Free Traffic Legal Advice

First of all sorry for your loss.

You should be offered a fixed penalty (£100 and 3 points).

That may be preferable to making a court appearance and having to explain the whole sorry episode over again (with no guarantee of a successful outcome).

If you do fancy that, we can explain the legalities to you and what you will have to convince the court of.

...maybe there system will flag up they have already offered me a speeding course

I should think that's very likely.

You may be interested in this thread from another forum, which dealt with a very similar problem to yours:

https://nationalconsumerservice.co.uk/topic/474462-someone-elses-offence-and-points-on-my-driving-licence-record-at-dvla/

You will see there was eventually a satisfactory outcome, but that was more by virtue of a bit of luck and a following wind than anything either the court or the DVLA did.

I can't remember exactly what I said, something about needing the licence for work and that I was just distracted by it.

That would not have succeeded as an "exceptional hardship" argument.

In January I was in court and they just removed my oldest offence that had 3 points and put this last one.

Courts do not do that. The points automatically become inactive for "totting up" purposes three years after the date of the offence.

You've got o help us a bit here if you want meaningful advice. Just providing small snippets of what happened (some of which are clearly wrong) doesn't help.

As a start, what were the dates of the offences which led to your previous points and of the one which led to your last court appearance?

(Went to court in January and get given a second chance),

What exactly do you mean by that?

If you have nine points on your licence, do you mean you went to court in January and they imposed no points?

I think your next stop must be the DVLA.

I seems strange that your insurers know the details of this but the court that allegedly convicted you doesn’t. You need to ask the DVLA who told them to endorse your licence.

I don’t think a Statutory Declaration will be the way to go unless and until you discover the court details. A court will not accept a declaration from you to say you knew nothing about a conviction which nobody else seems to know anything about either.

I’m just trying to think through what might have happened if this was a case of fraud. Somebody would have to have received a request for driver’s details, named you, but at their address. Then, if they (or rather you) were offered a fixed penalty, they must have accepted it in your name. But to do that they would need your DL details.

Seems a bit of a rigmarole to go through (coupled with the risk of an allegation of attempting to pervert the course of justice)  to avoid three points and a hundred quid. It’s all a bit odd.

Appeals from the magistrates’ court to the Crown Court are heard “de novo”, which means afresh, from scratch. So you do not have to put forward the same argument as you did in the magistrates’’ court.

One thing to bear in mind if you do appeal to the Crown Court is that your appeal will be heard by a judge and two magistrates (from a different Bench to the one where you were disqualified). The judge rules on matters of law but all three decide on matters of fact (on which your appeal will be entirely based)..

This means the two magistrates can outvote the judge. Furthermore, judges do not deal with “exceptional hardship” arguments very often, whereas the magistrates do. The judge may not have the same “feel” for the argument as the magistrates.

As above, you should beware of lawyers who suggest you have a good chance of success. They get paid regardless.

The only hardship you have mentioned is that you will lose your job. Here’s the guidance which magistrates (and the Crown Court) use when deciding EH arguments:

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn.

Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence.

Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.

Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.

Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.

You will note from the final paragraph that losing your job, by itself, is unlikely to see a successful EH plea. I don’t know whether your barrister mentioned that to you when you discussed your case. Another thing which magistrates consider for those claiming hardship through loss of employment is mentioned a couple of paragraphs earlier. Many take the view that if driving is so essential, why did the defendant continue to offend, knowing that his licence was in jeopardy?

Previous experiences are not much help with this issue because every case turns individually on its merits. But you should also be aware that an appeal will see you further out of pocket as your barrister will want paying, win or lose. If you are unsuccessful, the CPS will ask for more costs, possibly in eh region of £700.

The long and the short of it is this:

If you enter a guilty plea, but disagree with the facts of the allegation, you can enter your plea “on a basis”. In your case this would be “I was not doing (for example) 85mph but 75mph”.

The court must decide whether there would be a material difference in their sentence if they accept your version rather than the version put forward by the police.

If they believe it will not, they must proceed to sentence you based on your version.

If they believe it will, they must either accept your version or order a hearing (known as a “Newton Hearing”) to establish which version they will use for sentencing. The hearing is rather like a trial, but instead of it determining your guilt or innocence, it determines the facts.

You have not made it very clear what the speed within the 50mph limit you say you were doing. You said “roughly 80mph”. But it seems you do not dispute doing 80-85mph when you entered the 50mph stretch.

So I don’t really know what you are arguing about as far as the speed goes. The charge sheet says 85mph and you accept it was 80-85mph. I would suggest that whether the court accepts 85mph as alleged or your lower estimate of 80mph, it will make no material difference to sentencing.

So to answer your questions:

1.It may be worth contacting the police prosecutor to ensure that their statement alleging 85 mph is what will be used in court.

2.The guidelines for 85 in a 50 limit suggest either a ban of up to 56 days or six points. Strictly speaking you have no right to argue that a ban will cause you “exceptional hardship” (that is only available for “totting up” bans). But the court will consider your circumstances when making their decision.

3.If you are confident enough to speak in court, you should be able to handle this yourself. I don’t believe the speed discrepancy will be an issue. However, 85 in a 50 limit is in the range where the court will consider a ban appropriate, so you should be prepared for that.

Unless you ask for a court appearance, your case will initially be heard by a “Single Justice” (SJ) at a hearing which you cannot attend. However, if the SJ believes a ban should be considered, your case will be adjourned to a hearing which you can attend.

In view of your concerns over both the speed and the possible disqualification I would suggest you ask for a personal hearing anyway. You can then be sure that all the points about which you are concerned are considered. If a Newton Hearing is ordered, it will not take place on eh same day as your first hearing, but at a later date.