How can Mr Loophole defend David Beckham when he knows he is guilty?

David Beckham has been charged with speeding. According to his lawyer, Nick Freeman, who styles himself “Mr Loophole,” there is no dispute that he was driving a Bentley at 59 MPH on the Paddington flyover in west London, and that the relevant speed limit was 40 MPH. Beckham’s defence is the highly technical one that a Notice of Intended Prosecution (a legal requirement for a successful conviction) was served outside the 14 day period that the law requires.

Mr Freeman lives in the Cheshire Golden Triangle where many of his neighbours are footballers and their WAGS, including at one time the Beckhams themselves (they now live in Holland Park). If he has been invited to the opulent dinner parties that are thrown around there, I expect he has become used to answering the question “how can you defend a man who you know is guilty?”

Most lawyers consider this question a predictable long hop, simply asking to be smashed to the boundary. 

“I don’t know he’s guilty. That’s the court’s job to decide, not mine. I just test the evidence as best I can, put his case as eloquently as I am able and then leave it to the magistrates or the jury to decide his guilt.”

As a general rule that seems to satisfy most people, and will have allowed Loophole to get back to enjoying the lobster or Chateaubriand or whatever it is that gets served at celebrity dinner parties.

“But what if they’ve told you they’re guilty and they want you to get them off anyway?”

This is a slightly trickier ball, but by no means unplayable.

“Ha ha! That hardly ever ever happens. If it does I usually tell them that they won’t be able to give evidence because I know they will be lying and I won’t be able to suggest the prosecution witnesses are wrong because I know they’re right, so they’ll almost certainly be convicted. Why fight a case when you are both guilty and virtually certain to lose? The upshot is that they usually decide to plead guilty. It’s virtually never an issue. Here, let me pour you another glass of this excellent 1947 Cheval Blanc.”

“Yes, but what if you told your client all that but he still insisted on pleading not guilty?”

“Well, I would do my best to test the prosecution evidence and ensure that he was only convicted on admissible evidence. Good gracious, isn’t that a wonderful display of Shenzhen Nongke orchids, wonderful how Victoria’s gardeners always manage to get them to bloom in January.”

In this case, not only has Mr Beckham told Mr Freeman that he is guilty, but Mr Freeman has already told the court that Beckham is guilty: he accepts that he was the driver and accepts that he was breaking the speed limit. This really is one of those rare cases in which a lawyer is trying to secure the acquittal of a man whom he knows to be guilty. To that end he has done what he is paid – no doubt a generous amount – to do. He has found what he, and many others, would call a loophole.

There is some disagreement over whether this loophole is correctly to be described as a technicality, or even, for that matter, a loophole. Andrew Keogh, the knowledgeable and helpful barrister who runs the invaluable Crimeline, thinks not: “Proper service of proceedings is not a technicality, it is a fundamental safeguard in law.” In the other camp is the equally authoritative Blackstones Criminal Practice, edited by Professor David Ormerod the law commissioner and as of yesterday deputy High Court Judge (and, incidentally, now cruising like a 2018 Bentley Continental GT Coupe, just within the speed limit, towards the Court of Appeal bench), says, with a note of distaste so faint as to be almost undetectable “the question of service [of a Notice of Intended Prosecution] is a highly technical point.”

As usual when brilliant legal minds disagree I find myself agreeing with whoever spoke last, and I don’t want to get bogged down in an argument about whether a “highly technical point” is the same as a “technicality,” or whether a loophole is the same as the slightly more respectable-sounding “lacuna.” Perhaps they would both agree that even if it is a technicality it is not what technicalities all too often turn out to be in practice: “mere technicalities.” This is is an important one.

To understand why, I am afraid we need to get bogged down in an examination of the law that Mr Loophole knows his way around so well.

S.1 of the Road Traffic Offenders Act 1988 provides that “a person shall not be convicted of an offence to which this section applies” (and speeding is such an offence, along with lots of other driving offences including dangerous and careless driving) unless:

(c) within 14 days of the commission of the offence a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was …

(ii) … served on him or on the person, if any, registered as the keeper of the vehicle at the time of the commission of the offence.

(In case you have been charged with a driving offence and you think this offers you an easy way out, beware: there are plenty of exceptions when service of an NIP is not necessary, most importantly if you have been involved in an accident. It seems to be common ground that none of these exceptions applies to Mr Beckham, so for the prosecution to succeed a NIP needed to be properly served.)

The rationale of the rule (which has been part of road traffic law for many years) was explained by Donaldson LJ in Gibson v. Dalton [1980] RTR 410:

“… motorists are entitled to have it brought to their attention at a relatively early stage that there is likely to be a prosecution in order that they may recall, and, it may be, record the facts as they occurred at the time.”

Offending drivers typically face points on their licence, an annoying fine and perhaps a disqualification. Sometimes – though not very often – they might even be sent to prison. Clearly it’s unfair to expect them to remember what happened three weeks earlier. Oddly, the law is far more relaxed about people having to remember the details surrounding non-motoring crimes they have, or more trickily haven’t, committed forty, fifty or sixty years ago. But let’s not digress.

Actually, now I think about it, let’s digress a little bit more: in many instances documents can be served late, court orders ignored or evidence served at the last minute and judges will simply grumble a bit before announcing that the rule that has been breached is “procedural” not mandatory, which means everyone can essentially shrug their shoulders and get on as though nothing much has happened. But because of the unambiguous way the statute is worded, a NIP is not like that. “A person shall not be convicted ….” No service within 14 days, no conviction.

In this case, it seems that the notice was not served on Mr Beckham himself but on Bentley who had generously lent him the car. As Bentley was presumably the “registered keeper” service of the notice on the Company would suffice, as long as it was done “within 14 days of the commission of the offence.”

The offence took place on January 23^rd 2018, so the NIP had to be served by February 6^th. In fact, although it was dated February 2^nd, according to Mr Freeman it was not received by Bentley until February 7^th, that is 15 days after the offence.

Apparently the letter carried a “received” stamp dated 7^th February. Simon Maughan, the prosecutor, told the Court:

“I’m accepting of the letter, accepting of the date on the letter, I’m accepting that the seventh has been stamped on the letter. There can be no issue with the date on the letter.”

Although, unusually, this is an issue on which the burden of proof is on the defence rather than the prosecution, Mr Maughan’s concessions suggest that the Prosecution may have a problem. If the NIP was sent by ordinary first class post, the rule is that it is deemed to have been served on the second day after posting, but that presumption can be rebutted by evidence that it was not in fact received within 14 days: see Gidden v. Chief Constable of Humberside [2009] EWHC 2924 (Admin). Unless there is something wrong with Bentley’s office procedure, the date stamp of 7^th February may well get Beckham off the hook. On the other hand, if the Notice was sent by registered or recorded delivery rather than by first class post the prosecution can rely on S.1 (2). In that case it is deemed to have been served:

“… notwithstanding that the notice was returned undelivered or was for any other reason not received by him.”

Did someone say that the law was consistent?

Back to Mr Freeman. Is he doing anything wrong by using this rather strange law to get his client out of trouble?

Certainly he is doing nothing professionally improper by advising Mr Beckham of a defence that may be available to him. Indeed, it would be professional misconduct not to tell Mr Beckham about it, once he had noticed it, and although I certainly don’t want to belittle Mr Freeman’s forensic skills, checking that the Notice of Intended Prosecution had been served within 14 days would be something that any reasonably competent criminal solicitor would do.

Nor is there anything immoral or improper about running such a technical defence, if that is what the client demands. It is not for lawyers to pick and choose which laws to apply. And there is a bigger point here: it is by constantly testing and arguing the limits of individual laws that the rule of law is upheld. Law consists of innumerable “technicalities” many of which taken individually may seem pointless, unnecessary, arbitrary, badly worded, inconsistent or plain daft. There’s at least an arguable case for saying the law on NIPs is all six of those things. But the rule of law, upon which, it is worth remembering, civilised life depends, means that laws passed by Parliament must be followed by the courts. If you give the matter a moment’s thought, a country in which lawyers and the courts could pick and choose which laws they wanted to obey and which to disregard would be chaotic at best, and tyrannical at worst. For good or ill, Parliament has long since decided that motorists should receive these notices, and decided also the manner in which they should be served. As with any other law, it is there to be followed by lawyers and enforced by the courts, until Parliament decides differently.

This does not mean that every minor breach of the criminal law should be prosecuted, or that there is no room for discretion or common sense in its application. Nor does it mean that in certain circumstances it cannot be morally right to disobey a bad law. And we certainly don’t have to find anything very attractive about a stupendously rich man paying a very rich man vast sums of money to get off a minor traffic offence of which he is unquestionably guilty. It looks uncomfortably like someone using his wealth to avoid just punishment.

But despite this, there is no shame in a lawyer honestly using the law to protect his client from the consequences of his crimes. It is far more important that there is confidence in the rule of law than that every criminal should inevitably be punished. It may sound almost absurd to talk about tyranny in the context of a speeding offence, but the law has sometimes proved a better protection against tyranny than democracy itself.

So whatever your view of Mr Freeman, he is not wrong to try to exploit a technicality, if that is what it is, on his client’s behalf.

I am not quite so sure, though, about Mr Beckham’s behaviour. Even considered from a purely financial point of view quite why he doesn’t just put his hands up and pay the fine is a bit of a mystery. It would probably be far cheaper than paying Mr Freeman’s fees. Perhaps he already has 9 points on his licence and doesn’t want to be banned from driving after acquiring another three. Even so, would it not be more creditable if, having accepted his guilt, he simply apologised and took his fairly minor punishment on the chin? No-one would think any the worse of him for having exceeded the speed limit. Some, on the other hand, might feel that by contesting a case where he is so clearly in the wrong he has, in a small way, diminished his reputation.