situation as the defendant did and drive 72 miles over the Pennines
Mr Brown said that he had driven to avoid a violent confrontation following a threatening phone call. At the time he was stopped there was no evidence that the threat was continuing or that he reasonably believed he was being pursued. The case was remitted to the magistrates’ court with a direction to convict. The court did not have to resolve the question of whether or not the defence was available at the time he got into the car as it was not available when he was stopped.
A defendant will be sent a notice of proposed driving disqualification if convicted of an offence and the court is considering whether to disqualify - because of the seriousness of the offence or the number of penalty points on the defendant's licence that were live at the time of the offence.
Receipt of a notice of proposed driving disqualification does not mean that a disqualification is inevitable. In many cases, a disqualification can be avoided - especially if the defendant can establish that exceptional hardship would follow from disqualification.
The notice will include a date by which a reply must be sent to the court. The reply can be sent by email or post.
If no reply is received then the court will proceed in the absence of the defendant and is entitled to disqualify in absence. The notice warns the defendant that a disqualification in absence would be immediate (from the deadline to respond).
There is usually a form to complete with two options:
A) No further information. I have no further information to give to the court and want the court to proceed in my absence. I understand that I may be disqualified on or after [date] and should not drive from that date until the result is confirmed by the court
B) I want to attend court. I wish to give more information to the court and request a hearing date to be set. I am unable to attend court on the following dates: [list avoid dates]
Disqualification from driving has serious consequences for many people. In many cases, disqualification can be avoided where the case is properly prepared for court and the best mitigation is presented to the court. Instructing a direct access barrister is often less expensive than instructing a solicitor.
I have extensive experience and specialist knowledge of motoring offences. I am regularly instructed by solicitors, corporations and members of the public. Anyone can instruct me directly pursuant to the Public Access scheme.
My fees are reasonable and affordable. Most services are performed on an agreed fixed fee basis. I will deal with your case from start to finish. You will not instruct me but get someone else at court. Your case will not be prepared by unqualified paralegals. I do all of the work on your case. Please contact me for further information.
The Road Vehicles (Construction and Use) Regulations 1986 prohibit driving whilst using a hand-held mobile telephone. The offence is made out if the defendant is:
(a) driving a motor vehicle on a road; AND
(b) holding the phone in his hand; AND
(c) using it.
The 1986 regulation was amended in 2022.
The offence can only be committed on a road (rather than 'on a road or other public place') .
The Criminal Justice and Courts Act 2015 introduced the Single Justice Procedure which applies only to cases involving adults charged with summary-only non-imprisonable offences. The single justice procedure took effect from 13 April 2015. It will enable such cases to be dealt with by a single magistrate sitting with a legal adviser on the papers without the attendance of either a prosecutor or the defendant. The defendant will instead be able to engage with the court online (or in writing) and the case will not be heard in a traditional courtroom.
In 2024, Single Justice Procedure cases made up 68% of disposed cases in the Magistrates’ Court.
It will be for prosecutors to identify cases which might be suitable for the single justice procedure. These will be commenced by a written charge and a new type of document called a ‘single justice procedure notice.'
The single justice procedure notice will be sent to the defendant explaining the offence which has given rise to the proceedings, the options available to the defendant, and the consequences of not responding to the notice. It will be accompanied by the evidence upon which the prosecutor will be relying to prove the case.
The notice will give the defendant a date to respond in writing to the allegation - rather than a date to attend court. However, the defendant will have the right to request a traditional hearing in open court. If he wishes to plead not guilty, or otherwise wants to have a hearing in a traditional courtroom, the defendant can indicate these wishes in the response to the single justice procedure notice. In such circumstances the case will be referred to a traditional court and the case will be managed in the normal way.
In cases where a defendant pleads guilty and indicates that he would like to have the matter dealt with in his absence, or fails to respond to the notice at all, a single magistrate will consider the case on the basis of the evidence submitted in writing by the prosecutor, and any written mitigation from the defendant. The single magistrate can convict and sentence, or dismiss the charge as appropriate.
If a single justice considers at any point that it would be inappropriate to conduct the case under the single justice procedure, the justice can refer it to a traditional magistrates’ court.
Court clerk (legal adviser) shown here advising a Justice of the Peace (Magistrate). Photo credit: Law Society Gazette.
I'm often asked to advise about plea and the correct strategy to best deal with Single Justice Procedure Notices. I frequently draft mitigation statements for my clients and the cost of doing that is relatively small. Please contact me for further details.
In 2007, the Prison Reform Trust published a paper on the role of personal factors in sentencing. The research identifed the following mitigating factors cited by sentencers as affecting sentence.
Q: Does a guilty plea entitle an offender to a reduced disqualification period, or a reduced number of penalty points?
A: No.
The Sentencing Council Reduction in Sentence for a Guilty Plea: Definitive guideline states at paragraph 2.6;
"A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving."
In R v Needham [2016] EWCA Crim 455, Treacy LJ in considering the extended driving disqualification provisions referred to the aforementioned guideline and at paragraph 41 said;
“There have been no submissions that that approach should be modified as a result of the introduction of the new sections. We consider that the existing guidance should continue to apply."
Doncaster Magistrates' Court
Doncaster Magistrates' Court
The Law Courts
College Road
Doncaster
South Yorkshire
DN1 3HS
Tel: 0330 808 4407
