Driving ban reduction – Justices' Clerks Society and Sentencing Council go to...

Driving ban reduction – Justices' Clerks Society and Sentencing Council go to war (sort of)

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When someone is convicted of a relevant drink offence (see below), there is the option to reduce the period of mandatory disqualification if they successfully complete a drink drive rehabilitation course.

This power is found in Road Traffic Offenders Act 1988 s 34A(3).

It applies to offences under Road Traffic Act 1988:

s 3A(1)(a) (causing death by careless driving when under influence of drink or drugs),

s 3A(1)(b) (causing death by careless driving with excess alcohol)

s 3A(1)(c) (failing to provide a specimen where the specimen is required in connection with drink or consumption of alcohol)

s 4 (driving or being in charge when under influence of drink or drugs),

s 5(1)(a) (driving or being in charge with excess alcohol)

s 7(6) (failing to provide a specimen)

s 7A(6) (failing to allow a specimen to be subjected to a laboratory test)

where the court disqualifies the offender for a period of 12 months or more. The offences to which this applies all carry mandatory disqualification except the section 4 offence.

The offender must agree and must be over the age of 17.

How much of a reduction?

Subsection 3 of the Act states:

The reduction made by an order under this section in a period of disqualification imposed under section 34 shall be a period specified in the order of not less than three months and not more than one quarter of the unreduced period (and accordingly where the period imposed under section 34 is twelve months, the reduced period shall be nine months).

As readers will know, the Sentencing Council, or its predecessor the Sentencing Guidelines Council, create guidance for courts for various offences. It also provides guidance on related matters. The relevant guideline here is the Mags Court Sentencing Guidelines p 186.

At para 21 it states:

The reduction must be at least three months but cannot be more than one quarter of the total period
of disqualification:
• a period of 12 months disqualification must be reduced to nine months;
• in other cases, a reduction of one week should be made for every month of the disqualification

[Therefore a 24 month disqualification would be reduced by 24 weeks.]

Confusion

In the Magistrates’ Court, when there is a lay bench (ie, non-legally trained magistrates) they sit with a legal advisor. They are members of the JCS – the Justices’ Clerks Society – which also issues ‘Legal Advice Notes’.

Recently, it issued one such note effectively advising the legal advisors to advice their magistrates to ignore the Sentencing Guidelines Council’s guideline (specifically para 21) as it is inaccurate, and to follow their note, which, they consider complies with the statute.

The Legal Advice Note states:

The legislation at Section 34A(3) Road Traffic Offenders Act 1988 specifies the reduction at not less than 3 months and not more than one quarter. The courts have generally offered the one quarter reduction. In the case of a disqualification for 24 months the reduction would therefore be 6 months or 26 weeks (not 24 weeks as set down in the Sentencing Guidelines). In the case of a disqualification for 36 months the reduction is 9 months or 39-40 weeks (not 36 weeks as set down in the Sentencing Guidelines).

Though the difference is marginal, for some defendants that difference is very important to them. As a result my advice is that magistrates’ courts should continue to offer the full one quarter reduction and not follow the Sentencing Guidelines.

So the advice of the Justices’ Clerks Society is to ignore the guidelines in favour of a practice which has developed in the courts. Why?

Why?

The Note states:

The reason for departing from the Sentencing Guidelines is that it deprives the defendant of the fullest possible reduction which the court can offer.

That seems pretty poor justification to me. The guidelines are flexible and departing from them is allowed.

Aside from that, it would surely have been far better (and less embarassing?) if the JCS had contacted the Sentencing Council to discuss the matter. It seems as though the JCS have very much parked their tank on the Sentencing Council’s lawn!

To my mind, the proper approach would be to follow the guideline unless there is a reason to give a greater discount. Circumstances might be such that the court wishes to give the full 25% discount, and in such a situation, they should, but statute requires that courts have regard to the guidelines. This legal advice would arguably make such a sentence unlawful.

To make matters more interesting many Magistrates use the Sentencing Guidelines App on an iPad or tablet which performs the calculation of reduced disqualification dates. Thereby you’ll have the Bench insisting it follows dates consistent with The Sentencing Guidelines in conflict with a Legal Advisor bound by a Legal Advice notice from their own body.

One final thing…

The Note states:

 I see no need for a court to record its reasons for departing from the Sentencing Guidelines in this respect. 

This is simply bad practice. There are requirements that a court explains its reasons when making or not making where they could, certain orders. This is not one of them, but it is obviously good practice to explain to the defendant (and his or her representative) why a decision was made so that a) everyone concerned better understands the decision and b) they can decide whether they wish to appeal.

I wonder if the Sentencing Council are aware…

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

6 COMMENTS

  1. “We stress that these are guidelines and can be departed from. However, if that is the course that is to be taken, a judge should explain why he is passing a sentence either above or below the suggested starting point.” (Morgan [2009] EWCA Crim 659.) And dozens of other cases to like effect.

  2. Nothing really, s/he gives the bench their advice, its then a matter for the Bench.
    The chairman is required to give reasons for the sentence and reasons for deviating from the guidelines.

  3. So far as I have been able to ascertain, the Legal Advice Note has been issued in only one area (Kent), and has not been followed by similar notes in other clerkships. The great advantage of the method set out in the MSCG is that even the most innumerate of finger counters can calculate the reduction; all the other methods that had developed over the years were more difficult to work out. The other advantage of course is equity, as everyone is treated the same, whether in Bolton, Bridgend or Burford. The wonderful SG app was roundly praised for bringing about a greater degree of uniformity by dropping all alternative methods and providing only the MCSG-compliant method.

    Were I a Kent JP, I would be inclined to follow the Guidelines rather than some half-baked guidance note from a JC who appears to have seriously misinterpreted her/his rôle and competences.

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