Safe Speed Forums

The standard "standard of proof" is beyond reasonable doubt, isn't it? If that applied here, I would only need to show that it is plausible that I was under the limit while driving. Plausible means "beyond reasonable doubt", I think.

Yet you say that I have to show something more than just plausibility. You are suggesting that I have to show that it is more plausible that I was under the limit, and less plausible that I was over the limit. That seems to be rather unfair to me, to be honest. It's not English.

The prosecution have to prove beyond reasonable doubt. In the normal course of events, to get a not guilty, the defendant only has to introduce a reasonable doubt. I am not sure if you would consider plausible a higher or lower standard than reasonable.

Life gets a bit more difficult when you consider a charge where (for example) a permit is needed to do something. The law doesn't always make it clear whether the lack of permit is an element of the case ie something the prosecution must prove beyond reasonable doubt, or if possession of a permit is a defence.

The need for the defendant to prove on balance of probabilities comes when he or she is putting forward one of the statutory defences. There are other similar situations involving either reverse burden of proof or affirmative defence. Sometimes they seem to amount to more or less the same thing.

If you consider a charge of no insurance, just about every defendant says they are covered but they can't find the cover note. It would be impossible for the prosecution to check every UK and foreign insurance policy. For example some policies cover any driver, some cover any driver if he is an employee . It is in the interests of society as a whole to prosecute those who drive without insurance and it seems reasonable to require the defendant to either find his cover note or obtain a copy.

Similar considerations apply to drunk in charge. The danger to the public from drunk drivers is generally accepted and being drunk in charge is one step away from that. Which is why being drunk in charge is an offence, albeit one with a lower penalty than actual drink driving. Just about every defendant says he wasn't going to drive and it seems reasonable, to me at least, to ask him to put forward some information to enable a court to make a reasoned decision. As I have said before the standard is quite low, at balance of probabilities, which does result in not guilty verdicts where the court were fairly sure they were being told lies. But fairly sure is not sure enough to convict.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

That's a matter for each individual, but I'd say this: if a thing is plausible, it must be reasonable, and if it is reasonable, it must certainly be plausible.



That sounds right.



It depends on the form of that information. Unlike the insurance example, the information in this case may not exist beforehand in any record keeping system, and no court could expect a defendant to forward information that does not exist!

Other problems exist with information gleaned after the event. Who expresses to the defendant what information will be necessary? And when is the defendant told? How much time can elapse before the information is taken? Who is capable of finding the information? And who should pay? And how much store should be put it in anyway? This idea doesn't seem to be well thought out, to me at least. But thanks for the info.

I am sure thats right, and it could potentially cause real difficulties for people who genuinely had no intention to drive but didn't tell anybody, or get into the back seat, or leave the keys with somebody else etc etc.

It is standard practice for the arresting officer to ask what the persons intentions were. If that doesn't happen it gives the defence the chance to say later that they would have explained if given the chance, which in turn makes it difficult for the CPS to counter. I have often thought the whole thing to be a bit convoluted, but thats the law we have to use and, to be fair to parliament, if they want to stop alcohol related motoring offending its hard to see how else to tackle this particular problem.

Answering politely phrased questions from people who are able to disagree with the system without wanting to shoot the messenger is a pleasure.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

THANKS! I'm not always polite, but I can tell when a chap knows his onions, and you do, that's for sure.

Quite right Graball. A local drink driver 'abandoned' his car in a ditch on the way back from the pub. Walked home and sat down with a bottle of whiskey. Plod turned up and didn't even breathalize him.

No No No No No. In English law, it is the Crown that must prove its case, i.e. it must prove guilt. People do not appear at court forced to prove innocence - otherwise you could be charged with a crime and the Crown sits there silent while you have to prove you didn't do it!!!!!!

I have just driven back from the Co-op with a wine box that I am consuming. I rekon in 10mins I will be over the drink drive limit. If the police knock on my door, and Fisherman is to be belived, I will be breathalised and charged, and found guilty as there is no way I can prove my innocence, while the Crown doesn't have to offer a scrap of evidence that I drove drunk.

Fisherman is certainly not a magistrate! Innocent until proved guilty ring a bell? Although there is a saying in some circles that the Magistrates say guilty until proved guilty - but I'm not that cynical

Ok, lets all have a go at this one: True scenario - this happened to me!

I took my car to a petrol station and a few days later I was accused of bashing someone elses car (which CCTV showed that I didn't!). During the process, I freely admitted that I didn't have a MOT on the car (was taxed and insured). And at the earliest opportunity explaned that I was only taking the car out to test the bearings before submitting the car for a MOT.

So what happened next? And would Fishermans juristriction have been different?

I follow the law as it is and not as you think it is.

Bold emphasis is mine.

Original text can be seen at
http://www.statutelaw.gov.uk/content.as ... esize=1678

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

I really dont see your point?
So you can copy and paste - ok!
But surley you are stating that the prosecution has to prove it case under the various sections? Unless the prosecution can prove that, the defendant does not have to prove he is innocent.

The fact is a defendant is only found guilty if the Crown proves Actus Reus and Mens Rea, and has no lawful defence. It is the Crowns position that it must prove the Actus Reus and Mens Rea, then the defendant can show a defence if he has one, But that is far different from what you were saying and I quote you:

" If you intend to rely on a defence of "I was under the limit when driving, I am now over the limit because of my post driving consumption of alcohol" then it is down to you to show (balance of probabilities) that you were under the limit while driving. As far as i am aware this can only be done by way of expert medical or scientific evidence"

It is for the Crown to prove that you were driving when drunk!!!!

Right now I am over the drink drive limit. There is an pick-up out side with a hot engine. If the police say I have been drink driving - they have to prove it, I dont have to prove I wasn't, which is what you had said and so many other people quite rightly picked up on.

Yes there is a defence outlined, but I don't have to use it until the Crown have presented strong evidence that I had been drink driving - this is the scenario we were discussing!! So for heavens sake please stop twisting it around and going back and editing your posts.

This is a defence of intention!! That's not what we are discussing.

THE CROWN MUST PROVE THEIR CASE - not the defendant prove their innocence as you stated.

On the rare occasions I edit a post I ALWAYS add a note to say so. I have not edited any posts in this thread.



In a thread which is discussing defences it is superfluous to say in every post that the crown must prove their side first. I do, however make that point at intervals.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

That section states a particular defence. It makes no mention that this is the only defence allowed, so it only serves to increase the rights of the defendant, not to restrict them. To be interpreted as you say, the law would have to be worded differently:



If he can prove it, fine he's innocent. If he can't, it still falls on the prosecution to prove their case against any other defence in the normal way , as far as I can tell.

PS: unless, when a defence is explicitly specified in a law, it removes all the other defences? But that would put it in conflict with normal use of the language.

PPS: Having said that, I have just noticed how cleverly this law is formulated! The offence is being in charge while drunk. You don't have to have driven it. That's sneaky, eh?

I see the point you are making. From the point of view of somebody who deals with this law but didn't write it in the first place there a couple of things I can comment on. Every defendant at trial can defend himself against the charge in, broadly speaking, two ways.

He can discredit the prosecution during cross examination to the point where they fail to make a case to answer. That could be by making a witness contradict himself, or by pointing out inconsistencies that they can't reconcile. On rare occasions its simply a case of pointing out that the CPS have failed to even try to prove an element of the offence. There are lots of other possibilities but I am sure you get the idea.

The other way is provide evidence on his own behalf which introduces a reasonable doubt. This could be the classic alibi defence by which you show that you were elsewhere at the relevant time. It could be, in a speeding case, proving that the excess speed was in response to a genuine emergency. . Again, these are just examples, there are other possibilities.


Some offences carry a statutory defence in addition to the above. For drunk in charge offences that would be the defence of no intention to drive while still over the limit. For s172 that would be by showing that, even with reasonable diligence, you were unable to ID the driver.

In all cases the prosecution must prove beyond reasonable doubt. When using a statutory defence the defendant must prove on balance of probabilities. When introducing a reasonable doubt, its just exactly that.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Sorry for two posts for one reply. Got called to the phone.

That is ALWAYS the case. I had assumed that was clear and in any case well known to people who post here, it seems it wasn't clear to Lucy so I will need to be more careful in future.


You aren't the only person around here who takes that view. In general, the alcohol related motoring offences are based on potential risk. Drink driving doesn't need any proof of bad driving to secure a conviction, the mere fact of being over an arbitrary limit that you can't predict or self test for, is enough.

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I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Fisherman. You may or may not be a magistrate (and I have no reason to doubt that you are) but your considered ,unemotional and well informed replies are a breath of fresh air on these forums. Especially when contrasted with the strident and ignorant contributions of some other members.

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
When I see a youth in a motor car I do d.c.brown

I don’t want anyone to be misled by the words strict liability and the above quotation may be ambiguous. In the case of DPP V Bell [1992] Crim LR 176 the conviction for drink driving was quashed when it was accepted that he had driven away from a pub (intoxicated) to flee a gang of men and pulled into a lay-by as soon as he was out of danger.

Whilst Drink Driving and Speeding are both Strict Liability offences, the effect is merely a legal one as to how the defence must be conducted. Drink Driving offences can be defended by Duress of Circumstances (as in Bell), necessity and believe it or not – the defence of intoxication! This is clearly a complex legal argument left to qualified and experienced lawyers.

I understand that in food hygiene law, the defences are virtually non-existent. Smedleys v Breed (1974), Smedleys was convicted under the Food and Drugs Act (1955). However there has been progress in this area of law and I understand that the case of Pharmaceutical Society of Great Britain v Storkwain [1986] 2All ER635 is now in fact the leading case in this area of law should anyone be interested.

Dissappointed that no-one had a go at that one. Anyone care to guess what happened next?

I have no background to this case, have not researched it or the germane aspects of the RTA that apply, BUT

1) Your car had no MOT, and therefore was not allowed to be driven on public highway except directly to and from an MOT station where you had already made an appt. Road testing is not included in this dispecnation.

2) I therefore would have concluded it had*probably* been illegally driven to the petrol station (it *might* have been unladed from a trolly there instead, so that would need confirming or eliminating).


Hope this all make sense..




Roger

Sorry Roger, no trick question there, it was driven to the petrol station and that was never denied. The key matter was could I test my bearings on a roundabout "legally" with no valid MOT. I am not a MOT Tester either in case anyone thinks theres a trick there and it wasn't booked in for a MOT or even on its way to an MOT, a fact never denied.

The scenario is as straight forward as it seems. I simply took it for a "spin" to test the bearings and my visit to the petrol station and false accusation was what brought this to the police's attention.

My stab in the very dark: the vehicle was coming up to the 3 years old mark (no MOT required before that). AIUI, this fits the scenarios.