Lawyers in top gear

Stephen Ward cruises round law firms and finds them negotiating some tricky corners as they steer their resources to motoring offences such as drink-drinking and...Stephen Ward cruises round law firms and finds them negotiating some tricky corners as they steer their resources to motoring offences such as drink-drinking and wheel-clampingIt's like a game of chess,' says Nicholas Freeman, a sole practitioner criminal law specialist solicitor in Manchester, who has unusually made a niche business by challenging the common assumption that motorists charged with traffic offences are bang-to-rights, and almost always best served by pleading guilty.

Road traffic cases make up about a third of his work-load, much more than for most criminal defence solicitors.

These legal arguments on behalf of motorists often invoke human rights and the constitution.

When a car is caught on a speed camera, owners are obliged under the Road Traffic Act 1988 to say who was driving at the time.

Several motorists have claimed that this was a breach of article 6 of the Human Rights Convention, the right to a fair hearing.

The highest criminal court in Scotland upheld this, but with similar cases waiting to be heard in England and Wales, three months ago the judicial committee of the Privy Council overturned the ruling, closing the loophole.

Clive Lambert, a partner at London firm Whitelock & Storr, is contemplating seeking a judicial review of a type of breath-test machine, the Intoximeter EC/IR, which he says cannot distinguish between alcohol on the breath caused by drinking, and that caused by non-intoxicating alcohol such as mouthwashes.

Driving cases have become Mr Freeman's speciality, although he says he approaches it in the same way as other criminal cases - reading up on the law and looking for weaknesses and loopholes in the prosecution's argument.

He says motoring cases are usually argued more on points of law than on evidence.

He left medium-sized London firm Burton Copeland to set up on his own two years ago, and employs six retired police officers.

His technique is to make the prosecution prove its case, so he questions every aspect of procedure.

Many of his defences he describes as 'trade secrets' and declines to disclose them on the basis that they would be copied by other solicitors, and precautions might be taken by prosecutors to stop those defences being used in future.

He is also reluctant to reveal his success rate, which may be adversely affected by the fact that he often takes cases considered hopeless by others.

Mr Freeman says the defendants in motoring cases are different from the normal criminal clientele.'They are white-collar businessmen or sportsmen, usually pleasant to deal with.

They often have a good reason why they particularly don't want to be convicted.' His clients in the past have included the England football captain David Beckham, for whom he argued duress - that the paparazzi chasing his car were causing him to drive in a way which would create a risk of serious injury.

The judge accepted that he was being chased in such a way as to make him likely to crash, but did not accept there was a risk of serious injury from a crash at 50mph.

He then successfully pleaded in mitigation that Beckham had been facing an emergency, so should not lose his licence.

'He had made three 999 calls before he was stopped, so it wasn't just a defence he had made up to get himself off,' Mr Freeman says.

He also successfully defended a man who had been stopped drink-driving on the motorway, and had no idea where he was.

Mr Freeman pleaded a defence of being in an automaton state.

The defendant had been assaulted and drugged, and was acquitted.

In another case, Mr Freeman used the defence of coercion from section 47 of

the Criminal Justice Act 1925 to gain an acquittal on a drink-drive charge for a woman who had been forced to drive her car by her violent husband.

She was able to demonstrate recent assaults by her husband before and since the incident.'It hasn't been appealed,' he says.

'We're waiting to see what Parliament does, because it only applies to husbands, not other forms of similar coercion such as boyfriends on girlfriends, which are logically the same.' Traffic cases have always involved argument about the quality of the road as much as the proficiency of the driver.

At dawn on a frosty November morning in 1991, Geoffrey Goodes was driving his Ford Capri on the A267 near Mayfield in Sussex.

As he moved out to overtake on a straight stretch of road, a rear wheel skidded on a patch of black ice.

He lost control, the car crashed into the parapet of a bridge, and he suffered dreadful injuries.

Today, he is now almost entirely paralysed.

Mr Goodes claimed damages against East Sussex County Council on the grounds that it was in breach of its statutory duty under the Highways Act 1980 to spread salt and grit on the road as part of its duty to 'maintain the highway'.Last year, the Lords finally ruled that local authorities have no duty to put down salt or grit.

Melanie Richens, a partner with Thring Townsend in Swindon, who represents Mr Goodes, is hoping an appeal to the European Court of Human Rights will be heard before this autumn.

She says most personal injury lawyers have experience of road traffic work.

Roads and cars are the biggest causes of accidents in the UK.

'PI specialists tend to become expert in the relevant area of traffic law to the case they are doing,' she says.

According to Frances McCarthy, president of the Association of Personal Injury Lawyers, the Woolf reforms to civil justice are having a largely beneficial effect on motoring cases.

'The pre-action protocol is working well, and on the whole, speeding up cases,' she says.

The new provision for claimants to make an offer to settle, which brings to the defence the threat of extra costs and extra interest payments if the case is won by the claimant, are also having an effect.

'It seems to concentrate the minds of the insurance company, who at least start talking to us,' she says.

Against those benefits, Ms McCarthy, a partner in the London firm Pattinson & Brewer, mentions the way in which the removal of legal aid for personal injury claims last year is going to restrict access to justice for motoring accident victims, who have only a 50-50 chance of winning.

'There is a limit to the number of those we can take on conditional fee agreements,' she says.

'They are expensive because the ones you lose [for which you do not get paid] almost always go to court, while the ones you win [for which you may get an uplift in fees] usually settle, so the fees are less.' For all the road traffic issues that exercise lawyers, the one that most antagonises motorists is one which is not life-and-limb threatening, however much it might be irritating to the victim: it is parking and wheel-clamping, where the levels of fines are too low to justify contesting most cases.

In Scottish law, clamping on private land is outlawed.

In 1997, the Court of Appeal ruled that wheel-clamping on private land was lawful in England and Wales, provided the cost was reasonable, and warnings were displayed.

Mike Watkins, the Automobile Association's (AA) head of legal services, has probably spent as much time over the past decade fighting wheel-clamping and other parking cases as anything else.

His colleague Paul Watters, head of roads and transport policy, says the AA is still waiting for legislation promised by the government to regulate private wheel-clampers.'People who fall victim to what often amounts to extortion from cowboy clampers deserve laws to protect them,' he says.But whether cars are clamped to one spot or skidding all over the place, there is no doubt that traffic lawyers are motoring.Stephen Ward is a freelance journalist