[NIP Wizard] Challenging a use of mobile phone charge Options

[Problemchild]

NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - August 2019
Date of the NIP: - 69 days after the offence
Date you received the NIP: - 73 days after the offence
Location of offence (exact location as it appears on the NIP: important): - A30, Hartley Wintney, Hampshire
Was the NIP addressed to you? - Yes
Was the NIP sent by first class post, second class or recorded delivery? - Second
If your are not the Registered Keeper, what is your relationship to the vehicle? - Mother's car
How many current points do you have? - 3
Provide a description of events (if you know what happened) telling us as much about the incident as possible - some things that may seem trivial to you may be important, so don't leave anything out. Please do not post personal details for obvious reasons - I was in a 4x4, the police car was an estate car ahead of me. I had drawn attention to myself by approaching a bit too fast off a roundabout - only to within a cars length and soon backed off. As we stopped in a queue of traffic I looked at the sat nav on my phone. The phone was located in the cupholder as I was not in my own car. The officer pulled away and there was a short delay before I followed. He then stopped and indicated for me to pull over. The officer asserted that I was texting as soon as I stopped - I replied that I was looking at the sat nav on my phone. I was then charged with using a mobile phone while driving (and with no hands on the wheel - total rubbish). I don't believe the officer actually saw anything other than me checking the car was in gear (mum's car is automatic and I had not moved the lever far enough).
I do have dash cam footage of the incident, including the first part of the conversation with the officer.
Do I have a case to answer? There was no communication going on (phone conversation, texting or emails which can be proved with phone records from the provider) so I do believe I could contest this but would ask for guidance please.

NIP Wizard Responses
These were the responses used by the Wizard to arrive at its recommendation:
Have you received a NIP? - Yes
Are you the Registered Keeper of the vehicle concerned (is your name and address on the V5/V5C)? - No
Is the NIP addressed to you personally? - Yes
Although you are not the Registered Keeper, were you the keeper of the vehicle concerned (the person normally responsible for it) at the time of the alleged offence? - Yes
Were you driving? - Yes
Which country did the alleged offence take place in? - England

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:

• The law requires you to provide the information requested in the Section 172 notice within the 28 day period, naming yourself as the driver. If you are considering obtaining formal legal advice, do so before returning the notice.
  
  You should note that there is nothing to be gained by responding any earlier than you have to at any stage of the process. You are likely to receive a Conditional Offer of a Fixed Penalty (COFP) and further reminder(s). If you want to continue the fight, you should ignore all correspondence from the police until you receive a summons. You need to understand from the outset that while you will receive much help and support from members on the forums, you will need to put time and effort into fighting your case and ultimately be prepared to stand up in court to defend yourself.

Generated by the PePiPoo NIP Wizard v3.3.2: Sun, 10 Nov 2019 17:18:04 +0000

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[mdann52]

What is the exact offence alleged? Is it mobile phone related, not being in proper control or something else?

This post has been edited by mdann52: Tue, 12 Nov 2019 - 18:12

[NewJudge]

Assuming it's a mobile phone offence I would say you do have a case to answer. For you to have a case to answer the prosecution has to produce evidence so that the court could (not would or will) convict you. The officer will presumably give evidence that he saw you using your phone for an "interactive communication". You will have to rebut that evidence by showing that you were not. This recent ruling may help you. It was ruled that Mr Barreto was not guilty of a mobile phone infringement because he was not using his phone for interactive communication (he was filming a nearby accident):

https://www.judiciary.uk/wp-content/uploads...19-Judgment.pdf

As an aside, when did you pass your first driving test?

[666]

As a further aside, can you clarify why you had to check the gear lever?

[Ocelot]

Does the dashcam footage show the inside of the car when the alleged incident occurred?

[Problemchild]

What is the exact offence alleged? Is it mobile phone related, not being in proper control or something else?

Alleged offence is "Use a handheld mobile phone/device while driving a motor vehicle on a road"

Assuming it's a mobile phone offence I would say you do have a case to answer. For you to have a case to answer the prosecution has to produce evidence so that the court could (not would or will) convict you. The officer will presumably give evidence that he saw you using your phone for an "interactive communication". You will have to rebut that evidence by showing that you were not. This recent ruling may help you. It was ruled that Mr Barreto was not guilty of a mobile phone infringement because he was not using his phone for interactive communication (he was filming a nearby accident):

https://www.judiciary.uk/wp-content/uploads...19-Judgment.pdf

Thanks - yes I had seen this case. Also, I was alerted to it by the police complaints officer when discussing my complaint against the officer - but that is aa different matter (and yes, the complaint was upheld).

As an aside, when did you pass your first driving test?

I have posted this on behalf of my daughter who passed her test in 2009

As a further aside, can you clarify why you had to check the gear lever?

Driving an automatic and hadn't moved it far enough to engage drive - hence delay in moving off and checking lever. (usually drive a manual)

Does the dashcam footage show the inside of the car when the alleged incident occurred?

Sadly not but does have the conversation recorded.

[Jlc]

Given that 6 points is now the endorsement for this she should give consideration to fighting this.

Whilst nothing is certain she does appear to have some valid points. The officer seems mistaken.

However, there is always a residual risk and a contested trial would cost should she fail. (Guideline costs of £620 plus fines/surcharge)

This post has been edited by Jlc: Tue, 12 Nov 2019 - 20:39

[Logician]

There appears to be no way that the officer could tell whether the phone was being used for texting or as a sat-nav, his estate car being lower than your daughter's 4x4. He could have seen no more than that she was looking down at something below the window line. Until the decision in the case referenced in post #3 that would not have mattered much, most courts would have convicted for any use of a phone while handheld, but that decision has clarified the law and now the prosecution must prove some type of interactive communication. It seems unlikely that they can do that in your daughter's case, so she appears to have a viable defence, but it has to be accepted that nothing is certain. The law is considered to have been clarified rather than changed, so it does not matter that the incident occurred prior to the decision in the other case.

If your daughter does elect to go to trial, it will be interesting to see the officer's statement, and when he wrote it, if it contains anything that supports the idea that she was texting, not using the sat-nav function. She might be wise to have a solicitor to act for her, unless the case is dropped, the officer will need to be carefully cross-examined, which is a particular skill.

[Problemchild]

There appears to be no way that the officer could tell whether the phone was being used for texting or as a sat-nav, his estate car being lower than your daughter's 4x4. He could have seen no more than that she was looking down at something below the window line. Until the decision in the case referenced in post #3 that would not have mattered much, most courts would have convicted for any use of a phone while handheld, but that decision has clarified the law and now the prosecution must prove some type of interactive communication. It seems unlikely that they can do that in your daughter's case, so she appears to have a viable defence, but it has to be accepted that nothing is certain. The law is considered to have been clarified rather than changed, so it does not matter that the incident occurred prior to the decision in the other case.

If your daughter does elect to go to trial, it will be interesting to see the officer's statement, and when he wrote it, if it contains anything that supports the idea that she was texting, not using the sat-nav function. She might be wise to have a solicitor to act for her, unless the case is dropped, the officer will need to be carefully cross-examined, which is a particular skill.

Thank you Logican, this gives some hope - she has a very strong sense of right and wrong and this incident has upset her, not to mentions shattering any respect she had for the police. (In addition, she has 3 points for a speeding offence in 2017(a fair cop, as the saying goes) so another 6 would be rather precarious).


Are the solicitor suggestions on this site up to date, should I find someone local to us - can anyone advise please how is best to find someone to give good advice and "fight our corner".

Thanks on advance.

[Logician]

Are the solicitor suggestions on this site up to date, should I find someone local to us - can anyone advise please how is best to find someone to give good advice and "fight our corner". Thanks on advance.

You do need a traffic law specialist, Bobby Bell has had good reports on here and will give a free initial consultation.

[rosturra]

Why didn't the driver simply show the Police Officer her mobile phone, to demonstrate that no texts or phone calls had been made/received in the previous 15m?

Would a mobile bill listing serve the same evidential purpose in retrospect?

This post has been edited by rosturra: Wed, 13 Nov 2019 - 12:33

[666]

Why didn't the driver simply show the Police Officer her mobile phone, to demonstrate that no texts or phone calls had been made/received in the previous 15m?

Would a mobile bill listing serve the same evidential purpose in retrospect?

Is it OK to read a text which arrived more than 15 minutes ago?

[cp8759]

Is it OK to read a text which arrived more than 15 minutes ago?

I can see how this could make interesting Flame pit material (Is a text from 10 years ago OK? If so, where do we draw the line?) but as in this instance the phone was being used as a sat Nav, it's not really relevant.

This post has been edited by cp8759: Wed, 13 Nov 2019 - 12:58

[southpaw82]

Was she ever cautioned and questioned by the police? If so, did she say the phone was being used as a sat nav?

[Problemchild]

Why didn't the driver simply show the Police Officer her mobile phone, to demonstrate that no texts or phone calls had been made/received in the previous 15m?

Would a mobile bill listing serve the same evidential purpose in retrospect?

The officer did not give the opportunity to speak - I have listened to the Dashcam sound recording - he literally said "As soon as you stopped you were texting on your phone" Driver response was "I admit I was looking at my sat nav on my phone" Then - boom - you are charged with using a mobile phone anything you say......

Was she ever cautioned and questioned by the police? If so, did she say the phone was being used as a sat nav?

Said straight away when officer asserted that she had been texting but as above - totally ignored.


As an aside, a complaint was made against the officer reference his manner of approach. It was upheld and monitoring put in place.

Are the solicitor suggestions on this site up to date, should I find someone local to us - can anyone advise please how is best to find someone to give good advice and "fight our corner". Thanks on advance.

You do need a traffic law specialist, Bobby Bell has had good reports on here and will give a free initial consultation.

Thanks again Logican.