apparent video evidence on mobile phone |
apparent video evidence on mobile phone |
Mon, 22 Jul 2019 - 17:11
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#1
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New Member Group: Members Posts: 2 Joined: 22 Jul 2019 Member No.: 104,902 |
A cyclist decided to peer in every car window as we were in stand still traffic and has sent through a video of me holding an object in both hands.
This is apparently enough evidence for it to be perceived to be a mobile phone. The video which i have been sent a link to is very poor quality and its not clear at all what the object is. I have attached a picture. |
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Mon, 22 Jul 2019 - 17:11
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Mon, 22 Jul 2019 - 17:23
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#2
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
So what was the object in question? Because if it goes to court, I imagine this is a question that is likely to come up.
-------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mon, 22 Jul 2019 - 17:40
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#3
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Member Group: Members Posts: 41,508 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
What stage are you at? Named the driver?
-------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Mon, 22 Jul 2019 - 18:39
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#4
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Member Group: Life Member Posts: 24,213 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
Cool story bro
-------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Mon, 22 Jul 2019 - 18:56
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#5
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Member Group: Members Posts: 56,198 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
Looks like Operation Snap.
I would say a court will almost certainly accept that is a mobile phone unless you can shed reasonable doubt, can you do that without committing perjury? -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Mon, 22 Jul 2019 - 20:55
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#6
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Member Group: Members Posts: 6,723 Joined: 3 Apr 2006 From: North Hampshire Member No.: 5,183 |
The video on their site may have been compressed, there might very well be a much better quality one. Do you feel lucky punk?
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Tue, 23 Jul 2019 - 00:17
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#7
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Member Group: Members Posts: 13,572 Joined: 28 Mar 2010 Member No.: 36,528 |
If the video is of that quality and is the only evidence of mobile phone use, it hardly proves mobile phone use beyond reasonable doubt, but if the cyclist comes to court and gives evidence that he saw mobile phone use and backs it up with the video, that is another matter entirely.
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Tue, 23 Jul 2019 - 07:16
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#8
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New Member Group: Members Posts: 2 Joined: 22 Jul 2019 Member No.: 104,902 |
is plugging a phone into a charger an offence?
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Tue, 23 Jul 2019 - 07:31
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#9
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Member Group: Members Posts: 41,508 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
I would say that fails to meet half of 'a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function'.
This post has been edited by Jlc: Tue, 23 Jul 2019 - 07:32 -------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Tue, 23 Jul 2019 - 07:37
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#10
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Member Group: Members Posts: 78 Joined: 26 Jun 2019 Member No.: 104,487 |
is plugging a phone into a charger an offence? The approach that seems to be taken is that if you handle a mobile it is use, and use is illegal. For what it’s worth, even in those grainy photos the hand position (and particularly thumbs) aren’t what I would expect to see had you been plugging in a charger. |
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Tue, 23 Jul 2019 - 08:00
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#11
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Member Group: Members Posts: 162 Joined: 16 Jun 2019 Member No.: 104,319 |
my iphone8 is also my satnav. Would taking it from a trouser pocket and plugging a cable in and then inserting it in the handsfree holder (all whilst waiting in stationary traffic), constitute an offence?
Mike |
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Tue, 23 Jul 2019 - 08:41
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#12
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
I would say that fails to meet half of 'a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function'. Isn’t that the definition of hand held? -------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Tue, 23 Jul 2019 - 08:42
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#13
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Member Group: Members Posts: 3,300 Joined: 17 Jun 2011 Member No.: 47,602 |
I would say that fails to meet half of 'a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function'. But that clause is intended to define the device, not the offence. |
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Tue, 23 Jul 2019 - 09:44
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#14
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Member Group: Members Posts: 41,508 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
Fair point - what is clear is the device is within scope and was in the hand. Being stationary in a queue doesn't provide a defence.
So it's the 'use' part that is key, CPS guidance says: QUOTE “Use” A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not. The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand-held by the person at some point during its use at a time when the person was driving a vehicle on a road. Plugging it in to charge whilst stationary seems harsh to me but a court may convict. (Glancing at the time on it would likely be considered 'use') This post has been edited by Jlc: Tue, 23 Jul 2019 - 09:46 -------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Tue, 23 Jul 2019 - 10:33
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#15
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Member Group: Life Member Posts: 24,213 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
Being stationary in a queue doesn't provide a defence. In your opinion. It is far from certain that the danger posed from drivers stationary in traffic/at traffic lights/etc. being distracted is part of the mischief that Parliament intended to punish with a mandatory 6 point endorsement, or whether such a restriction on the right to give and receive information would be justified. Whilst it would seem to be prudent to advise people not to do anything which might conceivably be described as 'driving' whilst doing anything that might conceivably be described as using a hand held mobile phone, it would seem to be rash to advise somebody seemingly 'caught' to simply take the 6 points without trying a defence, unless and until the law is clarified in the way you suggest. -------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Tue, 23 Jul 2019 - 10:44
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#16
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Member Group: Members Posts: 41,508 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
Ok, I could have phrased it better - in isolation, simply being stationary in itself isn't a definitive defence. The CPS link (perhaps not totally 'impartial') from earlier has a section on being stationary. Perhaps the CPS won't prosecute anyway but that's far from certain.
I actually think this is worth challenging as I too think this isn't the behaviour that Parliament meant to punish. Sadly, a fight to a higher court might be involved. No one has mentioned it yet but presuming this is England/Wales then prosecution costs come into play should the case be lost. But with 6 points on the line it may be a fight worth having. The CPS list a contested trial at £620. There's also the fine itself and surcharge. This post has been edited by Jlc: Tue, 23 Jul 2019 - 10:46 -------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Tue, 23 Jul 2019 - 11:41
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#17
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Member Group: Members Posts: 56,198 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
For the offence to be complete the driver has to be driving, it’s for a court to decide whether or not under the circumstances the driver was driving at the time or not.
There is no requirement in the legislation to show a danger was caused. -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Tue, 23 Jul 2019 - 14:02
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#18
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
For the offence to be complete the driver has to be driving, it’s for a court to decide whether or not under the circumstances the driver was driving at the time or not. This is correct, and there's been cases where it's been held that being stationary in traffic does constitute driving. My view is that if you're in a queue of traffic with the engine running, a court would almost certainly say this constitutes driving for the purposes of the legislation. I think it would be a massive risk to challenge this not least because the magistrates' courts don't generally get bogged down in detailed legal arguments and the likelihood is they'd convict, which means any detailed legal arguments would need to be taken on appeal to a higher court. As this would be a pure point of law, an appeal by way of case stated to the HC would seem the most appropriate route. This is not something I would ever recommend unless the OP sees this as a matter of principle and if money is no object; even then I think it would be a bad idea and the OP would likely lose. -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Tue, 23 Jul 2019 - 14:08
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#19
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Member Group: Members Posts: 56,198 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
I agree, in a ‘shuffling queue’ being more likely to be considered ‘driving’ than in a stationary queue for a traffic light, to being engine off in a huge traffic jam for hours..... the court decides.
-------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Tue, 23 Jul 2019 - 17:10
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#20
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
I agree, in a ‘shuffling queue’ being more likely to be considered ‘driving’ than in a stationary queue for a traffic light, to being engine off in a huge traffic jam for hours..... the court decides.
The briefing notes to Parliament made very clear that a shuffling queue would be driving for the purposes of this legislation Engine off in a traffic jam with no likelihood of movement for hours wouldn't be |
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