Double Counting Warning:

[Tremarl]

Got caught speeding 10 minutes apart on the M1, on a 5 mile stretch, by two separate cameras.

Magistrate had no idea what Double Counting was or Double Jeopardy, refused to engage with case law properly. Magistrate recorder (legal advise) barely engaged in the court discourse at all.

Basically got told by the Magistrate they would find me guilty as I was not disputing my speed, only that I was being charged twice for the same offense, as from their perspective every time a camera records an excessive speed regardless of any other factor, that in and of itself is an offense, (Not what the quoted legislation states).

Told to change Plea, otherwise implied would get maximum penalty. Coerced into it. However. RTA "same occasion" mitigation did apply when plea is guilty.


Watch out people. It seems Magistrates have minimal legal knowledge, and if you get charged on a low level offense where there is minimal to no case law directly addressing the facts, they are not interested.

[atticus]

Were you able to make arguments to try to persuade the magistrate of the correct law?

[islandgirl]

As a magistrate I am fascinated. What legal arguments did you use? Did you quote from the legislation - can you post it here? I am always interested in the rule of law as is the court clerk who is very highly legally trained even if we are not...

[atticus]

I guess there were 2 charges - for the same offence, committed on 2 separate occasions.

[des8]

Possibly OP was referring to Road Traffic Offenders Act 1988 sec 28 (4), but neglected to read sec 28 (5)

[HandyAndy]

There are two separate possibilities here.

The first is whether the two allegations can be considered as a single, continuous offence. If you are caught by a camera exceeding the speed limit and then again by another five miles up the road, you could argue that you committed a single offence. That is, you exceeded the limit once having driven above that limit continuously, from before the first until after the second camera.

There is no legislation covering this, though there may be case law. This principle could possibly be appropriate to the circumstances you describe

The second is that you committed two separate offences but they were committed “on the same occasion”. If they were (or more precisely, if a court accepts that they were) then you would receive two endorsements, two fines but only one lot of penalty points (the highest number applicable to the offences). This is covered by the Road Traffic Offenders’ Act, Section 28(4):

(4)Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly).

The first decision makers when it comes to deciding whether your circumstances amount to a “continuous offence” are the police. If they do not accept that it was, then a court must decide.

If you are charged with two separate offences you can ask the court to rule that they amounted to a single continuous offence. If that fails and they rule you had committed two separate offences, you could ask them to consider they were committed “on the same occasion”.

If you travelled five miles in ten minutes that would indicate an average speed of 30mph. Was the prevailing limit the same at each location (and unchanged in between) and what were the speeds alleged with your two allegations?

As our resident Magistrate, islandgirl confirms, Magistrates are not legally trained. They pass judgment or make rulings on what is presented to them. It is not their job to highlight legislation or to introduce case law to assist defendants in their defence. Their role is one of complete impartiality. To understand this, imagine if they had done that to assist the prosecution. Would you have been happy with that?

So, bearing all that in mind, which of the two proposals I outlined did you ask the court to consider? And what case law, which you say they refused to engage with, did you introduce to support your case?

[Tremarl]

Were you able to make arguments to try to persuade the magistrate of the correct law?

Well the whole thing was a non-starter. I argued that offense of speeding was exceeding a stated limit on a road. That this was the same road and therefore same offense. The Magistrate immediately said this cannot be correct, as the M1 is a long road of several hundred of miles and would that hold in such an instance. I argued that what we're arguing about isn't the number of offenses at that point but the severity of the offense, but that wasn't what happened in this case.

The Magistrate then went on some public policy speel stating the only way we know someone is speeding is when we have a camera evidencing it and that is why in her this is a legal issue and not a fact issue, and that the law is that the offense is committed when the camera catches the act, not the act happening independently of the evidence.


When I raised the defense of double jeopardy in the plea. The very first thing said by the prosecution was that we don't have double jeopardy, to which the Magistrate agreed. Even though I then quoted case law showing that double jeopardy clearly existed in our law and there was a specific legal test that the prosecution has to meet to allow for a retrial.



HandyAndy Yes, that is argument I made. To which position of the Magistrate was that a continuous offense doesn't exist for speeding or cannot be defined, and that in every case a separate camera regardless of the facts will be deemed a separate offense.

Road Traffic Act for same occasion offense was applied in this instance by the magistrate under the head of "mitigation".


Still have yet to be given any explanation of how speeding is defined apart from "a camera catches you". Which is not what the legislation says, but w/e. The problem with these type of offenses is that access to justice is denied in a de-facto state, unless you want to play a losing game, as lawyering up will cost more than the fine, and appeal even more so. Magistrate decisions are not recorded nor published to the public, and therefore a Magistrate has unlimited authority on the ruling de-facto and so you will get widely variant decisions based on the particular leanings of a Magistrate that leads to very arbitrary justice. The Magistrate themselves may be completely unaware of this lack of coherency as the lack of reporting for magistrate cases makes it impossible for the parties to the case to bring up other decisions.


atticus When a cited the law, rather actually read my quotation and case law and engage with it, she immediately just asked so "what are you special circumstances". Which the case law states is something the prosecution must show to bring a new case under double jeopardy, to which I responded "that is for the prosecution to prove". We did this merrygoround about 5 times before the prosecutor interrupted and asked us to move on.



Anyway, the only point of my post was to pre-warn people about how big a of a dice roll going to court is as some magistrates are happy to make determinations of fact contra to what might be logically deduced in a normal setting.

[islandgirl]

Magistrate decisions are not recorded nor published to the public, and therefore a Magistrate has unlimited authority on the ruling de-facto and so you will get widely variant decisions based on the particular leanings of a Magistrate that leads to very arbitrary justice. The Magistrate themselves may be completely unaware of this lack of coherency as the lack of reporting for magistrate cases makes it impossible for the parties to the case to bring up other decisions.

Anyway, the only point of my post was to pre-warn people about how big a of a dice roll going to court is as some magistrates are happy to make determinations of fact contra to what might be logically deduced in a normal setting.

I would (of course) disagree with the above. We sentence according to very strict guidelines. We can depart from them but have to have an extremely good reason for doing so. Our sentences are not based on our "leanings". It would be nice if we could do what we want to do sometimes, but we cannot. Our decisions may not be reported but higher courts are - that is where points of law are discussed and rulings made. Those are the points you would use in evidence. Your "logic" in this case is certainly not mine. But none of this matters as sentencing is governed by the law (as interpreted by higher courts) and the sentencing guidelines. I have never in about 15 years on the bench heard of "double jeopardy" being advanced as a reason to escape a sentence (even partially).

[Tremarl]

I would (of course) disagree with the above. We sentence according to very strict guidelines. We can depart from them but have to have an extremely good reason for doing so. Our sentences are not based on our "leanings". It would be nice if we could do what we want to do sometimes, but we cannot. Our decisions may not be reported but higher courts are - that is where points of law are discussed and rulings made. Those are the points you would use in evidence. Your "logic" in this case is certainly not mine. But none of this matters as sentencing is governed by the law (as interpreted by higher courts) and the sentencing guidelines. I have never in about 15 years on the bench heard of "double jeopardy" being advanced as a reason to escape a sentence (even partially).

I think you missed what I'm saying "by ruling" I'm talking about the ultimate verdict. The point you are making is about sentencing which is after the ruling/verdict has been made. Sentencing is of course heavily regulated by guidelines. Magistrates determine facts, and decide a verdict. The journey of fact to verdict does not have guidelines. Which is why Magistrates have always had a level of arbitrary justice to them, as one magistrate may be persuaded to a certain type of thinking while another might not, and there is no way of cross referencing the cases due to the lack of reporting. This was my point about coherency between judicial decisions being fundamentally flawed, and with many magistrates not knowing of this fact.

You most likely wouldn't have ever heard of Double Jeopardy in your 15 years on the bench as a Magistrate, as the CPS are unlikely ever to re-trial a case, unless there is significant value to doing so. The case law on it is bereft with murder and manslaughter trials, not motor offenses or summary offenses. There is no value to the CPS in trying to re-prosecute a case that has a punishment of a few hundred pound fine or community service or a nominal sentence.

Some of the judiciary are actually more minded to admit the arbitrariness of the lower courts in conversation than others. Its not like its a revelation. My forewarning was merely for others online who may face similar circumstance and think there is a modicum of rationality, behind the application of the law in the lower courts that one would be expected as the minimum binding notion. This does not in fact exist.


Also generally points of law are not made in higher courts for summary only offenses, as the value of appealing is nil. If the punishment is a £50 fine, and the cost of an appeal costs and representation is £5000, no one is going to appeal it. This is why the misuse of Covid penalty notices, was basically never dealt with, and why the Penalty Notice system itself is damaging to justice as a whole, as for many people taking a fine is better than disputing it at court regardless of guilt. So, this makes it almost impossible for a defendant or even a prosecution to reference other cases of a similar nature.
[In fact doing a search on Balii for speeding as the only prosecuted offense, brings up literally 0 cases]

There is the implicit understanding that going to court + representation at a Magistrate will cost you £1k or so, and Appeal courts £5k+. You get a Covid Fine or a Driving fine or w/e it is hell even a litter fine that is no more than £200 and there is literally negative net value in disputing it. The same logic applies to Magistrate decisions and then Court of Appeal decisions etc. Unless, some legal group is funding a test case, or someone has a real bee in their bonnet, binding authority is often lacking. Especially on more novel cases, precisely because the higher courts cannot decide on cases never raised to them.

Besides the higher courts make determination of law not fact, and my issue raised in my warning post was about determination of fact. Determining whether an offense is one or multiple is a determination of fact not law. Theoretically a Magistrate could determine that an act of speeding that lasted 30 seconds and 100 yards is actually an offense for every 10 yards passed, as a matter of fact. Nothing is stopping them from doing so, and no one is going to appeal it, and the only grounds for appeal would be that of "reasonableness" in such a finding.




If you are interested in double jeopardy in our legal system then some useful resources I came across below:

https://www.legislation.gov.uk/ukpga.../division/2/10


And a very nice little summary of the case law:
https://crimeline.co.uk/knowledge-ba...-in-eaw-cases/

[islandgirl]

Well now I am even more confused! The law governs the journey. In a trial we are as a jury and decide whose evidence is more credible. In a speeding case with camera proof there is no decision. Guilt is proven. You may use the decisions of higher courts to persuade us to sentence in a certain way. Clearly the bench did not accept your arguments.

[Tremarl]

Well now I am even more confused! The law governs the journey. In a trial we are as a jury and decide whose evidence is more credible. In a speeding case with camera proof there is no decision. Guilt is proven. You may use the decisions of higher courts to persuade us to sentence in a certain way. Clearly the bench did not accept your arguments.

I think you've missed my point about double counting and how an offense is determined. I'm not arguing about singular guilty/non-guilty, my point is in regards to multiple perceived offenses, and how they are understood in a course of action.

The actus reus of a crime is a factual concept. When a court is presented with the actus reus (And in some cases) the mens rea, they then make a verdict for a guilty/not-guilty plea.

However, does that necessarily mean that a crime without evidence is not a crime? (We're getting philosophical here) - Legally yes, it means no crime has been recorded/actioned against, however, the truth of the matter from a factual perspective is that in fact there has been a crime, but it has yet to be tested and proven in court. [If a tree falls and no one hears it did it really fall?]

https://www.legislation.gov.uk/ukpga/1984/27/section/89
"A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which this section applies shall be guilty of an offence."


The Actus Reus is an action or inaction of a defendant to which criminal liability occurs.

The Actus Reus of speeding is to exceed the set limit on a road. Therefore, it can be determined that the fundamental basis of that crime is you have exceeded the speed limit. Now in fact, it is impossible to stop a car in a sudden instant and time is constantly flowing. It would only be logical to assume that speeding is a continued act. The definition is given on a road, so its logical to conclude that on the same road if you are speeding, that the act is continued as a singular act until you either go to a different road, or go below the speed limit. The law does not state that the act of speeding to be "caught by a camera while exceeding the limit set", it is merely to exceed the limit set.


A Camera is merely one form of evidence that can show that an Actus Reus of a crime has been committed in fact to the courts. You do not in-fact even need a camera to evidence speeding. The truth of the matter as to the actual facts of speeding is completely independent of the evidence of said offense. However, without proof the prosecution wouldn't get very far in their case, so some proof is necessitated for a prosecution.

The point I was making in my original post was about double counting, because of the proximity of the offenses, and this clearly being a singular act.

It is irrational to conclude that the camera evidencing an offense, is the actus reus for the offense itself. The Camera is not the defendant, the Camera is not even party to the acts of the defendant and the camera is not even necessary for a conviction.

However, a Magistrate can in fact conclude how they want in regards to this, and they can in fact conclude that one camera = one offense, no matter how irrational such a conclusion is when looking at the facts holistically.

In fact you could stack 100 cameras on top of each other, all taking speed recordings a millisecond apart, and by the logic applied they are all individual offenses [or for simplicity a video with multiple stills taken with speed recordings on it], but this is to completely abstract the behavior and actions of the defendant from the component elements of the offense.


This is essentially what my post was warning about, that even obvious cases such as same road same speed same time (10 minutes apart), some judges are happy to double count and so its a dice roll.



P.S The bench were of the opinion that 1 camera = 1 offense, and that the camera catching you itself was the offense as a matter of policy decisions.

How do you point out to someone that they looking at things in an irrational and illogical way and abstracting an offense into their own made up law in a polite way? -- I can point out something is completely illogical by giving contra examples, but if they just dead-pan me, with the same response of but the camera, then there is very little in way of convincing, its like talking to a wall. Certainly the ability to convince such a person in such a situation is completely beyond me. The prosecution also believed that one camera = one offense, but in and out of court was never actually able to convey how they defined an offense of speeding beyond that. Although the prosecution certainly seemed more understanding than the bench.

If you have a court informally practicing "incorrect law" by modulating legal principles, but which from a higher court is necessarily seen as a determination of fact, how exactly do you correct that as an outsider, not party to their informal understandings as work colleagues (They most certainly see each other on a daily basis). Certainly such an entrenched view is not removed lightly. People work on the belief that they are logical, and its often hard to change that belief or get them to think otherwise [This is why politics is often polarized]. Its especially difficult to convince someone as a party that begets no sympathy nor respect as undoubtedly being seen as guilty of one issue or another.


There are in fact several case studies provided by solicitors as well as news articles, that would support the contra to what found in this case, that in such an instance this is one offense of speeding continued for a period of time.

However, these are not binding on the court nor even often get accepted as admissible, but in the present case they prove my point about the dice roll. Its not like my beliefs are founded on something that has never been litigated or questioned.

[islandgirl]

I don't think I missed the point to be honest. I see your argument of course. But you could have slowed down to the speed limit before reaching the second camera and did not. You would not have had to stop the car in a "sudden instant". Time was flowing, as were you, too quickly it seems.
It may surprise you to know that we have no "Informal understandings as work colleagues". We are unpaid volunteers. We sit with different people each time we are in court and perhaps go into court twice a month or so. We rely for legal information and guidance on our Legal Advisor. If the bench were wrong to have considered your cases as 2 separate acts then the Legal Advisor would have quoted the appropriate rulings from a higher court to the bench. You may think your viewpoint is correct but unless a higher court has decided otherwise I would expect the court to have behaved how it did.

[Tremarl]

I don't think I missed the point to be honest. I see your argument of course. But you could have slowed down to the speed limit before reaching the second camera and did not. You would not have had to stop the car in a "sudden instant". Time was flowing, as were you, too quickly it seems.
It may surprise you to know that we have no "Informal understandings as work colleagues". We are unpaid volunteers. We sit with different people each time we are in court and perhaps go into court twice a month or so. We rely for legal information and guidance on our Legal Advisor. If the bench were wrong to have considered your cases as 2 separate acts then the Legal Advisor would have quoted the appropriate rulings from a higher court to the bench. You may think your viewpoint is correct but unless a higher court has decided otherwise I would expect the court to have behaved how it did.

Hi Islandgirl

I completely agree with your assessment that they can in fact conclude these are two separate instances, even though this itself is not a rational conclusion. That is a determination of fact not law. The Magistrates are free to determine how they like in regards to fact. This was the point of me making the post in the first place, because this essentially makes the notion of a continuing offense in speeding non-existant. Which is why I'm warning people that its a dice roll, as some Magistrates are happy to determine that an instance of speeding is actually multiple instances, notwithstanding the contra surrounding information.

You could make the same argument regarding other offences. If person A is beating up person B and hitting him repeatedly. A police officer tells him to stop and he continues. Is that now two acts of battery/assault, or just one act. Having the ability and chance to correct criminal action but ignoring it doesn't necessarily mean that the continuance is an offence in and of itself. However, the Magistrates are free to determine as a matter of fact that it is. That is part of the discretion afforded to the Magistrates.


As this is a determination of fact, there is nothing for the legal advisor to correct or advise on. In my instance the Magistrate confused law with fact, but for practical purposes this isn't relevant to how they would decide the outcome.


In regards to the informallity within magistrate courts, this has been reported in several studies and academic articles and the way the interaction can affect justice. There are only so many prosectuors and only so many magistrates, the same stuff happens when you get very active senior Barristers in the higher courts. This is part of an implicit bias that exists, although minor. I mentioned it in passing, don't take it as a personal attack or anything against the Magistrates, its something that is unavoidable as part of having a system like we do. It barely makes a difference for those with representation as a solicitor is inherently seen as knowledgeable and authorative, however for Litigant in person who are briefed and considered to be inept, it can very negatively impact their ability to mount a coherent defence, without constant interruption or the Judge putting their legal perspective over the LIP even when cited legal sources.

[islandgirl]

I disagree with your view of how we see LIPs. The reduction of legal aid has meant this happens more and more. A good Legal Advisor will help the LIP understand the rules of the court and what information to give. My bench is very big and I rarely sit with the same people twice over many months or even years.

[wales01man]

Does the OP expect that if they drove at a hundred miles an hour through every speed camera on the M1 they would only expect one fine/points