Author: Matthew Berlow

avoid a totting up ban

Avoiding a totting up ban

One of the things we get asked about as road traffic lawyers is how to avoid a totting up ban. There is a method of dealing with totting up bans. The method is called exceptional hardship proof. Now an exceptional hardship proof is attending court and providing evidence to the court to show that there would be exceptional hardship in your case if you were to be totted up and to lose your licence because you’ve got 12 points on the licence.

Exceptional hardship proof

To establish exceptional hardship. We need to go quite a long way. We need to establish that there will be a hardship to other people, not just yourself, but maybe to employees, to members of your family, or perhaps even losing your job and the damage and impact on your business. All of these things have to be put to a court in a method that allows us to provide real strong evidence.

That supports your case. It’s not simply enough to go along to court and say,”Ah, this is terrible. It’s going to have a really bad effect on me. I’m not going to be able to take my kids to school. I’m not going to be able to keep my job on.” You will not keep your licence in those circumstances.

Exceptional hardship proof requires a specialist lawyer

Exceptional hardship is exactly that it’s exceptional. So you need a lawyer to assist you with it. If you do want the expertise of a lawyer behind you, get in touch with uswe’ll give you some information and advice all about avoiding a totting up ban. Initial consultations are free so don’t worry about money.

drink driving car forfeit

Your car can be scrapped!

3 – 5 times over the limit

If the limit is exceeded by more than three times, then the car can be forfeited. Procurator Fiscal makes a motion to forfeit the car, and the Sheriff makes an order on deciding whether it’s going to do exactly that, and your car can be often be crushed and no time in relation to this case. This would clearly impact you and everything connected to this car, as well as a financial loss. Calling a specialist road traffic lawyer is, therefore, absolutely imperative. It is the most important thing you can do.

If you own a Rolls Royce, it can still be scrapped.

If you’re charged with drink driving and Scotland, you need to be aware that the punishment is not only the fact that you will lose your driving license if convicted, but there is a chance that your car can also be forfeited. And it doesn’t matter whether it’s a Rolls Royce or whether it’s something that you’ve just managed to pull together from the scrapyard in bits and pieces. The car can be forfeited no matter what the value is.

Call our road traffic lawyers

If you want further advice about forfeiture vehicles or drink driving and the law in relation to say, get in touch with us.

drink driving cases

Drink driving cases from start to finish

Police will think of a reason to pull you over, so just comply.

Many of the clients who come to us have never been in trouble with the police before. The first thing that will happen concerning drink driving cases is that a police car will normally pull you over. There’s a common misconception that the police can’t stop you unless they have a very good reason. Police officers stop cars randomly, pretty much all the time. They will always have a reason. They’ll always come up with some excuse, so it’s no good relying on Police not having a just reason to pull you over.

We’ve heard of plenty of strange examples or excuses police have used to pull people over, and a Sheriff holds up these reasons as being reasonable. As such, If police officers want to stop you, they will. Our advice is to cooperate fully. The first thing that will happen is that they use a handheld Intoximeter that you’ve probably seen on TV shows.

Drink driving cases – Roadside breath test

They’ll ask you to blow into that. See whether it gives us a positive reading or not. It can be quite a difficult procedure; it’s not just a short breath that’s required. You have to provide a long and consistent breath into that machine. If you have any difficulties like asthma or any other medical difficulties, it would be wise for you to say to the police officers right at that stage what your difficulty is. Not complying means you can be charged with failure to provide a breath sample.

Certainly try to give a test to the best of your ability, bear in mind that the handheld device is not going to be used in evidence against you. This is just a preliminary measure that the police are doing to see if their suspicions are upheld, and you should be taken to a police station for a further procedure.

If that machine reveals a positive test, you’re going to be taken to the nearest police station that has a more sophisticated measuring instrument. When you go there, you’ll see the duty officer and the duty officer will explain that a procedure is going to be followed, and you’ll be taken into a room where you’ll give this breath sample into the machine.

Drink driving cases – At the police station

The whole procedure will be read over to you normally unless the police officers are particularly experienced. They’ll explain to you what the procedure is for breathing into that machine. Now again, unless you have a very good reason, you shouldn’t fail to provide a breath test.

Don’t think for a minute that a good reason is that you haven’t had the chance to talk to a lawyer, and you don’t know what your rights are. Many people that are under the misguided belief that if they haven’t had a chance to speak to a lawyer or they haven’t had their phone call, as they put it, then they’re not going to go along with any police procedure, which might cause them some difficulty or that they feel is in some way, fundamentally unfair.

The answer at this stage is to do your best to provide the breath test. Otherwise, you will be charged with a separate offence, and that’s an offence of failing to provide the breath test that’s been required. Equally, you’d be looking at a disqualification there. So make your legal arguments later. Contact your lawyer later if necessary, but at the moment, cooperate fully with the police procedures.

Taking the breath test at the police station

You’re being asked to provide a breath test, and to this machine sitting on the table, once that’s done, it will print off something that looks like a till receipt. And on that till receipt, there’ll be a few different readings. The first reading will show that the machine has calibrated, and it means that it’s working that day and is working at the appropriate levels for the analysis.

The next reading will be your first breath test. Then there’s another reading, which is the second analysis of your breath. The following reading and last reading is the final calibration of the machine. If there’s much variance in your own readings. Or if there is much variance in the calibration readings, then you’ve got a real cause for concern, and you should contact a lawyer as soon as possible. Hold on to the receipt or the document that has been provided to you by the police. They’ll have asked you to sign the bottom of it, and the police officers will have signed that receipt too.  

Keep it. It’s an important piece of evidence, and you should provide it to your lawyer as soon as you go and see a solicitor. The next procedure is that if you have provided a positive test, then clearly, the police officers aren’t going to just set you back into your car, hand you your car keys and send you home. You can rarely rely on a faulty machine in drink driving cases, but it has happened before.

After the breath test

What they’ll do is place you in a police cell, which is a pretty awful experience for all concerned. At some point, they will allow you to contact someone. Many people at this stage do take the opportunity to have a lawyer informed, but equally, it might just be a question of letting your wife or your husband know where you are and that you’re going to be in custody for a few hours. Normally you’re detained until the next day until the alcohol has gone through your system. You will sometimes have another breath test before being released. 

You’re given a pink form by the police officers, which’s called a bail undertaking form. The pink form is a one-page sheet detailing what court you have to attend when you have to attend it and your bail’s terms. You’re basically being given police bail. Now that means that if you fail to attend court on the date given, you’re committing another crime. This is an important document. It provides you with the detail that you require. You should take that to a lawyer as soon as possible.

Find a good lawyer for court.

So the next step will be preparing yourself for your court appearance. You should use this time to find an experienced road traffic law firm such as ourselves as quickly as possible. There’s a possibility that there may have been some difficulties when you gave the breath analysis. Your lawyer needs to try to secure evidence at the earliest possible opportunity. This can mean a letter to the police asking them to ensure that a log is available or part of the instrument is available to be checked.

You are generally met outside the court a few minutes before your first court appearance, starting with a police officer who will hand you a charge sheet or copy complaint that sets out exactly what it is you’re charged with and what you’re going to be asked to answer. When you go into the court’s dock, there aren’t many opportunities at this stage to see a lawyer, but there will be a duty lawyer present.

They are really there for unrepresented people and usually for people who require legal aid; it’s fair to say that it would be very wise if you were to obtain a lawyer before going to court. This is because a duty lawyer will see over 100 cases each day and won’t have the time to focus on your case. So the best advice is to see a lawyer before you attend court; when your case does call in court, you’ll go forward into the dock and be asked to plead either guilty or not guilty.

Drink driving cases – What happens at court?

You are asked to confirm your name and your address. Usually, your lawyer will stand up at this stage and say guilty or not guilty. If they say guilty, you can expect to be disqualified. If you haven’t been convicted of a drunk driving offence within 10 years, then the minimum disqualification will be 12 months.

There are ways to reduce that. The main way to reduce that period is through your ability to attend something called the drink-drive rehabilitation scheme. Now, this is a scheme that really is at the discretion of Sheriffs.  Whether they allow you to be placed onto the scheme, and usually, your lawyer would request that you be allowed that opportunity and explain to the court that you understand what the drink-drive rehabilitation scheme is and that you are willing to pay it.

When you come to court, assuming you plead not guilty. The next step and procedure is that you will require to attend court on at least two occasions. The diet is a formal court appearance. All that happens is the court wants to assess whether your case is prepared and ready for trial or whether you require to adjourn the case or the crown are required to adjourn the case for any reason.

The intermediate diet

The intermediate diet itself is relatively straightforward and quick. The difficulty with it is that it can take several hours for you to be processed through the whole court regime in busy courts. 

The main event – your trial

The main event is going to be the trial at the trial diet. If your defence is entirely a technical defence, it’s unlikely that you are required to give evidence. If, on the other hand, there is something about the credibility of the officers. Seeing that there was something in the procedure that you don’t accept happened, then you may require to give evidence yourself. The trial date is normally a few weeks after the intermediate diet, and it would be wise for you to visit your lawyer shortly after the intermediate diet to discuss all aspects of your case.  Ensure that your case is fully prepared and that your counsel completely understands exactly what your position is in the case.

Call our road traffic lawyers.

Don’t wait until the day before your trial or a couple of days before your trial; make sure you’ve done it a few weeks before the trial and certainly around the time of the intermediate diet. You should be discussing with your lawyer the ins and outs of your defence and exactly what will happen.

Procedurally when you attend the court, the bottom line of all of the advice concerning drink driving procedure is to see a lawyer early. So call us as we handle drink driving cases daily. You will receive expert care and defence from a specialist.

Dangerous driving in Scotland

Dangerous driving is regarded as a serious offence in Scotland. It carries with it a minimum mandatory ban of 12 months. In order to reset it requires an extended test, now that’s clearly a serious type of sentence in relation to this type of offence. So it’s something that we would suggest you really need to have urgent legal advice on.

Pulled over by the police?

So if you were pulled over by the police for dangerous driving, careless driving, or speeding It’s important that you get in touch with a lawyer. We’re not going to charge you anything for an initial consultation with you.

If you’re facing a ban in relation to dangerous driving, then you should get in touch with a specialist law traffic lawyer. Today. If you go call and give us some information about your case one of our lawyers will give you an opinion today about what we can do for you and the ins and outs of your case, and just exactly where you stand.

Our road traffic lawyers can save your licence

If we can keep you on the road, save your driving licence and save all the things that rely on that driving licence then the hassle of court will all be worth it. Many of us rely on our licence for our job or mortgage and for a lot of other things. So it’s of key importance in people’s lives. We’re well aware of that. We know all of the loopholes, the ins and outs, and just how to deal with these cases so what I would suggest you do is that you get in touch with us.

Send us your case documents. We’ll give you a case assessment for free, and we’ll give you a case consultation for free. You have nothing to lose, but your driving licence. So get in touch today. 

scottish court system

The Scottish Courts system, solemn and summary procedure

The Scottish court system is different from other countries in the UK.  Let’s take a look at the different types of courts used for prosecuting criminal offences in Scotland and what they do.

Solemn and Summary Procedure 

In Scotland, there are two ‘procedures’ for investigating and prosecuting crimes:  A solemn procedure and a summary procedure. 

A solemn procedure involves the most serious criminal cases and may lead to a trial before a judge in the High Court or a Sheriff in one of the sheriff courts.  These trials will have a jury.

A summary procedure is for less serious cases and could lead to a trial before a Sheriff or in Justice of the Peace courts.  These trials do not have a jury.

The Crown Office and Procurator Fiscal Service choose whether to prosecute under solemn or summary procedure and each procedure affects the sentences courts have available to them.

Types of courts in Scotland

 The High Court 

The High Court of Justiciary is Scotland’s highest criminal court and it is both a trial court and an appeal court. 

This court has exclusive authority over the most serious of cases such as treason, murder and rape but will also hear cases of armed robbery, sexual offences involving children and drug trafficking.

There are no limits on sentences available to the High Court so they can give life prison terms and unlimited fines.  A judge and jury will hear cases in the High Court.

Sheriff Court

Scotland is split into six sheriffdoms and there are 39 courts spread across the country, with the Sheriff Appeal Court in Edinburgh.  A sheriff principal is appointed in each sheriffdom to organise court business in each of the six areas.

The Sheriff Court deals with both civil and criminal cases.

Solemn cases are led by sheriffs and summary cases are led by sheriffs and summary sheriffs.  Summary sheriffs have some of the powers of a sheriff but generally, only hear summary procedure cases.

Sheriff courts can try any case that is not exclusive to the High Court and they deal with more cases than any other court in Scotland.

Generally speaking, there are sentencing limits in Sheriff courts of up to 12 months imprisonment and up to a £10,000 fine.

When sitting for solemn cases, a sheriff court can impose a 5-year prison sentence and an unlimited fine.

When a sheriff feels that their sentencing powers are not enough, they can refer a case to the High Court for sentencing.

Justice of the Peace Courts

Justice of the Peace courts only hold summary cases and a panel of lay justices deal with these cases.

These courts generally deal with less serious cases and as the lowest level of criminal court, Justice of the peace courts have limited sentencing power. 

They can give prison sentences of up to 60 days and fines up to £2,500 unless a particular offence has a statutory higher or lower limit.

If you have been charged with a crime, call one of our expert criminal lawyers as soon as possible so we can explore your options within the Scottish court system.


police crackdown on drink driving

Police crackdown on drink driving

The national police crackdown on drink driving continues. If you appear in relation to drink driving, it means that you face a minimum mandatory ban of 12 months. So that’s the starting point for the court. You’re not going to get less than that unless a sheriff considers it appropriate to put you on a drink and drive rehabilitation scheme that can reduce the period by 25%. 

Longer ban for 3x over the limit

 If you have a reading that’s over three times the limit, then you not only face the mandatory ban, you also face the distinct possibility that your car will be forfeited. So be aware that it’s not just your driving license, your livelihood, and whatever relies on your license, but also your car that may well be taken.

 The police are pressing now for more information on drunk drivers and seeing an increase in neighbours, friends, relatives, anybody that has any information about a possible drunk driver should be calling the police, getting in touch with them. They’ll take action based on that information.

The story behind drink driving is often serious

Sometimes there are reasons behind being over the limit of alcohol when driving. Each individual case has to be treated just like that. We look into the details behind it. We usually find that there’s a real serious story behind that. That’s important. It’s important that the court understand exactly why drink driving has occurred. If you’re in that type of situation, then it would be wise to speak to a solicitor to get an informed opinion about just what to do with your case and what can be presented in court to try to mitigate the situation and provide the court with the full background.

Instruct a lawyer

It’s a bit unfair to expect to attend court and just be able to provide all the information yourself. It’s an intimidating environment and it makes a great deal of sense to speak to a lawyer before you go to court. Even if you decide not to instruct a lawyer, speak to us. Get information and advice about how to proceed with your case and find out about the procedures and then decide whether you want to instruct a lawyer.

road traffice offence questions

Road traffic offence questions

Do I need to name the driver for a Notice of Intended Prosecution (NIP)?

A question that we are asked is when I receive a notice of intended prosecution, do I need to answer that when I get the NIP through the post, do I need to fill in the details of who the driver was?

If you are the registered keeper of the vehicle, then you do. Section 172 of the Road Traffic Act makes it absolutely clear crystal clear that you do require to fill in a form. Now people also get anxious because often the notice isn’t served recorded delivery. You think that must be served, recorded delivery, or it should be served by personal service; otherwise, the Crown won’t be able to prove that I received it. While there’s an element of truth connected with this, you shouldn’t rely on it because the crown has other ways of proving that they serve these notices. 

The high court in Scotland has ruled that their methods of serving these notices are considered sufficient evidence that they’ve sent the notice. You must name the driver. And if you fail to do that, you’d be charged with section 172, which involves the higher penalty of six penalty points and generally a higher fine.

What if a ticket has a mistake?

The second question that we often get asked is. If there is a mistake on the ticket that the police officer has given me, when you’ve been pulled over for speeding or running a red light to using your mobile phone, is that a fundamental flaw and something I can rely upon?

The answer is generally no. Basically, if you’re handed a ticket by a police officer, that’s simply an offer to sort this matter out without it going to court. So it’s almost like a civil offer. You’re being offered a notice saying if you accept these three penalty points and the 60 pound fine, it’ll go no further.

Now that doesn’t mean that errors on the notice are of no consequence. They can be crucial, but generally, they would only be important if you decide not to pay for that ticket and go to trial. They become important evidentially because if a police officer has noted perhaps the wrong registration number or other wrong details, that may be something that you rely upon about your case.

How long do the police have or the prosecution has to bring this case against me?

One of the time limits is that if cameras detect you, the way that prosecution works is to receive a letter in the post. The notice of intended prosecution requires you to be with you within 14 days of the alleged offence. One of the issues that tend to arise there is people will contact us and say, I haven’t received the notice of intended prosecution within 14 days.

Is that an end of the matter? Sometimes it’s not, if the vehicle is a leased vehicle, if the vehicle is a company vehicle, if it’s registered in your name, then the issue is still alive because the time limit doesn’t exist concerning that type of situation.

If you are the registered keeper, then yes, that 14 day time is of the essence. If you’re not the registered keeper in the vehicle was a company vehicle of the light, then there’s another issue there. The other time limit that’s important with these cases is there’s a six-month time limit of speeding, using your phone, running a red light, careless driving and so on.

It’s six months from the alleged offence date until those papers are sent from the procurator fiscal’s office. So it’s the date of them sending that’s important because we get people phoning and saying I’m going to be country for X period of time. Would that suit the case if I’m out of the country and they can’t actually serve the case papers on me? No, it doesn’t make any difference because they can ultimately prove that they sent the papers out within the six month period. And if that’s done, then that’s perfectly appropriate, and it is within the time limit.

Glasgow road traffic lawyers

If you do receive case papers, check and see if this is something outside the time limit. Get in touch with us. We may have to have a diet of debate, which means the case calls in court. And we have to ask the court to set a debate and establish whether the court recommends that the time limit has been exceeded.

What we can do here is we will give you an assessment of your case. We base that on all of the information you give us; we give it not just what you tell us but also what the crown gives us in disclosure. After looking at all of this information, we’ll weigh that up, and we tell you exactly whether we think we can win your case. So contact us today and we can start the process and hopefully win your case.

furlough fraud lawyer

What furlough fraud might involve and HMRC’s approach to tackling it

So as everyone knows by now that the scheme is coming to an end in September, furlough pays 80% of the wages of workers placed on leave since March up to a maximum of 2,500 pounds per month. And now we’re in the situation where thousands of businesses are under investigation for either falsely or mistakingly claiming. 

The potential scale of furlough fraud

The scale we’re looking at is in the region of 3.5 billion in payments that have been claimed. Fortunately, this is a huge amount of money. Since the beginning of September, HMRC told NPS, who sits on the public accounts committee, estimates that five to 10% of furlough cash has been wrongly awarded. That’s a huge amount of money. This five to 10% ranges from deliberate fraud all the way through to error. 

At the point that HMRC gave this evidence, about 8,000 calls have been received to their fraud telephone hotline. And they were looking into 27,000 high-risk cases where they believe there has been a serious error made in the amount employers had claimed this number has probably increased because we’re talking about months on from that.

It’s not really that surprising given the speed with which the scheme was rolled out and to provide a much-needed lifeline as quickly as possible when the lockdown began. That kind of sudden introduction made it very vulnerable to both mistakes and scams.

What types of fraud HMRC are looking at

There are four main areas of conduct that might amount to furlough fraud. So the first is creating ghost workers or claiming for staff who’ve actually left the business.

Secondly, claiming whilst individuals were actually working as normal on a part-time basis or as volunteers. Thirdly, there’s making backdated claims to include the time when individuals were actually working. Finally, there’s the example of asking staff to take a pay cut beyond 80% whilst still claiming the maximum furlough grant.

Research conducted by a legal rights lawyer estimates 36% of employees on furlough were under pressure from their employer to continue working for them. Out of 2000 furloughed employees interviewed, 27% were asked by employers to send and respond to emails. Employers asked 17% to make phone calls. 12% were pressured to attend their physical workplace, and 11% to volunteer their time. 

What HMRC’s approach to furlough fraud

There’s actually been an interesting statement made by HMRC permanent secretary. Who’s Jim Hauer. Their risk assessment stated they would not try to find employees who have made legitimate mistakes in compiling their claims because this is obviously something new that everybody had to get to grips with within a challenging time.

Employees are expected to check their claims and repay any excess amounts. What they will be focusing on is tackling abuse. They’re not looking at mistakes; they are going to be focusing on fraud. And in that vein, HMRC has promised to crack down, and we have already seen some pretty high profile arrests.

High profile furlough fraud arrests

In July, for an amount of just under half a million pounds, furlough fraud, there was an arrest, and in September, two London-based directors were arrested for 70,000 pounds worth of furlough fraud. So HMRC is already taking action. If you are found guilty of making fraudulent applications, the individuals involved can face tough criminal sanctions, including a fine and a potential criminal custodial sentence.

Now, if you’re looking at an offence under the fraud act, that criminal penalty term could be up to 10 years. So a very long term there. HMRC has information on inspection powers meaning that they can perform spot checks and compel information disclosure. And also another comment made by Jim Hara is that HMRC will be writing to employers to give them the chance to correct a mistake and repay excess amounts before taking more drastic action.

Whilst HMRC can’t get involved in any relationships between employers and employees; they can and will reclaim any grants that the employer is not entitled to. Including, for example, grants that haven’t been passed on in wages to employees.


Furlough fraud whistleblowing

Furlough fraud is becoming more prominent, especially as flexible failing comes in, where employers are allowed to bring employees back for some hours. If your employer is claiming money back from HMRC and asking you to work, it amounts to fraud. So what do you do as an employee in this situation? Because clearly you don’t want to upset your employer, but you also don’t want to facilitate fraud.

If you’re an employee

What you need to be doing, first of all, is refusing to work whilst on furlough and making sure that’s really clear in writing, by putting it in writing. It is also recommended you provide enough information about the request to work and state that you believe it is a breach of a legal obligation and could amount to criminal conduct.

If you do that, what that then means is you’re protected potentially under the whistleblowing legislation because you’re effectively blowing the whistle about criminal activity. Fraud is a criminal event. So what that means for you is that if your employer then decides to dismiss you, demote you or not pay you as a result of that, or you suffer any detriment because you’ve complained about the fact that they’re acting illegally, you are then protected and you can bring a claim for injury to feelings and loss of finance financial losses.

If you’re an employer accused of furlough fraud

As shown above, it is quite clear what furlough fraud is. HMRC are going to take a tough stance on furlough fraud as it has cost hundreds of billions. Any chance they get to take back some of that money and punish people who unlawfully took furlough fraud payments they will take. Should you be accused of furlough fraud there are important steps you should take. Firstly, calling us and explaining your circumstances. Having experienced lawyers who have worked on fraud cases should be your first priority.

It is important to not challenge your employees as this could exacerbate the situation and further breakdown the relationship. Gather any evidence, such as emails sent, letters sent requesting people to work so that we can view them. We are experienced lawyers and trusted by thousands each year so call us immediately if facing furlough fraud charges.

speed awareness courses scotland

Lack of speed awareness courses in Scotland

Courses available throughout the UK but not Scotland

Despite ministers accepting a need for speed awareness courses, there is still a lack of speed awareness courses in Scotland. Speed awareness courses are widely available throughout the rest of the UK, but for some reason, they’re not available to motorists here in Scotland. So if you have the misfortune to be pulled over for low-level speeding, ae.g.nd just over the 30 mph limit or just over the 70 mph limits you don’t have an option of a speed awareness course. If you’re stopped for that sort of speed down in England, you’ll be asked if you want to go in a speed awareness course. If you choose to pay for that course, then you will not have penalty points endorsed on your license in Scotland.

Unfortunately, we do not have that available to us. Some questions have been asked recently in the Scottish parliament in connection with that. We would like to see speed awareness courses available throughout Scotland. There’s no real reason why they’re not available and it is something that could be easily implemented.

The companies who provide these courses done in England could easily have their systems replicated up here. It’s very easy for the whole system to be rolled out and very quick. And I would suggest that it’s something that could be available by the end of the year, but it does need some political will.

Just over the border and you can get no points

Ironically, you could actually be on the same road and just crossing over the border. On one side you get dealt with no penalty points and on this side, you receive three penalty points. As we know, penalty points can mean that you can be totted up and disqualified from driving.

Awareness courses are not just to avoid points. They reduce people’s bad driving as they are taught correct driving standards and allow the people to address the whole issue of just how good a driver they are. These courses make them aware of the issues of speed and the dangers that are involved and they pay for themselves so it costs nothing to the government.

Call specialist road traffic lawyers today

Until this is an option here in Scotland, contact a specialist road traffic lawyer today. We can take on your case, and explain likely outcomes., with initial consultations being completely free of charge.