God Speed?

Speedy Anwar

Motoring offences and the accompanying ingenious excuses provide good press fodder and a thriving industry for lawyers none more so than Nick Freeman, dubbed “Mr. Loophole” in the British Press who has built up an impressive Casebook of celebrities over the years and indeed extended case law by providing a number of novel grounds for defending prosecutions under the Road Traffic Act.

It was scary, innit?
In 1999 David Beckham was charged with speeding in his Ferrari. Freeman argued that at the time he was being chased by paparazzi and was forced to drive with excessive speed to avoid death or injury. He lost the case at the magistrates’ court but took it to the crown court. The judge upheld the guilty verdict but because of the circumstances revoked the three penalty points that had been imposed.

“Duress of circumstance can be used in many situations,” says Freeman. “You could be driving on a motorway and someone is driving too close to you; you might be afraid of being carjacked; another driver might be driving like an idiot. The law enables you to put distance between you and them. You can’t deny your driving but you can put forward a reason for it.”


Mr. Loophole

A good run?
Sir Alex Ferguson was charged with driving on the hard shoulder of a motorway — an offence that carries a three-point penalty. Freeman successfully argued that the Manchester United manager had been suffering from diarrhoea and needed to be able to leave the car quickly.
“I said to the court that he had two choices, one of which was particularly unpalatable,” says Freeman. “Once that is raised, the prosecution has to prove beyond reasonable doubt that it is not true. The key point with this defence is that you can only argue it if you felt unwell only after you had first joined that particular road and not on the journey as a whole.

“Many conditions are a valid argument for this defence as long as you perceive it subjectively to be an emergency at the time. The defence can also cover things such as dangerous driving.”


Nowhere to run?

A wee problem
Ronnie O’Sullivan, the former world snooker champion, was charged with failure to provide a urine sample for laboratory analysis. Freeman successfully argued that because O’Sullivan had been suffering from depression he was medically unable to do so.

“The newspaper headline was, ‘Too stressed to wee’, but there was a medical reason why he couldn’t. From a legal perspective I don’t have to prove this was true, I have to raise it as an issue,” says Freeman. “Once we raise it — with expert medical evidence — the prosecution have to disprove it with medical evidence.”

I wuz scared!
Ashley Fitton was breathalysed after an evening out with her husband and found to be over the limit. Freeman argued that the former model had been coerced into driving by her husband, who had a history of violence and abuse. “Legally you cannot be found guilty if you have been forced into doing something. The key point is that there has to be a real threat of violence,” says Freeman.

You talking to me?
Failing to prove the accused was behind the wheel is one of Freeman’s most successful tactics. He used it in the case of golfer Colin Montgomerie, who had been caught speeding after a night out.

“In court the policeman didn’t identify the accused, he referred to a Mr Montgomerie, but that could have been anyone. There was no date of birth given, no address given and no dock identification,” says Freeman. This sort of mistake by the prosecution is more of a technicality but it is more common than you think. You should always be identified with name, date of birth, address and ideally a visual ID.”

Scaring Horses?
In Ireland I remember particularly fondly the case of a motorist (who happened to be a Barrister) who was found by the Gardai slumped over the wheel of his car in a field having ploughed off the road through a fence and when tested was three times over the drink drive limit. His defence was that, as he was discovered on private property, there was no evidence that he was driving when drunk in a “public place”. Amazingly he won his case in the lower court and the State appealed it to the Circuit Court in Ireland where it was heard by the venerable President of the Court; Mr Justice O’hUdaigh. I knew O’hUdaigh professionally and he was a small man with a shrill voice which often led people to underestimate him at their peril for he had one of the sharpest legal brains around and when he presided, his skewering of barristers provided an entertaining spectator sport.


He was also a horse owner who had owned a Derby winner. The appeal was going the way of the motorist until the State’s barrister played his trump card “M’lud, if you disallow this appeal it will provide carte blanche for every drunken motorist to drive recklessly on the public highway crashing their cars into field scaring and injuring people AND HORSES!” At the mention of the “H” word O’hUdaigh perked up and within minutes the appeal was allowed and the motorist found himself with a conviction.

So, when it comes to avoiding a ban for speeding, the courts hear every excuse in the book but yesterday (According to the report in the Daily Mail 10/04/2008) one motorist offered what must be a unique reason why he should keep his licence. Mohammed Anwar said a ban would make it difficult to commute between his two wives and fulfil his matrimonial duties. His lawyer told a Scottish court the Muslim restaurant owner has one wife in Motherwell and another in Glasgow - he is allowed up to four under his religion - and sleeps with them on alternate nights. He also needed his driving licence to run his restaurant in Falkirk, Stirlingshire.

Airdrie Sheriff Court had heard that Anwar was caught driving at 64mph in a 30mph zone in Glasgow, fast enough to qualify for instant disqualification. Anwar admitted the offence, but Sheriff John C. Morris accepted his plea not to be banned and allowed him to keep his licence. Instead, he was fined £200 and given six penalty points. Lorna Jackson, from the road safety charity Brake, called the decision "astonishing".

She said: "Regardless of the number of wives or businesses this man drives to, he broke a law which is there to protect everyone. Travelling just a few miles over the limit in a 30mph zone can be the difference between life and death if you hit someone, let alone driving at more than twice the speed limit. Drivers know the law, and they know the punishment they could face when they break it. For the courts to allow someone to keep their licence when they have so blatantly flouted the law and put peoples' lives at risk, on the basis of an excuse such as this, is astonishing."

Anwar, had made no comment during his five-minute court appearance, apart from confirming his identity. But last night, speaking from his restaurant Sanam, he said: "It is true I have two wives. Muslim men are allowed up to four. But I am not a religious leader and it is not my place to comment. As a matter of respect to my wives I would not comment on my home life. The sheriff did not ban me because I need my licence to run my business, although my wives were also part of the decision."


Curry in a Hurry?

The court had heard that Anwar was on his way home from Falkirk to his Glasgow wife on August 21, 2007, when he was caught by city police using a hand-held speed camera. His lawyer, Paul Nicolson, said: "He realises his licence is at risk, but this is an unusual case and is very anxious to keep his driving licence.

"He has one wife in Motherwell and another in Glasgow and sleeps with one, one night and stays with the other the next on an alternate basis. Without his driving licence he would be unable to do this on a regular basis. He is also a restaurant owner and has a restaurant in Falkirk, which he has had for the past 30 years. He has had a clean driving licence until now, and on this particular evening was on his way home after a busy evening at his restaurant."

Well bully for Anwar and all those people who have lost their jobs because they have lost their licence when they tripped revenue raising speed cameras but didn’t have slick lawyers to argue their dubious cases will not resent his victory in the slightest. It is a strange precedent as polygamy is expressly forbidden in British Law and Bigamy is an indictable offence but seemingly being married to multiple spouses (at the same time!) can be used as a basis for obtaining Council housing, benefits and here as a valid mitigation in a motoring case. There appears to be very little Common Law on this issue these days.

Sheriff John C. Morris at Airdrie Sheriff Court would have served the Law and victims of speeding drivers better if he had reminded Mohammed Anwar of the saying of his namesake Muhammad (peace be upon him) in the Hadith “Trust in Allah, but tie up your camel” and then proceeded in short order to suspend his licence.