Drivers challenge spy camera law - September 26, 2006
Mark Townsend, legal affairs correspondent
Sunday September 24, 2006 The Guardian

The controversy over speed cameras will be reignited this week with a legal challenge that could overturn the government's ability to raise millions of pounds in traffic fines each year.

The European Court in Strasbourg will hear evidence that UK motorists' rights are being undermined by anti-speeding laws. Senior human rights judges will be told that existing laws - which require vehicle owners to disclose who was driving at the time the vehicle was pictured by a speed camera - breach a fundamental tenet of British justice, namely the presumption of innocence and the right to a fair trial.

If the challenge, brought by the human rights group Liberty against the British government, is successful then it would seriously impair the usefulness of Britain's 6,000 roadside cameras in catching speeding motorists. Lawyers for Liberty claim that an individual's 'right to silence' is a vital cornerstone of the law.

Last year, 2 million drivers were caught by speed cameras, resulting in fines of around £120m. Campaigners claim many drivers are penalised for momentary lapses of concentration and that the sums generated by speed camera fines are essentially a 'hidden tax' against Britain's 34 million motorists.

Edmund King, executive director of the RAC Foundation, said: 'This is a high-profile, important case whose outcome may affect millions [of people].'

At the hearing on Wednesday, 17 judges inside the Grand Chamber of the European Court of Human Rights will be told that motorists caught speeding by camera have an expectation to be protected by their right to silence.

The case centres on two motorists who objected to their fines. Judges will be told that a vintage Alvis belonging to Idris Francis, 66, was photographed being driven at 47mph in a 30mph area in Surrey in June 2001.

Francis, a retired company director of West Meon, Hampshire, refused to say who was driving and was fined £750 with £250 costs and three penalty points. He complains that being compelled to provide evidence of the offence he was suspected of having committed infringed his right not to incriminate himself.

His 1938 Alvis Speed 25, which was caught on the speed camera, has appeared in the Ruth Rendell Mysteries television series and was driven by Nigel Havers in The Charmer. Whether Francis will drive it to Strasbourg for this week's hearing has yet to be decided.

The judges will also consider the case of Gerard O'Halloran, 72, from London, who admitted driving a car at 69mph on the M11 in Essex where a temporary speed limit restricted vehicles to 40mph. He later tried to have his statement excluded but was fined £100 for speeding with £150 costs and six penalty points. O'Halloran claims that he was convicted because of a statement he made under threat of a penalty similar to that for the speeding offence.

James Welch, legal director for Liberty, said it was essential that the laws were clarified to protect the presumption of innocence and the right to a fair trial. Welch added: 'Clearly there is no human right which allows drivers to travel over legal speed limits.

'Rather, the principle we are defending is that no one should be forced to convict himself by his own mouth under threat of criminal sanction. Unless we are willing to overlook 300 years of common law, motorists too must have a fair trial in which they are innocent until proven guilty'.'

Campaigners argue that the UK is one of the most difficult countries in Europe in which to maintain a clean driving licence. Nearly a million motorists are on the brink of a ban because they have racked up penalty points, a recent study found. Experts predict that if the challenge to section 172 of the Road Traffic Act 1988 is successful, the police's power to use cameras to catch speeding drivers will be severely curtailed.

Be Aware The Dreaded Speed Camera

In today's day and age, being caught by a speed camera is almost an occupational hazard.

If you are unfortunate enough to be caught speeding by one of these cameras, then you need to check out a number of legal matters which may just avoid your licence being endorsed, or worse still, avoid being disqualified from driving.

Check that the Notice of Intended Prosecution has been sent to you within 14 days of the offence.

S1 of the Road Traffic Offenders Act 1988 - states that a Notice of Intended Prosecution must be sent to you within 14 days of the date of the offence.
Please note though that the duty to send such Notice of Intended

Prosecution within 14 days, is a duty to send such Notice to either the Owner or Registered Keeper of the vehicle.

In cases where a vehicle is being driven by someone who has leased or hired the vehicle, the Notice will be sent initially to the hire or leasing company as either owners or registered keeper of the vehicle who then return the Notice identifying the person hiring or leasing, which can result in a further Notice of Intended Prosecution then being sent to the driver, but outside the 14 days.
This is permissible as the requirement to serve the Notice within 14 days only relates to service of the Notice on the owner or registered keeper in the first instance.

If you receive the Notice after 14 days because it has been sent out too late for you to receive it, in the ordinary course of post, then, under S1 above, it is a complete defence to a summons for speeding.

Check the quality of the photographic evidence.

The Notice of Intended Prosecution will usually refer to photographic evidence available to substantiate the offence. Do write back and request copies of such photographs, as sometimes the quality is poor and the registration number of the vehicle can be misread on the photographs with the result that it can actually be someone else's vehicle.

Have you received an offer for the matter to be dealt with under the Conditional Offer of Fixed Penalty Scheme.

If the Notice of Intended Prosecution has been properly sent to you within 14 days and the photographic evidence shows it is your vehicle, you may be offered a Conditional Offer of Fixed penalty.

Accepting this procedure will result in three penalty points and a fixed £60 fine. If you do not accept such Offer or fail to respond to such offer within 28 days, then the matter has to be dealt with by way of summons.

Unless you dispute the offence, you would be well advised to accept any such offer, as failure to do so will result in a summons being issued, an unnecessary appearance in court, and the risk that the court may impose more than three points and a higher fine, as well as costs.

If a summons for speeding has been issued, then check it has been issued at court within six months of the date of the offence.

The law is, in such cases , that effectively the document leading to the issue of a summons must be lodged at court within six months of the date of the offence, as otherwise, it is time-barred and you have a complete defence.

Again, note that provided the document leading to the issue of the summons has been lodged at court within six months of the date of the offence, it matters not that the court then serve you with the summons after the six month period. Charles Lucas & Marshall

Can You Escape A Ban ?

A great deal has been written recently regarding the increased use of speed cameras. All drivers will have noticed a greater number of fixed speed cameras on our roads.

As a consequence of the increased presence of speed cameras more and more drivers are being caught exceeding the speed limit and consequently more and more drivers are facing the prospect of not only being fined but also having their driving licence endorsed with a minimum of three penalty points.

Drivers generally appear to be unaware of the very serious consequences should they accumulate 12 or more penalty points within a three-year period. The statutory provisions impose upon the Courts an obligation to impose a minimum period of disqualification of six months. Given the increase in the number of speed cameras it is now not uncommon for drivers to accumulate two or more speeding offences within a very short period of time.

Everyone should consider the consequences of the prospect of disqualification as a result of accumulating 12 or more penalty points. I am often asked to plead with the Court not to disqualify because of the consequences, which would flow from that disqualification but the Courts are not sympathetic to such arguments.

A Court is obliged to impose the minimum period of penalty points disqualification unless, having regard to all of the circumstances, there are grounds for mitigating the normal consequences of the conviction. Where mitigating circumstances are found it merely means that the Court has discretion to disqualify the offender for a lesser period or not at all. The Court is not bound to exercise its discretion and in appropriate circumstances will not do so.

None of the following circumstances should be taken into account:

(a) Circumstances that are alleged to reduce the seriousness of the offence or any of the offences.
(b) Hardship other than exceptional hardship
(c) Any circumstances taken into account by a Court when the offender escaped disqualification or was disqualified for less than the minimum period on a previous occasion when he was liable for disqualification.

The Courts are not therefore concerned with the particular offence for which drivers may find themselves before the Court. It is the consequences of a period of disqualification, which may allow the Courts to exercise their discretion not to disqualify or to disqualify for a lesser period.

It is clear, however, that it is insufficient to establish that hardship will be suffered. That hardship must be exceptional. What amounts to exceptional hardship is a subject, which has troubled the Courts on many occasions. Many drivers seek to argue that they should not be disqualified because there is a risk that they may lose their job if they lose their licence.

Whether the loss of employment, which would undoubtedly cause hardship, amounts to “exceptional hardship” to the offender is a matter of fact and degree to be determined in each case. It is clear that the word “hardship” is not confined to the hardship that the disqualification would cause to the offender.

Often hardship will be caused to persons other than the defender who are wholly innocent and will suffer hardship if the offender is disqualified. The Courts will take more notice of hardship where it is caused either to the public, the offender’s employer, employees or family and as such it may be more readily regarded as exceptional hardship rather than hardship to the offender himself.

The view, which is often expressed by the Courts in such circumstances, is the offender’s family or employees are innocent whereas the offender himself, by definition, is not.

It is important to understand therefore that a driver who may lose his employment as a result of a period of disqualification is unlikely to succeed in persuading the Court to exercise its discretion. The loss of employment must be real and supported by a letter from the employer.

The Court will wish to hear evidence on oath from the driver who puts forward an argument of exceptional hardship so that they may satisfy themselves as to the true consequences of a period of disqualification.

All drivers understand how frustrating it is to be without the use of their vehicle for only a few days when repairs may be necessary. We should all therefore, reflect upon the effect it would have if we were to be without our cars for a period of six months. Charles Lucas & Marshall