Hasn't even passed the CPS. Very disgraceful.

downfader

http://www.dailymail.co.uk/news/article ... wheel.html (Was linked to on the musicradar forums)

Her doctor said "possibly" and that seems good enough for the CPS. I know its in the Daily Hate but it does make you feel a little sick inside to think that evidence wont be tested - only last year a lady went to prison for falling asleep at the wheel and killing a vehicle recovery guy. This should be tested in court in the same manner. :?

Anonymous

Unfortunately it seems that the CPS have decided to act as Jury these days. If there is a chance of a succesful defence the general attitude is they don't want to know...

Guess what?

Their conviction rate has increased somewhat! Give them a big pat on the back!

spen666

Napoleon, that is a typical myopic police officer's view.

There was no resonable prospect of a conviction in this case given the medical evidence produced by the defence. There was/is no evidence to challenge that. The defence have a medical expert whose evidence raises a valid defence. It does of course mean the matter will have to be reported to the DVLA who may revoke her driving licence on medical grounds.

The CPS can only prosecute where there is a realistic prospect of conviction. There was not in this case, and therefore the case was rightly discontinued.

You are being hypocritical in alleging the CPS are acting as judge and jury in deciding not to prosecute. You and your colleagues as police officers do that every day. You investigate allegations of crime and if you think there is insufficient evidence, you either do not charge ( for less serious matters) or do not refer the matter to the CPS for a charging decision. Isn't that acting in the same way as you complain the CPS act.

If the CPS do not discontinue no hoper cases such as this one, then you will find that your tax bill will need to increase massively to cover the costs of all the extra trials, the wasted legal costs etc. The number of police officers attending pointless court hearings will massively increase, so we will have either insufficient officers on the beat or need lots more police officers at massive cost to the tax payer=- and yet more tax increases.


This particular case was not dropped simply because the driver said they may have fainted, but there was medical and other evidence to support this and no evidence provided to the CPS to dispute this.

Now who is responsible for gathering such evidence if it exists and providing it to the CPS? Yes, its the police who are responsible for gathering such evidence if it exists. Given that there was no evidence to challenge the defence case, it suggests that:
1) There was no such evidence available
2) The police failed to gather the evidence and present it to the CPS


In this case Isuspect that the reality is there was no such evidence

gabriel959

In any case, even she had been found guilty she would have spent 6 months in jail and had her license revoked for 1 year.

Its clear that if you ever feel an inclination to kill someone you should use the car.

Anonymous

spen666 wrote:

Napoleon, that is a typical myopic police officer's view.

There was no resonable prospect of a conviction in this case given the medical evidence produced by the defence. There was/is no evidence to challenge that. The defence have a medical expert whose evidence raises a valid defence. It does of course mean the matter will have to be reported to the DVLA who may revoke her driving licence on medical grounds.

The CPS can only prosecute where there is a realistic prospect of conviction. There was not in this case, and therefore the case was rightly discontinued.

You are being hypocritical in alleging the CPS are acting as judge and jury in deciding not to prosecute. You and your colleagues as police officers do that every day. You investigate allegations of crime and if you think there is insufficient evidence, you either do not charge ( for less serious matters) or do not refer the matter to the CPS for a charging decision. Isn't that acting in the same way as you complain the CPS act.

If the CPS do not discontinue no hoper cases such as this one, then you will find that your tax bill will need to increase massively to cover the costs of all the extra trials, the wasted legal costs etc. The number of police officers attending pointless court hearings will massively increase, so we will have either insufficient officers on the beat or need lots more police officers at massive cost to the tax payer=- and yet more tax increases.


This particular case was not dropped simply because the driver said they may have fainted, but there was medical and other evidence to support this and no evidence provided to the CPS to dispute this.

Now who is responsible for gathering such evidence if it exists and providing it to the CPS? Yes, its the police who are responsible for gathering such evidence if it exists. Given that there was no evidence to challenge the defence case, it suggests that:
1) There was no such evidence available
2) The police failed to gather the evidence and present it to the CPS


In this case Isuspect that the reality is there was no such evidence

Your opinion...

I'm not going to become embroiled in a discussion with you about this. I have my opinion, you have yours...

spen666

NapoleonD wrote:

spen666 wrote:

Napoleon, that is a typical myopic police officer's view.

There was no resonable prospect of a conviction in this case given the medical evidence produced by the defence. There was/is no evidence to challenge that. The defence have a medical expert whose evidence raises a valid defence. It does of course mean the matter will have to be reported to the DVLA who may revoke her driving licence on medical grounds.

The CPS can only prosecute where there is a realistic prospect of conviction. There was not in this case, and therefore the case was rightly discontinued.

You are being hypocritical in alleging the CPS are acting as judge and jury in deciding not to prosecute. You and your colleagues as police officers do that every day. You investigate allegations of crime and if you think there is insufficient evidence, you either do not charge ( for less serious matters) or do not refer the matter to the CPS for a charging decision. Isn't that acting in the same way as you complain the CPS act.

If the CPS do not discontinue no hoper cases such as this one, then you will find that your tax bill will need to increase massively to cover the costs of all the extra trials, the wasted legal costs etc. The number of police officers attending pointless court hearings will massively increase, so we will have either insufficient officers on the beat or need lots more police officers at massive cost to the tax payer=- and yet more tax increases.


This particular case was not dropped simply because the driver said they may have fainted, but there was medical and other evidence to support this and no evidence provided to the CPS to dispute this.

Now who is responsible for gathering such evidence if it exists and providing it to the CPS? Yes, its the police who are responsible for gathering such evidence if it exists. Given that there was no evidence to challenge the defence case, it suggests that:
1) There was no such evidence available
2) The police failed to gather the evidence and present it to the CPS


In this case Isuspect that the reality is there was no such evidence

Your opinion...

I'm not going to become embroiled in a discussion with you about this. I have my o

Funnyh that isn't it

When the legal process is outlined you refuse to duiscuss it

What do you disagree with?

1. Do you think its not the role of the police to gather evidence?
2. Do you disagree with the fact the CPS are only allowed to proceed with a case where there is alereasonable prospect of conviction?
3. Do you disagree that in this case there was forensic evidence in the form of medical reports ?


4. Do you disagree that the police make decisions as to whether to charge or refer cases to the CPS for a charging decision?


Strange that you make opinionated remarks then refuse to debate them when challenged with the facts of the legal system

Typical myopic views of many police officers who fail to appreciate that they are not always right and that there is a justice system where their views are thankfully not accepted as right automaticallypinion, you have yours...

spen666

gabriel959 wrote:

In any case, even she had been found guilty she would have spent 6 months in jail and had her license revoked for 1 year.

Its clear that if you ever feel an inclination to kill someone you should use the car.

If found guilty- licence wouild not be revoked. Revocation of licence is an administrative matter.

Court could ban her from driving.

Revocation and ban/disqualification have different meanings and different consequences


Pedantic point over!

dilemna

Here we go ..........................

What ever, she shouldn't currently be driving around with such a question mark over her medical fitness to drive. Period.

What I can't get is why she didn't raise this fainting defence at her first trial appearance. Presumably this first appearance where she pleaded not guilt to CDBDD should have been instead something along the lines - no plea due to the fact that she believed she fainted or NG because she fainted.

Call me cynical but I think she has raised this defence so as to place doubt on the prosecution case. A ploy to make them drop their case. A desperate last stand to avoid prosecution for CDBDD that has worked. If you have money then you can afford crack lawyers. Why not let a jury decide? She should have been required to hand her license to the judge/court officials when she left court or DVLA should have powers to suspend a driving license once a charge of CDBDD is made or there are serious concerns over a person's fitness to drive. In this case she's killed a cyclist and seriously injured another.

This is an absolute farce. The rules and law need to be tightened up so that drivers cannot effectively get off scott free having killed and seriously injured others. If she is genuinely pre-disposed to fainting or whether she's making it up and making a mockery of the system her condition needs to be fully investigated not relying on some so called expert witness hypothesizing that it is a possibility she could have fainted if there is no evidence that she DID faint or has a history of fainting or her prognosis is that it WILL or MAY happen again.

I cannot help but think of 'expert' witness Roy Meadows whose evidence was subsequently discredited and which had such tragic consequences.

If you live in Cheshire do you feel safe that she is still driving on the roads? I thought not.

jswba

Given that people with epilepsy are banned from driving, I'm astonished that this killer hasn't had her license revoked. Even if we take her at her word, she clearly has moments during which she is not in control of her vehicle and is a danger to other road users.

spen666

jswba wrote:

Given that people with epilepsy are banned from driving, I'm astonished that this killer hasn't had her license revoked. Even if we take her at her word, she clearly has moments during which she is not in control of her vehicle and is a danger to other road users.

Careful on terminology- bans are imposed by courts
revocation is an administrative matter.

Untli the defence revealed this evidence, there was nothing to revoke her licence for.

I would hope the CPS/ Police do notify the DVLA of the evidence from the defence. Sadly, I suspect they may not do so. It seems to be something that is not done as a matter of routine

spen666

dilemna wrote:

Here we go ..........................

What ever, she shouldn't currently be driving around with such a question mark over her medical fitness to drive. Period.

What I can't get is why she didn't raise this fainting defence at her first trial appearance. Presumably this first appearance where she pleaded not guilt to CDBDD should have been instead something along the lines - no plea due to the fact that she believed she fainted or NG because she fainted.

The only pleas that could be entered are GUILTY or NOT GUILTY. The defence are not under any duty to say why a plea is entered, and until they had medical evidence would be unable to back up any statement to this effect.

As I read the story, she has not appeared for trial, the case was discontinued before a trial

Call me cynical but I think she has raised this defence so as to place doubt on the prosecution case. A ploy to make them drop their case. A desperate last stand to avoid prosecution for CDBDD that has worked. If you have money then you can afford crack lawyers. Why not let a jury decide?

[/quote[ Because it is a waste of time and money to drag a case onto a trial where there is no prospect of the Crown succeeeding. The Crown has no evidence to counter the medical evidence.

Read my earlier post to Napoleon re the consequences of pursuing all hopeless cases to trial

She should have been required to hand her license to the judge/court officials when she left court or DVLA should have powers to suspend a driving license once a charge of CDBDD is made or there are serious concerns over a person's fitness to drive. In this case she's killed a cyclist and seriously injured another.

No- the DVLA should not be revoking licences of persons charged routinely.

They now have evidence of medical issues and NOW can consider revoking driving licence.

It may well be that this was first fainting episode, so D may not have known of problem before that.

This is an absolute farce. The rules and law need to be tightened up so that drivers cannot effectively get off scott free having killed and seriously injured others. If she is genuinely pre-disposed to fainting or whether she's making it up and making a mockery of the system her condition needs to be fully investigated not relying on some so called expert witness hypothesizing that it is a possibility she could have fainted if there is no evidence that she DID faint or has a history of fainting or her prognosis is that it WILL or MAY happen again.

[/quote] andwho is going to investigate trhis, you or a medical expert who has examined D and seen her medical records and done necessary tests?

Seems in this case there was the medical evidence, or are you claiming to know better than the medical experts on medical matters

I cannot help but think of 'expert' witness Roy Meadows whose evidence was subsequently discredited and which had such tragic consequences.

If you live in Cheshire do you feel safe that she is still driving on the roads? I thought not.

you are assuming she is still driving and that the DVLA are not taking the necessary steps to revoke her licence.

now the fainting issue is know, she is unlikely to be driving I suspect

. If she is I suspect she is committing an offence of not reporting the medical issues to the DVLA

gabriel959

spen666 wrote:

you are assuming she is still driving and that the DVLA are not taking the necessary steps to revoke her licence.

now the fainting issue is know, she is unlikely to be driving I suspect

. If she is I suspect she is committing an offence of not reporting the medical issues to the DVLA

But isn't the fact that she was driving with this fainting condition an offence in itselft? I understand that something like fainting due to a hidden medical condition can happen at any time but if this condition was known (as it looks like by the evidence that seems to have been presented by the defence) why has she got a license to start with?

beverick

Two things strike me on this one, both from the following comment in the article: "It (a reflex syncope or faint) is a common condition and occurs in roughly half of all individuals during their lives."

So, given the prevelance of the 'condition':

Firstly what is there to stop this evidence being used by anyone; and
Secondly, with odds or 1:2 why is anyone allowed to drive.

I think it smacks of a convenient defence thought out about by a creative lawyer. I assume the success of the defence relies on the corroborrative evidence (noted from the article) that the vehicle continued, apparently out of control, for a substantial distance after the impact. If that was the case there should have been suitable evidence at the scene to determine to what extent the driver was in control up to and after the point of impact with the cyclist. Assuming the police had collected it of course.

With odds such as those above and 35m+ drivers in the UK there should be several cases per week. There isn't so, personally, I'd have liked to have seen this tested in court.

Bob
[/i]

Paulie W

There seems to be a suggestion that fainting at the wheel is a ludicrous defense.

I've fainted a couple of times in my life for no apparent reason. I wasnt driving on either occasion. Once it was completely out of nowhere - woke up on the floor 30 seconds later; the other I felt coming and was able to slide to the floor myself before passing out. I dont have any long term underlying medical condition that caused either faint. As I say it has happened twice in 40 odd years to my memory. The odds of it happening while I was driving or cycling for that matter must in fact be relatively small, hence the fact that this isnt a common occurence.

Given the apparent aftermath of the collision, the only clear alternative explanation to me (based admittedly on the partial accounts in the newspaper reports) is that the defendant fell asleep at the wheel and was not woken by the collision or by careering over the roundabout.

shouldbeinbed

On balance the chance of conviction is near Zero given that she's found a medico to argue her case but in the same way that Epilleptics and others with various medical conditions aren't allowed carte blanche to drive, this woman should have her licence removed from her on the basis that medically she's admitted by her defence statement and expert witness statement that she's unfit to be safe to herself or other people behind a wheel of a motor vehicle.

it would be a neutral act rather a conviction but however it actually happened (and maybe she's 100% right in her defence) killing and injuring fellow road users colliding withmother ehicles and hammering your own car in a crash in my book means you should not be on the road again for everyones sake - would you trust her to run your kids about?

licences are an earned privilege not a right.

spen666

shouldbeinbed wrote:

On balance the chance of conviction is near Zero given that she's found a medico to argue her case but in the same way that Epilleptics and others with various medical conditions aren't allowed carte blanche to drive, this woman should have her licence removed from her on the basis that medically she's admitted by her defence statement and expert witness statement that she's unfit to be safe to herself or other people behind a wheel of a motor vehicle.

it would be a neutral act rather a conviction but however it actually happened (and maybe she's 100% right in her defence) killing and injuring fellow road users colliding withmother ehicles and hammering your own car in a crash in my book means you should not be on the road again for everyones sake - would you trust her to run your kids about?

licences are an earned privilege not a right.

DVLA say after a single fainiting episode, you can drive 4 weeks later!!!!!!!!!

spen666

gabriel959 wrote:

spen666 wrote:

you are assuming she is still driving and that the DVLA are not taking the necessary steps to revoke her licence.

now the fainting issue is know, she is unlikely to be driving I suspect

. If she is I suspect she is committing an offence of not reporting the medical issues to the DVLA

But isn't the fact that she was driving with this fainting condition an offence in itselft? I understand that something like fainting due to a hidden medical condition can happen at any time but if this condition was known (as it looks like by the evidence that seems to have been presented by the defence) why has she got a license to start with?

I never took the defence medical evidence to suggest ahe knew of the condition in advance!

spen666

beverick wrote:

Two things strike me on this one, both from the following comment in the article: "It (a reflex syncope or faint) is a common condition and occurs in roughly half of all individuals during their lives."

So, given the prevelance of the 'condition':

Firstly what is there to stop this evidence being used by anyone; and
Secondly, with odds or 1:2 why is anyone allowed to drive.

I think it smacks of a convenient defence thought out about by a creative lawyer. I assume the success of the defence relies on the corroborrative evidence (noted from the article) that the vehicle continued, apparently out of control, for a substantial distance after the impact. If that was the case there should have been suitable evidence at the scene to determine to what extent the driver was in control up to and after the point of impact with the cyclist. Assuming the police had collected it of course.

With odds such as those above and 35m+ drivers in the UK there should be several cases per week. There isn't so, personally, I'd have liked to have seen this tested in court.

Bob
[/i]

Bob,

I think you are slightly mis interpreting the figures

It is said that 50% of people will suffer a single fainting episode once in their life.
That is once in say 80 years. The chances of that happening when driving is very small. I would not expect to see several cases a week.


As for testing it in court- simply a waste of time and money as the defendant was bound to be acquitted as there was no evidence to challenge the medical evidence. Indeed there was evidence to support it
1. Car continued out ofcontrol after collision
2. no suggestion of bad driving before incident
3. Immediately after accident driver is seen to be dazed and asking what has happened


No point iin proceeding in case where no chance of conviction as here.

Porgy

Is there any chance that we can ban lawyers from posting on these boards? :roll:

spen666

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

Porgy

spen666 wrote:

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

lawyers? truth? LOL - I'm surprised you have the gall to use both those words in the same sentance, at least not without also including the word obfuscating.

spen666

Porgy wrote:

spen666 wrote:

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

lawyers? truth? LOL - I'm surprised you have the gall to use both those words in the same sentance, at least not without also including the word obfuscating.

All I do on here is try to explain the law and legal system

i don't necessarily like the system, but until it is changed......

dilemna

Porgy wrote:

spen666 wrote:

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

lawyers? truth? LOL - I'm surprised you have the gall to use both those words in the same sentance, at least not without also including the word obfuscating.

That's a bit low toward Spen. I know he's had his moments , but on this thread he has so far been remarkably restrained. I suspect he's as gobsmacked as everyone else at the bizarre result. AFAIK he has no connection with the defence lawyers instructed by Tracy Johnson.

It would seem on the face of it that either result would mean that Tracy Johnson would not be driving for a long time but she seems some how to have hung on to her license since the crash.

Spen - if she knew she had fainted surely she would have had to 1) report this to the DVLA soon after the accident in sept 2008 as she still had her license and 2) would have made this clear in her statement under caution to the Police. The Police and CPS would possibly have not then wasted time and resources preparing a prosecution for causing death by dangerous driving against her?

Or is the process so designed that she only has to enter a NG at her first trial appearance even if she knows her defence will be based on medical grounds of fitness to drive through fainting. It seems that she offered this defence right at the last minute?

This feels like a really unsatisfactory result to the case given that one person has died and another was badly injured, and the driver that caused the death and injury is still driving around with the condition she relied on in court, to get off the death by dangerous driving charge she was facing.

Would you agree that DVLA may now need to reconsider how it determines when licenses should be suspended and for how long given this case?

Also does this case set a precedent for other drivers who have been or will be in similar such serious RTAs?

Obviously you are bound by what you can say being a practising lawyer buy what are your thoughts? It doesn't look good does it?

rake

im a bit of a lawyer. she shouldnt ever be driving again.

spen666

dilemna wrote:

Porgy wrote:

spen666 wrote:

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

lawyers? truth? LOL - I'm surprised you have the gall to use both those words in the same sentance, at least not without also including the word obfuscating.

That's a bit low toward Spen. I know he's had his moments , but on this thread he has so far been remarkably restrained. I suspect he's as gobsmacked as everyone else at the bizarre result. AFAIK he has no connection with the defence lawyers instructed by Tracy Johnson.

TBH I didn't take it personally at all. Its not me who cut the brake cables on his bike, petrol bombed his house etc.....
I have no connection with this case at all, other than being a lawyer with far too many years experience in criminal matters

It would seem on the face of it that either result would mean that Tracy Johnson would not be driving for a long time but she seems some how to have hung on to her license since the crash.

I don't know if she has still got her licence. The DVLA may have revoked the same, but the guidance for a single fainting incident with no other medical issues is that she can drive again 4 weeks after the fainting - see DVLA website for details- that is bloody scary

Spen - if she knew she had fainted surely she would have had to 1) report this to the DVLA soon after the accident in sept 2008 as she still had her license and 2) would have made this clear in her statement under caution to the Police. The Police and CPS would possibly have not then wasted time and resources preparing a prosecution for causing death by dangerous driving against her?

see above re length of time before she can drive.

She would have to report the fainting to the DVLA
Even if her licence had been revoked, that would not mean CPS don't prosecute. The medical evidence is what changed this case from a winnable case for the prosecution.

Or is the process so designed that she only has to enter a NG at her first trial appearance even if she knows her defence will be based on medical grounds of fitness to drive through fainting. It seems that she offered this defence right at the last minute?

first trial appearance? not sure what you mean here- the case never went for a trial. I am assuming you mean 1st appearance at court. She would have to enter her plea at first opportunity. It is irrelevant what her defence was. The defence team will have disclosed the medical evidence to the cps as soon as they had the same. Its not in defendants interest for case to be delayed.

This feels like a really unsatisfactory result to the case given that one person has died and another was badly injured, and the driver that caused the death and injury is still driving around with the condition she relied on in court, to get off the death by dangerous driving charge she was facing.

You are assuming she is still driving. I was not aware of any evidence she was still driving.

Would you agree that DVLA may now need to reconsider how it determines when licenses should be suspended and for how long given this case?

DVLA do not suspend licences, they revoke them.

Their guidance of 4 weeks for a simple fainting seems worrying to me

Also does this case set a precedent for other drivers who have been or will be in similar such serious RTAs?

Obviously you are bound by what you can say being a practising lawyer buy what are your thoughts? It doesn't look good does it?

does case set a precedence? No

There was other evidence to support the driver's contention- car driove on beyond accident in straight line- no attempts at steering, immediately after accident driver was seen by witnesses to be confused, dazed and asking what had happened. This supports the medical evidence that she was not in control of vehicle and had fainted

beverick

gabriel959 wrote:

spen666 wrote:

....

But isn't the fact that she was driving with this fainting condition an offence in itselft? .....

The article makes no mention of an underlying 'condition' other than the fact anyone is liable to faint at any time for a whole series of reasons.

I may be wrong on this one but I do not believe it is an offence to drive a vehicle with any particular ]medical condition. However, it is an offence not to inform the DVLA, depending on the nature of your license and the vehicle you intend to drive, of a specific diagnosed medical conditions, or one that you are aware you suffer from, which may render you ineligible to hold a driving license.

spen666 wrote:

beverick wrote:

.........]

Bob,

I think you are slightly mis interpreting the figures

It is said that 50% of people will suffer a single fainting episode once in their life.
That is once in say 80 years. The chances of that happening when driving is very small. I would not expect to see several cases a week.

As for testing it in court- simply a waste of time and money as the defendant was bound to be acquitted as there was no evidence to challenge the medical evidence. Indeed there was evidence to support it
1. Car continued out ofcontrol after collision
2. no suggestion of bad driving before incident
3. Immediately after accident driver is seen to be dazed and asking what has happened

No point iin proceeding in case where no chance of conviction as here.

OK, I may have been being provocative with my initial posting but even assuming one faint per person per 80 years, with 35m drivers on the road there would be a statistically significant number of faint-related road traffic incidents every year - and there aren't.

In relation to your point 1 (above). Surely the medical evidence is circumstantial and cannot be relied upon on its own. I can only assume that the CPS decided not to progress the case because the direct evidence (ie 'witness marks' on the road etc), was strong enough to corroborate the circumstantial evidence that the driver had fainted and that a jury would reach a not guilty verdict - and hence a trial would have been a waste of time and money and being unduly harsh on the accused. I do actually think that, in all probability, no offence had been committed but, I also think that there is justification for this case to have had its day in court to allow a jury to 'test' whether there actually was sufficient reliable evidence to support the decision reached by the CPS. Out of interest, would we have expected the case to have been 'thrown out' if there had been suggestion of some other temporary or transitory occurrance that the driver was unable to influence or control (blinded by a bright reflection, mechanical failure for example).

Point 2 is fair comment. There is mention of an 'earlier phone call' but I strongly believe that this is the journalist being playful.

Point 3. Well blow me down. "Immediately after accident driver is seen to be dazed and asking what has happened." and you would expect anything else irrespective of circumstances.

Bob

beatsystem

I agree with spen666 that persons on here do not wish to hear the facts if they go against their own predujices. Some times ACCIDENTS happen!! I think from what i have read this was an ACCIDENT in the true sense of the word. This poor women wil have to live with it for the rest of her life.

shouldbeinbed

dilemna wrote:

Porgy wrote:

spen666 wrote:

Porgy wrote:

Is there any chance that we can ban lawyers from posting on these boards? :roll:

Why? don't like the truth getting in the way of ignorance?

lawyers? truth? LOL - I'm surprised you have the gall to use both those words in the same sentance, at least not without also including the word obfuscating.

That's a bit low toward Spen. I know he's had his moments , but on this thread he has so far been remarkably restrained. I suspect he's as gobsmacked as everyone else at the bizarre result. AFAIK he has no connection with the defence lawyers instructed by Tracy Johnson.

......

Spen - if she knew she had fainted surely she would have had to 1) report this to the DVLA soon after the accident in sept 2008 as she still had her license and 2) would have made this clear in her statement under caution to the Police. The Police and CPS would possibly have not then wasted time and resources preparing a prosecution for causing death by dangerous driving against her?

Or is the process so designed that she only has to enter a NG at her first trial appearance even if she knows her defence will be based on medical grounds of fitness to drive through fainting. It seems that she offered this defence right at the last minute?

.......

+1 I like hearing Spen's view on things, I may not always agree but cest-la-vie.

The rules of disclosure state that following initial disclosure by the Police/CPS, the defence have to disclose the issues that they are taking up and the line of defence that they intend to rely on in court, in order that CPS can review their material and decide to disclose anything else asked for or that they consider appropriate to running a fair trial (including material that may assist the defence or undermine the prosecution)

However, one of the big bugbears of my day when dealing with evidence requests is that you ask the CPS why we're doing certain evidence & what does the defence statement say so that we can tailor statements to meet the needs of the trial rather than just scattergun it, to be told there hasn't been one submitted (weeks and often months after its due) and that they're effectively second guessing from preliminary hearings and discussions with the defendants legal team.

The recent appeal ruling in 'R v Chorley Justices' is all about stopping an ambush defence at the full trial, but Defence disclosure is one area where the prosecution really do need to tighten up and get their act together.

IMHO.

spen666

shouldbeinbed wrote:

....

+1 I like hearing Spen's view on things, I may not always agree but cest-la-vie.

The rules of disclosure state that following initial disclosure by the Police/CPS, the defence have to disclose the issues that they are taking up and the line of defence that they intend to rely on in court, in order that CPS can review their material and decide to disclose anything else asked for or that they consider appropriate to running a fair trial (including material that may assist the defence or undermine the prosecution)

I'm soort to say that this is complete nonsense.

You are confusing rules on disclosure of unused material with the quuestion of disclosing issues in a trial

There is nothing to force the defence to disclose the nature of their defence. (There are seperate rules re expert evidence etc)

The criminal proceedings rules encourage disclosure by the defence of the issues in a case, but the defence do not have to so disclose.

However in the case in question the defence did disclose the issue. That is why the CPS did not proceed to a trial

You and others on here seem to be berating the defence for not disclosing the nature of their defence, despite the fact the defence did disclose in advance the nature of the defence

However, one of the big bugbears of my day when dealing with evidence requests is that you ask the CPS why we're doing certain evidence & what does the defence statement say so that we can tailor statements to meet the needs of the trial rather than just scattergun it, to be told there hasn't been one submitted (weeks and often months after its due) and that they're effectively second guessing from preliminary hearings and discussions with the defendants legal team.

The recent appeal ruling in 'R v Chorley Justices' is all about stopping an ambush defence at the full trial, but Defence disclosure is one area where the prosecution really do need to tighten up and get their act together.

IMHO.

Again you are talking nonsense ( in the politest sense)- in that you are mixing up the rules on unused material with the situation here.

The defence do not need to disclose unused material and a defence statement is not needed in magistrates court cases

Oh and a defence statement is not to be provided until the Crown have disclosed its case, so its not a case of you doctoring your statements to meet the defence

Remember its the Crown's duty to prove their case, not the defence's duty to prove they are not guilty

shouldbeinbed

oh for crying out loud - I just put a big long discussion and its logged me out and I lost it all.

basically. I think you've missed a couple of bits that i'm talking about - I'm not using lawer speak so please accept my apologies for any mis-wording.

defence disclosure - I'm not referring to unused material. I refer to the defence statement that is required by CPIA, another act (I forget sat here at home rather than at work with my disclosure 101 file), and by the attorny general guidelines. I'm happy to link to the relevant acts when I get back to work next week if you like.

I do say that CPS/Police disclosure comes first, you've even quoted me doing so - top box.

as I recall (home again) the defence have 14 days from prosecuiton disclosure to lodge their statement detailing their intended lines of defence and seeking further clarification/ contesting issues raised by prosecution. it is this that leads to the secondary and subsequent ongoing prosecution disclosure and supplying of fuller evidence to superceed any sample/short form (section 9???) statements initially submitted - fuller DNA/Forensics for example.

Nowhere do I suggest doctoring a statement to meet the defence. You will note that there I say meet the needs of the trial - I did this specifically to imply impartiality rather than saying 'meet the need of the prosecution' or 'couter the defence'.

There is no need to produce overly complex and cumbesome statements that detail every last element if most of is is not in contention. The defence statement may only seek to query or explore a small emlement of the full evidence I have at my disposal or the CPS may accept a legitimate access defence to some parts of that. There is no point in bamboozling the Jury with a huge complex statement of which 90% has no relevance to the trial or to either side. I use the word Tailor to mean just that, To provide evidence only which is relevant to either side and in contention at the trial. I'm not doctoring anything. I'm also well aware of the burden of proof and presumption of innocence. Stuff i knock back is often due to its likeliehood of implying bad character or adding supposition that goes beyond expert opinion and could be seen as being prejudicial against the defendant.

anyway before I get too ranty or too lost in what i'm trying to remember that is sat on my work desk, I'll leave it there. I'd be happy to continue discussing this with you - it's a rare treat to get a defence lawyer to talk to without a particular case in hand. I'm happy to hear your interpretation of this area and discuss and learn by challenge (trial by ordeal ). I'm genuinely interested though I suspect others may not be and we're veering way off topic, do you mind if I PM you about this?

spen666

shouldbeinbed wrote:

oh for crying out loud - I just put a big long discussion and its logged me out and I lost it all.

basically. I think you've missed a couple of bits that i'm talking about - I'm not using lawer speak so please accept my apologies for any mis-wording.

defence disclosure - I'm not referring to unused material. I refer to the defence statement that is required by CPIA, another act (I forget sat here at home rather than at work with my disclosure 101 file), and by the attorny general guidelines. I'm happy to link to the relevant acts when I get back to work next week if you like.

[/quote[ The defence case statement is in relation to unused material diusclosure

Thats the whole point of it

It triggers the continuing disclosure

I do say that CPS/Police disclosure comes first, you've even quoted me doing so - top box.

as I recall (home again) the defence have 14 days from prosecuiton disclosure to lodge their statement detailing their intended lines of defence and seeking further clarification/ contesting issues raised by prosecution. it is this that leads to the secondary and subsequent ongoing prosecution disclosure and supplying of fuller evidence to superceed any sample/short form (section 9???) statements initially submitted - fuller DNA/Forensics for example.

This is such a simplification as to be inaccurate.

I could write a novel on this subject highlighting the faults.

The defence case statement and what you are saying here are not the same thing

Nowhere do I suggest doctoring a statement to meet the defence. You will note that there I say meet the needs of the trial - I did this specifically to imply impartiality rather than saying 'meet the need of the prosecution' or 'couter the defence'.

your statement is your statement is should not be tailored at all. It is for the prosecution to prove, not doctor its evidence to what the defence say

There is no need to produce overly complex and cumbesome statements that detail every last element if most of is is not in contention. The defence statement may only seek to query or explore a small emlement of the full evidence I have at my disposal or the CPS may accept a legitimate access defence to some parts of that. There is no point in bamboozling the Jury with a huge complex statement of which 90% has no relevance to the trial or to either side. I use the word Tailor to mean just that, To provide evidence only which is relevant to either side and in contention at the trial. I'm not doctoring anything. I'm also well aware of the burden of proof and presumption of innocence. Stuff i knock back is often due to its likeliehood of implying bad character or adding supposition that goes beyond expert opinion and could be seen as being prejudicial against the defendant.

I take the view, if its an element of the offence, then the prodsecution must prove it and it needs to be in the statements. if its not relevant then dont put it in

I won't agree evidence if its not in admissible form[qyuote]

anyway before I get too ranty or too lost in what i'm trying to remember that is sat on my work desk, I'll leave it there. I'd be happy to continue discussing this with you - it's a rare treat to get a defence lawyer to talk to without a particular case in hand. I'm happy to hear your interpretation of this area and discuss and learn by challenge (trial by ordeal ). I'm genuinely interested though I suspect others may not be and we're veering way off topic, do you mind if I PM you about this?

More than happy for you to PM me


Always happy to discuss legal matters