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Q: I recently had an accident with a car when I was filtering past a line of stationary cars and one of them suddenly decided to make a u-turn without any indication. I tried to avoid a collision but drove into the side of his car. It clearly wasn't my fault. Now the police have contacted me and want to come to my house to take a statement, which is fair enough, but they have also told me that I don't need to have a solicitor present. I'm a bit wary about this. Am I right to be cautious? Do I need legal representation?

A: When the police speak to people about an accident they can do it one of two ways: either under caution (i.e. you are read your rights and invariably the conversation is tape recorded) or under Section 9 of the Criminal Justice Act 1967.

As a general rule of thumb, if the police suspect that you may be guilty of a criminal offence they will interview you under caution. This is to ensure that if you say anything that might assist in your prosecution it will be admissible in court. But an S9 statement is simply a witness statement prepared by the police during any investigation, and the general indication is that you are a witness of the events and not a possible suspect as to a road traffic offence.

So ask the police if the statement will be under caution or under S9. If the former then seek legal representation, but if the latter then I would suggest that legal representation isn't necessary.

One thing to be wary of is that an interview under caution doesn't necessarily have to take place in the police station and on tape. It's now quite common in minor motoring offence cases for interviews under caution to take place with one police officer only and in the suspect's home, with your response to questions being noted by the officer on a form.

I would always advise that if the police want to interview you under caution that you have legal representation present.

 

Q: I was recently involved in a dreadful accident when an old lady walked in front of my car without looking and when the traffic lights were on green for me to go. I couldn't avoid hitting her. It was really upsetting and scary having to deal with it all, the police and everything, but then it got worse when she died. Things have gone quiet on the police front now, but there is an inquest coming up and I've been told I have to give evidence. I'm really scared about going because I know the family hate me for what happened and have been having a go at me through the press and so on. Do I have to go?

A: The simple answer is yes. If you don't respond or if you refuse to go then the coroner can issue a summons compelling you to attend. The inquest may even be adjourned until you do.

At an inquest "any interested party" is entitled to ask you questions. So it's likely that the coroner will recognise that close members of the old lady's family may wish to ask you questions direct even if they have a lawyer present.

But the coroner will make sure any questions asked are relevant and will disallow any that aren't. I've often seen some very "off the wall" questions attempted at inquests I've attended, and at one the family even asked my client about the football team he supported.

But as you were the driver of the bike that caused the fatality, you have a right not to answer any question that "may inculpate you criminally". In other words, since any evidence you give can be relied on in any subsequent police prosecution, if you feel that your answer may give rise to a criminal charge against you then you need not answer the question.

Also, though coroners are not there to place blame on any party, they have the power to recommend a prosecution if they feel your evidence justifies it.

I would seriously suggest that you arrange for legal representation at the inquest.

 

Q: I have 9 points on my driving licence, all due to speeding offences, and I've recently had another one for doing 49mph in a 30mph limit. This time I have to go to court and I'm worried that I may be disqualified from driving. Will I?

A: The short answer is yes. The reason you've received a summons and haven't just had the usual fixed penalty notice is because the magistrates are aware that disqualification is necessary and so your attendance at court is required.

Any points on your driving licence above 11 mean that you are a 'totter' and will be disqualified. The usual starting period is 6 months but this can be increased or decreased depending upon any elements of mitigation you raise. In cases of this nature, mitigation is the key.

One area of mitigation is to plead exceptional hardship. If, by your losing your licence you and your family will suffer exceptional hardship, then your licence may still be endorsed but you will save being disqualified. One example might be that you drive for a living and so you can't do your job. But magistrates are becoming stricter with this sort of claim. The onus is on you to prove it and you will need to produce evidence. Also, if exceptional hardship is found then you can't rely upon the same reasoning if you get caught again.

There is also the possibility of avoiding points if special reasons are found, for example you were rushing your pregnant wife to hospital. In this example the Court may find special reasons and so your licence is not endorsed.

As your current offence has the possibility of a short period of disqualification instead of points on your licence, the magistrates may be persuaded to disqualify for the offence alone which will still leave you with 9 points on your licence but the period of disqualification will be minimal compared to 6 months as a starting point as a totter.

If you have serious concerns about disqualification, please contact a legal representative.

 

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