The Scottish Court Process From a Road Traffic Law Perspective

Steven Spielberg

Road Traffic Solicitors in Scotland often observe that most clients charged with a serious road traffic offence share the same apprehensions about court, including the process involved and what is to be expected of them when in court. This is because most clients contesting a road traffic case such as drink driving offences, speeding offences, illegal mobile phone use, and careless or dangerous driving offences have not been to court before and is therefore unfamiliar with the preparation required and the process involved.

This article therefore has two objectives:

First it aims to provide a greater understanding of the basic elements required in the preparation, procedure and processes involved to defend a road traffic case.

Secondly, it should also provide the reader with enough information to be able to select a solicitor who truly specialises in road traffic cases. The importance of this process cannot be over stated. You only get one shot at defending your case. While there are many solicitors who might not take certain road traffic cases on because of the intricacies involved, others sadly may simply be happy to muddle there way through a case. This article provides enough information to be able to probe the experience and qualifications of any solicitor, and in particular to form your own view to verify the road traffic solicitor is really a specialist.

The article is set up in a question and answer format to help answer actual questions received from both prospective and new clients.

Q1. What is the difference between a solicitor, a lawyer and a solicitor advocate?

The Law Society of Scotland is the regulatory body for solicitors who must have a practicing certificate to represent clients in court. The term lawyer is general and more universal description of one who practices in the legal profession. The two terms are really interchangeable. A solicitor advocate however is a special class of solicitor who has been authorised by the Law Society to appear for clients in the high court of justiciary. They have been granted rights of audience after passing extensive advocacy exams. This allows them to appear in court in very serious and complex cases.

Q2. Which court am I appearing in and will there be a jury?

Most road traffic cases are dealt with either in the Sheriff court or in the Justice of the Peace Court either with a sheriff or a magistrate sitting without a jury. The more serious charges such as dangerous driving, driving whilst disqualified or drink driving will call in the sheriff court and speeding cases insurance offences, careless driving and Tachograph cases are usually raised in the justice of the peace court. In fact over the years the number of road traffic prosecutions in justice of the peace courts is forever increasing and now form the majority of cases calling in such courts throughout Scotland. Generally these cases start off by way of a summons or a citation posted or served at your home address with a date for you to appear in court. It will contain a description of the charge e.g. speeding and a summary of evidence from the police. In a speeding case it will describe the date, place, time of offence and the type of device used to measure your speed. It will also contain details of the weather conditions and any comments made by the driver at the time. Usually it contains a comment that the driver was warned under S.1 of the Road Traffic Offenders Act 1995 which is a Notice of Intention to Prosecute (NIP).

If you had been arrested and released from the police station for example on a drink driving charge you may have been given an undertaking to appear at court on a certain date. Sometimes you will first have been offered a fixed penalty from the police or from the procurator fiscal which you have decided to contest in which case you will then receive a citation to go to court.

Q3. Who does all the talking?

Generally speaking when you have instructed a Solicitor he or she will do all the talking by making representations or legal submissions on your behalf both of a factual and legal nature. The solicitor will have formulated a strategy to capitalise on all the information he has gathered from you and from the investigation of the case and will know how best to say it and when to say it.

If the matter proceeds to trial you may require to give evidence of essential matters in dispute. The likelihood of this depends on the offence and the strength of the Crown case. For example most speeding offences are won on technicalities and the accused very rarely requires to give evidence. On the other hand if you’ve been charged with dangerous driving and you dispute the manner of driving, as well as the solicitor mounting an attack on the police evidence you may need to give evidence to give your account of what happened.

Q4. What preparations and investigations are carried out on my behalf?

The preparation for a road traffic offence starts from the Notice of Intention to Prosecute ( NIP) all the way through to the not guilty verdict. It is important to contact a road traffic lawyer immediately an offence is alleged to have been committed as certain vital advice needs to be given from the outset which could make all the difference to the outcome. In certain circumstances individuals can be required by the police to provide details of the identity of the driver of a motor vehicle even if it means that a suspect is being forced to incriminate themselves. In fact a failure to do so can in itself be an offence. This requirement applies to the most common road traffic offences such as speeding careless driving dangerous driving drink driving mobile phone offences, red light offences and associated offences. Apart from that a suspect is entitled to make no further comment. Advice about that should be taken from a road traffic specialist as soon as possible.

Once an accused person has plead not guilty the crown have a duty to disclose all relevant information which they seek to rely upon, to the lawyer representing the accused prior to the trial in order to give the lawyer advance notice of the evidence which they will seek to found upon in court. They also have a duty to disclose any information which is beneficial to the defence and to answer and cooperate with any reasonable queries made of them by the defence. The defence solicitor is of course at liberty to carry out their own investigations of the crown evidence and to investigate anything else that may undermine the crown case or that may add support the defence case. For example, it can be invaluable to attend at the place where the offence is alleged to have been committed particularly for speeding cases and careless and dangerous driving cases. In fact video footage or photographs can make all the difference in court.

Q5. What happens at the Trial?

The procedure in a trial broadly has the same format in every court. Its procedure is regulated by the Criminal procedure (Scotland) Act 1995: The persuasive burden of proof is always on the crown to prove the crime has been committed, and that is why they have to go first in any trial. The Crown have to lead each of their witnesses in evidence one after the other. This means the prosecutor has to call all their witnesses before the defence has to consider any evidence of their own such as the accused himself giving evidence. The format is that after each witness for the crown has been questioned by the prosecutor the solicitor has a chance to cross examine that witness to test their reliability and credibility. Cross examination by a solicitor is an art and requires very exacting skills to capitalise on the crown evidence by engaging in both a constructive (to support the defence case) and destructive attack (to undermine the crown case). You need a road traffic lawyer who knows the intricate road traffic laws inside out and who also has the complex rules of evidence at the forefront of their mind. The lawyer should be respected for this in court and have the ear of the bench and at the same time be able to face up to and influence the sternest of judges.

Very often at the end of the crown case what’s called a ‘no case to answer’ submission can be made. This is where the lawyer invites the court to dismiss the proceedings on the basis of a lack of sufficient evidence, very often down to a fatal technicality in the proof of the case or evidence which has been held to be inadmissible. This is often the reason many cases are won by an expert road traffic lawyer.

No matter how strong the crown case is, it is always possible to attack it, and if a reasonable doubt can be achieved the job is done. Different witnesses and different cases require different approaches and strategies. Police officers for example are meant to be professional witnesses but can often make fatal mistakes when cross examined effectively. Expert witnesses such as toxicologists and forensic scientists require a different approach as often their opinions are subject to a number of assumptions which are not in fact apposite to the case on trial. Sometimes the defence need to lead evidence from experts of their own to counter the crown experts. Civilian witnesses may give evidence that is tainted by fear or favour, or may just be unreliable for a number of reasons, even though that witness may be doing their best to remember.

When it comes down to it, the difference between a good advocate and a mediocre one can win or lose a case. An accused should definitely ask a potential Solicitor about the extent of their experience in road traffic law and what the strategy he has in mind for the trial. Sometimes though the final strategy can only be determined just before the court date and even then this can change on the day of the trial for a number of reasons. An experienced road traffic advocate however should be able to identify certain weaknesses in the prosecution case before the trial and also be able to seize opportunities that arise on the day of the trial. There are a number of ways that a good road traffic lawyer can manipulate the crown witness’s evidence and by skillful cross examination create fatal technicalities that will win the case for their client no matter what the nature of the offence is.

On some occasions advice must be given to resolve the case with the fiscal by way of damage limitation. For example someone charged with dangerous driving may well be advised to offer a plea of guilty to careless driving or to a speeding offence. You need to be confident that you have instructed a solicitor who knows every conceivable way to defend a road traffic case so that when he advises you to resolve the case you know it’s definitely in your own interest.

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