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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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thisisntme
post Wed, 29 Mar 2017 - 08:44
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QUOTE (JC21 @ Wed, 29 Mar 2017 - 08:40) *
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.


Nope. That can be corrected with no disadvantage to you. You know it was you.


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JC21
post Wed, 29 Mar 2017 - 08:48
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QUOTE (thisisntme @ Wed, 29 Mar 2017 - 09:44) *
QUOTE (JC21 @ Wed, 29 Mar 2017 - 08:40) *
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.


Nope. That can be corrected with no disadvantage to you. You know it was you.



Thanks,

JC.
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The Rookie
post Wed, 29 Mar 2017 - 08:50
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Ignoring that they can't correct a CoFP, the CoFP is not part of the process should it go to court and as such errors on it are totally irrelevant.

If the error is repeated on the court paperwork then it can be corrected under the 'slip rule' as the defendant would not have been disadvantaged by it which is what I think TIM was alluding to.


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nigelbb
post Wed, 29 Mar 2017 - 10:24
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I know it's the magistrates court but the onus is still on the prosecution to prove their case beyond reasonable doubt not for your wife to prove her innocence.

During the long conversation did she demonstrate that the phone was in her bag out of reach?


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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JC21
post Wed, 29 Mar 2017 - 12:02
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QUOTE (nigelbb @ Wed, 29 Mar 2017 - 11:24) *
I know it's the magistrates court but the onus is still on the prosecution to prove their case beyond reasonable doubt not for your wife to prove her innocence.

During the long conversation did she demonstrate that the phone was in her bag out of reach?



Nigel,

Thanks for your reply. No she did not. This is something that she thought of after the event together with the fact that the car has hands free fitted as standard and she has no need of her phone when driving (connected via blu-tooth so no physical connection or cradle required). As I mentioned earlier in the thread she genuinely believed that the Police would review the video evidence and realise that they had made an error and that would be the would be the end of it.

She's trying to call the officers sergeant today as someone suggested to see of the video footage was even reviewed, and to ask that they keep it pending the court case. No doubt the next thing is that they don't have the video evidence or some such nonsense knowing her luck and then it's the officers word against hers.

Rgds


JC.
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brandon
post Thu, 30 Mar 2017 - 07:59
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This is the worrying issue for me.

There are going to be hundreds of innocent people wrongly charged for this kind of offence. There are many things one could be doing in a car that looks to people outside of the car that you're texting. This for me is a real worry. Especially from over zealous officers prone to bending the truth.
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spanner345
post Thu, 30 Mar 2017 - 09:30
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QUOTE (brandon @ Thu, 30 Mar 2017 - 08:59) *
This is the worrying issue for me.

There are going to be hundreds of innocent people wrongly charged for this kind of offence. There are many things one could be doing in a car that looks to people outside of the car that you're texting. This for me is a real worry. Especially from over zealous officers prone to bending the truth.


Very true. A few years ago, I was accused of the same. Two of Humberside's finest witnessed me using a phone at traffic lights in Hull. Luckily, there was no phone in the car. It was almost a mile away at the time. Sadly, some of the police see what they want to see!


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brandon
post Thu, 30 Mar 2017 - 10:37
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QUOTE (spanner345 @ Thu, 30 Mar 2017 - 10:30) *
QUOTE (brandon @ Thu, 30 Mar 2017 - 08:59) *
This is the worrying issue for me.

There are going to be hundreds of innocent people wrongly charged for this kind of offence. There are many things one could be doing in a car that looks to people outside of the car that you're texting. This for me is a real worry. Especially from over zealous officers prone to bending the truth.


Very true. A few years ago, I was accused of the same. Two of Humberside's finest witnessed me using a phone at traffic lights in Hull. Luckily, there was no phone in the car. It was almost a mile away at the time. Sadly, some of the police see what they want to see!


I'm especially worried for young drivers who are only allowed 6 points. All it takes is one dodgy copper and the poor kid could have their life ruined.

Atleast if you're someone who has a 12 point allowance it's pretty much your own fault if you get a 6'er which causes a ban because of two previous speeding penalties.
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BaggieBoy
post Thu, 30 Mar 2017 - 10:48
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QUOTE (brandon @ Thu, 30 Mar 2017 - 11:37) *
All it takes is one dodgy copper and the poor kid could have their life ruined.

Hardly a life changing event, they only have to take their tests again. And they learned a valuable lesson to boot.
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typefish
post Thu, 30 Mar 2017 - 10:51
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QUOTE (BaggieBoy @ Thu, 30 Mar 2017 - 11:48) *
QUOTE (brandon @ Thu, 30 Mar 2017 - 11:37) *
All it takes is one dodgy copper and the poor kid could have their life ruined.

Hardly a life changing event, they only have to take their tests again. And they learned a valuable lesson to boot.


Yes, to never trust a copper ever again.
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brandon
post Thu, 30 Mar 2017 - 10:59
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QUOTE (BaggieBoy @ Thu, 30 Mar 2017 - 11:48) *
QUOTE (brandon @ Thu, 30 Mar 2017 - 11:37) *
All it takes is one dodgy copper and the poor kid could have their life ruined.

Hardly a life changing event, they only have to take their tests again. And they learned a valuable lesson to boot.


Hardly a life changing event? So the potential of losing their job and their independence isn't a life changing event?
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Logician
post Thu, 30 Mar 2017 - 11:09
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A discussion for the Flame Pit, I think.


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southpaw82
post Thu, 30 Mar 2017 - 11:42
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Very much so, particularly as the assumption is "all coppers are liars fitting people up" rather than the far more rational explanation that everyone makes mistakes.


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glasgow_bhoy
post Thu, 30 Mar 2017 - 19:57
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JC21- was your wifes car equipped with Bluetooth?

Its worth mentioning in court if it does- its not to say someone with bluetooth wouldn't use their phone against their ear, but its less likely that they will.
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southpaw82
post Thu, 30 Mar 2017 - 21:02
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QUOTE (JC21 @ Wed, 29 Mar 2017 - 13:02) *
the car has hands free fitted as standard and she has no need of her phone when driving (connected via blu-tooth so no physical connection or cradle required).



QUOTE (glasgow_bhoy @ Thu, 30 Mar 2017 - 20:57) *
JC21- was your wifes car equipped with Bluetooth?

Its worth mentioning in court if it does- its not to say someone with bluetooth wouldn't use their phone against their ear, but its less likely that they will.

Guess so.


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JC21
post Thu, 30 Mar 2017 - 23:44
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Thanks very much for the advice and replies so far. We have tried contacting the officers sergeant but no joy as yet. The main aim being to see if the video evidence was ever reviewed. Our mobile phone provider (3) have told us that they are unable to supply any call log for incoming calls but it's easy enough for outgoing calls. Strangely she did say that the Police can access this info themselves very easily. Anybody have any thoughts on that point?

Thanks again.

Rgds

JC.
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peterguk
post Fri, 31 Mar 2017 - 00:17
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QUOTE (JC21 @ Fri, 31 Mar 2017 - 00:44) *
Anybody have any thoughts on that point?


Do they need to make enquiries with the operator to prove the phone was being used?


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Logician
post Fri, 31 Mar 2017 - 00:38
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QUOTE (JC21 @ Fri, 31 Mar 2017 - 00:44) *
Thanks very much for the advice and replies so far. We have tried contacting the officers sergeant but no joy as yet. The main aim being to see if the video evidence was ever reviewed. Our mobile phone provider (3) have told us that they are unable to supply any call log for incoming calls but it's easy enough for outgoing calls. Strangely she did say that the Police can access this info themselves very easily. Anybody have any thoughts on that point? Thanks again. Rgds JC.


It proves nothing, if a call was made or received at that time it does not prove the phone was being held in the hand, it could have been used with Bluetooth; if no calls were made or received it does not prove the phone was not being used, a call might have been attempted which did not connect, a previous text could have been read, a text could have been composed but not sent, etc.



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JC21
post Fri, 31 Mar 2017 - 00:38
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QUOTE (peterguk @ Fri, 31 Mar 2017 - 01:17) *
QUOTE (JC21 @ Fri, 31 Mar 2017 - 00:44) *
Anybody have any thoughts on that point?


Do they need to make enquiries with the operator to prove the phone was being used?


Peter

What I'm saying is that we can only prove that the phone was not being used to make n outgoing call but the provider has advised that the Police can confirm one way or another if it was being used for either of incoming or outgoing calls.

We would be more than happy for the Police to go down this route but suspect that they won't as it hardly helps them in gaining any hope of a successful prosecution.

If I've misunderstood your point I apologise.

Rgds

JC.
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The Rookie
post Fri, 31 Mar 2017 - 07:41
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It wouldn't prove if you wife called a number and held it to her ear and it didn't connect, it wouldn't prove she wasn't listening to a voice mail, so while it may rule out some 'using' it doesn't disprove all 'using's that would be an offence.


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