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Mobile phone use while driving
BaronGreenBack
post Mon, 11 Nov 2013 - 15:02
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I am gutted and have completely lost faith in the Police and feel very violated right about now.

At sunset on 16 Sept, I was stopped by a marked police vehicle. I had noticed the vehicle from 3 cars behind and with a speeding Mercedes directly ahead of me, I was so sure the lady driver was definitely going to be stopped.

When I exited my vehicle to my complete astonishment, one of the officers mentioned that I had been on my phone and pointed to the vehicle telling me the on-board camera had recorded this incidence. Both officers immediately began what turned out to be 15 mins of harassment. Firstly questioning how I came to be driving on a public, busy road at 6pm in a city 100 miles from my registered address, my source of living etc. I drive a £600 vehicle!

My picture was taken and I was issued with a Fixed Penalty. By this time I had been joined by a witness and we immediately then asked to see the video. The officers declined but later made the video available to me. I watched it and all I could see was my car ahead of them with both of my hands on the wheel! They later changed the offence to 'tail gating' but the initial offence is why I will now be in court on 20th November.

I would not normally be upset. I have my summary of calls from my Telco and I have made a request to the Traffic Dept of the court to make available this video as well as any logs of inbound calls to that phone (on the day I submitted the phone immediately to the officers but they declined to accept it). I am worried that these two pieces of evidence will not be disclosed in court and this worries me greatly.

Also, the statement by the Police suggests that they had come abreast of my car, witnessed this offence, then went ahead of my car and then witnessed the offence yet again from their rear view. Either they were both drunk on the day or this is a joke gone too far. Should I be worried? or should I go into court full of confidence? I am told the magistrates will most often see in their favour. This frightens me a lot!
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post Mon, 11 Nov 2013 - 15:02
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Gan
post Fri, 6 Dec 2013 - 12:07
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Shouldn't be a problem with evidence in this case

http://www.dailymail.co.uk/news/article-25...six_of_the_best
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sgtdixie
post Fri, 6 Dec 2013 - 12:24
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QUOTE (Gan @ Fri, 6 Dec 2013 - 12:07) *
Shouldn't be a problem with evidence in this case

http://www.dailymail.co.uk/news/article-25...six_of_the_best

I believe he was scratching his ear and call records will prove he wasn't using his phone.
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smellywelly
post Fri, 6 Dec 2013 - 22:55
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Sorry to be off topic again rolleyes.gif but if the phone was fixed in a cradle .. isnt it the case that the OP could touch it as often as he liked and that would be ok ?
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The Rookie
post Sat, 7 Dec 2013 - 07:33
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Yes, as long as there is no holding, and the driver is also in proper control and paying due care and attention!


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BaronGreenBack
post Mon, 3 Feb 2014 - 13:25
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Hi Guys,

I posted a topic here in November last year and was looking to add a follow up but now can no longer find the post so re-posting again and hoping that someone can assist in 'tidying' my case before the hearing on 10 Feb. I'll draw a timeline as best as I can

16 Sept: Stopped by the police, marked vehicle. Advised that I was observed and video recorded using mobile phone. Challenged at the roadside, Fixed Penalty written THEN officers backed down and made video evidence available by the roadside. Evidence recording approx 4mins viewed, completely rubbished claims. Officers left
17 Sept: Reported to IPCC then sent forms to Court for hearing. Wrote my statements and delivered this to court alongside statement from witness who viewed video by the roadside.
16 Oct: Received confirmation from Courts and witness statment from Police officers, copied verbatim but extracted as below:

" I was on traffic patrol in full uniform as passenger of a marked police vehicle op24. I was travelling south in lane 2 of 2 on XXXXXXX Way when I saw a Silver xxxx index mark xxxxxx in lane 1....As we passed the vehicle I looked through my side window at the driver through the front side window. the drivers right arm was bent at the elbow. The drivers forearm was across his lower face, with his right hand beside his left ear. As we moved ahead of the vehicle, I observed the drier through his front windscreen. Upon seeing my vehicle, the driver imemdiately pulled his right hand away from his left ear. I saw a phone in the drivers right hand. My view was clear and uninterupted. Video Evidence submitted/: No, Copy of Video Evidence?: No

22 Nov '13: Case adjourned till 10 Feb

In that time, I have requested for an order to be delivered to Mobile Telco for Inbound calls and made lg of Outbound availablen to the CPS
I have made requests for disclosure of video evidence. CPS have responded with a detailed letter advising that the Police do not wish to make this available?? Or that they do not have it? I can't understand this or the legal requirements for this. I need help with this.

Facts not recorded in this case:
Police vehicle was behind me the entire duration and until I was 'flashed' to stop and until I pulled out of traffic and into a side road. I cannot now prove this without a video evidence.

Mobile phone was on my person when I was stopped and I immediately made it available to the officers on exiting the vehicle. Officer records in his statement thus: " I took a picture of the phone. The driver explained that we could check his phone for the call however, I explained that he could have deleted the call log. As such, my looking at the phone would be irrelevant"

Is there anything that I could do in the week between writing this post and attending court, which will ensure that this video is made available to the court? this is the only item which completelyn makes untrue the claims and statements from the police which I now cannot get hold of.

Any assistance is appreciated.
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StuartBu
post Mon, 3 Feb 2014 - 13:41
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You mean this one
http://forums.pepipoo.com/index.php?showtopic=85215&hl=

Find your profile name and click it and among other things it will show your "posts" and your "topics"
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CuriousOrange
post Mon, 3 Feb 2014 - 14:04
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QUOTE (BaronGreenBack @ Mon, 3 Feb 2014 - 13:25) *
Is there anything that I could do in the week between writing this post and attending court, which will ensure that this video is made available to the court? this is the only item which completelyn makes untrue the claims and statements from the police which I now cannot get hold of.
Take it you're still DIYing?

Are they saying it never existed, that it existed but they deleted it, or that it exists but you can't have it? From your other thread they seem to be aware that you'll be producing a witness that viewed the video.

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AFCNEAL
post Mon, 3 Feb 2014 - 14:21
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You realise too any attempt to disprove use by the phone logs will be shot down as it could have been in dialling mode at the time and no connection made, therefore no call log?

The Policeman's statement says he observed you from alongside and infront, they don't need video evidence (or even to have taken a video) - you have to refute the evidence and suggest why the policemen was lying...........

Edit........why two policemen conspired to lie!

Why do you think they stopped you?.............

Why would someone who doesn't use their phone when driving have in the door pocket of the car?

This post has been edited by AFCNEAL: Mon, 3 Feb 2014 - 14:26


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JP1978
post Mon, 3 Feb 2014 - 14:53
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QUOTE (AFCNEAL @ Mon, 3 Feb 2014 - 14:21) *
Why would someone who doesn't use their phone when driving have in the door pocket of the car?


I have a handsfree holder thing in my van, the phone (99.9% of the the time) goes there.

I dont have a handsfree in my car as only use it for pottering about town in it, any missed calls/texts can wait. The phone goes in the door pocket or cup holder, never to be touched unless legal to do so.

Are you saying that cos the OP had his phone near him, that he was going to use it and thats an offence?
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AFCNEAL
post Mon, 3 Feb 2014 - 15:41
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QUOTE (JP1978 @ Mon, 3 Feb 2014 - 14:53) *
QUOTE (AFCNEAL @ Mon, 3 Feb 2014 - 14:21) *
Why would someone who doesn't use their phone when driving have in the door pocket of the car?


I have a handsfree holder thing in my van, the phone (99.9% of the the time) goes there.

I dont have a handsfree in my car as only use it for pottering about town in it, any missed calls/texts can wait. The phone goes in the door pocket or cup holder, never to be touched unless legal to do so.

Are you saying that cos the OP had his phone near him, that he was going to use it and thats an offence?


I'm not 'saying' anything - suggesting how magistrates may view matters. The OP is trying to discredit two policemen.....he's gonna need more than we've seen thus far...........

If a magistrate doesn't have/use a mobile, keeps it in his/her pocket or a briefcase when driving (as I do) he may post the question - it's better forposters to be aware and prepare for such questions on here than be 'surprised' in court.........


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sgtdixie
post Mon, 3 Feb 2014 - 16:41
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Hopefully the threads will be merged. When they are you will see that the only benefit of the video is if it shows the police did not overtake you. If you are certain that is the case you should plead not guilty and tell the courts that the video will prove the officers accounts are unreliable and the prosecution are refusing to release it.

The call logs won't prove you were not using your phone as the courts have not defined use as making or receiving a call.

I suggest you concentrate on 1 thing. The video. Tell the court it proves your innocence and why it does and you have a witness who will give evidence as to what it showed. If the prosecution have lost it then that should introduce sufficient doubt to make a conviction unsafe.
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BaronGreenBack
post Wed, 5 Feb 2014 - 12:19
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QUOTE (sgtdixie @ Mon, 3 Feb 2014 - 16:41) *
Hopefully the threads will be merged. When they are you will see that the only benefit of the video is if it shows the police did not overtake you. If you are certain that is the case you should plead not guilty and tell the courts that the video will prove the officers accounts are unreliable and the prosecution are refusing to release it.

The call logs won't prove you were not using your phone as the courts have not defined use as making or receiving a call.

I suggest you concentrate on 1 thing. The video. Tell the court it proves your innocence and why it does and you have a witness who will give evidence as to what it showed. If the prosecution have lost it then that should introduce sufficient doubt to make a conviction unsafe.


Thanks for this. I have spent the better part of this week trying to jot down a defence if i can call it that but I am struggling. As a layman and completely new to these and court proceedings etc, I will benefit greatly from advice from anyone out there on what to do when I arrive at court and how to define and lay out my defence. I am getting increasingly worried by the day.
1. I will have my witness with me on court on Monday 10th Feb when I go to court. As she was standing no more than 5 ft from the vehicle when I leaned in to view the video and for approx 3mins. As I never asked nor made any request to the officers at the time to allow her view the video as well (I am kicking myself now for not having asked this) will the court still allow her evidence? considering that were these two officers to be in court and identify that I had someone with me then the case of 'No video' will no longer apply.

2. When the CPS wrote to me in December and I requested for the Video and 'any other material' the police may have' The CPS returned a copy of my license details as obtained from the DVLA (???) AND with a letter stating that the Police do not have any other evidence to present. What can I now do in this case? How do I argue this?

3. In answer to your last question and I continue to maintain this, the Police vehicle did not at any time, come abreast of my vehicle or ahead of it. The entire statement submitted by the Police implies otherwise and with contains, with great detail, how they went past my car, observed, went ahead and continued to observe....... Is there any other means I can employ to get them to release this video? I am completely helpless at this point.
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sgtdixie
post Wed, 5 Feb 2014 - 12:34
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QUOTE (BaronGreenBack @ Wed, 5 Feb 2014 - 12:19) *
QUOTE (sgtdixie @ Mon, 3 Feb 2014 - 16:41) *
Hopefully the threads will be merged. When they are you will see that the only benefit of the video is if it shows the police did not overtake you. If you are certain that is the case you should plead not guilty and tell the courts that the video will prove the officers accounts are unreliable and the prosecution are refusing to release it.

The call logs won't prove you were not using your phone as the courts have not defined use as making or receiving a call.

I suggest you concentrate on 1 thing. The video. Tell the court it proves your innocence and why it does and you have a witness who will give evidence as to what it showed. If the prosecution have lost it then that should introduce sufficient doubt to make a conviction unsafe.


Thanks for this. I have spent the better part of this week trying to jot down a defence if i can call it that but I am struggling. As a layman and completely new to these and court proceedings etc, I will benefit greatly from advice from anyone out there on what to do when I arrive at court and how to define and lay out my defence. I am getting increasingly worried by the day.
1. I will have my witness with me on court on Monday 10th Feb when I go to court. As she was standing no more than 5 ft from the vehicle when I leaned in to view the video and for approx 3mins. As I never asked nor made any request to the officers at the time to allow her view the video as well (I am kicking myself now for not having asked this) will the court still allow her evidence? considering that were these two officers to be in court and identify that I had someone with me then the case of 'No video' will no longer apply.

2. When the CPS wrote to me in December and I requested for the Video and 'any other material' the police may have' The CPS returned a copy of my license details as obtained from the DVLA (???) AND with a letter stating that the Police do not have any other evidence to present. What can I now do in this case? How do I argue this?

3. In answer to your last question and I continue to maintain this, the Police vehicle did not at any time, come abreast of my vehicle or ahead of it. The entire statement submitted by the Police implies otherwise and with contains, with great detail, how they went past my car, observed, went ahead and continued to observe....... Is there any other means I can employ to get them to release this video? I am completely helpless at this point.

If your witness didn't see the video they cannot give any evidence as to what it showed. Anything you told the witness is inadmissible as hearsay albeit a witness who you discuss what the video showed will be compelling evidence of the existence of that video.

As previously posted,
QUOTE
the only benefit of the video is if it shows the police did not overtake you. If you are certain that is the case you should plead not guilty and tell the courts that the video will prove the officers accounts are unreliable and the prosecution are refusing to release it.


Explain to the court EXACTLY why you need the video; that is because it proves beyond reasonable doubt that the officers statements cannot be an accurate account of the incident and that the court could not convict if they viewed the video. Tell them what the video shows and why it supports your version of events.

Tell them you have asked for this evidence but the CPS have refused to release it simply citing the prosecution will not be relying on it. Then refer to the Criminal Procedures and Investigation Act which requires disclosure of ANYTHING held by the prosecution which undermines the prosecution case or assists the defence. A bit of Googling will get you the statute to print off albeit everyone should know what you are talking about.

Invite the prosecution to discontinue. At this point they should either do this or more likely ask for an adjournment.

If you are totally sure of what the video shows then be prepared for a struggle but you should win.

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southpaw82
post Wed, 5 Feb 2014 - 18:53
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If he wants secondary disclosure he needs to make a defence statement under s. 6 CPIA first.


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BaronGreenBack
post Sat, 8 Feb 2014 - 13:56
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QUOTE (southpaw82 @ Wed, 5 Feb 2014 - 18:53) *
If he wants secondary disclosure he needs to make a defence statement under s. 6 CPIA first.


I dont know what 'Secondary Disclosure' means but I did send a statement in about two weeks ago using the guidelines as stated by the CPS and as instructed under s. 6 CPIA.

Well, about an hour ago, I received a letter from the CPS with further statements from the PC. Where he starts with indentifying his camera as a Cleartone camera and that it is forward facing only. Then he describes that he first noticed the use of the phone whilst in the outer lane and again as he passed my vehicle and continued to observer through my windscreen whilst driving ahead of me..Such that the camer would not have captured the offence. Thene he finishes by stating that he did not save the footage as it didn't show the offence as he did not deem it relevant.

This is in line with the made up statement first submitted to the court 16th October.

That this police vehicle was behind me in lane 2 for all of 20 secs then directly behind my car in lane 1 for approx another 30secs until his lights came on, that on exiting my car and asking the usual questions about any problems etc, his first statement was that he had stopped me bla bla bla and then immediately followed with 'and the camera on board my vehicle caught all of this so fess up now' which at the time was the most astonishing statement I had ever heard, not in the least from a police officer! And now this cover up is being explained away outside my reach. And I am in court on Monday.

1. Why did he start my questioning by making reference to a video? and then using this as his evidence? as he who asserts must prove? so he went ahead and did this
2. Why was I made to view this video if it was not going to be relevant? Assuming there was actually an offence committed, did the officer not know about the positioning of his camera beforehand? and that it would not have captured any relevant information from the position of his vehicle?
3. Why was this video not saved after I had made it known to the officer that day on the roadside that I will be going to court and using this video as evidence? Why was it not saved or advised that day that it was not relevant?


As he mentions now that he did not save this video, how can I now prove that it existed?

My entire case is based on the single fact that the Police vehicle did not at any time overtake, ride beside or ahead of my vehicle at any time and this would make his case fatal and now they are trying to explain away this lie.

For those with legal know how here, please I need you! Is there anything else I can do now before Monday? I am so desperately in search of the truth and for it to be exposed that I may even suggest a lie detector test to the Judge and for this officer to come to court and perjure himself. Its Plebgate all over again
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AntonyMMM
post Sat, 8 Feb 2014 - 14:59
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QUOTE (BaronGreenBack @ Sat, 8 Feb 2014 - 13:56) *
As he mentions now that he did not save this video, how can I now prove that it existed?


There doesn't seem to be any dispute about the fact the video did exist - and the statement confirms that there is no dispute that the video did not show you committing the offence. That is good for your case.

QUOTE (BaronGreenBack @ Sat, 8 Feb 2014 - 13:56) *
My entire case is based on the single fact that the Police vehicle did not at any time overtake, ride beside or ahead of my vehicle at any time and this would make his case fatal and now they are trying to explain away this lie.


No - your case is based upon the fact that at no time were you using/holding your mobile phone. In that, you and the officer disagree - so the case will come down to credibility of the evidence you and he give.

Your evidence should be limited to the fact that you were not using your phone, and that you were aware of the police vehicle behind you and that at no time did it overtake you. You can use the missing video to your advantage - when you give your evidence , you can suggest (politely) how convenient it is for the prosecution that the video was not saved. Make the point once, clearly, and then move on - do not obsess on it, and don't lose sight of the key fact is about whether you were or were not using your phone.


QUOTE (BaronGreenBack @ Sat, 8 Feb 2014 - 13:56) *
I am so desperately in search of the truth and for it to be exposed that I may even suggest a lie detector test to the Judge and for this officer to come to court and perjure himself. Its Plebgate all over again


You need to put across your defence in a structured, calm way. If you start spouting rubbish like this you will just annoy the magistrates. If this is a NG trial the officer will be at court, and will give evidence under oath - you can question him and his evidence in cross examination. Think carefully about how you are going to do that, what sequence of questions you will use. If you start ranting and accusing people of perjury, you will lose.
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desktop_demon
post Sat, 8 Feb 2014 - 15:22
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If the occifer states that he saw the OP using the phone at the time (eg - "I saw him holding it to his ear and moving his jaw") then one would presume that a call was in progress. If that was so the call records from the Telco would prove it. If there is no interactive communication ongoing then the evidence only suggests the OP committed the heinous offence of miming while holding a phone to one ear. Which is bad practice but not covered by the requirements for the offence of using a mobile phone while driving.

So that should, at least, preclude a custodial sentence.....


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sgtdixie
post Sat, 8 Feb 2014 - 16:32
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The Cleartone system records to a drive onboard the car. This recording is on a loop which overwrites when full. The operator can download the video at any time until overwritten. If the car is in use 24X7 it is likely to have been overwritten. If not it is quite possible the recording still exists and can be downloaded. You need to tell the court what we have already told you to do and ask the court to order the Police to check the system to see if it has been overwritten. All they need is the vehicle, time and date and it will take 5 minutes to find and save it if it exists.

If the footage does not exist you have a line of defence I have already explained.

Your difficulty will be if the officer is asked what the footage you viewed showed and he says it was of him alongside you. If he says that you will pretty much have to tell the court he is either mistaken or lying.

I would not get too hung up on what he said when he stopped you. He won't have seen the footage before speaking to you but knowing the car has a video he will have assumed the camera would have caught you.

It is only when you actually view the video that you know what it has shown. You may have a job convincing the court that he showed you a video of him behind then claimed even though you saw it that he was alongside. But that is what you will have to do.

The officer is not obliged to preserve something which he will say did not assist the defence or harm the prosecution. So he will say that is why he did not download it.

If there are 2 officers who give evidence you will effectively be saying they have conspired to pervert the court of justice by making false statements. They will say that you are simply looking for a desperate defence.
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BaronGreenBack
post Sat, 8 Feb 2014 - 19:29
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QUOTE (AFCNEAL @ Mon, 3 Feb 2014 - 14:21) *
Why would someone who doesn't use their phone when driving have in the door pocket of the car?


Good point and I don't have answer to this. Incidentally when I leave my home, my phone always goes into my trouser pocket and in silent, non vibrate mode. Sometimes I leave it at home. For some reason, I jumped in the car that day in running shorts and the next place I could think of was the door pocket as I didnt have any pockets to slip it into.

Looking back retrospectively, had I very calmly asked to view the video on exiting my vehicle and right after it was first mentioned, then perhaps I could have pointed out this error to both and they may have done me with tailgating which was their fall back offence and a video will surely have relevance and would have been available and I would not be here. I will put together my defence in the order that I would like to present it on Monday and hope that others here who have been in similar or same situations can add their two cents.
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The Rookie
post Mon, 10 Feb 2014 - 04:30
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Direct similarities to your case in this one
http://www.bailii.org/ew/cases/EWCA/Crim/1999/986.html

You'll want copies for the prostitutor, benchx3 and legal advisor as well as yourself, make sure you understand what it is saying.


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