D

Jump to definitions:

Damages
Dangerous driving
Defamation
Default Sentence
Defence (Civil)
Defence [Criminal] / Defence Case Statement
Defendant
Diminished responsibility
Discharged
Discontinuance
District Judge (Criminal)
Double Jeopardy
Drink driving / Driving with excess alcohol
Driver Rehabilitation Course
Driving disqualification
Driving whilst disqualified
Driving whilst unfit through drink or drugs
Driving with no insurance
Driving without due care and attention
Drug Trafficking
Duress

Damages

Damages is the term used to describe compensation or indemnity claimed for a loss suffered by an individual as a result of a civil wrong (a "tort"), a breach of contract or breach of statutory duty.

The level of damages awarded is termed "quantum". This will depend on a number of different factors, including whether what that claimant is seeking damages for is recoverable as a matter of law and/or the factual circumstances of the case.

Often parties agree on liability, but cannot agree on quantum.

Dangerous driving

Dangerous is an either-way motoring offence that results in a custodial sentence being imposed. Disqualification is mandatory.

Dangerous driving is made out if the way a driver is driving falls far below the minimum acceptable standard expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

Examples of where dangerous driving may be alleged include racing, ignoring road signs, aggressive driving/overtaking, driving when unfit, driving when a vehicle has a dangerous fault/unsafe load.

It is not necessary for the prosecution to prove that the defendant intended to drive in such away or was reckless as to whether they drove in such a way; it will be sufficient to show that (on an objective basis) the driving was far below the necessary standard and it was obviously dangerous, thus negligence/inexperience could result in a conviction.

If the dangerous driving resulted in a death then a defendant is likely to be charged with causing death by dangerous driving.

For less serious matters, the more appropriate offence may be driving without due care and attention. This offence is committed simply when the defendant's driving falls below the standard expected of a reasonable, prudent and competent driver in all the circumstances of the case.

Defamation

Defamation is an area of civil law. A defamatory statement is one that is likely to harm the reputation of a particular party. It will make the average person think less of a person or organisation. A defamatory statement must be made to at least one third party. There are two causes of action in defamation: libel and slander.

Slander is a defamatory statement that is made orally. Libel is a defamatory statement that is published, for example in a newspaper or on a website. Actions for slander are rare and (with some exceptions) it is necessary for the Claimant to prove they have suffered actual loss as a direct result of the damaging statement ("special damages"). This is opposed to libel where an award of general award can be made for damage to reputation ("general damages").

There are a number of defences to defamation claims, including "innocent dissemination", "qualified privilege", "fair comment" and "justification". Justification is by far the most common defence, where a Defendant will seek to show that the statement is true.

Default Sentence

The default sentence is the sentence a convicted defendant will have to serve if he fails to satisfy a confiscation order.

The length of a default sentence is determined by a judge in the Crown Court at the time the confiscation order is made. It will depend largely on the amount of the confiscation order.
If the defendant fails to pay the confiscation order within the prescribed time he/she is likely to become the subject of confiscation order enforcement proceedings in the magistrates' court which can trigger the default sentence.

A default sentence is served in addition to any sentence the defendant has received for the substantive offence. A default sentence will sometimes be for a longer period than any sentence received for the substantive offence, depending on the amount of the confiscation order.

The purpose of the default sentence is to compel the defendant into paying the confiscation order.

Serving a default sentence does not extinguish a defendant's liability to pay a confiscation order. However, once a default sentence is served a defendant cannot be subject to a further period of imprisonment in default.

Defence (Civil)

In the context of civil proceedings, the "Defence" document is a formal Statement of Case (pleading) that must be submitted within a certain time period (initially normally 14 days) of a claimant serving the Particulars of Claim. In the case of a regular "Part 7" claim, the defendant can request a further 14 days to file a Defence providing they file/serve an "Acknowledgment of Service" within 14 days of the date of service of the Particulars of Claim.

If the defendant fails to file/serve a Defence the claimant can apply for a judgment-in-default.
The Defence document must address the matters set out in the claimant's Particulars of Claim and establish a valid defence in law and on the facts.

If a Defence is too vague the claimant can make a Part 18 request for "further and better particulars".

If a Defence fails to establish a valid defence in law and on the facts a claimant may apply for summary judgment.

The term "Defence" is also used to describe the defendant and his legal team.

Defence [Criminal] / Defence Case Statement

In the context of criminal proceedings, a "Defence Case Statement" is a formal document that sets out the broad nature of the defendant's defence (position) and issues he/she takes with the prosecution's case.

Unlike a civil Defence document, the submission of a Defence Case Statement is not mandatory. However, if one is not filed/served it is possible for an adverse inference to be drawn if a defence is subsequently raised at trial. The defendant will also fail to benefit from what is known as "secondary disclosure"; where material in the prosecution's possession is reviewed in light of what is said in the Defence Case Statement for items that might support the defence or undermine the prosecution's case.

The term "defence" is also used to describe the general position of the defendant (e.g. "his defence to the rape allegation is that the complainant consented to sex") and a number of "positive defences", such as self-defence.

Finally, the term "defence" is also used to describe the defendant and his legal team.

Defendant

A defendant is the party required to answer a civil claim or a criminal prosecution. A defendant may be an individual or a company.

A case may involve a number of defendants.

Defendants will normally appear on the right hand-side of a case title, e.g. C -v- D, C -v- D1 and others.

A defendant may also be referred to as an appellant, applicant or "respondent" in the context of a linked appeal or application (depending on their role).

Diminished responsibility

Diminished responsibility is a partial defence to murder. It is called a partial defence as it if succeeds it results in the alternative verdict of manslaughter, rather than an acquittal.
Manslaughter is a less serious offence than murder and crucially does not carry a mandatory life sentence. In fact, whilst the maximum sentence is life imprisonment, there is no minimum sentence.

The defence of diminished responsibility applies where at the time of the offence the defendant suffered from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) that his/her mental responsibility for his acts/omissions (in relation to the killing) was substantially impaired.

An example of diminished responsibility might be that a defendant was suffering from a severe depressive episode at the time of the killing and this substantially impaired his/her mental responsibility.

The abnormality of mind has to substantially impair the defendant's mental responsibility for his/her acts or omissions, unlike insanity which is concerned with the inability to appreciate the nature and quality of the act.

Whilst medical evidence will almost certainly be relevant, diminished responsibility is not a medical diagnosis, it is a legal concept which ultimately only a jury can decide.

Discharged

A defendant is discharged in criminal proceedings when at a committal hearing the magistrates' court find there is no case to answer.

This is not an acquittal and if appropriate the prosecution may be reinitiated.

Discontinuance

In criminal proceedings, if the prosecution decides it does not wish to continue with the prosecution of an offence it will often do this by issuing a "Notice of Discontinuance". This is sent to the court and the defendant's solicitors.

Discontinuance is not an acquittal; it merely means that the prosecution does not intend on pursuing the matter. Technically, proceedings can be reinstituted at a later date.

Generally, a decision to terminate proceedings on the ground of public interest is final. It is only appropriate to re-institute proceedings terminated on public interest grounds in exceptional cases. However, when the decision has been taken on the basis of insufficient evidence, it is open to the prosecution to re-institute the proceedings if further evidence comes to light. This is comparatively rare.

Discontinuance automatically stops any bail conditions that apply to the terminated proceedings.

District Judge (Criminal)

In the context of criminal proceedings, District Judges are judges who hear the more complex/serious cases in the Magistrates' Court (previously known as Stipendiary Magistrates). They sit alone, although are often assisted by a court clerk.

In the context of civil proceedings, District Judges (Civil) hear cases in a county court.
District Judges will have previously practiced as a solicitor or barrister and a Deputy District Judge.

There are approximately 130 District Judges (criminal) in the English and Welsh jurisdiction. They are particularly prominent in London's Magistrates' Courts.

Double Jeopardy

"Double jeopardy" is the common law principle that an individual cannot be prosecuted twice for the same offence. In the past an acquittal has generally a bar to further prosecution for the same matter. However, recent changes in the law have eroded the double jeopardy principle and in certain circumstances (principally where compelling and fresh evidence has come to light) a defendant acquitted of certain serious offences can be retried.

Drink driving / Driving with excess alcohol

Driving with excess alcohol is a summary-only offence that can carry a custodial sentence.
The current limit is 35 micrograms of alcohol per 100 millilitres of breath (or 80 milligrams of alcohol per 100 millilitres of blood). This offence requires the use of mechanical equipment. The offence of driving whilst unfit through drink or drugs does not require technical evidence.

A defendant found guilty of driving with excess alcohol will face a mandatory driving disqualification for a period of at least a year. The period of disqualification may be reduced if the court offers the defendant the opportunity to take part in a driver rehabilitation course. The defendant must agree to attend such a course, pay for it and complete it. If successfully completed the defendant will be entitled to have their period of disqualification reduced by up to 25%.

The sentence and length of disqualification will depend on how far the defendant is over the limit, whether they have any previous convictions for the same offence and any other aggravating or mitigating factors.

The term "mandatory" is confusing as the court does have discretion not to impose a ban where it finds there are "special reasons" for not imposing a disqualification. For example, this may be when a defendant does not know they are over the limit and someone has "spiked" their drink or where they need to drive a critically injured person to hospital. The evidential threshold for special reasons is fairly high; were it not, anyone could escape a disqualification by saying "I must have been spiked". As the offence is one of strict liability, when pleading special reasons it is normal to enter a guilty plea and request a special reasons hearing at which the defendant must prove the reasons.

Unlike with the totting up of points, the court has no discretion not to impose a disqualification because of a defendant's circumstances and the effect the ban would have on their life (i.e. "exceptional hardship"). Likewise, unlike with some offences such as driving without care due and attention, the court cannot waive disqualification because of the mitigating circumstances of the offence.

Refusing to provide a specimen of breath is a separate offence, which is considered to be on at least on an equal footing as driving with excess alcohol. The logic for this is refusing to provide a specimen of breath is an obvious method of frustrating the enforcement of drink driving legislation.

Driver Rehabilitation Course

A defendant disqualified for driving with excess alcohol or drink driving offences may be able to reduce the period of disqualification if the court offers him/her the opportunity to take part in a driver rehabilitation course. The defendant must agree to attend such a course, pay for it and complete it. If successfully completed the defendant will be entitled up to have their period of disqualification reduced by up to 25%. The rate of reduction is determined by the court the time of sentencing/disqualification.

The Driver Rehabilitation Course is intended to be educational, dealing with problems relating to alcohol, drink driving and its effect on society.

Driving disqualification

Driving disqualifications are normally imposed in one of three ways:-

1. Following a conviction for an offence where disqualification is "mandatory" (such as driving with excess alcohol).
2. Following a conviction for an offence where disqualification is "discretionary" (such as speeding)
3. After having "totted up" 12 points for a number of offences (e.g. four fixed penalty notices from speed cameras each carrying an endorsement of three points).

The length of the disqualification will depend on the circumstances of the case.

Driving whilst disqualified is a serious offence which can result in a prison sentence.
A disqualification can be reduced in two ways:

1. In relation to a defendant convicted of a drink driving offence, if at the time of passing the disqualification the court offers the defendant the chance to undertake a driver rehabilitation course. The defendant must agree to attend such a course, pay for it and complete it. If successfully completed the defendant will be entitled up to have their period of disqualification reduced by up to 25%.
2. In relation to a defendant disqualified for more than two years, he/she may apply to the court after a certain period of time has passed for the disqualification to be lifted (the time at which an application may be made will depend on the length of the disqualification). He/she will need to show (a) no further road traffic offences have been committed during the period of disqualification and (b) that there is a good and adequate reason why the disqualification should be removed.

Driving whilst disqualified

The offence of driving whilst disqualified requires little explanation. The prosecution will only have to prove two facts:-

1. That the defendant was driving; and
2. That he/she was disqualified at the time.

Driving whilst disqualified is an offence of strict liability in that it doesn't matter whether a defendant wasn't aware he/she had been disqualified (which is possible if they were disqualified at previous court hearing which they didn't attend).

Driving whilst disqualified is taken seriously by the courts as the defendant is often seen as deliberately flouting a court order. As such, a conviction can result in a custodial sentence being passed.

Driving whilst unfit through drink or drugs

Driving whilst unfit through drink or drugs is a summary-only offence that can carry a custodial sentence.

Unlike driving with excess alcohol, there is no requirement to prove that the defendant has a certain level of alcohol or drug in his/her system. The prosecution will normally adduce the evidence of a Forensic Medical Examiner (a police doctor) to assert that defendant was unfit through drink or drugs. The prosecution will also have to prove the defendant was driving or attempting to drive a mechanically-propelled vehicle.

A defendant found guilty of driving whilst unfit through drink or drugs will face a mandatory driving disqualification for a period of at least a year. The period of disqualification may be reduced if the court offers the defendant the opportunity to take part in a driver rehabilitation course. The defendant must agree to attend such a course, pay for it and complete it. If successfully completed the defendant will be entitled up to have their period of disqualification reduced by up to 25%.

The sentence and length of disqualification will depend on how unfit the defendant was, whether they have any previous convictions for the same offence and any other aggravating or mitigating factors.

The term "mandatory" is confusing as the court does have discretion not to impose a ban where it finds there are "special reasons" for not imposing a disqualification. For example, this may be when a defendant does not know they are unfit through drugs because someone has "spiked" their drink with a drug or where they need to drive a critically injured person to hospital. The evidential threshold for special reasons is fairly high; were it not, anyone could escape a disqualification by saying "I must have been spiked". As the offence is one of strict liability, when pleading special reasons it is normal to enter a guilty plea and request a special reasons hearing at which the defendant must prove the reasons.

Unlike with the totting up of points, the court has no discretion not to impose a disqualification because of a defendant's circumstances and the effect the ban would have on their life (i.e. "exceptional hardship"). Likewise, unlike with some offences such as driving without care due and attention, the court cannot waive disqualification because of the mitigating circumstances of the

Driving with no insurance

Driving with no insurance is an offence committed when an individual uses (or permits to be used) a motor vehicle on a road or public place when third party insurance is not in force for such use.

A defendant convicted of driving with no insurance is liable to be fined and to have their driving licence endorsed with penalty points. The court also has discretion to disqualify the driver.

Driving with no insurance is often referred to as a strict liability offence. This is because a defendant will normally still be liable even if they did not realise they were not insured (e.g. their insurance policy had been cancelled, but they had not been notified or if they lend the car to someone who tells them, incorrectly, that they have their own insurance in place).

It should also be noted that the offence does not require the car to be driven, only to be "used". This could simply mean having the car parked on a public road.

Driving without due care and attention

Driving without due care and attention (or careless/inconsiderate driving) is a summary-only motoring offence. The maximum penalty on conviction is a fine. Penalty points may also be imposed and the court has discretion to disqualify the driver.

Driving without due care and attention is committed when the defendant's driving falls below the standard expected of a reasonable, prudent and competent driver in all the circumstances of the case.

Examples of where driving without due care and attention may be alleged include driving too close the vehicle in front, jumping a red light, changing a CD, undertaking, driving whilst reading a map, applying make-up, lighting a cigarette and pulling out in front of another vehicle.

It is not necessary for the prosecution to prove that the defendant intended to drive in such away or was reckless as to whether they drove in such a way; it will be sufficient to show that (on an objective basis) that the driving was below the necessary standard and thus negligence/inexperience could result in a conviction.

If the driving resulted in a death then a defendant may be charged with causing death by careless driving.

If the way a driver is driving falls far below the minimum acceptable standard expected of a competent and careful driver; and it would be obvious to a competent and careful driver that driving in that way would be dangerous then he/she may face the more serious allegation of dangerous driving (or causing death by dangerous driving).

Drug Trafficking

Drug trafficking is a term used to describe a number of offences relating to the distribution of drugs. The most common offences are:-

• Possession of a controlled drug with intent to supply
• Producing/supplying a controlled drug
• Importing/exporting a controlled drug

This list is not exhaustive and there are a number of other offences relating to drug trafficking.

The offence of "possession with intent to supply" is more common than "supplying"; this is because defendants are more likely to be caught with a quantity of drugs and paraphernalia (e.g. scales, bags and cash) rather than in the middle of a transaction. The "intention to supply" can be construed from the existence of paraphernalia and the quantity of the drugs.
In cases where a relatively small amount of drugs are found, defendants may claim simple possession (for personal use). Simple possession of drugs is a much less serious offence. However, individually wrapped drugs and paraphernalia may undermine this assertion.

Supply need not be on a commercial basis and therefore strictly speaking a defendant is drug trafficking if he/she passes someone a marijuana "joint".

The seriousness of the offence will depend primarily on:-

• The class of drugs (e.g. A: cocaine, heroin or crack, B: speed or marijuana)
• The quantity of drugs (taking into account the purity of the drugs)
• The role of the defendant in the supply and how near they are to the source.

A custodial sentence is inevitable in nearly all cases of drug trafficking. Significant custodial sentences are routinely imposed for large amounts (the maximum sentence being life imprisonment).

A defendant convicted of a drug trafficking offence is said to have a "criminal lifestyle" and the conviction can trigger a particularly draconian confiscation enquiry in which a defendant will have to prove the legitimacy of their income over a lengthy period of time.

Duress

In criminal proceedings, "duress" is a positive defence that can be advanced to any criminal allegation aside from murder or attempted murder.

When a defendant pleads duress he/she is essentially accepting that he/she may have committed a crime, but that he/she only did so because there had been a threat to kill or seriously harm him/her or another if he/she did not commit the crime. For example, where a bank manager is told that if he does not assist a bank robber in a robbery that a hostage will be shot.

For duress to be established the defendant will need to show that the threat of death or serious bodily harm is immediate and inescapable. For example, if the defendant was told he would be killed if he did not take part in a bank robbery a fortnight hence the defence is unlikely to succeed (the logic being he had the opportunity to report the matter to the police).

Duress is not a defence to murder or attempted murder and also will generally not succeed where the harm done by the defendant is greater than the level of harm threatened. The defence is also unlikely to succeed where a defendant is responsible in some way for having become involved in a situation.

The defence of duress is clearly open to abuse as if it succeeds a defendant will be acquitted of what will normally have been proved as being a crime. As such, the evidential threshold is fairly high and the defence is highly unlikely to succeed where a defendant cannot prove certain elements and, particularly, identify the party making the threat. This can pose a real problem as on the one hand the defendant may have fabricated the defence, whilst on the other hand there may have been a real threat, but the defendant is genuinely scared of identifying the maker(s) of the threat for fear of reprisals.

Where a threat is not immediate and the defence is not strictly made out, the defendant will normally still be able to raise relevant matters in mitigation. For example, "Yes I should have gone to the police, but I was scared and didn't want them involved".

Duress is also a term used in relation to contract law where a party is seeking to argue that a contract is invalid as he/she was coerced into entering into it.