Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Saturday, 1 August 2015

THE ANOMALOUS SITUATION OF DRINK DRIVING ON PRIVATE LAND

There can`t be many magistrates who haven`t listened to a defendant before them for drunk driving or drunk in charge  using as his/her defence the proposition that the road or area where the alleged offence took place was in fact private property and therefore  the offence of drink driving is not committed.  Such arguments can succeed if the evidence is there to support it which shows that the public are specifically excluded from the land in question or there by invitation of the owner.  This argument succeeded in a particularly sad case of a child killed by a farm worker who was well over the drink drive limit whilst driving a tractor in the early morning after drinking the night previously. 

The terms of this anomalous  situation might be where the boundaries exist of the castle which is the Englishman`s home.  In the light of the numerous exceptions to the privacy of that castle and what lies within it I doubt there will be much resistance to the tweaking of the legal situation so that another event like the tragic one at Swithens Farm will not go unpunished.

4 comments:

  1. Presumably if the CPS felt the evidence warranted it then manslaughter charges could be brought.

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  2. Being caught with DUI can be very stressful, but there are attorneys who can request the court to reduce your punishments or even acquit you from your DUI case. My friend who is a Los Angeles DUI attorney has helped many of his client in this way.

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    Replies
    1. So it also the case here. We call it an argument of 'Exceptional Hardship'.

      A driving ban will cause hardship, and indeed it intended to do so since it is a punishment. However, if that ban would cause an exceptional hardship, that is to say, over and above the intended & inherent hardship, then the court can choose to reduce or waive the ban. It's important to note that the argument for exceptional hardship should be difficult to establish and it must be very carefully assembled. I would always recommend legal advice if an application is being considered. The court's default position is that a ban will be imposed so the applicant is going to have to work hard! Or at least that should be the case.

      Loss of employment is not usually accepted as being an exceptional hardship. In most cases the argument would need to establish that an innocent third party would suffer a real hardship if the driver were to be banned. The law does not wish to punish the innocent so the court will seek detailed information if that argument is advanced. An example of exceptional hardship could be were the driver is the sole driver in a household and the car is used to transport a member of that household to and from multiple weekly hospital appointments on a long term basis. The location of the hospital is such that the use of taxis would be too expensive. There is no other driver available. The court would expect to see good evidence and would adopt an inquisitorial approach.

      If an argument of exceptional hardship is successful then the basis is recorded and that argument can not be used again in the future.

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  3. I am happy to be corrected but exceptional hardship arguments do not apply to drink driving. There are very exceptional circumstances when a disqualification might be avoided but not as described above.

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