DRIVING WITHOUT DUE CARE AND ATTENTION - CYCLIST DASH CAM EVIDENCE

[Campbell1]

Hi Everyone,

 

On 9 June 2021, I overtook a cyclist who had a camera fitted to his helmet. 

 

It seems I didn't give sufficient clearance when I overtook him and he subsequently submitted the footage to the Police who then took the decision that I had been driving without due care and attention. 

 

The case has been adjourned on a number of occasions, the last being on 4 April this year because the prosecutor couldn't find any record of the incident in the system. 

 

The case is due to go ahead again next Monday, when presumably the detail will have been located. 

 

My concern is that I have 9 points on my license, all relating to speeding (3 going off the license in June this year, 6 put on in a block in 2020), and I am concerned - obviously - that I will be disqualified from driving.  I cannot afford legal support.

 

Up until now, I had assumed that because the Police had decided that I was driving without due care and attention, that I was automatically guilty. 

 

However,  this was not something I did recklessly, I was within the speed limit and this was a misjudgment rather than malice. 

 

On that basis, although I am prepared to admit to an error I don't believe I am actually guilty of driving without due care and attention - in fact I was taking great care at the time to keep clear of the cyclist regardless of what the dash cam shows.

 

Am I being stupid to think this way now? 

Should I simply admit guilt and take the punishment? 

 

I really can't afford to lose my license but is this automatically inevitable given the points on my license?

 

Any advice greatly appreciated. 

 

Thank you!   

[Man in the middle]

1 hour ago, Campbell1 said:

Up until now, I had assumed that because the Police had decided that I was driving without due care and attention, that I was automatically guilty. 

 

It doesn't quite work like that. The police may suspect you have committed an offence and may offer you an out of court disposal to deal with it. But if you deny the offence you have a right to see the matter dealt with by a court.

 

The definition of "careless driving" is that which "falls below the standard expected of a competent and careful driver." Competent and careful drivers do not pass too closely to cyclists and if you made a mistake and did so, it fits the definition. The offence is often highly subjective, and one person viewing the evidence may find carelessness, another may not. The police will produce the evidence which they say demonstrates carelessness, you will have to convince the court otherwise.

 

A couple of things to remember if it does go against you:

 

You will face an income related fine but the crippler will be prosecution costs which usually start at £620. You will also receive a minimum of three points. It is the dates of the offences which are considered for "totting up" purposes so, from what you say, you will face a totting up ban of six months. The only way to avoid this is to convince the court that you or others will face "Exceptional Hardship" if you are banned. Loss of employment alone is not usually considered "exceptional". The Magistrates' guidance is below:

 

 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.

Edited April 21, 2022 by Man in the middle

[mantis shrimp]

If you admit an error, surely you are admitting driving without due care. Think about it. You are trying to draw a fine distinction with which magistrates may well not agree. 

 

Why did the cyclist report this? One possible, even probable, answer is that he felt that the manner of your driving threatened his safety. 

Edited April 21, 2022 by mantis shrimp

[Campbell1]

15 hours ago, Man in the middle said:

 

It doesn't quite work like that. The police may suspect you have committed an offence and may offer you an out of court disposal to deal with it. But if you deny the offence you have a right to see the matter dealt with by a court.

 

The definition of "careless driving" is that which "falls below the standard expected of a competent and careful driver." Competent and careful drivers do not pass too closely to cyclists and if you made a mistake and did so, it fits the definition. The offence is often highly subjective, and one person viewing the evidence may find carelessness, another may not. The police will produce the evidence which they say demonstrates carelessness, you will have to convince the court otherwise.

 

A couple of things to remember if it does go against you:

 

You will face an income related fine but the crippler will be prosecution costs which usually start at £620. You will also receive a minimum of three points. It is the dates of the offences which are considered for "totting up" purposes so, from what you say, you will face a totting up ban of six months. The only way to avoid this is to convince the court that you or others will face "Exceptional Hardship" if you are banned. Loss of employment alone is not usually considered "exceptional". The Magistrates' guidance is below:

 

 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.

Thank you for all the detail - extremely helpful.  I struggle with extreme anxiety and the prospect of appearing in court for this is almost crippling.  If I submitted a statement to the court by email, expressing contrition and setting my otherwise good character (I am a veteran of 25 years' exemplary service, for example) would this weaken my position - or even send a message to the court that I was being disrespectful?  Thanks again.

[Man in the middle]

 

Quote

If I submitted a statement to the court by email, expressing contrition...etc.

 

You can only do that if you wish to plead guilty. If you want to defend the matter you must appear (or send a legal representative and that may not be acceptable if the prosecution wants to cross-examine you). It seems from what you've said that you've entered and maintained a Not Guilty plea (or it would have been done and dusted long before now). If you want to change your plea you must contact the court before next Monday.

 

However, that only deals with the current case. If you want to present an "exceptional hardship" argument when you face a totting up ban you must appear and give evidence (as you can see from the Magistrates' guidance I provided in my earlier answer). The prosecutor (and possibly the Magistrates) will probably want to question you about your argument. What sort of "exceptional" hardship will you or others face if you are banned? 

[Campbell1]

Thanks again - no it's been a Guilty plea throughout because I just assumed that the dash cam footage would indicate that anyway (although I now take your point about subjectivity) - it's been adjourned a number of times because I had to move house and have ended up in South Wales rather than England.  The process of transferring to a court where I live took several attempts and then I had to request adjournment thru coming down with Covid.  It seem from your excellent guidance that a tot-up ban is all but unavoidable, because I'll be awarded another 3 points to take me to 12.  My strong feel now is to submit a statement expressing contrition and then see how things fall from there - looking at the guidance you provided, it also seems unlikely that I could claim exceptional hardship, other than the inability to effectively visit my 91-year old mother who is in a care home in England and ailing very quickly.

[Man in the middle]

I forgot to add that you can ask the court's permission to have a "McKenzie Friend" sit beside you in court. This can be anybody you choose and your request will almost certainly be granted. Your McKenzie friend can talk to you, and you to him (except when you are giving evidence) but he has no right to address the court. It may help a little with your stress problem.

 

McKenzie Friends: how they can help in court if you cannot afford a solicitor

WWW.LEGALCHOICES.ORG.UK

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Going to court can be a stressful experience. It can be made easier by using a regulated lawyer such as a solicitor. But not everyone can hire a lawyer. Sometimes, the only option might be to represent yourself in court. If you...

 

[Man in the middle]

Right. Sorry, I got the impression from the timescales that you were awaiting  trial. 

 

As I said, your statement showing contrition will deal with the latest offence, but it will not reduce the points awarded to fewer than three, which is the statutory minimum. Your description of the incident places it at the lower end of seriousness anyway and it is unlikely you would be awarded more than three points in any event. But the number of points is not really a concern as three will see you as a "totter."

 

You can only argue "Exceptional Hardship" if you attend court. That said, being unable to drive to your Mother's care home is unlikely to cut the mustard. Even if you dress it up a bit, and explain why alternative means of travelling are not possible, it would still be a stretch. If there is no other way a ban will affect you or others, I cannot see your argument succeeding. However, it will cost you nothing to try, except overcoming the trauma you say it will present. Whilst being formal courts of law, Magistrates' Courts are far less imposing than Crown Courts. There are no wigs and gowns and Magistrates are "lay" people, not legally qualified. 

 

You should bear in mind that if you do not attend you should not drive until you learn the outcome of your case as any ban begins immediately it is announced. Because of this, Courts are generally loathe to disqualify drivers in their absence and they may, when discovering you are a "totter", adjourn once again to give you an opportunity to attend.  

Edited April 22, 2022 by Man in the middle