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apparent video evidence on mobile phone
LOC
post Mon, 22 Jul 2019 - 17:11
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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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post Mon, 22 Jul 2019 - 17:11
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cp8759
post Mon, 22 Jul 2019 - 17:23
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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.


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Jlc
post Mon, 22 Jul 2019 - 17:40
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What stage are you at? Named the driver?


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andy_foster
post Mon, 22 Jul 2019 - 18:39
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Cool story bro


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The Rookie
post Mon, 22 Jul 2019 - 18:56
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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?


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BaggieBoy
post Mon, 22 Jul 2019 - 20:55
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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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Logician
post Tue, 23 Jul 2019 - 00:17
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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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LOC
post Tue, 23 Jul 2019 - 07:16
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is plugging a phone into a charger an offence?
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Jlc
post Tue, 23 Jul 2019 - 07:31
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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


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
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blackcross
post Tue, 23 Jul 2019 - 07:37
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QUOTE (LOC @ Tue, 23 Jul 2019 - 08:16) *
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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mike5100
post Tue, 23 Jul 2019 - 08:00
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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?
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southpaw82
post Tue, 23 Jul 2019 - 08:41
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QUOTE (Jlc @ Tue, 23 Jul 2019 - 08:31) *
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?


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666
post Tue, 23 Jul 2019 - 08:42
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QUOTE (Jlc @ Tue, 23 Jul 2019 - 08:31) *
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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Jlc
post Tue, 23 Jul 2019 - 09:44
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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


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PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
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andy_foster
post Tue, 23 Jul 2019 - 10:33
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QUOTE (Jlc @ Tue, 23 Jul 2019 - 10:44) *
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.


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Jlc
post Tue, 23 Jul 2019 - 10:44
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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


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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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The Rookie
post Tue, 23 Jul 2019 - 11:41
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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.


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cp8759
post Tue, 23 Jul 2019 - 14:02
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QUOTE (The Rookie @ Tue, 23 Jul 2019 - 12:41) *
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.


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The Rookie
post Tue, 23 Jul 2019 - 14:08
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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.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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Redivi
post Tue, 23 Jul 2019 - 17:10
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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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