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Incorrectly accused of using mobile phone whilst driving.
JC21
post Tue, 28 Mar 2017 - 15:55
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Good evening. Was hoping to receive some advice from somebody who has experienced this or has any knowledge they may wish to share. I apologise for the longish post and appreciate anybody taking the time to read through and comment.

Three weeks ago my wife returned from the supermarket and said "you won't believe what's just happened to me". A police car had followed her into the car park of Morrisons and flagged her down with the usual do you know why you have been stopped?

The events and salient points are as follows.

The officer then advised her that he had seen her using her mobile phone whilst driving and had video evidence of this and the he was going to issue a ticket accordingly which he did at the roadside.

When my wife denied this the officer explained that the he had seen her move her hand from the side of her head quickly and that was what raised his suspicion.

My wife explained that her phone was in her bag and that she hadn't been using it, my daughter had her own phone in her hand (aged 15 social media addict what more can I say).

A long conversation ensued and the officer perfectly politely advised my wife that the recording of the alleged offence would be reviewed and if indeed as she claimed she was simply pushing her hair back over her ear (as she was) then no further action would be taken. My wife asked to see the evidence on the video and the office returned to his car and spoke to a colleague but then said that as it was recorded on a body cam that this would not be possible. However if the matter went to court she could review it then.

My wife being the trusting sort assumed that clearly since she was not in the wrong and that the video evidence would clear her found the whole episode quite amusing (not sure I would have shared her sense of humour on this one).

You know what's coming next I'm sure........Conditional offer of fixed penalty, 6 points and £200 fine received today.

I am not really looking for advice as to how to "get away with this". Quite simply no offence was committed. I have spoken to a lawyer who specialises in these matters who has given a few pointers but the fees of between £1k to £3k are beyond my means. My question is if we go to court what should we expect. We can request records from our mobile phone provider that will show no calls or texts were being made at or around the time (for both my wife and daughters phone if needed. The alleged
Offence happened at just before 1800 prior to the clocks going back so I would assume any video footage would be reasonably poor (which I would imagine would be good news if you were guilty of an offence but not so good if you are innocent) and would also like to know if they really do review the evidence before moving to preps edition of was by wife just being planted given the circumstances.

I think I've covered everything and would appreciate your thoughts. I am sure we are all in favour of the Police finally taking this offence seriously but over zealolous officers raising funds from innocent motorists is unacceptable.

If I can give anybody anymore info please ask. My wife is in pieces over this, 30 years of driving so much as a minor ding or a parking ticket and now she's been hit for six.

Thanks in advance.

JC.




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post Tue, 28 Mar 2017 - 15:55
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southpaw82
post Tue, 28 Mar 2017 - 16:10
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Seeing the video would be useful, but is unlikely at this stage.

In her favour:

- her own testimony as to what was happening and why the officer was mistaken in what they think they saw
- ditto your daughter's testimony
- some corroboration that no call was being made at the time (though there are other ways to use a phone)

Against:

- the evidence of two (?) police officers
- potentially the camera footage
- her and your daughter's incentive to lie (I know but there it is)

Go to court and lose and it's 6 points, a fine of 25% - 75% of a week's pay, surcharge of 10% of the fine (min £30), costs of £620.


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Jlc
post Tue, 28 Mar 2017 - 16:17
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It was predicted that such 'mistaken' cases would eventually appear and swallowing 6 points is a large ask. (Particularly as totting etc. from 6 points will be more frequent)

So, it's worth 'fighting' but there are risks as noted above.

It was possible the CoFP was simply issued in the hope that it wasn't challenged - whether a prosecution would actually commence is not certain but you'd have to assume it would.

Remember, the officer was mistaken and not lying if you are to challenge.


--------------------
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

Private Parking - remember, they just want your money and will say almost anything to get it.
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JC21
post Tue, 28 Mar 2017 - 16:51
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Thankyou Southpaw 82 and Jlc for your replies, and the useful info it's appreciated.

We have no choice but to go to court really, if nothing else on the principle that no offence has been committed. It's a pain that we can't see the video evidence before or find out if it was reviewed. I agree it's possible the notice was issued automatically or possibly they assume it won't we contested.

I guess we'll be testing what little faith we have left in the justice system in the UK! Assuming we win, do we still pay court costs? Maybe a stupid question but genuine none the less.

To be honest when I looked at this site this evening I expected to be a number of threads on the subject, quite surprised that there is little recent info on the web. I'll update the thread as and when any progress or info is available, in the meantime any further help or advice is welcomed.

Thank you again.

JC.
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The Rookie
post Tue, 28 Mar 2017 - 16:59
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If you win then you don't pay costs.

You could try contract the officer concerned's supervisor (probably a sargeant) and explaining the situation and ask if he confirm if the footage has been reviewed or not, also ask him to confirm that it will be kept for the trial.


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Logician
post Tue, 28 Mar 2017 - 17:00
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I think the chances are that bodycam footage will not show anything very clearly, so it will be question of who the court believe if it goes there. It is very unlikely that the officer is acting otherwise than in good faith, there is indeed no incentive and we all see mobiles being illegally used every day so however eager an officer may be, there is simply no need to invent a non-existent offence.

If you are acquitted in court, no costs are payable, and if you had legal fees they would be reimbursed but only up to the rather low legal aid level. If you want legal help try talking to Bobby Bell


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mashman36
post Tue, 28 Mar 2017 - 17:33
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Put them to proof ;phone records and video .
I was behind a wagon with my head on my hand bored to tears and got pulled;I had a massive in print of my hand on my face when the officer looked and the phone was in it's cradle.
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peterguk
post Tue, 28 Mar 2017 - 18:16
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QUOTE (JC21 @ Tue, 28 Mar 2017 - 16:55) *
We can request records from our mobile phone provider that will show no calls or texts were being made at or around the time (for both my wife and daughters phone if needed.


Bear in mind a record of no calls or texts does not prove the phone wasn't being used, and does not automatically prove innocence of the charge.

This post has been edited by peterguk: Tue, 28 Mar 2017 - 18:18


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JC21
post Tue, 28 Mar 2017 - 19:30
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To The Rookie

Thank you. The lawyer I spoke to mentioned that they would want to contact the officer involved to ask what he actually did see. We could do this ourselves I guess but need to establish where the officer was from.

To Logician

Again fair point. I would not suggest that the officer is acting other than in good faith. However he did say to my wife that the reason that they were observing people was to enforce the new law basically (they were parked up and looking for people using phones, so that was there objective, not a random thing. This worries me massively!!)

To Mashman36

I agree. We need to see the video but this may prove difficult for the reasons others have mentioned and may be at best patchy. We are in the process of speaking to 3 about records. With regards to your comment about resting your head on your hand and being pulled by the police only reinforces the fact that surely some kind of material proof should exist before a penalty notice is issued (I assume in your case the matter was resolved at roadside?).

Regards

JC.
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glasgow_bhoy
post Tue, 28 Mar 2017 - 19:30
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If they have camera footage, and have made clear it was recorded on camera, I'd be inclined to go to court and plead not guilty.

That of course is provided your 100% sure the camera won't have observed any contact with the phone whatsoever taking place.

The points won't increase going to court, although the fine probably will- I'm not sure of the fines in court since March 1st, but the fixed penalty is now £200 so there is more incentive to fight these things.
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Jlc
post Tue, 28 Mar 2017 - 19:38
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The fine is income related - and ironically could be lower than £200... (Unless it was updated then it's a Band A fine - starting around 50% of relevant weekly income) But costs and surcharges could lift it above that. Maximum is £1,000.


--------------------
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

Private Parking - remember, they just want your money and will say almost anything to get it.
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JC21
post Tue, 28 Mar 2017 - 20:19
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Glasgow bhoy

I'm 100% sure there's no contact with a mobile, that fact Is beyond doubt. The phone was in her bag, that's why we're so angry. Combined with the fact that the worse case is six points and no more but the financial implications increase we'll make a stand. We can't really afford to but we won't roll over and pay.

jlc

Thank you again. Useful info. As I've said previously, it's the principle. What puts it in perspective is that we've just spent £1100 on driving lessons for our daughter who passed her test in December, £1400 to insure and if it had been her in this situation she would be facing loosing her licence and taking another test.

My wife has a clean licence so she can take the points-others can't. This is all so wrong but we're now arguing over fighting for principles or taking the "easier" option!!
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Churchmouse
post Tue, 28 Mar 2017 - 21:07
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QUOTE (JC21 @ Tue, 28 Mar 2017 - 16:55) *
The officer then advised her that he had seen her using her mobile phone whilst driving and had video evidence of this and the he was going to issue a ticket accordingly which he did at the roadside.

When my wife denied this the officer explained that the he had seen her move her hand from the side of her head quickly and that was what raised his suspicion.

My wife explained that her phone was in her bag and that she hadn't been using it, my daughter had her own phone in her hand (aged 15 social media addict what more can I say).

A long conversation ensued and the officer perfectly politely advised my wife that the recording of the alleged offence would be reviewed and if indeed as she claimed she was simply pushing her hair back over her ear (as she was) then no further action would be taken. My wife asked to see the evidence on the video and the office returned to his car and spoke to a colleague but then said that as it was recorded on a body cam that this would not be possible. However if the matter went to court she could review it then.

From this account it would suggest that the officer did not actually see a phone. He referred to the driver's hand in the first instance, and then accepted that "pushing her hair back over her ear" was a possibility to be confirmed by the video evidence. Obviously, if he had seen a phone in the driver's hand at the time of the "suspicious movement", he would (a) already have known that the hair excuse was nonsense, (b) he would not likely even have entertained the possibility that no phone had been involved, and © he would have said so at the time. Therefore, he never saw a phone in the driver's hand--which, by the way, is an essential element of the offence.

But I expect that the statement provided prior to the hearing will not agree 100% with the OP's version. Too bad the 15 year-old social media addict wasn't streaming the roadside conversation to YouTube...

--Churchmouse
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notmeatloaf
post Tue, 28 Mar 2017 - 21:52
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It might be worth as suggested speaking to the officer's sergeant and asking if the car was equipped with video and if so request the footage to be preserved if it is not too late. It would seem unusual that the officer would go back to the car to review footage of a body camera, I can't imagine this would normally be possible or that the officer would not know this.

If they do not know simply request it as a Freedom of Information request if you can get the VRM or fleet number.

A body camera is likely to be poorer quality than a car camera and maybe the officer reviewed the car video and found it did not show clearly what he believed he saw. The prosecution have a duty to disclose any evidence to you that may be detrimental to their case.

It is of course important in court to imply that the officer was mistaken rather than acting in bad faith.

This post has been edited by notmeatloaf: Tue, 28 Mar 2017 - 21:55
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JC21
post Tue, 28 Mar 2017 - 21:52
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QUOTE (peterguk @ Tue, 28 Mar 2017 - 19:16) *
QUOTE (JC21 @ Tue, 28 Mar 2017 - 16:55) *
We can request records from our mobile phone provider that will show no calls or texts were being made at or around the time (for both my wife and daughters phone if needed.


Bear in mind a record of no calls or texts does not prove the phone wasn't being used, and does not automatically prove innocence of the charge.


No, I agree. But the phone was in her bag. We now enter the world of "he said she said" . Just trying to provide evidence of innocence. Many have made good points but I suspect that whatever the PC thinks he has seen and what my wife has actually done will be in the hands of the magistrate. Appreciate your point though.
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Logician
post Tue, 28 Mar 2017 - 22:15
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If you opt for a trial your wife will be sent a copy of the officer's statement and be able to see what he actually claims to have seen. She will be asked if she is willing to accept this written statement or requires the officer to attend court. She will need to ask that he attends because she will need to cross-examine him closely about what he actually saw rather than what he assumed. Cross-examination is not easy and if it is just "Are you sure?" "Yes, I am sure" is not particularly helpful. That is why it might be useful to instruct a solicitor in this case.


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JC21
post Tue, 28 Mar 2017 - 22:34
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QUOTE (Churchmouse @ Tue, 28 Mar 2017 - 22:07) *
QUOTE (JC21 @ Tue, 28 Mar 2017 - 16:55) *
The officer then advised her that he had seen her using her mobile phone whilst driving and had video evidence of this and the he was going to issue a ticket accordingly which he did at the roadside.

When my wife denied this the officer explained that the he had seen her move her hand from the side of her head quickly and that was what raised his suspicion.

My wife explained that her phone was in her bag and that she hadn't been using it, my daughter had her own phone in her hand (aged 15 social media addict what more can I say).

A long conversation ensued and the officer perfectly politely advised my wife that the recording of the alleged offence would be reviewed and if indeed as she claimed she was simply pushing her hair back over her ear (as she was) then no further action would be taken. My wife asked to see the evidence on the video and the office returned to his car and spoke to a colleague but then said that as it was recorded on a body cam that this would not be possible. However if the matter went to court she could review it then.

From this account it would suggest that the officer did not actually see a phone. He referred to the driver's hand in the first instance, and then accepted that "pushing her hair back over her ear" was a possibility to be confirmed by the video evidence. Obviously, if he had seen a phone in the driver's hand at the time of the "suspicious movement", he would (a) already have known that the hair excuse was nonsense, (b) he would not likely even have entertained the possibility that no phone had been involved, and © he would have said so at the time. Therefore, he never saw a phone in the driver's hand--which, by the way, is an essential element of the offence.

But I expect that the statement provided prior to the hearing will not agree 100% with the OP's version. Too bad the 15 year-old social media addict wasn't streaming the roadside conversation to YouTube...

--Churchmouse


Churchmouse

Thank you for your reply.

As you say the officer "thinks" he saw a phone which he cannot as it was in her bag. But I feel that she has been judged already and now has to defend herself in court to try and prove her innocence. This is maddening in the extreme.

With regard to my daughter streaming live to you tube I fear that we are not far off from having to engage such media ( or dashboard cams, helmet cams etc) merely to go about out daily commute and as I write this I'm starting to think if we all had it things might be somewhat different. Oh Christ!!

Rgds

JC
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JC21
post Tue, 28 Mar 2017 - 22:52
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QUOTE (Logician @ Tue, 28 Mar 2017 - 23:15) *
If you opt for a trial your wife will be sent a copy of the officer's statement and be able to see what he actually claims to have seen. She will be asked if she is willing to accept this written statement or requires the officer to attend court. She will need to ask that he attends because she will need to cross-examine him closely about what he actually saw rather than what he assumed. Cross-examination is not easy and if it is just "Are you sure?" "Yes, I am sure" is not particularly helpful. That is why it might be useful to instruct a solicitor in this case.


Logician

It's exactly this type of advice we need. Thank you. My wife is not easily intimidated and is (on the whole) very level headed.
She is not perturbed about representing herself although we are also looking at the possibility of hiring a lawyer. This is turning
Into a battle of emotions/principles/finance, thank you again for your comments,

Rgds


JC.
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thisisntme
post Wed, 29 Mar 2017 - 00:39
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QUOTE (notmeatloaf @ Tue, 28 Mar 2017 - 21:52) *
It might be worth as suggested speaking to the officer's sergeant and asking if the car was equipped with video and if so request the footage to be preserved if it is not too late. It would seem unusual that the officer would go back to the car to review footage of a body camera, I can't imagine this would normally be possible or that the officer would not know this.

If they do not know simply request it as a Freedom of Information request if you can get the VRM or fleet number.

A body camera is likely to be poorer quality than a car camera and maybe the officer reviewed the car video and found it did not show clearly what he believed he saw. The prosecution have a duty to disclose any evidence to you that may be detrimental to their case.

It is of course important in court to imply that the officer was mistaken rather than acting in bad faith.


But (and ISTBC) they only have a duty to give the substantive evidence once the OP's wife has pleaded not guilty.

This post has been edited by thisisntme: Wed, 29 Mar 2017 - 00:39


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JC21
post Wed, 29 Mar 2017 - 08:40
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I know I'm clutching at straws here but I've just noticed that the surname on the cofh is spelt incorrectly, it has been spelt with an N and not M. I seem to recall years back that certain technicalities had an influence on these issues.

Rgds


JC.
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