Army Personnel on sick leave

[Stu]

On behalf of family friend

I was a soldier in the Transport side of our armed forces, I obtained my licence here and have had it just over a year! I bought my first car and insurance with insurance at my army base where I would spend 10 months of the year, I was placed on home/sick leave by my medical officers shortly after getting my car.. However my insurance stated I would need a black box and would be sent in due course in this time I was as said sent on sick leave and unfortunately I was in an accident where road furniture was damaged and road Police was to attend where they said the car was uninsured but enquiries would be undertaken, I gave my home address... Skip 6 months and after returning to duty for 5 months I return home on leave for my post and I have now received a fine and 6 points and being within my first 2 years my Licence has be revoked I have been told over the phone and threats to pay the fine?

Do I have course for a return hearing?

I hope this is clear and look forward to any advice

[HandyAndy]

First things first; was the vehicle insured or not at the time of the incident?

What exactly have you received? Is it the result of a court hearing which was held in your absence? Or is it an offer of a fixed penalty? I suspect the former, but perhaps you could let us know. As well as that, have you received no other correspondence at all in between the date of the alleged offence and now? If not, did you give your full and correct details to the police at the time and have you changed address since then?

[Stu]

Her car was not insured at the time of the accident but any paperwork were sent to the barracks regards any cancelation of her policy so she had no knowledge of cancellation as she was on leave.. The hearing was in her absence as she was on duty and received 6 points and a Ł900 fine but the paperwork for this hearing was sent to her local home as that was the address given to the Police at the time of the accident as that is where she was living at the time.... but time from incident to time of hearing she was back on duty and a time period of 7 months.

So question would this be cause for a re-hearing,

[HandyAndy]

Sorry but I'm confused by this.

You began by talking about yourself:

"I was a soldier...I obtained my licence...I bought my first car and insurance with insurance at my army base where I would spend 10 months of the year...I was placed on home/sick leave...However my insurance stated I would need a black box...I was as said sent on sick leave...I was in an accident...I gave my home address... I return home on leave for my post and I have now received a fine and 6 points...my licence has be revoked."

No mention of anybody else. But now this:

"Her car was not insured at the time of the accident but any paperwork were sent to the barracks regards any cancelation of her policy so she had no knowledge of cancellation as she was on leave.. The hearing was in her absence as she was on duty...etc.

Who is "she" and how does her being convicted of having no insurance lead to you having your licence revoked?

Whoever was convicted can have the conviction set aside provided they had no knowledge of the proceedings against them. They can do this by performing a "Statutory Declaration" (SD) to that effect. This can be done at any Magistrates' Court or before a solicitor (who may charge a small fee). Ideally it should be done at the court where the conviction was handed down as it speeds things up, but it is not necessary. The court must accept the SD if it is performed within 21 days of learning of the conviction and may accept it later at their discretion.

What will happen then is that the prosecution will begin again. Whether or not there is a chance of being found not guilty of the offence is difficult to say but it seems (again from what you say) that the insurance policy was cancelled and whoever was the policyholder did not receive notice of that cancellation because they were on the move. It is doubtful whether this would secure an acquittal, but more precise details would be needed.

Revoking a licence (because the holder has acquired six or more points within two years of passing a test) is not something the court can overrule. It is an administrative function performed by the DVLA. The only way to avoid revocation is to have the conviction set aside and successfully defend the charge.

[HandyAndy]

EDIT to above: I realise you posted on behalf of somebody else so ignore my misunderstanding. The remainder stands.

[des8]

As the policy was conditional on the fitting of a black box:
1) was the box sent?
2) was it fitted?

I'm just wondering why the policy was cancelled, or as it was conditional on the fitting of a black box did it ever actually incept?
Was it cancelled because the black box was not fitted, or some other reason?

As driving uninsured is an absolute offence, mitigation usually only reduces the penalty.
If the insurers have been unreasonable when cancelling the policy, they may be persuaded (by FoS perhaps) in meeting some of the costs.

[Stu]

As the policy was conditional on the fitting of a black box:
1) was the box sent?
2) was it fitted?

I'm just wondering why the policy was cancelled, or as it was conditional on the fitting of a black box did it ever actually incept?
Was it cancelled because the black box was not fitted, or some other reason?

As driving uninsured is an absolute offence, mitigation usually only reduces the penalty.
If the insurers have been unreasonable when cancelling the policy, they may be persuaded (by FoS perhaps) in meeting some of the costs.

The box was apparently sent to the Army Barracks by the insurance but She was not informed about the arrival leading her to think it had not arrived as She states they inform Soldiers regards post. And as stated She has been sent on Medical 3 month leave. So box had not been installed and any warning would go to the Barracks also this leading to no communication of any pending cancellation.

Des as you say it is an absolute offence but also possible mitigation I guess there would be valid reason to be heard again but in her presence? If so how could this be started? Solicitors I guess.

[des8]

I can see a court saying that as she knew her insurance was conditional on fitting a black box she should have been more proactive i.e. when not hearing about it she should have contacted her insurers to find out what had happened.

Perhaps islandgirl can say how she would approach the matter

[HandyAndy]

There are two avenues to explore here.

The first is whether the insurers followed the correct procedure in cancelling the policy. The court will not be able to help with that. The second is, assuming the policy cancellation has been properly administered, whether the court will find there are "special reasons not to endorse" (SRNTE). It is unlikely that a court will find this if the policy cancellation procedure has been carried out correctly.

So, back to my earlier post, the way to have the matter reopened is by way of a "Statutory Declaration". She does not need a solicitor to do this, though, as I said, a solicitor can certify the declaration if she does not want to use a Magistrates' Court. Alongside this she should investigate the procedure used by the insurers to cancel the policy. From what you have told us, she effectively changed addresses and so the insurers were unable to contact her to either provide the black box or to tell her that the policy had been cancelled. If that is the case I have doubts that (a) the insurers will have acted inappropriately and (b) that a court would find SRNTE.

As an aside, she should be aware that if the policy cancellation remains in place, she will have to declare this fact when making any insurance proposal in the future. This will almost certainly affect the premiums for any policy she takes out, certainly in the short to medium term.

[islandgirl]

This is a difficult one because, as has been said, no insurance is an absolute offence, no excuses. However I have seen convictions overturned where paperwork has not been received due to genuine reasons. I am confused as to why, after the sick leave when returning to duty, the paperwork and black box was not waiting for this person at the barracks?
Anyway I think appearing before the magistrates to swear a stat dec would be the best course and explaining everything in detail - get as much evidence as you can about whether the black box had to be fitted or merely provided a reduction in price if fitted. You would need to look closely at the paperwork which was signed when taking out the insurance for the small print. Was the cancellation done properly? Were notices received? Was insurance premium still deducted from a bank account. Come with written evidence if you can.
In court explain everything and stress the circumstances and the reasons why the information was not received.
A sympathetic bench may take a view.

[Stu]

Thanks for input from all parties, islandgirl, just to clarify when She was on leave, about 5 weeks in to a 12 week leave She had the accident and only found out via the RPU that the insurance had been cancelled 2 weeks prior. As for the Black box it I believe it is a term of having the insurance.. So first thing is to do a Statutory Declaration & as HM said this does not need a Solicitor?

[islandgirl]

I personally would contact your local court (you may be on hold a while...) and ask to come in and do a stat dec. I fully understand that the box was a term of the insurance but it would be worth pulling up the contract and reading it just in case there is anything which would help in there. She was on leave but the black box had been sent to the barracks I assume? Get the timelines right so you can explain very clearly to the magistrates what happened and why. She will have to go to court, fill in a form (you will be helped) and stand in a witness box and swear an oath to tell the truth. You then have a chance to explain why the stat dec should be approved by the bench. They may then go on to deal with the original offence and resentence (which may also be 6 points but there is a chance the bench may take a view depending on what you have told them). You do not need a solicitor for this process but go to court fully prepared - bring evidence of the sick leave and proof of dates etc. Proof of the later deployment. It will hugely help your case. Many courts have a day set aside for driving issues so you will most likely be put into one of those. Mags are used ot hearing stuff like this - many people come to court with poorer reasons for a change of sentence though they are not usually successful!

[HandyAndy]

No it does not need a solicitor. It is best done at the court where the conviction was recorded. She may have to wait for an appointment to do this and it may take her beyond the 21 days she has to make the SD. But so long as the court is satisfied that the application to make the SD was made in time they will accept it.

There are one or two points to clarify with the advice given above:

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

She does not have to explain anything to the Bench. The court is merely witnessing her declaration that she knew nothing of the proceedings against her which led to her conviction. They are not "approving" it and so have no opportunity to reject it. The truth (or otherwise) of it is not a matter for the person hearing the declaration (though it will be pointed out to her before she makes it that to make a false declaration is a serious criminal offence). Provided the declaration is made within 21 days of learning of the conviction the court must hear it and it has no power to reject it. When considering whether or not to accept it beyond the 21 day limit, the only consideration for them is why the declaration is being made out of time. But once they agree to hear it out of time, similarly they have no opportunity to reject it.

They may then go on to deal with the original offence and resentence (which may also be 6 points but there is a chance the bench may take a view depending on what you have told them).

After making her SD she will probably be asked to enter a plea (as if she had been summonsed to appear for the first time on that day). The court will only re-sentence if she pleads guilty. If she intends pleading guilty there is little point in making the SD at all unless she intends asking the court to consider that there are “Special Reasons” not to endorse her licence. If she doesn't make that request, or she does and they don’t find such reasons, then six points will be the result as it is the statutory minimum for the offence.

In the event she has not yet clarified the issues with the insurers regarding cancellation (which is very likely) she will not be in a position to make such a request. Nor will she realistically be in a position to enter a plea because the insurers may decide the cancellation was unwarranted and so will confirm she was insured. So with that in mind she should plead Not Guilty. If she does so, the matter will not be concluded then but will be set down for a trial at a later date. This will then give her time to conclude the investigations with the insurers. If she later decides to plead guilty she can change her plea at any time.

One thing that has occurred to me is that I am assuming that her six points came from a conviction in court and not because she accepted a fixed penalty that was offered. If she accepted a fixed penalty then none of the above applies and all bets are off.

[islandgirl]

She does not have to explain anything to the Bench

All the above may be true but I know that people 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

If she intends pleading guilty there is little point in making the SD at all unless she intends asking the court to consider that there are “Special Reasons” not to endorse her licence.

I have seen this done on quite a few occasions with rare success. The statutory 6 can be departed from but only in exceptional cases with full justification.

The advice re a not guilty plea to clarify is good but it is probably unlikely she was actually insured. If there is a trial and a guilty verdict full trial costs will likely be awarded against the driver.

[HandyAndy]

All the above may be true but I know that people 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

.
Then those doing the asking are acting contrary to the Criminal Procedure Rules and they should be advised against it by their Legal Advisor. The reasons for making the SD are of no concern to the person hearing it. The Statutory Declaration form is here:

tsm001-eng.doc (live.com)

The notes for guidance include this:

"The person who hears the declaration need not enquire into the truth of it. That person’s function is limited to hearing the declaration, and certifying that he or she has done so by signing it. If the declaration turns out to be untrue, the defendant making it may be punished for perjury."

The advice re a not guilty plea to clarify is good but it is probably unlikely she was actually insured. If there is a trial and a guilty verdict full trial costs will likely be awarded against the driver.

But nobody knows until proper enquiries are made of the insurers whether cover would have been in place or not. I suspect you are right, but to plead guilty immediately following the SD puts any possibility of an acquittal - or a successful "Special Reasons" argument - to bed and would be foolish. If that is proposed then the defendant may as well not bother with the Stat Dec at all (unless the fine imposed was considerably more than would be imposed in accordance with the defendant's earnings). Unless the court agrees to an adjournment without a plea being taken (unlikely) pleading Not Guilty is the only way to buy the time needed to make those enquiries. If it transpires no cover was in place the defendant can readily enter a change of plea and I doubt the court would reduce the reduction for a guilty plea nor would the prosecution ask for more than the usual costs for a guilty plea.