One of the most common questions asked by those charged with drink & drug driving cases is : How long does a motoring offence take to get to court?
Even when the law provides a defence to the allegation, this is an important question to ask when deciding whether or not a case should be defended. Having a defence does not always mean that pursuing it is the best course of action for you.
Nobody wants criminal proceedings hanging over them as it can be a constant source of stress and anxiety, particularly if driving is crucial to their livelihood. The duration of the case can also have an impact on the overall costs so knowing how long a case will take can be a huge factor in the decision making process. As firms charge for their time, the longer a case lasts the more expensive it tends to be.
There are multiple variables in criminal case that can affect its longevity and it is important to be aware of them to better understand the process you may be about to commit to. It would be near impossible to discuss all potential variables but hopefully this article can give you an insight into the most common.
The Investigation Phase of Drink & Drug Driving Cases
The beginning of any case will starts with an investigation into whether an offence has been committed. This may be the result of an allegation having been made or (as in most cases) when a motorist has been stopped at the roadside by police.
When a motorist is stopped, the officer must have reasonable suspicion that an offence has been committed before requiring a sample of breath or saliva (depending on what offence is suspected; drink or drug driving). A positive test will partly confirm the officer’s suspicion which would then result in an arrest and the suspect being taken into police custody.
The investigation into whether an offence has been committed continues throughout the custody period as at this stage of the case; there is no definitive evidence that can be used in court that the suspect has committed an offence. The officer’s own testimony can often establish that a person drove a motor vehicle on a public road or in a public place but that is not enough to secure a conviction as the most crucial element of the offence is missing: Was the person over the limit?
Obtaining an Evidential Sample for Evidence in Drink & Drug Driving Cases
Once booked into custody; the suspect will undergo the Drink & Drug Driving procedure and it is this procedure that yields evidence that can be used as part of a prosecution. In drink driving cases, this evidence will take the form of either a breath, blood or urine sample whereas drug-related cases will only involve blood or urine samples.
If a breath sample has been obtained and it produces a result above the prescribed limit then, from the Police’s point of view, they now have sufficient evidence to bring a formal charge and that would bring the investigation phase to a close. The case would then be passed to the Crown Prosecution Service who would take over and bring the prosecution to Court.
If a blood or urine sample has been obtained however then the analysis of the sample must take place before the police can be sure that an offence has been committed. Granted, the officer may have witnessed a vehicle being driven erratically and he may well suspect that the person is under the influence of drink or drugs but until an evidential sample shows that the motorist was over the limit then no offence has been committed (at least an offence of drink/drug driving).
As opposed to charging the suspect, the police will bail them to attend the station at a later date and arrange for the sample to be analysed in the meantime. How long a person is bailed for varies significantly from case to case. Some suspects may be bailed for a couple of weeks but others may not be required to go back for their results until month(s) later which clearly affects the overall length of the case. As a general rule however, suspects can expect to wait around 6 weeks for the analysis of a sample. Once the police have a positive result, then the investigation is complete and a formal charge can be brought.
When a suspect is charged the police will release them on bail to attend the Magistrates’ Court.
This is the typical procedure for all standard drink & drug driving cases however if a person has been involved in an accident or other accusations have been made, the suspect may be interviewed which is another method of evidence gathering that the police use during an investigation phase.
It is important to realise that even if no formal charges have been brought against you yet, there are still steps you can take to start preparing for your case. These steps can be crucial if, in the event you are charged, you wish to defend the allegation and you may wish to read my article on Pre-Charge Action and a similar article by our Managing Director, Matthew Claughton in respect of sexual allegations: “Proactive Defence When Under Investigation”. The articles address very different types of allegations but they share a common message: being proactive about your own defence can make a huge difference.
The First Hearing
Attending court for the first time can be an intimidating process; particularly when your court date may be several weeks after you leave police custody. This waiting time results in many people worrying more and more about the case as they are anxious to know what would happen which is further reason why adopting a proactive approach and seeking advice can start to help you immediately if by providing nothing else than guidance and reassurance.
The first appearance in court is known as the “plea hearing” and, as the name suggests, it is when the suspect (who is now referred to as the defendant) is expected to answer his bail and enter a plea of either guilty or not guilty.
We can provide comprehensive advice in respect of your plea and help you understand the potential consequences of each option.
If a plea of guilt is entered, then the defendant is sentenced and the case concludes the same day. If a plea of not guilty is entered, then the case progresses to its next stage which is all about case management and getting ready for trial.
During case management, the court will information about what issues or arguments the defence will be raising, what evidence is required, how many witnesses are going to be involved, whether any expert witnesses will be instructed, how long both parties need to effectively prepare the case and how long we expect an actual trial to take.
Due to the nature of case management, we would never recommend attending a hearing where this takes place without representation. The Prosecution will take advantage of anyone unrepresented and try to convince defendant’s to make certain concessions or admissions about their case which may ultimately weaken their defence.
Once all of this information is provided to the court they will usually do one of two things:
- List another case management hearing in a few weeks time: This is essentially a progress update for the court to ensure that both parties are proceeding as scheduled and to help outline any issues that may have arisen (more on that later); or
- List a trial date. The court would usually do this if they are happy for all each party to begin preparing their respective cases and notify the court of any issues as and when they arise.
Proactive case management is an ongoing requirement for both parties (the prosecution and defence) and we have an obligation to the court to ensure that your case is pro-actively managed. Better case management means that cases proceed smoothly to trial without wasting court time or expense.
Listing a Trial Date for Drink & Drug Driving Cases
The trial date may be the defendant’s last stop in the process unless a convicted defendant decides to appeal (discussed below). After considering all of the case management issues mentioned above, the court will refer to their diary to try and find a date that can accommodate everyone involved. They should take into account the availability of the following:
- The defendant (you)
- Any defence witnesses
- Any expert witnesses
- Any police officers that must attend for the prosecution
- Any civilian witnesses that may have witnesses the alleged offence
- Any prosecution expert witnesses
- Counsel (barristers).
With this in mind, it is easy to see how trials can often be listed months into the future as it can be a difficult task finding a date that is convenient for everyone involved and the court should be reluctant to fix a date knowing that certain witnesses are not going to be available (albeit the reason for their unavailability is often considered).
As cases can last several months, it is logical to assume that circumstances will change and remain fluid throughout the proceedings. Nothing is set in stone and this is the same for drink & drug driving cases. What may have been true at the time of the first hearing may completely change during the case and all parties must be ready to deal with any bumps in the road to try and ensure that trials are still brought to court effectively and expediently. It is, without question, a balancing act as trials need to be effectively prepared but they also need to be prepared in a timely manner. There is no point attending a trial unless both parties are ready as it will often mean that the hearing cannot be effective and will have to be adjourned. This results in court time and expense being wasted and affects the overall duration of the case.
The prosecution must collect relevant evidence for their case and divide it into two groups:
- Evidence that they are using as part of their case; and
- Evidence that they are not using
Anything that the prosecution intends to use should be sent to us within 28 days along with a list (or schedule) of the evidence that they are not intending to use. The 28-day time frame is intended to help with case progression. The sooner relevant evidence is identified and disclosed to the defence, the sooner progress can be made in preparing for trial. It is important to realise that the defence are at a significant disadvantage as both parties need to be on a level playing field but this cannot be possible when the Prosecution have all the evidence. Until disclosure of evidence is made to the defence there can be no equality of arms nor any fairness to the proceedings.
One of the most common causes of delay to a case is problems with disclosure (i.e. when the Crown send us evidence). Despite the 28-day time frame stipulated in the Criminal Procedure and Investigations Act 1996, the Crown often fail to disclose evidence in good time. You may wonder when the evidence will actually be served if not within 28 days and you may as well wonder how long a piece of string is.
In an ideal world, all deadlines would be met but the reality is that the Crown Prosecution Service is a huge organisation that deals with Prosecutions nationwide. Their workload is staggering compared to any private defence practice and this means that they do not always operate as efficiently as they should.
It is not uncommon for evidence to take several weeks, if not months to be served (if it is at all!) and this delay has a domino effect on other aspects of a case.
The defence may wish to instruct an expert witness but cannot do so without a certain piece of evidence from the Prosecution (CCTV for example). This expert is likely in high demand and has several firms wanting to book him on certain dates. Why should he commit to a date in court when there is a good chance the Prosecution may not disclose the evidence he needs to prepare his report to assist the case? Whilst waiting for evidence that may or may not arrive, he is refusing bookings from other firms and this may be asked of him for months. This witness, like anybody else, needs to make a living. As a result of this, many experts stipulate that they will not commit to a case unless they receive full instructions within 28 days of being booked. If the Prosecution complied with their 28-day deadline this would not be a problem. But if they make disclosure after 35 days, the same expert may have been booked on another case and therefore not be available for the trial date that was listed at the first hearing.
Once the defence receive the schedule of unused evidence, we may decide that there is something listed on it that may actually help your case. In this instance, we need to follow the correct proceess in place for obtaining a copy of such evidence. We effectively need to apply for it and explain to the Court/CPS why it is relevant to the defence. This in itself takes time and incurs costs and is only exacerbated when we make an application only for the Prosecution to take 3 times as long to respond.
Many problems with disclosure result in an application to move the trial being required. This involves going back into court and going through the initial case management issues again. If the application is granted, the trial is pushed back. If it is not granted, it may leave one party at a disadvantage.
Another reason behind trial delays can sometimes be if a crucial witness becomes double booked. Drink and Drug driving cases will be heard in the Magistrates’ Court but the expert witnesses involved are regularly instructed in cases in both the Magistrates’ and Crown Courts. This is one of those things that simply isn’t a problem, until it is.
If we instruct an expert witness in your case and he is booked for your trial on 22 August then all is well from our point of view. This same expert however may also be involved in a case going through the Crown Court and if that court decide to list a hearing on 22 August that the expert needs to attend, their case takes priority over ours as the Crown Court is a higher up in the court hierarchy. This can also sometimes happen with Barristers however it can be easier to find alternative barristers than it is expert witnesses.
In any case there may be a list of witnesses; each with their own lives, commitments and problems. There is never any guarantee witness availability will not change and this can be to a huge range of circumstances: family problems, holiday bookings, medical issues, bereavements, sudden accidents (the list is almost endless).
This is where proactive case management is absolutely crucial. If either party becomes aware that a witness is unavailable for trial, then they must take steps to inform the court and other side in good time. There is nothing more frustrating as a defence lawyer than being told that a witness is unavailable the day before a trial. The first questions we ask are:
- Why are they unavailable?
- When did you find out they were unavailable?
- What did you do when you become aware?
If steps are taken in good time, it can often mean that trial dates can be moved around by a few days to accommodate all witnesses. The problem arises when these issues are raised at the last minute as it becomes impossible to simply change the date by a matter of days. It inevitably results in the trial being delayed by weeks if not months as the availability of all parties must again be considered.
The Trial Itself
The majority of cases however do move smoothly towards trial. Whilst there is rarely a case with no bumps in the road at all, most instances are minor and can be resolved without the need for excessive delays. When the case does get into trial, there is a good chance this will be the final hearing for a defendant. If both cases have been prepared effectively then the defendant can experience a fair trial and the court will make their decision based on the evidence, but again, there are unfortunately things that can go wrong:
- Witnesses may not turn up on the day- This is usually a problem for the Prosecution as they need to try and manage police witnesses in addition to civilian witnesses with the latter may not having much interest in turning up at court especially in cases that involve people they do not know
- Crucial Evidence may not have been served- Despite our best efforts, sometimes cases proceed to trial without important evidence being served. This is often due to the fact that the defence can disagree on what the Prosecution’s obligations are. We may argue that xxx has to be served in advance whereas they may disagree and refuse to disclose it. Alternatively, the relevance of evidence may not always be known until the trial starts. Regardless of the reason if crucial evidence is not available then this can sometimes mean that the trial needs to go off to another date.
- A bad result- The UK Legal system is one of the most well-respected in the world . The UK has always prided itself on a vigorous yet fair system, but this does not mean that we are exempt from bad decisions being made. Despite what the evidence suggests, there may be cases where the court simply has a different point of view. They may misinterpret, misunderstand or just simply misapply the law. If this happens, a defendant would always be advised about the merits of an appeal. If the defendant wants to appeal a case, then it puts the finish line even further away. Appealing a conviction to the Crown Court involves many of the same challenges as those found in the lower court (i.e. witness availability etc) and so appeals can take almost as long to reach a conclusion as what it did to get a trial date in the Magistrates’ Court.
Despite the problems outlined above, there is no denying that our legal system is hugely effective. Despite the gargantuan number of cases the courts and Prosecution Service deal with, the vast majority of cases progress smoothly and defendants up and down the country enjoys fair trials.
That said, when problems do arise, you need to be sure that you have representatives who are well equipped to deal with them and this is one of the aspects of our service that Olliers Motor Law is proudest of. We are determined to provide the best possible representation and cement our status as the best road traffic firm in the country.
Our lawyers are constantly pro-active and regularly monitor the status of all cases. When an issue arises, we are swift in our efforts to find a resolution and can often negotiate with other parties to find a suitable way to proceed. We also prepare cases from the outset with the variables in mind and work in a way that reduces the chances of hearings being ineffective.
We have long-standing successful relationships in place with the country’s leading expert witnesses and barristers which means that if someone does become unavailable, we are almost always able to find a suitable alternative.
We also have the depth of knowledge and expertise required to make some of the difficulties above actually work in our favour!
The proactive approach we adopt compared to that of our competitors ultimately saves time and money for all involved.
Need Help from a Specialist Drug Driving Lawyer?
Neil Sargeant is head of Olliers Motor Law having specialised solely in road traffic cases since 2008 . If you are facing a drink or drug driving conviction then please give the team at Olliers Motor Law a call on 0808 168 0017 for free advice.