Anyone know the Answer

Rover_Driver

thenudeone wrote: »

Whether someone was drunk/over the limit and in charge would be subject to the normal criminal test of guilt, i.e. "beyond reasonable doubt"

But in order to use the statutory defence,

(2)It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

the suspect has to prove that defence. It is not necessary for the prosecution to prove anything regarding what was going to happen in the future.

It's difficult enough to prove what someone's intentions were at the time an incident occurred, although courts have to make such judgements every day because many offences rely on the offender's intentions. Obviously, then, it's much more difficult to prove you didn't intend to do something in the future.

I agree, it may be difficult for the person to prove that they were not going to drive while they are over the limit, but the burden of proof in criminal courts is 'beyond reasonable doubt'. It is in civil litigation the court has to decide if the person is liable for the claim against them 'on the balance of probabilites'.

Portly_Pig

Rover_Driver wrote: »

I agree, it may be difficult for the person to prove that they were not going to drive while they are over the limit, but the burden of proof in criminal courts is 'beyond reasonable doubt'. It is in civil litigation the court has to decide if the person is liable for the claim against them 'on the balance of probabilites'.

The defence only have to cast doubt on the prosecution case. That doubt doesn't have to be beyond reasonable.

mgdavid

greenface wrote: »

Well i thinks we have a problem . ..... .

nope, more like you have the problem because it seems you're not satisfied with the best thoughts of the forum. I fancy if you want a more definitive answer you may well need to seek it elsewhere.

Ectophile

The only person who will give you a definitive legal answer is the high court judge who is trying your case, when it gets to court. Everything else is just opinions.

And even the judge could be overruled by an appeals court.

Portly_Pig

Ectophile wrote: »

The only person who will give you a definitive legal answer is the high court judge who is trying your case, when it gets to court. Everything else is just opinions.

And even the judge could be overruled by an appeals court.

A high court judge would be doing the appeal not the initial trial. That would be a magistrate or district judge.

Aretnap

Rover_Driver wrote: »

I agree, it may be difficult for the person to prove that they were not going to drive while they are over the limit, but the burden of proof in criminal courts is 'beyond reasonable doubt'. It is in civil litigation the court has to decide if the person is liable for the claim against them 'on the balance of probabilites'.

Generally speaking, when the burden of proof is on the prosecution, the standard is beyond reasonable doubt. When the defence are required to prove something they need only do so on the balance of probabilities. So the prosecution must prove beyond reasonable doubt that the defendant was (a) over the alcohol limit, (b) in charge of a motor vehicle and (c) in a public place. If they manage that, it falls to the defence to prove, on balance of probabilities, that there was no likelihood of the defendant driving while still drunk.

The reversed burden of proof is more common than you might think. Where the defendant claims an exception to the law or a lawful excuse, it is generally down to him to show that the exception/excuse exists, particularly when it is something "within his peculiar knowledge". For example it's illegal to carry a knife in public without "good reason or lawful excuse". If the perp could just stay silent and say nothing about why he was carrying the knife it would be impossible to prove that he had no good reason for having it, and nobody would ever be convicted of knife possession. So it's down to him to show that he had a good reason.

The reversed burden of proof was challenged on human rights grounds in Sheldrake v DPP. The High Court ruled that to comply with the Human Rights Act the law should be read as merely requiring the defendant to show "an arguable case" that there was no likelihood of him driving. If he did that it would fall to the prosecution to prove beyond reasonable doubt that there was a real risk that he would drive. However that judgement was itself overturned by the House of Lords which decided that the reverse burden of proof was necessary, proportionate and in line with previous judgements of the European Court of Human Rights. So we're back to the situation where the defendant has to prove he would not have driven the vehicle, and unless someone takes it to ECHR (and the House of Lords were wrong about the ECHR's likely stance) it's not going to change any time soon.

As for what constitutes being in charge, I believe the main authority is DPP v Watkins, quoted here.

We have been greatly assisted by ... [counsel] ... They both accept that no hard and fast all-embracing test can be propounded as to the meaning of the phrase 'in charge'. Broadly there are two distinct classes of case.

(1) If the defendant is the owner or lawful possessor of the vehicle or has recently driven it, he will have been in charge of it, and the question for the court will be whether he is still in charge or whether he has relinquished his charge ... Usually such a defendant will be prima facie in charge unless he has put the vehicle in someone else's charge. However he would not be so if in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control while unfit, eg if he is at home in bed for the night, or if he is a great distance from the car or if it is taken by another.

(2) If the defendant is not the owner, the lawful possessor or recent driver but is sitting in the vehicle or is otherwise involved with it, the question for the court is, as here, whether he has assumed being in charge of it. In this class of case the defendant will be in charge if, whilst unfit, he is voluntarily in de facto control of the vehicle or if, in the circumstances, including his position, his intentions, and his actions, he may be expected imminently to assume control. Usually this will involve his having gained entry to the car and evinced an intention to take control of it. But gaining entry may not be necessary if he has manifested that intention in some other way, eg by stealing the keys of a car in circumstances which show he means presently to drive it.

The circumstances to be taken into account will vary infinitely but the following will usually be relevant:

(i) Whether and where he is in the vehicle or how far he is from it.
(ii) What he is doing at the relevant time.
(iii) Whether he is in possession of a key that fits the ignition.
(iv) Whether there is evidence of an intention to take or assert control of the car by driving or otherwise.
(v) whether any other person is in, at or near the vehicle and if so, the like particulars in respect of that person.

It will be for the court to consider all the above factors with any others which may be relevant and reach its decision as a question of fact and degree...

Wooder_2

Can anyone tell me if they have been or know anyone caught driving a motorcyle on the public highway with no license or insurance what did they receive from the police?

Tilt

Wooder wrote: »

Can anyone tell me if they have been or know anyone caught driving a motorcyle on the public highway with no license or insurance what did they receive from the police?

You need to start your won thread. This one bears no relevance to your question so you are unlikely to attract as many responses.

Lum

I can predict how that thread will go, replies will fall into one of two categories:

1) You need to go to pepipoo.com you won't get much help here.
2) You are child murdering scum and I hope they lock you up for life.

Richard53

Aretnap wrote: »

As for what constitutes being in charge, I believe the main authority is DPP v Watkins, quoted (legal discussion snipped) here.

Thanks for posting this, which is useful stuff. As I read it, I am guilty of being in charge whilst unfit, etc etc, every time I go on holiday. I pitch the caravan, park the car next to it, and then get stuck into a few tinnies. The car keys will likely be in my pocket, as I get stuff out of the boot and so on. I have the keys, I am near to the car, I am in a public place, I could very easily drive it if I so wished, and I am probably over the legal limit. And yet nothing would be further from my mind than driving the car.

Hmmm.