The steps to take to try and stop a prosecution!
1. Ditch the duty solicitor!
The biggest complaint by far from new clients, is that they have received little or no advice or support from the duty solicitor since being at the police station. The duty solicitor will act for you at the police interview only - because this is all they get paid for. This means that all the work that should be completed (indeed, needs to be completed) after your interview, but before the police / CPS decide whether to charge you (see below), will not get done unless you choose a new solicitor who knows what to do. In addition, the duty solicitor may not be a specialist in motoring defences.
2. Monitor Police Action
The investigation may take several months. Don’t just wait to hear something. We liaise with the police on a weekly basis to ensure we are kept up to date and we can then advise you on what to do.
3. Challenge the results
In any death by dangerous driving case, the police will want to test each person involved to see whether they were over the legal limit for alcohol or drugs at the time of the incident. They will do this with either a breath test or a blood test. If you knowingly consumed drugs or alcohol prior to the incident, this could make things more complicated as it is an aggravating factor - but what if you didn't't know you had consumed alcohol? (i.e your drink was spiked) and that led to the incident? M.A.J. Law work closely with a team of expert witnesses and toxicologists who can produce reports for use in court cases. If the expert concludes that it was the alcohol consumed unknowingly that placed you over the prescribed limit, which then led to the incident, we would seek to rely on this report at your hearing.
The CPS always have the option of introducing expert evidence if they wish. The aim in doing this would be to undermine our report or cast doubt over the expert’s calculations. However, due to funding shortages and a decreasing prosecution budget, the CPS will often fail to serve any expert evidence whatsoever. They may then be stuck with a favourable defence report which they can’t argue with!
4. Start work on your defence strategy
As noted above, the police investigation may take several months. It can be very difficult and stressful for you to have to just wait, not knowing whether you will be charged and prosecuted. The police will spend that time gathering evidence to assist a prosecution. They are looking for ways to ensure you get charged. It is vital that you spend this time building your defence. Having specialist solicitors on your side, from the outset, will take the pressure off you.
It can take a few weeks to a few months for us to build your defence, no case is the same. This is because we need to know everything about your background, the circumstances of the allegation, your version of events, what the likely charges may be, factual issues, possible legal arguments, etc. This work should be completed before any decision is made to charge you - not just because we can use this information to try and avoid a charge - but because we will then have our defence arguments worked out if you are charged and then have to attend court.
As noted above, the biggest problem I have with duty solicitors is they usually tell clients to just wait until they hear from the police. Do so at your peril!
5. Avoid an ‘adverse inference’
If you gave a ‘no comment’ interview then you could be facing an ‘adverse inference’ if you are charged but then deny the offence and put forward a defence. The jury can be directed that you may be telling a lie because you failed to mention any defence before arriving at court. This is another reason why a re-interview, or making representation to the CPS can be important - because your denial and defence can be indicated.
6. Make representations to the CPS - to avoid a charge
Did you know that it is not the police that will decide whether you should be charged or not? The police gather evidence, then pass it to the CPS for a review. The CPS will then decide whether to charge you and, if so, with what offences.
You may not be aware that your solicitor is entitled to make representations to the CPS at an early stage - before any decision is made to charge you - with the aim of convincing the CPS not to charge you. The CPS has a legal duty to consider the evidence in your case and then assess whether it reaches their threshold for charge. Unfortunately, if the only ‘evidence’ considered is that presented by the police - because your solicitor hasn’t made representations on your behalf - then it stands to reason there is greater chance you are prosecuted.
We spend considerable time with clients fully reviewing the available evidence and taking full account of your version of events. We can properly consider what amounts to ‘facts’ and what legal issues arise. We can apply the CPS’s own test for deciding whether a prosecution goes ahead. We can then argue - on a reasoned factual and legal basis - why you should not be charged.
On occasions, there are good defence reasons not to make representations to the CPS. This is why the correct legal advice is essential.
NEXT STEPS: Free Legal Advice from M.A.J Law
M.A.J Law are a specialist team driving defence solicitors. We believe that every motorists has the right to independent legal advice. For that reason, we offer every motorist free specialist initial advice no matter what your circumstances. Call us today on 0151 422 8020.
