An Eastenders actor has successfully appealed a driving disqualification imposed under the totting up rule.
Jamie Borthwick, 27, of Romford, East London, was convicted of speeding at Romford Magistrates' Court on Monday, 31st January 2022.
Borthwick, who plays Jay Brown in the popular BBC continuing drama, admitted the offence and was dealt with via the Single Justice Procedure.
His Mercedes was clocked at 52 mph in a 30 mph zone in May 2021. The offence took place on a dual carriageway not far from his home.
At the time the May offence was dealt with Borthwick already had 6 penalty points on his licence in relation to two other speeding offences.
The Justice dealing with the case at the end of January decided to impose a fine and a further 6 penalty points, which resulted in Borthwick's disqualification for a minimum of 6 months under the totting up rule.
Such a penalty was perfectly legal and within guidelines, which are shown in the table below.
Clearly dissatisfied with the penalty imposed, Borthwick elected to appeal it at the Crown Court.
The appeal was heard at Croydon Nightingale Court on Thursday, 3rd March 2022.
Alex Owen, representing Borthwick, told the court: "The circumstances of this offence are the road is a dual carriageway which isn't signposted at 30 mph limit but of course the presence of street lights indicates that. He was unaware of that at the time, he was wrongly under the impression it was a 50 mph limit. It took place in the mid-afternoon and it was relatively quiet at the time. No danger was caused."
Ms Owen added: "Mr Borthwick is working at the moment. He is currently paying for himself to arrange transport to and from work at a considerable cost to himself. Having spoken to him this morning he tells me both his great uncle and great uncle's wife - the closest thing he has to grandparents - are both ill.
"They are both 75. His uncle's wife has around four hospital appointments a week mostly in London - too far for them to travel. His great uncle is waiting for an operation to his knee, having been a labourer for most of his life.
"He is driving to appointments and has been told by his doctor he should not be driving. His family and two sisters are all working full time or in education. They have been managing for the past month with the great uncle's driving getting worse."
Ms Owen indicated that the Magistrates could have imposed 5 penalty points instead of 6, which would have spared her client a totting disqualification (although is outside the guidelines, as you can see in the earlier table). Either that or a discretionary disqualification of up to 56 days could have been imposed instead of the 6 penalty points.
She said: "It was a reading of 52 mph, if it had been a reading of 50 mph it could have been given four to six points, so there's a possibility five points could have been given to him. That would allow the points to stay on his licence so if there's any further offending he has that hanging over him, but he would be allowed to carry on driving for the time being."
The appeal was heard by Mr Recorder Richard Thomas and Olive Murray JP. As discussed in our earlier article on Crown Court appeals, each member of the appeal bench - be that professional or lay Judiciary - has an equal voice in the decision making process.
Announcing the court's decision, Mr Recorder Thomas said: "The effect of the imposition of the six penalty points was that he had 12 points on his licence."
"He had two previous convictions, one from 2018 which was three points and another from July 2021 which post-dated the incident but was on his licence by the time of conviction and sentence.
"What he asks us to do is exercise our discretion, taking into account mitigation and either impose five points or disqualify him up to 56 days.
"With some degree of ambivalence and having carefully thought about it we are just about prepared to replace his points with a disqualification of 56 days. And so the sentence will be exactly the same as in the Magistrates Court except the sentence of six points will be amended to disqualification of 56 days."
The Recorder concluded: "Mr Borthwick, stop speeding."
Reading the Recorder's comments, I would suggest that opinion has been divided and court has taken the pragmatic approach in the circumstances - e.g. to begrudgingly reach agreement, wrap matters up and save the time, inconvenience and public expense of a second appeal hearing in the event of a split decision.
I have to say that reading the circumstances as reported I would have been of the opinion to dismiss the appeal - e.g. to let the original penalty of 6 points and resulting totting disqualification stand.
I say that because the whole point of a totting disqualification is to punish drivers who regularly commit minor transgressions on the road. In my opinion, which people are perfectly welcome to disagree with, committing three speeding offences within the space of three years would fit that criteria.
The guidelines are also quite clear that 6 points is an appropriate penalty for 52 mph in a 30 mph zone. Sure, we can split hairs and argue that Borthwick's offence was "only just" in that top band, but the line has to be drawn somewhere.
If he didn't realise the road he was on was a 30 mph limit then he should have done, given that it was near to his home and presumably he drives on it quite frequently.
The argument that Borthwick is having to fork out a fortune on public transport doesn't really hold weight with me. There are many people in far less fortunate positions who have to spend a fortune and get out of bed at unsociable hours in order to take public transport to work.
Much as I commend Borthwick's efforts to ferry his distant relatives to and from hospital, Ms Owen acknowledges that "they have been managing" to get there. It is also true to say that there are many alternative means of getting to hospital appointments in London - NHS transport for one - we're not talking the Western Isles of Scotland here.
Finally, despite knowing fine well that this speeding offence was hanging over his head Borthwick was caught speeding again only two months later.
I would conclude by saying that Borthwick has been very fortunate indeed. The appeal decision could have easily gone the other way.
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