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Question about mobile phone use while driving, The rules seem ambiguous...
TheManinBlack
post Mon, 28 May 2018 - 09:58
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I use my mobile phone as a sat nav whilst driving (I think a lot of people do).

I have it mounted in a cradle on the windscreen and it does not obstruct my view of the road.

A couple days ago, whilst driving, I touched the phone while it was cradled - and the police appear to have managed to take a photo of me doing this - and have sent me a 'notice of prosecution' letter through the door (together with the photo). The offence is for 'use of a mobile device while driving'.

From my reading of the law, I am actually allowed to touch the phone if it is cradled - is this correct?
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post Mon, 28 May 2018 - 09:58
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Logician
post Tue, 29 May 2018 - 10:08
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QUOTE (Jlc @ Tue, 29 May 2018 - 08:14) *
47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.


The thing is they will not offer fixed penalties for two endorsable offences, so unless the mobile phone offence is dropped it, the case will have to go to court.



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Jlc
post Tue, 29 May 2018 - 10:17
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QUOTE (Logician @ Tue, 29 May 2018 - 11:08) *
QUOTE (Jlc @ Tue, 29 May 2018 - 08:14) *
47 in a 30 should qualify for a 3 points £100 fixed penalty. But it will be interesting what they offer.


The thing is they will not offer fixed penalties for two endorsable offences, so unless the mobile phone offence is dropped it, the case will have to go to court.

Indeed, I was more remarking whether they actually do that...


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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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notmeatloaf
post Wed, 30 May 2018 - 14:47
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The issue is that the CPS guidance states that the phone should've "held" for it to be an offence. Whether it needs to be held independently of any other support is debatable.

However, if you argue the toss with the police they will often just send it to court. And although the CPS guidance is to some extent partial, magistrates court can be a bit of a lottery and you would potentially need to appeal it to crown court.

As has been said it depends on what comes through. However, I would be surprised if the police drop the phone charge, although there's no harm writing a polite letter asking them to exercise discretion.
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djtaylor
post Fri, 1 Jun 2018 - 17:46
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Isn't it up to the prosecution to prove that it is in fact a phone and not a satnav/dashcam/MP3 player etc.?

The picture as I remember it, was not exactly clear.

"Because we think it probably is" doesn't really seem to be "beyond reasonable doubt"

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peterguk
post Fri, 1 Jun 2018 - 17:49
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QUOTE (djtaylor @ Fri, 1 Jun 2018 - 18:46) *
Isn't it up to the prosecution to prove that it is in fact a phone and not a satnav/dashcam/MP3 player etc.?

The picture as I remember it, was not exactly clear.

"Because we think it probably is" doesn't really seem to be "beyond reasonable doubt"


Not difficult to ask the accused under oath what device he had sat in a phone cradle...


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southpaw82
post Fri, 1 Jun 2018 - 18:20
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QUOTE (peterguk @ Fri, 1 Jun 2018 - 18:49) *
QUOTE (djtaylor @ Fri, 1 Jun 2018 - 18:46) *
Isn't it up to the prosecution to prove that it is in fact a phone and not a satnav/dashcam/MP3 player etc.?

The picture as I remember it, was not exactly clear.

"Because we think it probably is" doesn't really seem to be "beyond reasonable doubt"


Not difficult to ask the accused under oath what device he had sat in a phone cradle...

If he chooses to give evidence.


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Dwain
post Sat, 2 Jun 2018 - 09:29
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QUOTE (southpaw82 @ Fri, 1 Jun 2018 - 19:20) *
QUOTE (peterguk @ Fri, 1 Jun 2018 - 18:49) *
QUOTE (djtaylor @ Fri, 1 Jun 2018 - 18:46) *
Isn't it up to the prosecution to prove that it is in fact a phone and not a satnav/dashcam/MP3 player etc.?

The picture as I remember it, was not exactly clear.

"Because we think it probably is" doesn't really seem to be "beyond reasonable doubt"


Not difficult to ask the accused under oath what device he had sat in a phone cradle...

If he chooses to give evidence.


So to assist the OP, what you are suggesting is that they plead not guilty to the mobile phone offense and get a solicitor to attend court and ask the procection to prove that it was in fact a mobile phone and not a sat nav. As they will not be in court they cannot be asked to give evidence?

Or have I got it wrong?
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peterguk
post Sat, 2 Jun 2018 - 10:07
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OP claims is was in a cradle at all times. So doesn't matter if it was a mobile phone.


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cp8759
post Sat, 2 Jun 2018 - 10:34
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QUOTE (peterguk @ Sat, 2 Jun 2018 - 11:07) *
OP claims is was in a cradle at all times. So doesn't matter if it was a mobile phone.

Depends, a court might say he was "holding" it even if it was in a cradle.

QUOTE (Dwain @ Sat, 2 Jun 2018 - 10:29) *
So to assist the OP, what you are suggesting is that they plead not guilty to the mobile phone offense and get a solicitor to attend court and ask the procection to prove that it was in fact a mobile phone and not a sat nav. As they will not be in court they cannot be asked to give evidence?

Or have I got it wrong?

While technically the OP could attend court himself and simply state he does not wish to enter the witness box (no one can be compelled to give evidence in their own trial as they have a right to silence), sending a solicitor instead makes it harder to draw an "adverse inference" under section 35 of the Criminal Justice and Public Order Act 1994


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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.
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peterguk
post Sat, 2 Jun 2018 - 10:40
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QUOTE (cp8759 @ Sat, 2 Jun 2018 - 11:34) *
QUOTE (peterguk @ Sat, 2 Jun 2018 - 11:07) *
OP claims is was in a cradle at all times. So doesn't matter if it was a mobile phone.

Depends, a court might say he was "holding" it even if it was in a cradle.


You'd be unlucky to end up with a court finding you were holding an object yet had nothing in your hand!


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southpaw82
post Sat, 2 Jun 2018 - 13:18
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QUOTE (Dwain @ Sat, 2 Jun 2018 - 10:29) *
QUOTE (southpaw82 @ Fri, 1 Jun 2018 - 19:20) *
QUOTE (peterguk @ Fri, 1 Jun 2018 - 18:49) *
QUOTE (djtaylor @ Fri, 1 Jun 2018 - 18:46) *
Isn't it up to the prosecution to prove that it is in fact a phone and not a satnav/dashcam/MP3 player etc.?

The picture as I remember it, was not exactly clear.

"Because we think it probably is" doesn't really seem to be "beyond reasonable doubt"


Not difficult to ask the accused under oath what device he had sat in a phone cradle...

If he chooses to give evidence.


So to assist the OP, what you are suggesting is that they plead not guilty to the mobile phone offense and get a solicitor to attend court and ask the procection to prove that it was in fact a mobile phone and not a sat nav. As they will not be in court they cannot be asked to give evidence?

Or have I got it wrong?

I’m not suggesting anything. I am pointing out that an accused is not obliged to give evidence.


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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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mdann52
post Sun, 3 Jun 2018 - 21:04
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QUOTE (peterguk @ Sat, 2 Jun 2018 - 11:40) *
QUOTE (cp8759 @ Sat, 2 Jun 2018 - 11:34) *
QUOTE (peterguk @ Sat, 2 Jun 2018 - 11:07) *
OP claims is was in a cradle at all times. So doesn't matter if it was a mobile phone.

Depends, a court might say he was "holding" it even if it was in a cradle.


You'd be unlucky to end up with a court finding you were holding an object yet had nothing in your hand!


I mean, the photo could be inferred either way (IMO) - unfortunately, may well come down to the bench on the day, as is being proved here now!
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DancingDad
post Sun, 3 Jun 2018 - 21:21
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QUOTE (mdann52 @ Sun, 3 Jun 2018 - 22:04) *
........I mean, the photo could be inferred either way (IMO) - unfortunately, may well come down to the bench on the day, as is being proved here now!


If I were a magistrate I would be making my mind up from the video not a selected still...assuming there is a video.
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djtaylor
post Sun, 3 Jun 2018 - 21:55
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Video or not, my question was whether it is up to the prosecution to prove that the device in question, whether in a cradle, hand held or whatever, was in fact a phone and not just "because it probably was"?
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southpaw82
post Sun, 3 Jun 2018 - 22:09
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QUOTE (djtaylor @ Sun, 3 Jun 2018 - 22:55) *
Video or not, my question was whether it is up to the prosecution to prove that the device in question, whether in a cradle, hand held or whatever, was in fact a phone and not just "because it probably was"?

Well, it’s an element of the offence, so unless admitted it’s up to the prosecution to prove it.


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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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ford poplar
post Mon, 4 Jun 2018 - 02:22
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IMO already decided. If satnav is receiving real time data from a sat, it is a telecommunications device. The only question, was it hand-held at time of alleged incident?
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The Rookie
post Mon, 4 Jun 2018 - 05:36
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QUOTE (ford poplar @ Mon, 4 Jun 2018 - 03:22) *
IMO already decided. If satnav is receiving real time data from a sat, it is a telecommunications device.

I think it's any data it receives terrestrially that makes it a telecommunications device, there is an argument that receiving a time and location from a satellite isn't telecommunications which is usually classed as an exchange of information not necessarily just a random receipt.


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morrisman
post Mon, 4 Jun 2018 - 06:35
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QUOTE (The Rookie @ Mon, 4 Jun 2018 - 06:36) *
QUOTE (ford poplar @ Mon, 4 Jun 2018 - 03:22) *
IMO already decided. If satnav is receiving real time data from a sat, it is a telecommunications device.

I think it's any data it receives terrestrially that makes it a telecommunications device, there is an argument that receiving a time and location from a satellite isn't telecommunications which is usually classed as an exchange of information not necessarily just a random receipt.

Most if not all phone based satnavs not only get position data from satellites but also receive traffic information from the internet which is ' data it receives terrestrially'



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djtaylor
post Mon, 4 Jun 2018 - 07:39
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Out of curiosity then, is a phone without a SIM card a telecommunications device if it's not receiving data any more than a gun isa murder weapon, just not all the time?

There comes a point where the whole intent of the legislation is missed and the argument degrades into semantics and pedantry purely for the sake of legal face saving.
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The Rookie
post Mon, 4 Jun 2018 - 08:37
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QUOTE (djtaylor @ Mon, 4 Jun 2018 - 08:39) *
Out of curiosity then, is a phone without a SIM card a telecommunications device if it's not receiving data any more than a gun isa murder weapon, just not all the time?

There comes a point where the whole intent of the legislation is missed and the argument degrades into semantics and pedantry purely for the sake of legal face saving.

But owning a gun is subject to certain restrictions using a phone illegally requires use, if you cant use it illegally then there is no offence, poor example.


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