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Guilty or Not Guilty?, Use of a handheld device
Ali15
post Mon, 5 Mar 2018 - 18:26
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Hey everyone!

I was hoping to get some help and suggestions on what to do next.

I'll tell you guys straight the whole story. As I rather get the correct advice than going to court looking like an idiot trying to pull a fast one.

So here it goes:

During 2017 I was a victim of crime 6 times within a space of 7 - 8 months. These were all related to my car. I had one car which was stolen and the other all were attempted thefts and vandalism. I do have all the crime reference numbers.

No arrests have been made due to lack of evidence and poor police resourcing.

On the 12/11/2017 I was at a traffic light which was red and my intentions were to drive home. But a bizarre thing happened to me which resulted in me using my mobile phone.

Whilst at the traffic light, I thought I saw a vehicle identical to mine, shape, color and with the same registration number. In a haste, I panicked and I grabbed my phone off my car mount with the intention of recording the vehicle I had seen. Once I had proof I was going to call the police or go to the police station with the footage.

Otherwise, if I had gone to the police station saying I thought I saw a car with my registration number, I mostly liked would have been fobbed off with a crime reference number and again a letter saying not enough evidence to pursue.

Because the opposite traffic light had turned green the vehicle which I saw moved off. Whilst still being stationary I attempted to look at the footage and unfortunately, it was not usable because it was blurry and you couldn't see anything. I was trying to record it to quickly before the car had moved away. Anyhow, I deleted the footage and all of a sudden, on my left-hand-side I heard a horn.

It was a police officer in an unmarked, no blue capabilities vehicle (basically one of those community support area cars) telling me to pull over. He was recording using his right hand with his body cam which he had taken off his vest and steering with his left hand.

Once the traffic light had turned green, I turned right and pulled over. The police officers informed me that i am going to be given a ticket for using my mobile phone. Now at this point due to the officer's rudeness i just wanted to give my details and appeal later, so i got interviewed on the spot which i replied NO COMMENT to everything.

I was doing this so once i had been done with the police I wanted to drive around the area to see if I could spot this vehicle again. I didn't say anything to the police because again, a young Asian man, in east London, - police seen using a mobile phone and all of a sudden i say the above with no proof? sounds like someone is trying to pull a fast one from getting away from the points.

At this point, I was done with the police and free to go. Now i drove around but no luck. So i gave in and was expecting a letter from the police and to be honest at this point i was just going to take the 6 points.

Now. During 18th Nov - 31st Dec, I was out of the country with my family. My current car was parked at Heathrow's secure car park with 24/7 CCTV during that period.

Once i returned, i got some letters of which some of them were PCN's. At first glance - I made myself a cup of coffee and was ready to pay them. Now when entering the PCN details on the councils' website. I noticed one of the dates which were during when i was away and supposedly my car should have been at the Heathrow car park.

My first impression was someone from the car park was driving my car around and got a ticket. So fuming I phoned up the manager who checked the CCTV and confirmed my car had not been touched or moved.

We looked at the pictures closer.... and confirmed it's not my car! It's was only that car I first spotted when I was pulled over by the police! He got a PCN! Only 6miles from my registered home address.

I've attached the pictures. The biggest give away is the back - It has an Addison Lee signage but I phoned Addison Lee who confirmed this car was not in their fleet.

Anyways, now I received 6 points conditional offer which I ignored and I am wanting to go court.

I never had the intention to use my mobile phone whilst driving because to be honest, I don't need to because my car has Bluetooth etc. It was just I wanted to catch that bloody criminal.

My question is:
Am I guilty of using my mobile phone or not? (Yes I did have it in my hand when the police officer told me to pull it over)
What can I do about this?

The cloning of my car has been reported to ActionFruad who are investigating it still,
My D/L is currently clean no points.


Any advice is much appearcited guys.
Thank you in advance.

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post Mon, 5 Mar 2018 - 18:26
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southpaw82
post Mon, 5 Mar 2018 - 18:46
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Cutting through all the verbiage the issues seem to be:

1. Is using the camera function on your phone an offence under reg 110, and

2. If the answer to 1 is "yes", does using it for the purpose you claim create an exemption?

My own view is (1) no... however, the prevailing view of the courts seems to be yes. My opinion of (2) is no.


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andy_foster
post Mon, 5 Mar 2018 - 20:22
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The OP appears to have claimed to have been stationary during the whole episode - which suggests a further question - was he "driving" for the purposes of Reg 110?


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notmeatloaf
post Mon, 5 Mar 2018 - 20:52
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As has been alluded to Regulation 110 prohibits using a handheld device to carry out an "interactive communication function".

It is pretty clear that using your camera, playing footage and deleting it is not an interactive communication function.

In your favour are the fact that apparently this other car does actually exist, and also the bodycam footage may show you clearly using your camera.

On the other side you decided to review and delete the footage immediately afterwards, therefore deleting the best piece of evidence you had. Presumably you did not attempt to use any of the file recovery apps which may have got it back. Also, you did not mention the camera to the police at the time, which would normally be a logical thing to do if you had good reason to use your phone.

It will end up in court if you dispute it and a lot will come down to how credible you appear as a witness, thus persuading the bench that it isn't a story you've thought of after the event.

As for Andy's point the CPS guidance specifically mentions waiting at a light as "driving", which would fit with the common interpretation of "driving to work" which is a continuous process not interrupted when the vehicle is stationary but still in lane and waiting to move again. I think not using it as an interactive communication device is a more viable defence.

https://www.cps.gov.uk/legal-guidance/road-...s-mobile-phones
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southpaw82
post Mon, 5 Mar 2018 - 20:53
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QUOTE (andy_foster @ Mon, 5 Mar 2018 - 20:22) *
The OP appears to have claimed to have been stationary during the whole episode - which suggests a further question - was he "driving" for the purposes of Reg 110?


True but I think it would be a stretch to argue that he wasn’t. Possible but difficult.

QUOTE (notmeatloaf @ Mon, 5 Mar 2018 - 20:48) *
As has been alluded to Regulation 110 prohibits using a handheld device to carry out an "interactive communication function".

Does it?


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notmeatloaf
post Mon, 5 Mar 2018 - 21:07
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QUOTE (southpaw82 @ Mon, 5 Mar 2018 - 20:53) *
QUOTE (notmeatloaf @ Mon, 5 Mar 2018 - 20:48) *
As has been alluded to Regulation 110 prohibits using a handheld device to carry out an "interactive communication function".

Does it?

Does to me but that doesn't mean I'm right.

110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4).

...

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
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southpaw82
post Mon, 5 Mar 2018 - 21:12
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To me, that describes the device you can't use, not the function to which it can't be put.


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notmeatloaf
post Mon, 5 Mar 2018 - 21:47
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QUOTE (southpaw82 @ Mon, 5 Mar 2018 - 21:12) *
To me, that describes the device you can't use, not the function to which it can't be put.

Yes, but in the (slightly infamous and I appreciate not always accepted) Jimmy Carr case it was successfully argued that a smartphone has many modes, not all of which would be considered a device covered by (4). For instance, on many smartphones mine included you can access the camera with a single button press without unlocking the phone, essentially it is not possible to use it as (4) device during that time.

Obviously it is not a simple defence as you are quite right that the perhaps more straightforward interpretation would be that a phone is covered by (4) even when not used. But phones have definitely become increasingly separate devices combined in one case since 2009.

This post has been edited by notmeatloaf: Mon, 5 Mar 2018 - 21:48
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southpaw82
post Mon, 5 Mar 2018 - 21:57
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QUOTE (notmeatloaf @ Mon, 5 Mar 2018 - 21:47) *
QUOTE (southpaw82 @ Mon, 5 Mar 2018 - 21:12) *
To me, that describes the device you can't use, not the function to which it can't be put.

Yes, but in the (slightly infamous and I appreciate not always accepted) Jimmy Carr case it was successfully argued that a smartphone has many modes, not all of which would be considered a device covered by (4). For instance, on many smartphones mine included you can access the camera with a single button press without unlocking the phone, essentially it is not possible to use it as (4) device during that time.

Obviously it is not a simple defence as you are quite right that the perhaps more straightforward interpretation would be that a phone is covered by (4) even when not used. But phones have definitely become increasingly separate devices combined in one case since 2009.

If the object being held is not a mobile phone or a device that performs an interactive communications function then the offence is not made out, regardless of what you're doing with it.


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cp8759
post Tue, 6 Mar 2018 - 14:12
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QUOTE (andy_foster @ Mon, 5 Mar 2018 - 20:22) *
The OP appears to have claimed to have been stationary during the whole episode - which suggests a further question - was he "driving" for the purposes of Reg 110?

I queried this with the CPS recently and this is the reply I got:

The test for “driving” is a combination of whether an individual is in a substantial sense controlling the movement and direction of a vehicle and the general meaning of the word “drive”.

The most relevant decision for stationary vehicles appears to be:

Planton v DPP [2002] R.T.R. 9, DC

• D was in a stationary vehicle with the lights on and engine running.
• Held that he had been “driving”.
• The stationary state of a vehicle is not the sole determinative factor as to whether it is being driven. His vehicle was in a place that he could not provide any explanation for how it got there other than that the car had been driven there by him.

It is a question of fact and degree as to whether the vehicle has been stopped so long and in such circumstances that it could not reasonably be said that the person in the driving seat was driving. (Archbold 32-11)

There is earlier case law dealing with other specific scenarios: Leach v DPP [1993[ R.T.R. 161, DC, where the driver was held not to be driving when he was sat in a stationary car and then proceeded to turn the engine on in the presence of a police offer. So it really does appear to depend on the facts of the individual case. But certainly, the fact that the vehicle is stationary does not conclusively mean that the individual was not driving.


Now, I'm not saying it isn't possible to argue that the OP wasn't "driving", but I would take the view that if the OP was stationary at traffic lights (as opposed to, for example, stationary in a car park), the man on the Clapham omnibus would say that he was "driving".

If any exemption might have existed for the purpose of filming the cloned car, the decision to review the footage while "driving", rather than stopping by the side of the road first, was a bad decision that would have made the exemption no longer applicable. A better decision would have been to call 999 as soon as the vehicle had passed, as that would have provided a statutory defence (Even if you didn't have the footage, it would be reasonable to ask for the VRM to be circulated to any officers in the area).

As for the Jmmy Car defence, that was a Magistrates Court decision and I can't find any evidence it went any higher than that, so a different court could reach the opposite conclusion. I would take the view that on a strict statutory construction, if the object being held is a mobile phone and it is being "used", the offence is committed; I'm somewhat surprised the CPS didn't appeal. Until someone does take the matter to the High Court, it's not a defence I would want to rely on.


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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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andy_foster
post Tue, 6 Mar 2018 - 23:44
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If the mischief rule is applied, or the legislation interpreted purposively, it would seem that Parliament's intention was to stop people who were in a substantial sense controlling the movement and direction of a vehicle from doing so whilst distracted or otherwise inhibited from doing so properly by using a hand-held mobile phone.

Now that the offence carries 6 points, it seems absurd that Parliament could have intended such a harsh penalty for using a device when the vehicle does not require attention to control it as it is not being actively driven.

Also, when used as a phone (as opposed to any one of the many non-interactive functions that modern smartphones can be used for), Art 10 ECHR is engaged. The state cannot simply prohibit or otherwise interfere with the right to communicate on a whim - it must be necessary and proportionate.


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cp8759
post Wed, 7 Mar 2018 - 00:36
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andy_foster I don't disagree, everything you have said *might* persuade a divisional court to interpret the legislation in that way. I'm sure at some point a footballer or some other person for whom money is no object will fight it all the way.

The issue for the OP then becomes, is he willing to risk taking the matter to court and potentially having to privately fund an appeal by way of case stated at the High Court? I think that in fairness we would have to say that the outcome is, at the very least, uncertain, and the downside risks just in terms of costs far exceed the cost of the FPN.


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notmeatloaf
post Wed, 7 Mar 2018 - 10:32
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QUOTE (andy_foster @ Tue, 6 Mar 2018 - 23:44) *
Parliament's intention was to stop people who were in a substantial sense controlling the movement and direction of a vehicle from doing so whilst distracted or otherwise inhibited from doing so properly by using a hand-held mobile phone.

Judging by the ~50% of people around here who hold their car with the foot brake when stopped there is still an element of active control even when stopped at a red light.

I think you are right that there is a more nuanced interpretation than that postulated by the CPS "if they are in lane than they are driving". But we have to be realistic to the OP that with limited means and expertise then it is not going to be the easiest case to win especially with the legislation itself being relatively vague.
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122basy
post Wed, 7 Mar 2018 - 14:16
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QUOTE (southpaw82 @ Mon, 5 Mar 2018 - 21:12) *
To me, that describes the device you can't use, not the function to which it can't be put.

Exactly!
A hand-held mobile telephone, held in the hand, remains a hand-held mobile telephone even if you use one of its other functions.

The law, as made, would be useless if it set out a requirement for the police to prove what the device was being used for. That would be nigh-on impossible.

Perhaps the police should simply be seizing the mobile telephone for evidence of what it is. 110(4). Or photographing it to record the make and model.

Expecting the police to show what the use was is unreasonable and virtually impossible to prove without significant investigation. The "use" was not defined to avoid that requirement. If an officer sees a mobile telephone in someone's hand it is down to the accused to explain how, holding a mobile telephone while driving, was not putting the device to some use.

I agree that the police need to use common sense in how it is dealt with but driving while obviously holding your phone and appearing to be putting it to some use is simple to evidence and the offence is complete. Back to the accused to come up with a "reasonable" reason why it appeared it was being used and for what for or to claim one of the statutory exemptions.

Jimmy Carr didn't have a statutory exemption and his "use" completed the offence as the device met the definition in 110(4). The Magistrates erred in the face of a smart lawyer.
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notmeatloaf
post Wed, 7 Mar 2018 - 14:56
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QUOTE (122basy @ Wed, 7 Mar 2018 - 14:16) *
Expecting the police to show what the use was is unreasonable and virtually impossible to prove without significant investigation. The "use" was not defined to avoid that requirement. If an officer sees a mobile telephone in someone's hand it is down to the accused to explain how, holding a mobile telephone while driving, was not putting the device to some use.

That is exactly what has happened. The OP has said they were not using the phone as a phone, but only as a camera. They seem to have some evidence making their claim more credible with the cloned vehicle that was later found.

If they are found to be credible it is for the prosecution to show that the device was still a hand held mobile phone within the scope of the legislation, not the other way round.

In common parlance when using a phone in a "one button" camera mode it is "using your phone as a camera". Not a "phone camera". The method of use precludes the device actually being used for any interactive communications, because it remains locked throughout. Similar functionality can be found for torches and all manner of other single purpose functions.

When the legislation was drafted of course such functionality didn't exist. But I think there is at least an argument that a phone incapable of being used as a phone is not a "mobile device" envisaged in the legislation.

This post has been edited by notmeatloaf: Wed, 7 Mar 2018 - 14:57
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TonyS
post Wed, 7 Mar 2018 - 15:46
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QUOTE (cp8759 @ Tue, 6 Mar 2018 - 14:12) *
I queried this with the CPS recently and this is the reply I got:

[i]The test for “driving” is a combination of whether an individual is in a substantial sense controlling the movement and direction of a vehicle and the general meaning of the word “drive”.

The most relevant decision for stationary vehicles appears to be:

Planton v DPP [2002] R.T.R. 9, DC

• D was in a stationary vehicle with the lights on and engine running.
• Held that he had been “driving”.
• The stationary state of a vehicle is not the sole determinative factor as to whether it is being driven. His vehicle was in a place that he could not provide any explanation for how it got there other than that the car had been driven there by him.

Not sure why proving that the car had been driven (ie in the past) means by definition that it continues to be driven even after it was parked. The argument there seems to be that he must have driven while over the limit prior to parking.
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122basy
post Wed, 7 Mar 2018 - 16:39
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QUOTE (notmeatloaf @ Wed, 7 Mar 2018 - 14:56) *
QUOTE (122basy @ Wed, 7 Mar 2018 - 14:16) *
Expecting the police to show what the use was is unreasonable and virtually impossible to prove without significant investigation. The "use" was not defined to avoid that requirement. If an officer sees a mobile telephone in someone's hand it is down to the accused to explain how, holding a mobile telephone while driving, was not putting the device to some use.

That is exactly what has happened. The OP has said they were not using the phone as a phone, but only as a camera. They seem to have some evidence making their claim more credible with the cloned vehicle that was later found.

If they are found to be credible it is for the prosecution to show that the device was still a hand held mobile phone within the scope of the legislation, not the other way round.

In common parlance when using a phone in a "one button" camera mode it is "using your phone as a camera". Not a "phone camera". The method of use precludes the device actually being used for any interactive communications, because it remains locked throughout. Similar functionality can be found for torches and all manner of other single purpose functions.

When the legislation was drafted of course such functionality didn't exist. But I think there is at least an argument that a phone incapable of being used as a phone is not a "mobile device" envisaged in the legislation.

I have an iPhone, it can operate as a camera, it's still a mobile telephone capable of interactive communications when used as a camera. It doesn't lose its fit to the definition in 110(4) because it is used as a camera. Put quite simply, I am not allowed to hold it in my hand and use it while I am driving because it is a hand-held mobile telephone...being used as a camera.

I am well aware the OP "said they were not using the phone as a phone, but only as a camera." 110 says you can't "use" the hand-held mobile telephone while driving. Did the OP use it while driving? Yes he admits it was used while driving.
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Ali15
post Wed, 7 Mar 2018 - 17:34
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Thank you all for your comments,

Who knew this could be so complicated.... Personally, I don't have the financial means to afford a private legal battle...

What happened to the days were you just honest about what you did and the judge be like you know you made a mistake etc ill let you off....

Another question just sidetracking a little. - What about the police officer who was holding his body cam? He took off the body cam and held it in his hand pointing towards the driver's window to record me whilst he was driving, does this like not imply he didn't have proper control or something, i mean is this even allowed?

In regards to deleting the footage, yes that I regret, but at the time just in shock and wanting to catch the b....... I didn't think.

The issue I have with this 6 points is because I have had one car stolen etc... if the courts issue me 6 points it would make me getting insurance VERY VERY difficult as I already live in a high premium area and put me in hardship.

One need my car for my family, my 91year old dad! and 4 kids (of which one has a disability)
Second 6 points would increase the premium so much that i may be unable to even afford it thus going back to my other issue of not be able to take care of my family adequately whom all rely on me. Otherwise, as I've mentioned with a clean D/L i would of just taken this on the chin.

This is just making me depressed argh!

This post has been edited by Ali15: Wed, 7 Mar 2018 - 17:46
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notmeatloaf
post Wed, 7 Mar 2018 - 17:39
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The issue is always the intention of parliament. At the time the intention was very clear, to tackle people talking on the phone whilst driving. The situation we are describing simply didn't happen, the first iPhone hadn't even been announced.

We are now in a situation where you can pay your Severn crossing toll with a NFC mobile phone whilst stationary but still definitely "driving". So there has to be a line drawn somewhere. Personally I think if no direct mobile phone usage is proved then the offence should be not in proper control and it can then be defended on that basis, which to be fair is what many police forces seem to be doing.

Otherwise you end up with the OTT advice you sometimes see on here about putting your mobile phone in the boot you can "prove" to police it wasn't in your hand, or a potential prosecution simply for picking up a mobile being used as a satnav to look at it whilst stationary. A less appropriate offence, but now more harshly punished, should not be used simply because it is easier to prove.

That is to some extent playing devil's advocate. It would really need testing in court. But the legislation needs updating anyway now you can compose text messages and emails by voice.

This post has been edited by notmeatloaf: Wed, 7 Mar 2018 - 17:41
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The Rookie
post Wed, 7 Mar 2018 - 17:46
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QUOTE (Ali15 @ Wed, 7 Mar 2018 - 18:34) *
What happened to the days where you just were honest about what you did and the judge be like you know you made a mistake etc ill let you off....

As they never existed I’m not sure how I can explain what happened to them.....

Police officers had more scope for using their dissection than they do now, but that’s a whole different argument.


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