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FightBack Forums _ Speeding and other Criminal Offences _ Requesting police bodycam footage
Posted by: Colin_S Sun, 24 Dec 2017 - 12:43
Post #1342041
Can anyone advise the correct procedure to obtain a copy of bodycam footage recorded whilst a police officer was conducting a traffic stop?
This relates to a stop and reporting for the use of a mobile device whilst driving. The driver was pinged by a spotter further up the road and then stopped, questioned and advised they would be reported for possible prosecution by a second officer at a roadside check point. They have since received the conditional offer and returned it submitting a not guilty plea and requesting that the bodycam footage be available for inspection prior to any court hearing. They now have the SJP paperwork which again will be returned with a not guilty plea and again with a request for the bodycam footage.
The reason for the request for the footage is that they are certain it will support their case.
Do they need to put in a subject data access request or will the police / CPS make the video available if requested as above in the return of the various forms?
Posted by: The Rookie Sun, 24 Dec 2017 - 13:16
Post #1342050
What case will it support?
How do you know the spotter had a body cam and how do you know if they were it would show anything useful in a passing car?
I presume the driver claims they were not holding a mobile phone while ‘using’ it?
As Chinese whispers never works well, unless you are the driver this is probably a waste of time, if you were, then just say so.
Posted by: NewJudge Sun, 24 Dec 2017 - 14:29
Post #1342057
The Not Guilty plea will see the matter taken out of the Single Justice process and listed for a hearing in the normal Magistrates’ Court. If the plea is maintained there a “case management” hearing will take place. This will identify issues in dispute and the defendant by then should have been provided with the “Initial Details of the Prosecution Case” (IDPC). This should provide details of all the evidence the prosecution intends to rely on to prove their case and this is all the evidence he is entitled to at that stage.
If the said footage is not included (or at least is not listed) in the IDPC they also have a duty to disclose, later but before the trial, any “Unused Material” which may support the defence case or undermine the prosecution and the defendant can request, at the hearing, that the footage be provided. He should not rely on receiving it if the police/CPS do not believe it does either of the above.
Posted by: superSmiffy Sun, 24 Dec 2017 - 14:36
Post #1342058
You don’t have any right to make a shopping list for evidence although some solicitors may well do that for you.
The police will forward the evidence they are going to use in a prosecution to prove the offence to CPS who will review it and disclose it to you with a list of evidence that they will not be using. If you have a good reason to have unused material disclosed you can make an application to a court so the court can decide if it will assist your case and then have the police/CPS disclose it. If it isn’t going to assist you or undermine the prosecution case it won’t be released, the CPS already do that before disclosure so it is difficult to get unused material.
Recent cases do show the procedure isn’t all it should be.
Posted by: Logician Sun, 24 Dec 2017 - 16:44
Post #1342069
Do not rely on any assurance from the police that unused material does not assist the defence or undermine the prosecution case, insist on seeing it yourself. Apart from the recent high profile cases, I have personally seen failures by the police in that department, and one case where neither the police not the CPS had looked at the actual DVD of CCTV footage they presented as evidence which did not show what they expected because they had the wrong DVD, as a result of which a well known shoplifter got way with that particular offence.
Posted by: Colin_S Sun, 24 Dec 2017 - 17:14
Post #1342072
How do you know the spotter had a body cam and how do you know if they were it would show anything useful in a passing car?
I presume the driver claims they were not holding a mobile phone while ‘using’ it?
As Chinese whispers never works well, unless you are the driver this is probably a waste of time, if you were, then just say so.
It was the officer who conducted the stop who had the camera. I was not the driver but am supporting them in preparing a defence as they were not using the phone although they did move it from the seat to the dashboard and this is likely what the spotter saw.
The footage should provide far more detail of the driver's denial of using the phone than the officer's evidential notes suggest. On it's own it won't make the case but it will very likely support their defence.
If the said footage is not included (or at least is not listed) in the IDPC they also have a duty to disclose, later but before the trial, any “Unused Material” which may support the defence case or undermine the prosecution and the defendant can request, at the hearing, that the footage be provided. He should not rely on receiving it if the police/CPS do not believe it does either of the above.
The part in bold is my concern as, on it's own, it probably does nothing but there is a good chance that alongside the casting of doubt upon what the spotter states they saw it should support the drivers defence.
So just to clarify from the above, if we proceed with responding to the SJP with a not guilty but again request the footage, if it's not produced prior to the case management hearing we can request it then?
We are hoping to build up a sufficient argument for the case to be dropped at the case management hearing but the driver is very prepared to take it all the way if need be.
We may also need to ask the height of the spotter to help recreate what he says he saw......
Posted by: cp8759 Sun, 24 Dec 2017 - 17:26
Post #1342074
In this reply any reference to "you" is to be taken as a reference to the defendant.
You need to ask for the "Initial Details of the Prosecution Case" under part 8 of the Criminal Procedure Rules, the police/CPS must provide this to you as soon as is practicable. You are also entitled at common law to ask for all evidence that is material to your plea (R v DPP ex parte Lee).
It is however important that you make the request in writing, you keep evidence of your request, and you chase it up promptly. If, come the first hearing, you can show that you have badgering the police / CPS for this evidence and they have ignored you or refused to disclose it, you'd be within your rights to ask for an adjournment before entering a plea on the grounds that you've been denied your common law early disclosure (although you might find this is quite a technical point to argue and some justices' clerks may not know about this). If an adjournment is refused, you could plead not guilty but ask the court to preserve any early guilty plea discount on the grounds that you've not been given early disclosure as required by ex parte Lee
Whatever the circumstances, once a not guilty plea has been entered you're entitled to statutory disclosure under section 3 of the Criminal Procedure and Investigation Act 1996.
The response for disclosure and the reply to the SJP notice are not directly related. You need to ask for disclosure from the prosecution, not from the court.
Posted by: Dwaynedouglas Sun, 24 Dec 2017 - 17:36
Post #1342076
Now I may be wrong (and have been), but on reading https://www.cps.gov.uk/legal-guidance/road-traffic-offences-mobile-phones it makes the point that:
Use
There has been some debate about what use means.
A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not.
The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand held by the person at some point during its use at a time when the person was driving a vehicle on a road.
It therefore follows that the phone / device does not need to be seized before a prosecution can be brought.
To my layman's eyes, that would indicate that simply holding the phone is the offence...
Posted by: cp8759 Sun, 24 Dec 2017 - 18:27
Post #1342086
Use
There has been some debate about what use means.
A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not.
The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand held by the person at some point during its use at a time when the person was driving a vehicle on a road.
It therefore follows that the phone / device does not need to be seized before a prosecution can be brought.
To my layman's eyes, that would indicate that simply holding the phone is the offence...
No, the CPS guidance says it must be proven that the phone was held at some point during its use. If one could show that the phone was not being used while it was being held, no offence would be committed.
Posted by: Jlc Sun, 24 Dec 2017 - 18:42
Post #1342088
Other offences can occur but it appears that only the mobile phone offence is on the table.
Posted by: Colin_S Sun, 24 Dec 2017 - 20:15
Post #1342097
Thank you for that - very helpful.
https://www.cps.gov.uk/legal-guidance/road-traffic-offences-mobile-phonesconfirms that simply holding a phone does not constitute usage and even suggests a lesser(???) charge of driving without due care and attention. It will be printed off and taken to court if the case gets to that point.
Correct. The police should perhaps have gone for a without due care and attention charge as the driver did admit to moving the phone whilst driving. I would have suggested accepting that one but as the police have decided to prosecute for mobile usage and the driver is adamant that they did not use the phone and I believe them as they have no reason to lie to me, I'm more than happy to lend my support.
Posted by: The Rookie Sun, 24 Dec 2017 - 20:31
Post #1342101
I fail to see how any denial to the officer who performed the stop is relevant at all to what happened before that when the spotter observed what he believed to be an offence? What is relevant is whether or not the offence was committed, a denial at the time of the stop wouldn’t count for much of the offence had occurred!
All that the officer needed to note and presumably has is that the offence was denied.
Posted by: NewJudge Sun, 24 Dec 2017 - 20:45
Post #1342106
When did you formulate that hope? In any case your hopes will be dashed. The decision to prosecute has already been taken. The court handling the case management hearing is not concerned with the strength or weakness of the evidence and will not hear any "arguments" about it. That is a matter for the trial court.
If you did not witness this (I may be wrong but from the above it seems you did not) there is not much you can do to assist at your friend's trial. Your support will be confined to helping him prepare beforehand.
Posted by: Colin_S Mon, 25 Dec 2017 - 08:24
Post #1342148
All that the officer needed to note and presumably has is that the offence was denied.
In this case the driver went to great lengths to show the smart in car handsfree system which includes features such as allowing texts to be read out and dictated. They did this as they were not using the phone and did not know the precise reason for the stop other than the accusation of using the phone.
Subsequently they have now discovered in the SJP that the spotter allegedly saw them scrolling the screen with their thumb. So the fact they argued an alternate use of the phone to the stopping office to that which the spotter thinks he saw, I suggest, adds weight to their argument for a NG plea.
When did you formulate that hope? In any case your hopes will be dashed. The decision to prosecute has already been taken. The court handling the case management hearing is not concerned with the strength or weakness of the evidence and will not hear any "arguments" about it. That is a matter for the trial court.
If you did not witness this (I may be wrong but from the above it seems you did not) there is not much you can do to assist at your friend's trial. Your support will be confined to helping him prepare beforehand.
In answer to the first part by talking to the CPS at the first court appearance. It may be futile but we are hoping to build up a sufficient case that we can convince them it's not in the public interest to proceed but if it goes all the way then so be it.
As for the second part I will be supporting throughout as a McKenzie friend so intend to be alongside them throughout any court case.
Thanks all for useful comments. Merry Christmas!
Posted by: peterguk Mon, 25 Dec 2017 - 10:35
Post #1342155
If your friend's car is smart enough to read messages etc., why would he need to be moving the phone from seat to dash?
Posted by: cp8759 Mon, 25 Dec 2017 - 15:24
Post #1342167
Just so you know it's unlikely the CPS will agree to drop the charges at the hearing, unless you can show there's no case to answer (which I don't think is the case). The general rule is that it is in the public interest to prosecute and nothing you have said would suggest it wouldn't be in this case, on the contrary you seem to be trying to show that the evidential test is not met (You might want to read https://www.cps.gov.uk/publication/full-code-test). From what you've said, the police have an arguable case that the offence was committed, and your friend has an arguable case which might make the magistrates doubt whether the offence was committed, the CPS would normally take such a case to trial and let the magistrates decide.
Posted by: southpaw82 Mon, 25 Dec 2017 - 17:36
Post #1342177
What do you think the bodycam footage will show?
Posted by: Colin_S Tue, 26 Dec 2017 - 08:47
Post #1342204
Thank you for that. I've edited your link in my reply as there was an unwanted ) in it.
What do you think the bodycam footage will show?
The spotter was not (we believe) wearing a bodycam, it was the officer who conducted the stop who was. If the spotter was also wearing one there's no mention of it in their statement and as they were in plain clothes it's perhaps unlikely.
It was in danger of sliding off the seat and onto the floor.
Posted by: southpaw82 Tue, 26 Dec 2017 - 09:26
Post #1342207
What do you think the bodycam footage will show?
The spotter was not (we believe) wearing a bodycam, it was the officer who conducted the stop who was. If the spotter was also wearing one there's no mention of it in their statement and as they were in plain clothes it's perhaps unlikely.
So what do you want the bodycam footage for? In what way will it assist the defence or undermine the prosecution?
Posted by: NewJudge Tue, 26 Dec 2017 - 11:17
Post #1342219
Or are you thinking that if it is not possible to produce it or if its production is refused, it will somehow provide your friend with a defence?
Posted by: Colin_S Wed, 27 Dec 2017 - 07:48
Post #1342344
Without viewing the video it's hard to predict exactly it's usefulness or otherwise however we believe it may support the defence as the accusation of the spotter, which was not advised at the time of the stop, was of scrolling the screen. The driver had not been doing this and, unaware of the accusation, went to lengths to explain how they would have used the hands free kit for calls and texts. Something they perhaps would not have done had they either been guilty of what the spotter believes they saw or had the full accusation been detailed at the time of the stop.
The aim is to create reasonable doubt and this will be a small part of that process.
Posted by: peterguk Wed, 27 Dec 2017 - 09:50
Post #1342355
As we all know, "using" a phone does not have to involve any calls or text messages.
Posted by: Churchmouse Wed, 27 Dec 2017 - 11:58
Post #1342375
As we all know, "using" a phone does not have to involve any calls or text messages.
Doesn't it (in theory) have to involve using the phone's "telecommunications functions", though? The Jimmy Carr defence.
--Churchmouse
Posted by: superSmiffy Wed, 27 Dec 2017 - 13:07
Post #1342392
As we all know, "using" a phone does not have to involve any calls or text messages.
Doesn't it (in theory) have to involve using the phone's "telecommunications functions", though? The Jimmy Carr defence.
--Churchmouse
No that was a cock-up by the magistrates and CPS when they accepted Nick Freeman’s suggestion that follows yours.
The description of what a hand-held mobile phone is from the regulation was conflated with the description of the offence of “using” a hand-held mobile telephone.
The Carr defence is a one-off. More creativity is now needed to confuse on this regulation.
Posted by: southpaw82 Wed, 27 Dec 2017 - 18:42
Post #1342451
The aim is to create reasonable doubt and this will be a small part of that process.
How will it assist the defence? If you have to make an application for its disclosure you’re going to have to answer this question convincingly.
As we all know, "using" a phone does not have to involve any calls or text messages.
Doesn't it (in theory) have to involve using the phone's "telecommunications functions", though? The Jimmy Carr defence.
--Churchmouse
No that was a cock-up by the magistrates and CPS when they accepted Nick Freeman’s suggestion that follows yours.
The description of what a hand-held mobile phone is from the regulation was conflated with the description of the offence of “using” a hand-held mobile telephone.
The Carr defence is a one-off. More creativity is now needed to confuse on this regulation.
Presumably you’re a Crown Prosecutor or otherwise qualified to make such an assertion? Otherwise it’s just some random person's opinion.
Posted by: Logician Wed, 27 Dec 2017 - 19:19
Post #1342458
Actually the CPS now appear to support the Carr defence. The CPS guidance referenced earlier states this:
Use
There has been some debate about what use means.
A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not.
The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand held by the person at some point during its use at a time when the person was driving a vehicle on a road.
It therefore follows that the phone / device does not need to be seized before a prosecution can be brought.
The essence of the Carr defence was that he was not using his phone in an interactive communication function but as a recording device, which means that it was not in use as defined above.
Posted by: Churchmouse Thu, 28 Dec 2017 - 10:20
Post #1342553
Thanks; that was what I had understood. However, I wouldn't suggest that relying on it in court would be easy. The offence now carries a heavy penalty and chancing it in court could prove very costly.
--Churchmouse
Posted by: cp8759 Thu, 28 Dec 2017 - 10:30
Post #1342554
The aim is to create reasonable doubt and this will be a small part of that process.
How will it assist the defence? If you have to make an application for its disclosure you’re going to have to answer this question convincingly.
Well, once a not guilty plea is entered the prosecution will have to disclose it anyway under the CPIA, which is the likely outcome as I doubt the CPS will agree to drop the matter at the first hearing (at least based on what we have been told).
Posted by: southpaw82 Thu, 28 Dec 2017 - 11:52
Post #1342574
If it is evidence for the prosecution, or it assists the defence, or it undermines the prosecution.
Posted by: cp8759 Thu, 28 Dec 2017 - 19:57
Post #1342685
If it is evidence for the prosecution, or it assists the defence, or it undermines the prosecution.
It's not quite as definitive as that though, the requirement is for disclosure if the evidence "might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused"; showing that the evidence might reasonably be considered capable of assisting the defence is quite different to showing that it actually does assist the defence. It is also arguable that, if the CPS has no public interest grounds to want to withhold the evidence (which is extremely unlikely in a road traffic prosecution), they should not oppose disclosure because asking the court to make a judicial determination regarding disclosure would, under the circumstances, not be consistent with "dealing with the case efficiently and expeditiously".
Posted by: southpaw82 Thu, 28 Dec 2017 - 20:21
Post #1342690
If it is evidence for the prosecution, or it assists the defence, or it undermines the prosecution.
It's not quite as definitive as that though, the requirement is for disclosure if the evidence "might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused"; showing that the evidence might reasonably be considered capable of assisting the defence is quite different to showing that it actually does assist the defence. It is also arguable that, if the CPS has no public interest grounds to want to withhold the evidence (which is extremely unlikely in a road traffic prosecution), they should not oppose disclosure because asking the court to make a judicial determination regarding disclosure would, under the circumstances, not be consistent with "dealing with the case efficiently and expeditiously".
Have you ever acted as a disclosure officer or prosecuted/defended a criminal case?
Posted by: NewJudge Thu, 28 Dec 2017 - 21:08
Post #1342704
We seem to be getting awfully bogged down with the intricacies of disclosure.
AIUI, before plea, the prosecution has a duty to disclose the following (as applicable) which makes up the Initial Details of the Prosecution Case:
- summary of prosecution
- interview summary
- available statements relevant to plea, allocation or sentence
- previous convictions
- victim personal statement
Only after a NG plea is there an obligation to disclose anything else. In the vast majority of cases on here (speeding/mobile phone/red light/careless) that’s usually all there is and further disclosure is not an issue because there is nothing further to disclose. In this case, why don’t we see what happens when the defendant asks for the bodycam footage. The chances are it will simply be served.
Posted by: cp8759 Fri, 29 Dec 2017 - 01:41
Post #1342735
If it is evidence for the prosecution, or it assists the defence, or it undermines the prosecution.
It's not quite as definitive as that though, the requirement is for disclosure if the evidence "might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused"; showing that the evidence might reasonably be considered capable of assisting the defence is quite different to showing that it actually does assist the defence. It is also arguable that, if the CPS has no public interest grounds to want to withhold the evidence (which is extremely unlikely in a road traffic prosecution), they should not oppose disclosure because asking the court to make a judicial determination regarding disclosure would, under the circumstances, not be consistent with "dealing with the case efficiently and expeditiously".
Have you ever acted as a disclosure officer or prosecuted/defended a criminal case?
Yes
AIUI, before plea, the prosecution has a duty to disclose the following (as applicable) which makes up the Initial Details of the Prosecution Case:
- summary of prosecution
- interview summary
- available statements relevant to plea, allocation or sentence
- previous convictions
- victim personal statement
Only after a NG plea is there an obligation to disclose anything else. In the vast majority of cases on here (speeding/mobile phone/red light/careless) that’s usually all there is and further disclosure is not an issue because there is nothing further to disclose. In this case, why don’t we see what happens when the defendant asks for the bodycam footage. The chances are it will simply be served.
Agreed, I am struggling to see why it wouldn't be disclosed, and it would be "efficient and expeditious" to disclose it and get on with the case, as the OP indicates the intention is to fight the case, whether it is disclosed before or after plea is somewhat academic.
Posted by: Colin_S Sun, 31 Dec 2017 - 08:39
Post #1343057
Thanks for all the replies. My original question has been answered. The NG plea has been submitted and a separate letter has been sent in requesting the video and some other information to the Police. One additional thing the footage may help with is showing the approximate speed of the vehicle as this detail has been omitted in any shape or form and would be useful for recreating the incident so as to ascertain how long the spotter could have realistically observed the alleged offence.
The crux of the defence will be to question the accuracy of what the spotter alleges they saw. The spotter's statement lends itself to a good cross examination that should be able to cast doubt on whether he was mistaken in what he believes he saw and whether he had sufficient time to even observe what he says he did. I will post more details on this at some future date, probably after the case goes to Court.
Thanks again.
Posted by: NewJudge Sun, 31 Dec 2017 - 14:55
Post #1343085
Do not rely on your friend's letter being taken as the request for the footage. The NG plea will see the matter listed for a Case Management hearing in the normal magistrates' court which your friend should attend. There he can make his formal request for the disclosure (which he may be asked to put in writing to the CPS). He should have his request recorded on the Case Management paperwork retained by the court.
Posted by: baggins1234 Sun, 31 Dec 2017 - 15:51
Post #1343092
Also do not forget that you won’t be necessarily be examining the reaction time of the spotting officer to see something.
He or she will have been there specifically to observe for anticipated offences and as such there is a difference.
Posted by: Colin_S Sun, 4 Mar 2018 - 13:36
Post #1363743
Some updates on this...
If there was any case management it was done online when my friend submitted a response to the charge including that he wanted to cross examine both PC's. The first Court appearance was last week and that was for the trial.
By this point there had been 3 written requests for the bodycam footage from the officer that carried out the stop but the best we got was a response that the police were not submitting any video evidence to support their prosecution and a complete ignore of the fact he wanted it to assist in his defence. It looked like we would have to wait for the case to begin and request this footage and ask for an adjournment.
For those wondering why the footage was relevant, we wanted to prove a likely approximate speed for the vehicle to weaken what the spotter says he saw (a mobile phone being held at the 8 o'clock position on the steering wheel for approx. 3 seconds) We recreated this and proved that a phone held at that position would be visible for much less than a second at 20 mph and the location of the spot was on a road with a likely speed of 30. We also wanted to clarify what the spotter had radioed through about the colour of the phone. My friend recalls hearing the wrong colour stated but the spotter's evidence details the correct colour which suggests collusion in preparing his statement. We also wanted to examine his pocket book entry. Finally the stopping officer mentions my friend said he moved his phone, which omitted the words 'may have' which my friend is adamant he used.
The spotter also stated he saw the phone being scrolled but offered no evidence to confirm this such as illuminated screen or the like.
Anyways, fast forward to the hearing. We were called in and the fact that one of the officers was double booked at another court some 10 miles away and the whereabouts of the other officer was unknown was promptly raised. The CPS asked to adjourn but we requested it be dealt with on the day. The fact my friend had taken 2 nights off work to attend was mentioned. The case was temporarily adjourned whilst calls were made to see if the PC's were able to attend later in the day and we were called back in a couple of hours later for the CPS to offer no evidence so that was that. A win's a win however it's achieved.
On a worrying note, a brief conversation with the bench afterwards suggested they truly believed that simply holding a phone was good enough for the offence. A point we were well prepared to cover if the case did actually run it's full course.
Posted by: NewJudge Sun, 4 Mar 2018 - 15:01
Post #1363757
A good result, albeit in a somewhat unsatisfactory manner. Thanks for letting us know.
Your remarks about the case management hearing (or lack of it) is a little worrying. It should not have been held in your friend's absence as it is his opportunity to state the basis of his defence as well as have recorded any requests he might make such as the footage). The fact that the prosecution were not relying on it is not the issue. If it assist the defence of undermines the prosecution it should be disclosed. Having said that, it seems getting hold of bodycam footage seems to be a major logistical exercise in many areas. Anyway (in this instance, at least) no matter.
Posted by: notmeatloaf Sun, 4 Mar 2018 - 21:26
Post #1363846
It is best not to worry too much about the legal knowledge of the magistrates, although many are well versed they receive legal direction before making a decision and thus, at least in theory, deliver an informed verdict.
The witness booking system for courts is deeply unsatisfactory. Bearing in mind many witnesses are busy people giving up their time it was quite normal to turn up and wait around for hours, or find that someone had the wrong date and you'd wasted your time. The attitude seems to be that the court's time is very valuable and everyone else should fit their day(s) around it. Glad I don't have to do it any more, albeit in this instance it gave you a slightly hollow victory.
Hopefully a lesson learnt for your friend to put the phone somewhere convenient before you set off, which will avoid a lot of hassle and lost wages.
Posted by: 4101 Sun, 4 Mar 2018 - 21:27
Post #1363847
If there was any case management it was done online when my friend submitted a response to the charge including that he wanted to cross examine both PC's. The first Court appearance was last week and that was for the trial.
By this point there had been 3 written requests for the bodycam footage from the officer that carried out the stop but the best we got was a response that the police were not submitting any video evidence to support their prosecution and a complete ignore of the fact he wanted it to assist in his defence. It looked like we would have to wait for the case to begin and request this footage and ask for an adjournment.
For those wondering why the footage was relevant, we wanted to prove a likely approximate speed for the vehicle to weaken what the spotter says he saw (a mobile phone being held at the 8 o'clock position on the steering wheel for approx. 3 seconds) We recreated this and proved that a phone held at that position would be visible for much less than a second at 20 mph and the location of the spot was on a road with a likely speed of 30. We also wanted to clarify what the spotter had radioed through about the colour of the phone. My friend recalls hearing the wrong colour stated but the spotter's evidence details the correct colour which suggests collusion in preparing his statement. We also wanted to examine his pocket book entry. Finally the stopping officer mentions my friend said he moved his phone, which omitted the words 'may have' which my friend is adamant he used.
The spotter also stated he saw the phone being scrolled but offered no evidence to confirm this such as illuminated screen or the like.
Anyways, fast forward to the hearing. We were called in and the fact that one of the officers was double booked at another court some 10 miles away and the whereabouts of the other officer was unknown was promptly raised. The CPS asked to adjourn but we requested it be dealt with on the day. The fact my friend had taken 2 nights off work to attend was mentioned. The case was temporarily adjourned whilst calls were made to see if the PC's were able to attend later in the day and we were called back in a couple of hours later for the CPS to offer no evidence so that was that. A win's a win however it's achieved.
On a worrying note, a brief conversation with the bench afterwards suggested they truly believed that simply holding a phone was good enough for the offence. A point we were well prepared to cover if the case did actually run it's full course.
If you want the footage then make an application to the police HQ quoting Data Protection Act 1998, section 35. £10
Posted by: peterguk Sun, 4 Mar 2018 - 21:29
Post #1363850
As easy as that?
Posted by: 4101 Sun, 4 Mar 2018 - 21:31
Post #1363851
As easy as that?
Is that a rhetorical question?
Its that easy.
1. Requests made under Section 35 of the Data Protection Act 1998
(a) Section 35 of the Data Protection Act 1998 states that personal data are exempt from the non-disclosure provisions whereby:
a disclosure is required by or under an enactment, by any rule of law or by the order of a court;
for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or the purpose of obtaining legal advice, or is otherwise necessary for the purpose of establishing, exercising or defending legal rights.
Posted by: peterguk Sun, 4 Mar 2018 - 21:37
Post #1363854
Not at all, just a straightforward one...
Posted by: southpaw82 Sun, 4 Mar 2018 - 21:38
Post #1363855
As easy as that?
Is that a rhetorical question?
Its that easy.
1. Requests made under Section 35 of the Data Protection Act 1998
(a) Section 35 of the Data Protection Act 1998 states that personal data are exempt from the non-disclosure provisions whereby:
a disclosure is required by or under an enactment, by any rule of law or by the order of a court;
for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or the purpose of obtaining legal advice, or is otherwise necessary for the purpose of establishing, exercising or defending legal rights.
You do realise that s 35 doesn’t make it mandatory for the data controller to release the data?
You also realise, I hope, that if it is the subject's own personal data then the application is made under s 7, not s 35.
Whilst most requests are dealt with by releasing a copy of the information requested, that’s not a requirement.
Posted by: 4101 Sun, 4 Mar 2018 - 21:51
Post #1363859
As easy as that?
Is that a rhetorical question?
Its that easy.
1. Requests made under Section 35 of the Data Protection Act 1998
(a) Section 35 of the Data Protection Act 1998 states that personal data are exempt from the non-disclosure provisions whereby:
a disclosure is required by or under an enactment, by any rule of law or by the order of a court;
for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) or the purpose of obtaining legal advice, or is otherwise necessary for the purpose of establishing, exercising or defending legal rights.
You do realise that s 35 doesn’t make it mandatory for the data controller to release the data?
You also realise, I hope, that if it is the subject's own personal data then the application is made under s 7, not s 35.
Whilst most requests are dealt with by releasing a copy of the information requested, that’s not a requirement.
Why is it not mandatory?
Posted by: southpaw82 Sun, 4 Mar 2018 - 21:54
Post #1363860
There are no words making it mandatory. All s 35 does is say that the non-disclosure provisions don’t apply. The non-disclosure provisions are defined in s 27(4). Nothing says "you must hand over the data" in s 35.
Posted by: Colin_S Mon, 5 Mar 2018 - 09:27
Post #1363931
As I mentioned above it appears the case management was conducted online. He filled in an online form including a brief outline of why he wanted the prosecution witnesses to attend with a few details of the elements of their statements he wanted to question.
The witness booking system for courts is deeply unsatisfactory. Bearing in mind many witnesses are busy people giving up their time it was quite normal to turn up and wait around for hours, or find that someone had the wrong date and you'd wasted your time. The attitude seems to be that the court's time is very valuable and everyone else should fit their day(s) around it. Glad I don't have to do it any more, albeit in this instance it gave you a slightly hollow victory.
Hopefully a lesson learnt for your friend to put the phone somewhere convenient before you set off, which will avoid a lot of hassle and lost wages.
We had also printed off copies of the CPS guide to what they define as use of a mobile phone ready to distribute as appropriate and to include in his summary. Not needed fortunately.
Besides one PC being double booked in 2 different courts the fact that both PC's shared the same surname possibly contributed to the non show of the second one. Oops!
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