Mobile Phone Appeal |
Mobile Phone Appeal |
Mon, 15 Apr 2019 - 16:56
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#1
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Member Group: Members Posts: 33,611 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
Make of this what you will, though it could confirm what some have been saying on here for years. Have to get hold of the judgment when it’s released.
This post has been edited by southpaw82: Mon, 15 Apr 2019 - 16:57 -------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Mon, 15 Apr 2019 - 16:56
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Fri, 19 Apr 2019 - 15:13
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#21
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
That no hotspot existed would IMO be no different to a trying to use a true mobile when the network was down.
For instance in a dead spot and typing in a text to send when connection is available. I think it is different because, in this case, the driver would be trying to take what he knows to be an unlawful action and only the availability of the connection prevents it A closer analogy would be taking a photograph with a wifi enabled camera such as one of these Is it a mobile communication device if it can only upload pictures ? Does it become an interactive device if it can download software ? https://www.canon.co.uk/cameras/wifi-cameras/ |
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Fri, 19 Apr 2019 - 15:20
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#22
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Member Group: Life Member Posts: 24,215 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
Some people seem to think that interpreting the law consists solely of reading the statute and giving effect to the ordinary meaning of the words. These people are idiots.
-------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Fri, 19 Apr 2019 - 15:22
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#23
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Member Group: Members Posts: 3,300 Joined: 17 Jun 2011 Member No.: 47,602 |
That no hotspot existed would IMO be no different to a trying to use a true mobile when the network was down. For instance in a dead spot and typing in a text to send when connection is available. I think it is different because, in this case, the driver would be trying to take what he knows to be an unlawful action and only the availability of the connection prevents it A closer analogy would be taking a photograph with a wifi enabled camera such as one of these Is it a mobile communication device if it can only upload pictures ? Does it become an interactive device if it can download software ? https://www.canon.co.uk/cameras/wifi-cameras/ AFAIK all wireless data comms technologies, such as wifi, must pass data in both directions in order to establish and maintain connection. |
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Fri, 19 Apr 2019 - 19:40
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#24
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Member Group: Members Posts: 25,726 Joined: 28 Jun 2010 From: Area 51 Member No.: 38,559 |
That no hotspot existed would IMO be no different to a trying to use a true mobile when the network was down. For instance in a dead spot and typing in a text to send when connection is available. I think it is different because, in this case, the driver would be trying to take what he knows to be an unlawful action and only the availability of the connection prevents it A closer analogy would be taking a photograph with a wifi enabled camera such as one of these Is it a mobile communication device if it can only upload pictures ? Does it become an interactive device if it can download software ? https://www.canon.co.uk/cameras/wifi-cameras/ 6© gives a list of "interactive communication" which includes "sending or receiving still or moving images" which would seem to include that camera. And a Panasonic of the type I own and probably loads more. But 6(a) is clear that hand held only applies when making/receiving a call or performing some other interactive function. So to me, photographing an image and letting it sit on the card is not using an interactive device. Going into the menu and sending the picture is. To me, the intent of the law is clear, using a mobile phone, hand held while driving is verboten. My issue is that the draftsman, in trying to clarify Hand Held, seems to have restricted "Hand Held" into specifics that do not include using the camera function or playing music etc. Admittedly the list is specified as "includes" so should not be regarded as definitive but it is clear, to me at least, that the draftsman envisaged times when it would be legal to hand hold a phone without contravening the regulations. For instance, clipping the phone into a holder. Hand held but not using as such and certainly nothing within the list. |
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Sun, 21 Apr 2019 - 14:31
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#25
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
Admittedly the list is specified as "includes" so should not be regarded as definitive but it is clear, to me at least, that the draftsman envisaged times when it would be legal to hand hold a phone without contravening the regulations. Well this is obviously correct, otherwise you'd have some absurd results: Say the phone falls off the cradle onto your lap, it's distracting so without looking at it, you move it onto the passenger seat where you leave it until you can pull over. Is this act prohibited? Clearly not. -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Sun, 21 Apr 2019 - 14:48
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#26
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
It is absurd that, 16 years after the legislation was introduced, a senior court has still not made clear what "using" the phone actually means I think the law is very clear and there's people who are trying to make it sound like the law isn't clear because they want to get off the charge. I sincerely hope the HC simply confirms the law says what it means on its plain reading. So upholds the acquittal here then? The law clearly says that if you're using the mobile phone while you're driving and it's held in your hand, you're guilty. Whether you're making a call, plating music, taking a video or using it for any other purpose is irrelevant because the particular use to which the phone was being put is not an element of the offence at all and saying otherwise requires reading words into the statue that are not there. A "use" defence would only have merit IMO if the use in question were not consistent with the use one normally makes of a mobile phone at all: If, for example, you were using a mobile phone to bash your passenger over the head because they were annoying you, while you might be guilty of something else you would not be guilty of using a mobile phone while driving, as hitting someone over the head is not consistent with the ordinary use of a mobile phone. But in this context "use" must, in my view, be read as to mean any use to which a mobile phone is ordinarily put. Would the man on the Clapham omnibus say someone taking a video, or listening to music, is "using" their mobile phone to do so? Clearly yes, so this is "use" within the meaning of the regulations. People who rant about the interactive communication element of the offence (which I reiterate for a mobile phone is not an element of the offence at all) are, in my view, in the same bucket as "I had to exceed the limit cos the guy behind me was going to ram me", it's just clutching at straws. It is clear as cp says. IMO. Don’t use the phone in your hand whilst driving. You mean, "don't touch or glance at your phone whilst driving, unless it's in a cradle", surely? --Churchmouse As long as it's not hand-held, you can touch and look at your phone (subject of course to other laws such as being in proper control and paying due care and attention). For example my girlfriend doesn't have a cradle because she can secure her phone on the dash with a clip-in air freshener, so effectively it's a DIY cradle. The fact that she hasn't bought a purpose made cradle from a shop does not make her guilty. This post has been edited by cp8759: Sun, 21 Apr 2019 - 14:44 -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Mon, 22 Apr 2019 - 13:06
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#27
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Member Group: Life Member Posts: 24,215 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
The law clearly says that if you're using the mobile phone while you're driving and it's held in your hand, you're guilty. Whether you're making a call, plating music, taking a video or using it for any other purpose is irrelevant because the particular use to which the phone was being put is not an element of the offence at all and saying otherwise requires reading words into the statue that are not there. You must be new to this law malarkey.. -------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Mon, 22 Apr 2019 - 23:11
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#28
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Member Group: Members Posts: 3,306 Joined: 4 Mar 2017 Member No.: 90,659 |
The person was charged with the wrong offence. Not in proper control, careless driving or even dangerous driving seeing as you need to be extra cautious passing an accident in case the idiot in front is filming would have secured a conviction.
The mistake was that here the mobile phone was incidental. It would have the same essential elements if it was a camcorder or they sketched it on a pad with a pencil. They should have focused on the activity, not the tool used. As such it's not really a loophole. The law is fine for 99.9% of offences - calls, texting and internet use. There are plenty of "catch all" offences for generally being an idiot whilst driving. |
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Tue, 23 Apr 2019 - 08:28
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#29
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
Good summary
There seems to be a "no win" situation for the legislation It has always been possible to treat using a mobile phone, camera, camcorder as a DWDC offence instead of having specific phone legislation Parliament could then have said that it would be six points if the device was used to make calls, text or browse This, however, would mean that handling any object would be an offence Eating a sweet, a quick sip from a bottle, finding cash for a toll booth Wasn't there a row when a driver was pursued by a police helicopter for biting an apple ? |
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Tue, 23 Apr 2019 - 18:31
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#30
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Member Group: Members Posts: 4,748 Joined: 29 Oct 2008 Member No.: 23,623 |
Hopefully the court will consider the "mischief" that Parliament intended to address when passing the legislation (i.e. people faffing about with hand-held gadgets whilst driving) and rule accordingly. With any luck the judge will have attended the same school as that arch-nemesis of Barrister Horace Rumpole, Mr Justice "Ollie" Oliphant. Apart from having an almost pathological disdain for any advocate who practised south of Leeds, in every episode he was in Judge Oliphant would address the jury with these wise words: "Now go and consider your verdict, members of the jury. And for heavens' sake, when you do so, ladies and gentlemen, use your common sense!"
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Tue, 23 Apr 2019 - 18:47
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#31
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Member Group: Life Member Posts: 24,215 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
A lot of people seem to know for sure what Parliament's intention was (at least to the extent that Parliament can realistically be treated as a gestalt entity with a single mind), which often bears little or no relation to the words used in the legislation.
-------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Tue, 23 Apr 2019 - 19:07
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#32
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
The minister failed to include an introductory text when he laid the Statutory Instrument
The briefing notes circulated to members beforehand, however, were clear that he was concerned about the distraction resulting from the communication They're a bit thin on the definition of "driving" but he didn't regard it as an offence when the car's been stuck in a jam for an hour and won't be going anywhere in the near future To me this implies that one test is whether there is any possibility that the driver's call will be interrupted by a requirement to take action regarding his vehicle Is the decision when to start the engine or move the car his and his alone ? That test would deal with the case of a car with the engine off but the keys in the ignition Who takes the keys out when he's in a traffic jam ? |
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Tue, 23 Apr 2019 - 21:24
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#33
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Member Group: Life Member Posts: 24,215 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
What was the mischief?
Was it - the obvious danger posed by drivers who needed to not be distracted when controlling a moving vehicle? the potential to inconvenience other drivers if a driver used a phone when stationary in traffic/at the lights and might then slightly delay driver s behind him if he did not see the conditions change in good time and/or had to put the phone down? the possibility that a driver who was using a phone (safely) whilst stationary might continue to use the phone when driving off (which would seem to be similar to the possibility that any driver with a mobile phone in the car might use it whilst the car is moving)? the possible distraction caused by any 'device' (or eating or drinking)? something else? Which of the above would seem to be consistent with an offence which carries a mandatory endorsement of 6 points? -------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Guest_Charlie1010_* |
Tue, 23 Apr 2019 - 21:41
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#34
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All of them. Make it nine points.
Too many people ‘communicating’ ‘recording’ ‘taking pictures’ when they should be driving. |
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Wed, 24 Apr 2019 - 08:21
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#35
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Member Group: Members Posts: 25,726 Joined: 28 Jun 2010 From: Area 51 Member No.: 38,559 |
All of them. Make it nine points. Too many people ‘communicating’ ‘recording’ ‘taking pictures’ when they should be driving. And 3 points for mobile phone zombies who don't look at anything but their screen when walking TBH I have little sympathy for anyone who cannot exist for a few minutes or even hours without having to check twitface, tell every "friend" that they are at the lights by the Old Red Lion or check in with their mate from work who they spent the last 8 hours with. Especially when cheap holders are available. But how the judge will decide, not a clue. I can see the options...… Restrict the hand held to any and all functions that a mobile phone can have.... the simplistic, it's a phone, don't hold it. Restrict it to the communications and interactive functions... so camera and Dictaphone OK, may even get away with playing Tetris. Or summat else cos the judge has had a brainfart and it will end up at Law Lords. |
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Wed, 24 Apr 2019 - 17:57
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#36
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Member Group: Members Posts: 3,140 Joined: 19 Jun 2004 From: Surrey Member No.: 1,326 |
A lot of people seem to know for sure what Parliament's intention was (at least to the extent that Parliament can realistically be treated as a gestalt entity with a single mind), which often bears little or no relation to the words used in the legislation. Reminds me of Legion: https://reddwarf.fandom.com/wiki/Gestalt_Entity |
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Wed, 24 Apr 2019 - 23:30
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#37
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Member Group: Members Posts: 6,963 Joined: 19 Dec 2006 From: Near Calais Member No.: 9,683 |
I'd suggest that a smart phone used to take pictures "could" automatically communicate with for instance a cloud-based storage system without the user's knowledge, therefore the the driver could be found guilty of unwittingly using it for communication.
My phone sits firmly either in my pocket or in the glove box hen I'm driving, connected by bluetooth in case an urgent call comes in. |
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Thu, 25 Apr 2019 - 18:38
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#38
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Member Group: Life Member Posts: 24,215 Joined: 9 Sep 2004 From: Reading Member No.: 1,624 |
I'd suggest that a smart phone used to take pictures "could" automatically communicate with for instance a cloud-based storage system without the user's knowledge, therefore the the driver could be found guilty of unwittingly using it for communication. My phone sits firmly either in my pocket or in the glove box hen I'm driving, connected by bluetooth in case an urgent call comes in. Do you have any idea what the word "interactive" means? -------------------- Andy
Some people think that I make them feel stupid. To be fair, they deserve most of the credit. |
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Thu, 25 Apr 2019 - 19:51
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#39
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Member Group: Members Posts: 2,356 Joined: 30 Jun 2008 From: Landan Member No.: 20,731 |
I'd suggest that a smart phone used to take pictures "could" automatically communicate with for instance a cloud-based storage system without the user's knowledge, therefore the the driver could be found guilty of unwittingly using it for communication. My phone sits firmly either in my pocket or in the glove box hen I'm driving, connected by bluetooth in case an urgent call comes in. Do you have any idea what the word "interactive" means? Are you referring to the "ordinary meaning of the word"? --Churchmouse |
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