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Riding without reasonable consideration - from headcam footage
Garterman
post Mon, 8 Oct 2018 - 13:32
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Hello,

A member of the public on a motorbike sent headcam footage to the police of me overtaking him on my mootorbike while he was allegedly doing 30mph himself. I have been sent a NIP for 'driving without reasonable consideration for other users' and am at the point where I need to make a court plea in the next few days.
The video just shows be overtaking in the right hand lane while he's in the left lane of a two-lane road, no lack of consideration is apparent to me and it seems the only suggestion is that I was going over the speed limit. There's a speed figure showing on the footage, which I presume is GPS, which shows him doing 28-31 mph around the time. He looks at his speedo which showed around 30mph too. I don't think I could have been over the speed limit though. Another bike overtakes the same way just before me which adds to my belief that the taker of the video was actually travelling less than 30mph. Is this persons headcam speedo admissible evidence to prove my own speed?

I read somewhere that if video footage is available on social media then it's not admissible as evidence, is that correct?

Thank you for any advice/information
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post Mon, 8 Oct 2018 - 13:32
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andy_foster
post Mon, 15 Oct 2018 - 19:23
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I have ridden with a number of police motorcyclists, and from what I have seen of their riding, I would say that Mr Head Cam is not a police motorcyclist. A police occifer who also happens to ride motorcycles poorly in his spare time, seems vaguely possible, but I have doubts.


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Garterman
post Fri, 9 Nov 2018 - 14:33
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Update: I pleaded not guilty online and received a court date of 23rd November. I guess I'll put forward my case that I didn't inconvenience anyone and wasn't speeding, and see what happens...
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Jlc
post Fri, 9 Nov 2018 - 16:41
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QUOTE (Garterman @ Fri, 9 Nov 2018 - 14:33) *
Update: I pleaded not guilty online and received a court date of 23rd November. I guess I'll put forward my case that I didn't inconvenience anyone and wasn't speeding, and see what happens...

From pleading not guilty a date was inevitable. But do you actually know what the substance of the allegation actually is yet? Any statements?


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Sparxy
post Fri, 9 Nov 2018 - 22:16
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Watching the video, this calculation is based upon the m/c overtaking at 28s.

  • The rider passes 3 lines and 3 gaps in 15 frames. The video online is encoded at 25fps.
  • The lane dividers appear to be Diagram 1004 in the TSM. Two different dimensions, the shortest being 4m line and 2m gap.
  • 18 meters travelled in 3/5's of a second (18/0.5) = 30 m/s

If the dimensions and calculations are correct (and they might not be), the m/c overtaking appears to be doing upwards of 60mph.

Perspective and also any changes to the video encoding/re-encoding might have skewed the video and calculations. 30mph is approx 14 m/s. The bike filming appears to travel the same distance in 30 frames approx.

This post has been edited by Sparxy: Fri, 9 Nov 2018 - 22:33
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NewJudge
post Sat, 10 Nov 2018 - 10:31
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QUOTE (Sparxy @ Fri, 9 Nov 2018 - 22:16) *
If the dimensions and calculations are correct (and they might not be), the m/c overtaking appears to be doing upwards of 60mph.

That may well be true. But did he inconvenience anybody? That is what must be made out to convict him.

QUOTE (Garterman @ Fri, 9 Nov 2018 - 14:33) *
Update: I pleaded not guilty online and received a court date of 23rd November. I guess I'll put forward my case that I didn't inconvenience anyone and wasn't speeding, and see what happens...

Your hearing on 23rd will almost certainly be a "case management" hearing. This is designed to identify the issues in dispute and arrange for the necessary evidence (from both sides) to be available at the trial. You will be asked to state the basis of your Not Guilty plea which is simply that you do not consider that anyone was inconvenienced by your driving. You do not have to worry particularly about your speed. You are not charged with speeding and it is hard to see, from the footage, how anybody was inconvenienced simply by you exceeding the speed limit. It is for the prosecution to prove their case not for you to disprove it.

On a practical note be prepared, once a trial date is set, for your trial not to go ahead on the appointed day. Courts often "double book" trials because they very often fail to get off the ground for one reason or another and double booking is an effort to avoid court time being wasted. The down side is that you may have your trial put off to a later date. This is especially so as traffic matters tend not to be the priority trial at the first time of asking.

This post has been edited by NewJudge: Sat, 10 Nov 2018 - 10:33
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cp8759
post Sat, 10 Nov 2018 - 16:43
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QUOTE (NewJudge @ Sat, 10 Nov 2018 - 10:31) *
QUOTE (Sparxy @ Fri, 9 Nov 2018 - 22:16) *
If the dimensions and calculations are correct (and they might not be), the m/c overtaking appears to be doing upwards of 60mph.

That may well be true. But did he inconvenience anybody? That is what must be made out to convict him.

+1, section 3ZA of the Road Traffic Act 1988 provides that:

A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving.

Note the word "only". Unless the magistrates can be sure, beyond reasonable doubt, that one or more persons were inconvenienced by the accused's driving, they must acquit. On the video evidence disclosed, there is no indication anyone could claim to have been inconvenienced at all, so it is questionable whether there is a case to answer. You defence is very simple, you didn't inconvenience anyone.

A word of caution: There is a chance that the CPS might realise their error and seek to use the Scunthorpe Justices principle to amend the charge to driving without due care and attention, even though the six month time limit has expired, any such attempt should be resisted on the basis that driving without due care and attention is a different mischief, because again by virtue of section 3ZA

A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver

This is clearly a different test to whether persons are inconvenienced by his driving as the evidence one would gather in one's defence against the accusation of inconveniencing others is clearly different to the evidence one might gather if accursed of driving to a standards which falls below what would be expected of a competent and careful driver. It follows that the two charges cannot be the "same misdoing" within the meaning of the Scunthorpe Justices case and section 127 of the Magistrates' Courts Act means it is now far too late for the prosecution to bring a different charge. Therefore the prosecution cannot bring a new charge or amend the existing one.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
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southpaw82
post Sat, 10 Nov 2018 - 19:14
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The particular test is (per Dyson J):

QUOTE
"(1) The purpose of the six-month time limit imposed by section 127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission.

(2) Where an information has been laid within the six-month period it can be amended after the expiry of that period.

(3) An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that:
(i) the different offence or offences allege the 'same misdoing' as the original offence; and
(ii) the amendment can be made in the interests of justice.

These two conditions require a little elucidation. The phrase 'same misdoing' appears in the judgment of McCullough J in Simpson v Roberts. In my view it should not be construed too narrowly. I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence."


Also, bear in mind the words of Burton J in Williams v DPP:

QUOTE
In so far as that is intended to be a statement to be relied on in other cases, I would, for my part, respectfully disagree with the him. The test is plainly, as my Lord has said, set out in Dyson J's judgment in Scunthorpe Justices, which makes it plain that although the phrase 'the same misdoing' is that which is intended to be guidance, in his view those words should not be construed too narrowly, "I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence". In this case, where the appellant arrived at the police station at 23.40, and within a few minutes thereafter was taken through the procedure, first, in relation to alcohol, and then in relation to urine, in my judgment, it cannot possibly be denied that it was substantially the same facts as gave rise to both offences.

In those circumstances, any suggestion that there is a difference in the wrong-doing is not the proper test and not one which should be followed in future.


This post has been edited by southpaw82: Sat, 10 Nov 2018 - 19:31


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NewJudge
post Sat, 10 Nov 2018 - 23:50
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Very interesting, SP, and thanks for the research.

I must say that I agree with CP in that the two offences seem substantially different. In the case of "without consideration" there clearly must be a victim who has suffered as a result of the driver's poor driving. In the case of "careless" it is purely a subjective measure of the standard of driving. I would suggest that "careless" can be proved in circumstances where "without consideration" cannot (because there is no victim). Conversely, though, it could be argued that "without consideration" automatically demonstrates "careless" (because careful and competent drivers do not drive so as to inconvenience others).

I think it would be unjust to raise a charge of careless driving as an alternative to without consideration (out of time as allowed by the precedents you have mentioned) simply if the prosecution realises they have preferred the wrong charge. As CP says, the defence to be raised for each must be entirely different and it would be most unfair if the defendant spent his time researching a defence against "without consideration" only to find he faces a "careless" charge when he enters the courtroom.
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The Rookie
post Sun, 11 Nov 2018 - 08:50
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For your second point, that would be fixed with a simple request for an adjournment and a wasted costs order with respect to that ‘incorrect’ defence prep.

I also doubt the prosecution will realise it’s the wrong charge until they are well into the case, possibly until after half way, making an argument for a change of charge less easy.

This post has been edited by The Rookie: Sun, 11 Nov 2018 - 08:52


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cp8759
post Sun, 11 Nov 2018 - 11:18
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QUOTE (The Rookie @ Sun, 11 Nov 2018 - 08:50) *
For your second point, that would be fixed with a simple request for an adjournment and a wasted costs order with respect to that ‘incorrect’ defence prep.

Inside the six month limitation period that would be to be expected, but outside the six month period the prosecution must show that the offences arise out of the same facts and the amendment is possible in the interests of justice.

It is clearly arguable that it wouldn't be in the interests of justice for a late amendment to be allowed for the reasons outlined by NewJudge. There's no guarantee a court will agree but if the CPS only realise at the trial, an amendment is unlikely to be granted.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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NewJudge
post Sun, 11 Nov 2018 - 11:24
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QUOTE (The Rookie @ Sun, 11 Nov 2018 - 08:50) *
I also doubt the prosecution will realise it’s the wrong charge until they are well into the case, possibly until after half way, making an argument for a change of charge less easy.

I may be wrong but believe that once the prosecution has closed its case no amendment would be possible.
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cp8759
post Sun, 11 Nov 2018 - 13:19
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QUOTE (NewJudge @ Sun, 11 Nov 2018 - 11:24) *
QUOTE (The Rookie @ Sun, 11 Nov 2018 - 08:50) *
I also doubt the prosecution will realise it’s the wrong charge until they are well into the case, possibly until after half way, making an argument for a change of charge less easy.

I may be wrong but believe that once the prosecution has closed its case no amendment would be possible.

An amendment is possible even after the prosecution has closed its case, see Gleeson, R. v [2003] EWCA Crim 3357


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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NewJudge
post Sun, 11 Nov 2018 - 14:02
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QUOTE (cp8759 @ Sun, 11 Nov 2018 - 13:19) *
An amendment is possible even after the prosecution has closed its case, see Gleeson, R. v [2003] EWCA Crim 3357


So I was wrong mellow.gif . Thanks, CP.
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