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Requesting police bodycam footage
Colin_S
post Sun, 24 Dec 2017 - 12:43
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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?
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post Sun, 24 Dec 2017 - 12:43
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The Rookie
post Sun, 24 Dec 2017 - 13:16
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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.


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NewJudge
post Sun, 24 Dec 2017 - 14:29
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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.
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superSmiffy
post Sun, 24 Dec 2017 - 14:36
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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.

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Logician
post Sun, 24 Dec 2017 - 16:44
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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.


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Colin_S
post Sun, 24 Dec 2017 - 17:14
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QUOTE (The Rookie @ Sun, 24 Dec 2017 - 13:16) *
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.


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.

QUOTE (NewJudge @ Sun, 24 Dec 2017 - 14:29) *
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.


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...... wink.gif
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cp8759
post Sun, 24 Dec 2017 - 17:26
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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.

QUOTE (Colin_S @ Sun, 24 Dec 2017 - 17:14) *
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?

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.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Dwaynedouglas
post Sun, 24 Dec 2017 - 17:36
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Now I may be wrong (and have been), but on reading https://www.cps.gov.uk/legal-guidance/road-...s-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...


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I'm not a lawyer or legally trained, my opinion is based on my experience - follow at your own risk.
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cp8759
post Sun, 24 Dec 2017 - 18:27
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QUOTE (Dwaynedouglas @ Sun, 24 Dec 2017 - 17:36) *
Now I may be wrong (and have been), but on reading https://www.cps.gov.uk/legal-guidance/road-...s-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...

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.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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Jlc
post Sun, 24 Dec 2017 - 18:42
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QUOTE (cp8759 @ Sun, 24 Dec 2017 - 18:27) *
If one could show that the phone was not being used while it was being held, no offence would be committed.

Other offences can occur but it appears that only the mobile phone offence is on the table.


--------------------
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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Colin_S
post Sun, 24 Dec 2017 - 20:15
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QUOTE (cp8759 @ Sun, 24 Dec 2017 - 17:26) *
In this reply any reference to "you" is to be taken as a reference to the defendant.......


Thank you for that - very helpful.



QUOTE (cp8759 @ Sun, 24 Dec 2017 - 18:27) *
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.


This page confirms 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.



QUOTE (Jlc @ Sun, 24 Dec 2017 - 18:42) *
Other offences can occur but it appears that only the mobile phone offence is on the table.


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.
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The Rookie
post Sun, 24 Dec 2017 - 20:31
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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.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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NewJudge
post Sun, 24 Dec 2017 - 20:45
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QUOTE (Colin_S @ Sun, 24 Dec 2017 - 17:14) *
We are hoping to build up a sufficient argument for the case to be dropped at the case management hearing...

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.

QUOTE (Colin_S @ Sun, 24 Dec 2017 - 20:15) *
....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.


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.
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Colin_S
post Mon, 25 Dec 2017 - 08:24
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QUOTE (The Rookie @ Sun, 24 Dec 2017 - 20:31) *
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.


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.

QUOTE (NewJudge @ Sun, 24 Dec 2017 - 20:45) *
QUOTE (Colin_S @ Sun, 24 Dec 2017 - 17:14) *
We are hoping to build up a sufficient argument for the case to be dropped at the case management hearing...

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.

QUOTE (Colin_S @ Sun, 24 Dec 2017 - 20:15) *
....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.


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!
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peterguk
post Mon, 25 Dec 2017 - 10:35
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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?


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cp8759
post Mon, 25 Dec 2017 - 15:24
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QUOTE (Colin_S @ Mon, 25 Dec 2017 - 08:24) *
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.

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.


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No, I am not a lawyer.
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southpaw82
post Mon, 25 Dec 2017 - 17:36
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QUOTE (Colin_S @ Mon, 25 Dec 2017 - 08:24) *
Subsequently they have now discovered in the SJP that the spotter allegedly saw them scrolling the screen with their thumb.

What do you think the bodycam footage will show?


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Colin_S
post Tue, 26 Dec 2017 - 08:47
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QUOTE (cp8759 @ Mon, 25 Dec 2017 - 15:24) *
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.


Thank you for that. I've edited your link in my reply as there was an unwanted ) in it.

QUOTE (southpaw82 @ Mon, 25 Dec 2017 - 17:36) *
QUOTE (Colin_S @ Mon, 25 Dec 2017 - 08:24) *
Subsequently they have now discovered in the SJP that the spotter allegedly saw them scrolling the screen with their thumb.

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.

QUOTE (peterguk @ Mon, 25 Dec 2017 - 10:35) *
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?


It was in danger of sliding off the seat and onto the floor.

This post has been edited by Colin_S: Tue, 26 Dec 2017 - 08:45
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southpaw82
post Tue, 26 Dec 2017 - 09:26
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QUOTE (Colin_S @ Tue, 26 Dec 2017 - 08:47) *
QUOTE (southpaw82 @ Mon, 25 Dec 2017 - 17:36) *
QUOTE (Colin_S @ Mon, 25 Dec 2017 - 08:24) *
Subsequently they have now discovered in the SJP that the spotter allegedly saw them scrolling the screen with their thumb.

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?


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NewJudge
post Tue, 26 Dec 2017 - 11:17
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QUOTE (southpaw82 @ Tue, 26 Dec 2017 - 09:26) *
So what do you want the bodycam footage for? In what way will it assist the defence or undermine the prosecution?

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?
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