Should imagine the arresting officer had his head in his hands.
I am trying to think of the scenario as to how this guy was dealt with. He rolls up at the nick and gets bagged. Now at that point I would have imagined he would have protested very loudly his innocence. If that was the case then the arresting officer should have done a few more inquiries to establish ownership and use. If they haven't then fair play.
Had he said nothing and gone through the procedure then it would have been expected that he accepted that he had driven to the nick and got caught. No further enquiries would be done. The overall circumstances at the time indicated that it was his car and he had driven it.
The caution on arrest and charge contains the wording ....... if you do not mention when questioned something you later rely on in court......... . Has this happened or has he engaged Mr Freeman who the sees the loopholes then introduces them for the first time weeks or months later and gets away with it. If that is the case then the words of the caution and charge count for nothing.
Magistrates do not necessarily follow the exact legalities when it comes to reaching their verdicts. They can be easily swayed by a raft of what is cleverly scripted side issues which detract from the facts and real evidence. But then thats what the likes of Mr Loophole get paid for and he appears to be very good at it.
Bring back the Stipendiary Magistrates, the didnt suffer trivialities!
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There is no such thing as a legal loophole, the law is the law, and he is innocent until proven guilty. If he wasn't caught driving, then why the hell didn't they investigate whether the keys fitted the car and whether the engine was hot, or even the seat warm. It's just a pathetic half-hearted proseution case like you can see all day every day in court.
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Absolutely Ashok. If there's an absurd law allowing people to be arrested merely because they are drunk, all allegations that they have been driving should be proved.
Poor relations between those particular plods though, what?
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Well yes, the police could have been more thorough, but I have sympathy for them. The accused's car was outside, and not at his home, so any reasonable person would conclude that he had driven to the station. I only hope the accused gets caught and done in the not too distant future. As for Mr. Loophole, well I am sure he will retire a very wealthy man.
Surely Mr. Loophole would have asked the accused if he was guilty?
Lud said: "Absolutely Ashok. If there's an absurd law allowing people to be arrested merely because they are drunk, all allegations that they have been driving should be proved. "
It isn't merely for being drunk, but for driving while under the influence which is a serious charge. Yes it should be proven, beyond reasonable doubt. Mr. Loophole stretches the bounds of reasonable doubt IMO. Was he asked to explain how his car had come to be outside the station, and how he had got their without driving? And he also has a previous conviction.
Incidentally, my half-brother lives on a Swedish speaking island that is part of Finland. He was arrested for being drunk in public, and had his driving licence confiscated. Note that he was not driving at the time, and had not driven while intoxicated. They simply consider that someone who cannot moderate their alcohol intake is not fit to have a car licence.
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They simply consider that someone who cannot moderate their alcohol intake is not fit to have a car licence.
Next step would be "unfit to be a father" off with his ******s
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A lawyers job is to put his clients side of the case to the courts. It is none of his business whether his client is guilty or not, and if this person claimed he had not driven his car while under the influence then his lawyer has a duty to argue this on his behalf. It is up to the prosecution to prove their case beyond all reasonable doubt, and in this case they obviously couldn't.
"Technicalities" are there for a reason, to make sure the prosecution have not taken short cuts to stitch people up without gathering proper evidence.
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This sorry tale has implications for the CPS as well as the arresting officers. Did CPS not check the chain of evidence before putting the case before the magistrates? Such a fundamental error, not linking the driver to the vehicle, seems a little unlikely to me. I think it more likely the CPS court performance was lacking, as they apparently hire agency lawyers, sometimes ill-prepared. The tightening up of police procedures to prevent CPS allowing the case to be lost, is perhaps an unintended consequence of Mr Freemans ability in court. Viz ACPO: ?expert assistance is now more widely available to prosecutors faced with dissidents who are determined to discredit enforcement technology. This is already proving highly successful." Mr Freeman has performed a useful service if this is the outcome.
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They simply consider that someone who cannot moderate their alcohol intake is not fit to have a car licence. Next step would be "unfit to be a father" off with his ******s
You get my vote.
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:Was he asked to explain how his car had come to be outside the station, and how he had got their without
:driving? And he also has a previous conviction.
The defendant does not have to explain or prove anything. He is an ex Police Officer and was no doubt wise enough to keep schtum
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" A lawyers job is to put his clients side of the case to the courts. "
Obviously.
"It is none of his business whether his client is guilty or not"
I suspect that you are mistaken. It is clearly the lawyers job to represent the client and put forward his case. However, I believe that there are obligations and duties on lawyers, including acting within the law. I have heard of lawyers who have refused to represent someone after being told that they were guilty. And I have heard of at least one case where a defence laywer walked out after finding out that his client was guilty. Maybe a lawyer can clarify the situation? Can (according to professional codes) a defence lawyer represent someone who pleads not-guilty when the layer knows that he is guilty?
What I find curious is that Mr. Freeman often gets people off with quite straight-forward defences. Surely any half competent laywer could do likewise. So why don't they? Why does he succeed where others fail? Is it that most lawyers would instruct their client to plead guilty, and adopt a repentent look in court? Or is Mr. Freeman simply a good publicist, but otherwise nothing special?
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"The accused's car was outside, and not at his home, so any reasonable person would conclude that he had driven to the station. "
It's just possible someone else drove him there, you know.
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" A lawyers job is to put his clients side of the case to the courts. " Obviously. "It is none of his business whether his client is guilty or not" I suspect that you are mistaken. >>
A lawyer cannot know whether his client is guilty or not, he wasn't there when the alleged offence took place. His job is to put forward his clients defence no matter how preposterous it seems. What a lawyer CANNOT do, however, is to continue to plead his clients innonce after the client has admitted that he did indeed commit the offence in question but still wanted to contest the case in the hope of getting off.
No doubt PU will give the difinitive answer as to what a lawyer can and can't do.
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A lawyer (solicitor or barrister) is under a positive duty not to mislead the Court, and that includes not assisting his client to mislead the Court. However that duty does not extend to asking a client whether or not he is guilty. In fact, it is good practice not to ask directly because asking might elicit the answer that he is guilty and that might limit the range of options available in conducting an effective defence and if the Court is not misled, the lawyer's duty is to do the best for his client.
A lawyer may not act if the account the client is putting forward is palpably untrue and if the client volunteers the information that he is guilty then the lawyer cannot put forward a proactive defence, although he can put the prosecution to proof - i.e., require the evidence produced to be tested and proven in Court. However that cannot go as far as asserting the innocence of a guilty client.
A lawyer cannot assist the client to fit the facts around the prosecution evidence, i.e., point out to the client that the prosecution hasn't asserted that he was seen driving and therefore advise him to say that he wasn't driving. However, here the client is an ex-police officer and so he would be well aware of when it was sensible to give an account and when not.
For instance, having given a positive breath test he may have put forward his account on charge (probably no need to interview) at which point the police investigation would have been complete and the bonnet of the car probably cold. However that would be sufficient to avert the "proper" inference under s.34 Criminal Justice and Public Order Act 1994 that the account was a later fabrication.
Ultimately though the Magistrates are the tribunal of fact and if the lawyer has succeeded in making them unsure of the prosecution case then it is their duty to acquit - "beyond reasonable doubt" does not mean beyond any conceivable shadow of a doubt, but rather that they are confident that the decision they are making is the right one.
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Thanks David. Appreciated. (Sounds like you have legal training.)
However, I am still surprised the court did not find him guilty, given that he did not give his account of events, but relied on a procedural loophole (or mistake if you wish). I would interpret the lack of an explanation as an admission of guilt.
Dipstick said: "It's just possible someone else drove him there, you know."
Yes of course, but ask yourself how often you have been driven to your place of work, and then the driver leaves the car there. Not once would be my guess. It is an unusual scenario.
He was an ASBO officer and used the car as part of his job. So if he was blotto, but had been driven to the station, he would have needed someone to drive him from the station. So who was the chauffeur? So why not get this chauffeur (if such a person exists) to testify in court? Instead he relied on a procedural mistake/loophole. Why? Because there is no chauffeur.
In any case, what if 'correct' procedure has been followed. In other words, the police established that the engine was still warm, and that the keys in his possession fitted the car. Does that prove that he drove, and was not driven? No it does not. He could still have been driven. The chauffeur could have handed him the keys, and disappeared. So this procedural mistake business is nonsense. Surely this case indicates that you cannot prosecute someone for drink driving unless someone sees them in the vehicle while under the influence.
It still strikes me as suspicious that Mr Freeman gets so many people off with seemingly far fatched excuses, or procedural mistakes, and apparently other laywers do not.
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Firstly, Nick Freeman is undoubtedly very, very good at his job.
Secondly, there is no general burden on the defence to prove a fact as such, merely on the prosecution to show that the facts of the offence are made out. Clearly the most natural thing to assume is that he drove there and that the keys in his possession were to his car and therefore that he drove it. However, if the prosecution fails to prove that the defendant drove, then the defendant is legally innocent.
I accept that the evidence - that the car might have been warm, and that the keys matched it - had it been present, would not have proved that fact conclusively - but they would tend to support the contention that he drove. That might have entitled the Magistrates to decide that they were "sure" the defendant was guilty (i.e., sure that he had driven and that the driving was recent enough for his breath reading to correspond to that when he was actually driving): enough to convict. Obviously it would be more telling if there had been witness evidence that the defendant had driven the car but without even the most basic evidence that the defendant had driven and that he was drunk when doing so.
It then follows that the Magistrates then cannot draw an adverse inference from the defendant's failure to explain a fact when that fact isn't even put to him in evidence. In any event, there are defendants who do the prosecution's job of securing a conviction for them so if the prosecution evidence is lacking, even if the client's instructions are sound, it may be safer to have the defendant say nothing.
I was once stopped and searched because, whilst walking home alone from the pub, I stopped near a parked-up Peugeot for a while. A police officer saw me waiting near the car and I had on me keys to a Peugeot. The fact is that the car keys were for an entirely different Peugeot to the one next to me but clearly the police were looking for a drunk in charge. Had they not carried out the investigation by trying the key in the lock, they may have probably been on for a charge irrespective of the fact that the car wasn't registered to me (there are enough unregistered or incorrectly registered cars out there being driven around).
Finally, prosecuting someone for drink driving when there is no witness who actually saw that person driving is difficult but not impossible - although it does invite the defendant to prevaricate over a guilty plea and sometimes successfully finding a loophole. That is precisely why we have the offence of being drunk in charge of a motor vehicle - which, had the keys been checked and found to match the car in the car park, would probably have been made out.
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the best comment i've seen on this thread is that of replacing the volunteer magistrates (three members of the public with no legal training and sometimes very little knowledge of what is really happening on our streets...)....
with....
a professional paid magistrate (sits on their own, used to be called a Stipendiary Magistrate, now called a District Judge)...... the obvious problem here being the 'paid' bit presumably.
It's a lot harder to get an implausible story past a stipe, whereas the magistrates have to rely on the clerk of the court to advise them on most aspects.
With drink/driving there is a stated case whereby magistrates are allowed to presume that if the defendants car was present and there was no other plausible explanation provided (e.g. someone else was driving) then they can presume the defendant drove it there...(bit brief, but covers the bare bones)
Forgive me for some small edits, westpig. Smokie, moderator
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