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Mobile Phone Appeal
southpaw82
post Mon, 15 Apr 2019 - 16:56
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Make of this what you will, though it could confirm what some have been saying on here for years. Have to get hold of the judgment when it’s released.

This post has been edited by southpaw82: Mon, 15 Apr 2019 - 16:57


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post Mon, 15 Apr 2019 - 16:56
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DancingDad
post Mon, 15 Apr 2019 - 17:13
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I was just reading that one and thinking the same.
Certainly will be interesting to see the judgement.
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stamfordman
post Mon, 15 Apr 2019 - 18:31
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No doubt this is because lawmakers did not know about smartphones because they didn't exist in 2003.
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Redivi
post Mon, 15 Apr 2019 - 19:07
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Nick Freeman's Jimmy Carr defence finally ratified

Very good news for drivers using their phone as a satnav

Judging by the comments, Mail readers don't like loopholes

This post has been edited by Redivi: Mon, 15 Apr 2019 - 19:11
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666
post Mon, 15 Apr 2019 - 19:12
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QUOTE (Redivi @ Mon, 15 Apr 2019 - 20:07) *
Nick Freeman's Jimmy Carr defence finally ratified

Very good news for drivers using their phone as a satnav

Not yet. I’d like to think the High Court will read the actual legislation, and find that the driver was “using” the device.
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Redivi
post Tue, 16 Apr 2019 - 08:18
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It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

The minister who laid the Statutory Instrument didn't think to add an explanation what mischief it was intended to prevent

The briefing notes to Parliament however were clear that it concerned the distraction of the communications, not the handling of the device that can be dealt with as careless driving or not being in proper control of the evhicle
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666
post Tue, 16 Apr 2019 - 08:55
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QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

The courts can only deal with the cases that come before them. No-one has yet appealed to that level.
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The Rookie
post Tue, 16 Apr 2019 - 09:14
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Will be a very interesting one to follow, that's for sure.

I'm 50:50 on whether the HC will decide this was using within the meaning for the purposes of the statute or not.


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I am Weasel
post Tue, 16 Apr 2019 - 09:30
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I welcome the fact that somebody has won on appeal. The eventual decision by the High Court should "either close the loophole" or force parliament to amend the law to provide greater clarity.
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Redivi
post Tue, 16 Apr 2019 - 16:17
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QUOTE (666 @ Tue, 16 Apr 2019 - 09:55) *
QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

The courts can only deal with the cases that come before them. No-one has yet appealed to that level.

When it was only three points and £100, it wasn't worth the cost and effort

Now it is

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cp8759
post Tue, 16 Apr 2019 - 17:29
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QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

I think the law is very clear and there's people who are trying to make it sound like the law isn't clear because they want to get off the charge. I sincerely hope the HC simply confirms the law says what it means on its plain reading.

After all, if Parliament wanted to create an exception to allow mobile phone use for non-interactive communication purposes, it could easily do so.


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Guest_Charlie1010_*
post Wed, 17 Apr 2019 - 07:02
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It is clear as cp says. IMO.
Don’t use the phone in your hand whilst driving.

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Churchmouse
post Wed, 17 Apr 2019 - 18:16
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QUOTE (Charlie1010 @ Wed, 17 Apr 2019 - 08:02) *
It is clear as cp says. IMO.
Don’t use the phone in your hand whilst driving.

You mean, "don't touch or glance at your phone whilst driving, unless it's in a cradle", surely?

--Churchmouse
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Guest_Charlie1010_*
post Thu, 18 Apr 2019 - 09:30
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Bluetooth only, so no touching, no cradle, with the phone in a jacket on the rear seat.
I remember the days of when all our vehicles would be fitted with bespoke cradles linked to an aerial and a power supply.
Used to cost a fortune and take a while.

This post has been edited by Charlie1010: Thu, 18 Apr 2019 - 09:36
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The Rookie
post Thu, 18 Apr 2019 - 14:37
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QUOTE (cp8759 @ Tue, 16 Apr 2019 - 18:29) *
QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

I think the law is very clear and there's people who are trying to make it sound like the law isn't clear because they want to get off the charge. I sincerely hope the HC simply confirms the law says what it means on its plain reading.

So upholds the acquittal here then?


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666
post Thu, 18 Apr 2019 - 16:45
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QUOTE (The Rookie @ Thu, 18 Apr 2019 - 15:37) *
QUOTE (cp8759 @ Tue, 16 Apr 2019 - 18:29) *
QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

I think the law is very clear and there's people who are trying to make it sound like the law isn't clear because they want to get off the charge. I sincerely hope the HC simply confirms the law says what it means on its plain reading.

So upholds the acquittal here then?


The alleged loophole seems to depend on the "interactive communication" element of the definition of "mobile comms device" also being used by some process of twisted logic to define "using".

That seems more like sophistry than "plain reading".
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DancingDad
post Fri, 19 Apr 2019 - 08:52
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QUOTE (666 @ Thu, 18 Apr 2019 - 17:45) *
QUOTE (The Rookie @ Thu, 18 Apr 2019 - 15:37) *
QUOTE (cp8759 @ Tue, 16 Apr 2019 - 18:29) *
QUOTE (Redivi @ Tue, 16 Apr 2019 - 09:18) *
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means

I think the law is very clear and there's people who are trying to make it sound like the law isn't clear because they want to get off the charge. I sincerely hope the HC simply confirms the law says what it means on its plain reading.

So upholds the acquittal here then?


The alleged loophole seems to depend on the "interactive communication" element of the definition of "mobile comms device" also being used by some process of twisted logic to define "using".

That seems more like sophistry than "plain reading".


I suspect that arguments will be around this bit in the regulations.
QUOTE
(6) For the purposes of this regulation—
(a)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;

That there is no element of making or receiving a call or any other of the defined interactive elements.

That would leave room to argue that as it is not hand held for the purposes of the regulation, it matters not if it is a phone.
And back to the Jimmy Carr type discussion on when is a phone not a phone?

I own an Ipod4.
To all intents and purposes it is a mobile phone except it cannot make calls.
So overtly is not a mobile phone.
But it can connect to the internet (via wifi) so falls into the mobile comms device definition if there is a suitable wifi hotspot available.
So if I had been using it in the manner of the defendant in this case, could I be charged under the mobile phone use laws?
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Redivi
post Fri, 19 Apr 2019 - 10:33
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I own an Ipod4.
To all intents and purposes it is a mobile phone except it cannot make calls.
So overtly is not a mobile phone.
But it can connect to the internet (via wifi) so falls into the mobile comms device definition if there is a suitable wifi hotspot available.
So if I had been using it in the manner of the defendant in this case, could I be charged under the mobile phone use laws?


Would the prosecution have to prove that the wifi hotspot existed and that the communication was possible ?

My understanding is that the impossibility defence fails if the defendant has taken preparatory steps to commit the action that would otherwise have succeeded
In this case, any connection would be unintended and irrelevant to the use
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DancingDad
post Fri, 19 Apr 2019 - 12:06
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QUOTE (Redivi @ Fri, 19 Apr 2019 - 11:33) *
I own an Ipod4.
To all intents and purposes it is a mobile phone except it cannot make calls.
So overtly is not a mobile phone.
But it can connect to the internet (via wifi) so falls into the mobile comms device definition if there is a suitable wifi hotspot available.
So if I had been using it in the manner of the defendant in this case, could I be charged under the mobile phone use laws?


Would the prosecution have to prove that the wifi hotspot existed and that the communication was possible ?

My understanding is that the impossibility defence fails if the defendant has taken preparatory steps to commit the action that would otherwise have succeeded
In this case, any connection would be unintended and irrelevant to the use



Don't know.
That no hotspot existed would IMO be no different to a trying to use a true mobile when the network was down.
For instance in a dead spot and typing in a text to send when connection is available.

Put it this way, on the duck test, to anyone looking in the car, the Ipod is a phone.
I am very careful if using to play music to simply connect it and stuff it out of the way, same as my phone.


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666
post Fri, 19 Apr 2019 - 14:21
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QUOTE (Redivi @ Fri, 19 Apr 2019 - 11:33) *
I own an Ipod4.
To all intents and purposes it is a mobile phone except it cannot make calls.
So overtly is not a mobile phone.
But it can connect to the internet (via wifi) so falls into the mobile comms device definition if there is a suitable wifi hotspot available.
So if I had been using it in the manner of the defendant in this case, could I be charged under the mobile phone use laws?


Would the prosecution have to prove that the wifi hotspot existed and that the communication was possible ?

My understanding is that the impossibility defence fails if the defendant has taken preparatory steps to commit the action that would otherwise have succeeded
In this case, any connection would be unintended and irrelevant to the use
It is clear that the definition (para 6(a)) is designed only to establish whether or not the device is to be treated as hand-held and hence subject to the prohibition on its use in paras 1, 2 and 3. The device is therefore either considered to be hand-held or it is not: it does not change with circumstances.

It does not define, nor does it qualify, any definition of "use" or "using".

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