Army Personnel on sick leave

[islandgirl]

The notes say

"The person who hears the declaration need not enquire into the truth of it."

The discussions around why it is being made are not enquiries into the truth but information as to why the person is making the declaration. There is no suggestion that to ask such questions is wrong. They are usually asked (often by the Legal Advisor) or the person in the witness box volunteers the information. I do not think I shall be advising the Legal Advisor not to have these conversations!

Following a guilty plea the mags could surely depart from the guidelines if they so wished and there was a compelling reason to do so?

[HandyAndy]

...but information as to why the person is making the declaration.

All they need to explain (and declare) is when and where they were convicted and when and how they found out. The court's Legal Advisor may obviously ask such questions as are necessary to complete the SD form (which, if you look at the form, consists simply of the above three facts plus their personal details). Why they didn't know about the conviction may be interesting but is immaterial However, you gave the OP the impression in your earlier post that the person making the Stat Dec should be prepared to convince the court that they should "approve" it (so intimating that they might not):

You then have a chance to explain why the stat dec should be approved by the bench.

The Bench does not "approve" the Stat Dec. It simply hears it. It has no power to approve or disapprove it.

...in the courts where I hear stat decs are ALWAYS asked about their reasons for doing so and asked to explain and justify them. Did they move house, how did they find out about the matter and when etc

The declarer needs to justify nothing. Why are they being asked these questions and what happens if they fail to "justify" things to the court's satisfaction? Are you suggesting that if they fail to justify what they say to your satisfaction you may refuse to sign the SD (or perhaps not allow them to make it)?

I'm sorry if I appear obtuse but this is important. People going to court to make an SD are often encountering the court system for the first time. They need to know what to expect and should not be told they will face a situation with which they may not be comfortable. It may deter them from making the SD and so deny them the opportunity to have a hearing to which they are entitled. They are not expected to persuade the court to approve their SD. They simply have to make it. They should not face questioning other than to provide the facts necessary for them to make their declaration.

Following a guilty plea the mags could surely depart from the guidelines if they so wished and there was a compelling reason to do so?

They could surely depart from the guidelines but, unless they find "Special Reasons Not to Endorse (or disqualify)" they may not impose fewer than the statutory minimum number of points (which is six for no Insurance). So it's either six to eight or none (if a successful "Special Reasons" argument is run).

[islandgirl]

I speak from experience alone and that is what happens in court. If someone is telling the truth when they make a stat dec why would they be bothered about being asked some details? Why would they fear this? I have never seen a stat dec application where the person making it was in the slightest bit concerned about explaining why to us whether they have to or not! People making stat decs are almost always very nervous and we ensure that we put them at their ease. There is no prohibition from being asked circumstances whether or not they are required (and you have shown they are not by law required but in the real world...). The questions as you say are necessary anyway as they help with filling in the form.
Let's concentrate on the problem at hand.
As we agree, the bench can depart from the guidelines if they find special reasons. As you are clearly very knowledgeable about the process what would be your view of the "short ban" option in this case? I assume it is not possible if the licence is so new?

[HandyAndy]

Let's concentrate on the problem at hand

.

Agreed.

As you are clearly very knowledgeable about the process what would be your view of the "short ban" option in this case?

I would suggest that to impose a short ban when one would clearly not otherwise be considered, solely to circumvent the provisions of the New Drivers' legislation, would not be appropriate. The Sentencing Council's "Explanatory Materials" confirms:

8. New drivers – Sentencing (sentencingcouncil.org.uk)

"An offender liable for an endorsement which will cause the licence to be revoked under the new drivers’ provisions may ask the court to disqualify rather than impose points. This will avoid the requirement to take a further test. Generally, this would be inappropriate since it would circumvent the clear intention of Parliament."

I think the OP's friend needs to urgently investigate the circumstances surrounding the policy cancellation to ensure it was correctly carried out. If it was, I imagine a Stat Dec, followed by a guilty plea together with a request to consider "Special Reasons" would be the way forward. Like you, I wouldn't hold out much of a hope of success, but it will cost nothing to try. She should bear in mind that if her licence is revoked she can apply for a new one immediately she gets the notification and can begin driving again (as a provisional licence holder) as soon as he has it.

[islandgirl]

Thank you. I agree it would not be the normal thing to do but as the information says it is "generally" inappropriate. There is the very outside possibility that a bench would go down this road. I have had many drivers (or more often solicitors) ask for it but their reasons for doing so have been weak (lots of inconvenience moving kids around etc) but, if the OP could PROVE these circumstances the bench may be sympathetic, who knows. I think the problem with a provisional is that this person cannot drive alone and of course has all the expense of a new test (plus a fine for the offence). The OP should perhaps have a chat with the Legal Advisor if they get the chance and explain the circumstances and ask whether they think a short ban may be considered by the bench - may be worth a shot.

[HandyAndy]

It may be worth a shot, but I think a court sentencing in such a way would be acting improperly. If the policy has been cancelled in accordance with its terms and conditions and the policyholder was not aware of it because of some negligence on her part then I believe there is no mitigation to consider. Drivers must ensure they are covered at all times and if there was a condition in the policy which was not complied with, whether through accident or design, I believe that normal penalties should apply.

On a more general note, the court has a remedy available if it believes there is good enough mitigation (i.e. "Special Reasons"). But Parliament had a clear intention when it introduced the "New Drivers" legislation. That was to provide a sanction against new drivers who accumulated six points. It makes no sense if a court were to effectively "over sentence" a driver simply to avoid this sanction. What particularly makes me think this is that Parliament saw fit to provide no "Exceptional Hardship" clause - as provided in the "totting up" rules - in the New Drivers' legislation. The court has no discretion regarding revocation and I can only believe that the legislators purposefully avoided such a provision. So really, for a court to hear what effects revocation would have on a defendant before deciding the sentence is somewhat akin to hearing an EH plea when a driver faces a totting up ban, but Parliament decided no such provision should be available..

As an aside I think there is a deficiency in the New Drivers' legislation which needs to be addressed. I believe it is perverse that a driver who commits two relatively trivial speeding offences in his first two years faces revocation whilst the same driver might commit (say) an excess alcohol offence, be banned for twelve months but not face revocation (unless the court orders "disqualifaction until test passed"). At the very least, I think disqualifications of more than 55 days should attract automatic revocation in the same way as six points does. But this, of course, would not address the problem where courts can circumvent the legislation by imposing a short ban. So I believe that any disqualification (which, after all, would generally be imposed when the offence is more serious than those which attract points) should trigger revocation in the same was as accumulating six points does.

Hope this helps explain my thinking.

[islandgirl]

I agree with your thinking HandyAndy - the 6 points = loss of licence sanction does not take account of the seriousness of offences. I agree that a court sentencing in the way I described would technically be going against the spirit of the law but it does happen and, if the person involved is serving their country and there is a GENUINE issue provoking sympathy then a bench may be persuaded. Some legal advisors push strongly against short bans and others seem less bothered. We have not heard from the OP for a while -perhaps they would like to fill us in with progress